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Is Police Reform Possible Under Police State Trump?

From federal police to beat cops, we may see draconian policies and the rolling back of hard-won civil rights.

Police officers brandish guns at a protest decrying Freddie Gray's murder in Baltimore, Maryland, on April 29, 2015.

Police forces across the nation have been emboldened by Donald Trump’s election victory last month, including the nation’s largest police union, the Fraternal Order of Police, which endorsed Trump in September. With law enforcement organizations celebrating the ascendance of a “law-and-order-loving” president-elect, what’s at stake now for the movement to rein in police abuses after January 20?

We can anticipate draconian policy changes and the rolling back of hard-won civil rights under the incoming Trump administration. Trump’s cabinet, thus far, is populated with hard-liners and white nationalists. His pledges to end the “war on cops” are likely to translate into a renewed emphasis on the original institutional mission of policing — the vicious control, criminalization and surveillance of communities of color.

A Racist Agenda for Federal Criminal Legal Policy

President-elect Trump has nominated Republican Sen. Jeff Sessions of Alabama to become his attorney general, sparking widespread condemnations from civil rights organizations. One cause for alarm is the broad powers Sessions will have to determine how the Department of Justice (DOJ) treats civil rights cases relating to communities of color. He could also ramp up sentencing, deportations, the war on drugs and other criminal punishment policies, should he be confirmed.

Since Trump announced Sessions as his pick, many have come to learn of Sessions’s failed 1986 bid at a federal judgeship after he was rejected for the position by the Senate Judiciary Committee, in large part due to his referrals to the Southern Christian Leadership Conference and the NAACP as “un-American” and “Communist-led,” and his joke that he was “OK” with the Ku Klux Klan until discovering some members’ drug use.

The first sitting senator to endorse Trump during his presidential campaign, Sessions also attempted to prosecute civil rights advocates working to register Black voters in the South, accusing them of voter fraud. The case was eventually thrown out, but his pursuit of that case underscores his belief that the 1965 Voting Rights Act is an “intrusive piece of legislation.”

In addition to opposing the removal of the Confederate flag from state property (Sessions is named for the president of the Confederacy and a Confederate general), he once told a Black lawyer working in his office when he was a U.S. Attorney in Alabama that he should watch how he spoke to “white folks,” and has openly pondered whether a white lawyer who defended Black people should be considered a race traitor. He has an established record of codifying his personal bigotry into policy, including voting against criminal punishment reforms.

Sessions would almost certainly soften the DOJ’s role in overseeing local police departments across the U.S. Under U.S. Attorneys General Eric Holder and Loretta Lynch, the DOJ has increased its use of a 1994 law allowing the federal government to investigate allegations of a “pattern or practice” of civil rights violations at local police departments. Under President Obama, the DOJ has initiated 23 pattern-or-practice investigations and negotiated 11 consent decrees to force police reforms in cities like Baltimore, Cleveland, Albuquerque and others. But Sessions criticized such federal intervention in the foreword to a 2008 white paper for the Alabama Police Institute as federal overreach.

“Under Bush, basically, all the DOJ investigated was religious discrimination. They stopped looking at police brutality.”

Flint Taylor, a founding partner of the People’s Law Office in Chicago, has worked with Civil Rights Division staffers throughout his career, and has seen how the division has changed under Republican and Democratic presidential administrations. He has also observed the changes that have come about since the Violent Crime Control and Law Enforcement Act of 1994 gave the division the ability to go after municipal departments for persistent civil rights violations.

“Under Bush, basically, all [the DOJ] investigated was religious discrimination. They stopped looking at police brutality,” he told Truthout.

Taylor suspects some of the staffers currently working to investigate civil rights abuses may vacate the department if Sessions is nominated and appoints a right-wing, racist compatriot to head the Civil Rights Division.

For Taylor, Chicago is a kind of microcosm for a thought experiment about what the impacts to the Civil Rights Division could mean for curtailing police brutality in large urban cities. The division’s ongoing pattern-or-practice investigation into the Chicago Police Department’s (CPD) use of force against communities of color provides a palpable example of just what’s at risk if a white supremacist serves as the nation’s top cop.

Taylor is worried that any potential consent decree between the Justice Department and the CPD may get “washed away” under Sessions. “We had confidence that [DOJ] would do, within the boundaries of their discretion, a meaningful consent decree here in Chicago, but they don’t really have the time to do that before Trump takes over.”

Politicians and activists in Chicago have pressured the Justice Department to expand its ongoing pattern-or-practice investigation there to include the treatment of people who have been held at a secretive, off-the-books warehouse known as Homan Square. The warehouse has functioned as a domestic black site, where prisoners have been subjected to torture and held without access to an attorney. “That was something that needed to be shut down, and you can predict that that certainly will not be investigated under a Trump administration,” Taylor says.

“The question is whether or not the federal government will continue to play its very important role of being a check on state and local law enforcement.”

While Monique Dixon, the deputy director of policy for the NAACP’s Legal Defense Fund, is similarly concerned about the potential scaling back of federal investigations into police departments, she points out that the DOJ could have used the 1994 law more aggressively than it has even under President Obama. The division has only opened about 66 investigations since 1994, entering into consent decrees in about half of those cases. According to one study, the division only investigates 0.02 percent of the country’s nearly 18,000 state and local police agencies each year.

“The Department of Justice, while it has done some work, could and should do more in terms of monitoring and investigating the police-involved shootings, excessive use of force and biased policing that we’re seeing across the country,” Dixon says. “The question is whether or not the federal government will continue to play its very important role of being a check on state and local law enforcement agencies.”

In October, the Justice Department announced that it would begin collecting nationwide data on police shootings and use-of-force incidents early next year. Civil rights advocates like Dixon and Taylor worry that this initiative will be left to languish under a potential Sessions Justice Department. Likewise, Sessions could roll back many other DOJ initiatives aimed at reconciling relations between police and communities of color.

If Sessions is nominated, he could also affect the prosecutorial standards and emphases of federal prosecutors, who are appointed by the president. “While they have quite a bit of discretion, the U.S. Attorneys do look to the Department of Justice for guidelines and guidance in terms of what to focus on,” said Jeffrey Bumgarner, a department head and professor of Criminal Justice and Political Science at North Dakota State University.

Moreover, the ground that police reform advocates have gained in regards to militarization of urban policing under President Obama could soon be lost. Trump has said he intends to disband the working group President Obama established to reduce the availability of military gear to local police departments, and has commented that the federal military surplus program is “an excellent program that enhances community safety.” Additionally, any strings attached to federal policing grant money outlined under the Obama administration could be diminished or eviscerated in the coming months.

Bumgarner predicts a general expansion in certain federal police agencies and a potential reshuffling of federal law enforcement officers between agencies based on the priorities of the Trump administration. Those with desk jobs at Immigration and Customs Enforcement (ICE) may soon be working in the field to help deport millions of undocumented immigrants. There could also be changes in how the FBI opens national security and terrorism investigations, such as the relaxing of some limitations on how federal law enforcement enters into or conducts those investigations. (The DOJ has already moved to loosen those standards in recent years.)

“U.S. Attorneys do look to the Department of Justice for guidelines and guidance in terms of what to focus on.”

One of the most nightmarish ways in which federal changes could resonate at the local level is a potential increase in information-sharing among federal agencies, such as the Department of Homeland Security and local police agencies, via interagency data hubs known as fusion centers. Moreover, law enforcement agencies’ acquisition and use of high-tech surveillance gear — from cell-site simulators used to collect and monitor data on smartphones, to facial recognition systems, drones, license plate readers and predictive policing technologies — could increase, intensifying the disproportionate monitoring of communities of color.

Dave Maass, an investigative researcher with the Electronic Frontier Foundation, told Truthout that the reforms the DOJ announced last year requiring federal agencies, including the FBI and U.S. Marshals, to obtain a warrant before using cellphone tracking “StingRay” technology could be threatened under a new Justice Department regime.

Furthermore, Maass points out that if the DOJ undoes former Attorney General Eric Holder’s reforms to federal asset forfeiture laws, it could significantly impact how local departments acquire expensive, high-tech gear. “Holder had changed some of the ways that [the DOJ] handles asset forfeiture disbursements … and it really changed how much money would be flowing to local agencies to spend on whatever goodies they want to buy,” Maass said. “We’ve traditionally seen asset forfeiture money go to fund electronic surveillance…. If that money starts flowing back into local law enforcement agencies, then maybe we also see a resumption of acquiring these surveillance technologies.”

“If that money starts flowing back into local law enforcement agencies, then maybe we also see a resumption of acquiring surveillance technologies.”

Maass also notes that the Trump administration will have access to terabytes of data resulting from the use of such high-tech spy gear as license-plate reader databases managed by private companies, such as Vigilant Systems. “To a certain extent you want to have faith in the Department of Justice and other law enforcement entities and the federal government to use that responsibly, but depending on what the mission is, that [information] could be ultimately super revealing.”

Trump will gain expansive powers over covert law enforcement and intelligence programs, inheriting massive surveillance apparatuses put in place after 9/11 and codified under the Bush and Obama administrations and in internal policy documents reviewed by the DOJ Office of Legal Counsel. The federal government’s long, documented history and ongoing surveillance and repression of dissident movements provide the Orwellian backdrop to Trump’s seizure of these state tools.

“All of these aspects of police fascism are in place to some degree, and are being used.”

“All of these aspects of police fascism are in place to some degree, and are being used, but what we are going to see, if we’re unable to resist this successfully, is it all being heightened, being funded,” Taylor of the People’s Law Office says. “In the same way that Trump encourages hate crimes and misogynistic behavior, both financially and ideologically, the police are going to be emboldened.”

State and Local Policing Reforms in the Trump Era

Over the past few years, statehouses across the U.S. have taken some steps toward policing reform. These measures have included legislation aimed at creating formal reviews and task forces to examine policing practices, increasing transparency in investigations into police-perpetrated shootings, collecting data on police-perpetrated shootings and stops, and requiring the use of body-worn cameras. According to the National Conference of State Legislatures, 27 states enacted police reform measures last year, a trend that could continue, as police reform measures are still pending in a number of state legislatures.

“You might not see a lot of greater empowering of the police, as much as you’ll see a slowing down of the restrictions on the police.”

But with Republicans dominating 33 state legislatures, the future of these state-level efforts is difficult to predict. “Over the past few years, especially with some of the high-profile incidents, there was a lot of steam getting behind measures to restrict the police or to hold them more accountable, and what you might just see with these Republican legislatures is that those pieces of legislation just never make it out of committee and they just don’t get any traction anymore,” said Professor Bumgarner. “So you might not see a lot of greater empowering of the police, as much as you’ll see a slowing down of the restrictions on the police.” States where the Republicans in power are more Libertarian-leaning — that is to say, suspicious of government and more concerned about constitutional limits — could prove to be an exception, however.

But police reform advocates are worried about the proliferation of bills that hinder police accountability, like the one Pennsylvania Gov. Tom Wolf vetoed last month, which would have criminally charged public officials who identify police officers who killed someone within 30 days of the incident. Similarly, after the high-profile shootings of police officers in Dallas, Texas, and Baton Rouge, Louisiana, this past summer, legislators across the U.S. are considering “Blue Lives Matter” bills that designate police officers as a “protected class” covered by hate crime laws.

Yet, officials in some states are pledging noncooperation if the Trump administration veers toward extreme measures. In particular, a number of states have vowed to resist Trump’s immigration agenda. Los Angeles Police Chief Charlie Beck, for example, has said he will not change a policy that prevents cops from questioning people about their immigration status. Many state legislators and Democratic mayors have followed California’s lead, vowing to resist Trump’s deportation plans and provide sanctuary to undocumented immigrants — and it’s on the local level where resistance to the U.S.’s mostly decentralized policing structure will be most effective after Trump takes office.

In fact, for criminal legal reform advocates, local sheriff and district attorney victories were some of the only bright spots during the long night of November 8. Democrats who campaigned on criminal legal reforms were elected to district attorney seats in Jefferson County, Alabama; Harris County, Texas; and Hillsborough County, Florida, while the infamous Sheriff Joe Arpaio in Arizona lost his bid for reelection.

In questionnaires issued by both the International Association of Chiefs of Police and the Fraternal Order of Police, Trump responded regarding his policy positions on police reform issues by saying the federal government should not get involved in local matters, and while this hands-off approach doesn’t bode well for the DOJ’s Civil Rights Division, it leaves an opening for activists to harness local politics.

“Even when these mayors are offering sanctuary in their cities, it still doesn’t prevent a lot of Black people and Brown people in this country from further harm.”

Local organizing is perhaps the most significant force in battling the use of tactics, such as stop and frisk, which Trump has said major cities should implement. Local agencies, including city councils, can be the first line of defense against such tactics, even if Sessions moves to tie federal funding for local police agencies to policies like stop-and-frisk. Local city governments are most often the primary decision makers when it comes to acquisition of military and high-tech equipment, issues of funding and the ways in which certain crimes are prosecuted. Municipal organizing can be a viable front in challenging systemic rights violations, regardless of whether or not the DOJ chooses to confront them.

However, the promises of local officials can only go so far. As Million Hoodies Executive Director Dante Barry puts it, “We know that even when these mayors are offering sanctuary in their cities, it still doesn’t prevent a lot of Black people and Brown people in this country from further harm, and it doesn’t necessarily negate the fact that Black and Brown people don’t feel safe in this country.”

That’s why racial justice organizers are building their own community infrastructures in ways that bypass state mechanisms entirely.

Activists Work to Shield Their Communities From the State

Activists across the nation are already preparing for an expansion of policing under Trump by organizing and insulating themselves from the criminal punishment system.

Barry told Truthout that Million Hoodies is looking to the historical precedent set by the Black Panthers under President Nixon for ideas on how to safeguard their own communities under Trump.

“We’re thinking of creating spaces where we know that the federal government may not be able to support our folks, and really developing alternative institutions in order to meet the needs of our community,” Barry told Truthout. “We’re looking at the Panthers’ development of breakfast programs in order to meet the needs of the community when the federal government does not.”

In cities across the country, activists are organizing self-defense, know your rights, racial justice, and information security and encryption trainings in communities likely to come under siege.

“We’re looking at the Panthers’ development of breakfast programs in order to meet the needs of the community.”

In Austin, Texas, for instance, organizers are already strategizing about how to protect each other without relying on the state. A local Anarchist Black Cross group is working with the cop-watching organization Peaceful Streets Project to put together workshops covering information security and what to do during a police encounter.

“I think it’s good to approach this as both an education and a mobilization effort. We definitely want to educate as many people as possible, and let them know what their options are,” said Peaceful Streets co-founder Antonio Buehler. “Let them know that they don’t have to just succumb to the police state, and that there are ways to push back and protect yourself as much as you can — and then give an opportunity for those who want go the next step to get engaged in direct action.”

Buehler’s long-term vision for building toward this kind of alternative community infrastructure includes organizations that could provide conflict resolution and restorative justice, mental health support and a community defense force trained in de-escalation tactics.

But in order to get there, organizers will need to step up in their own communities to build that future.

“What I think this moment actually presents is that we must be very vigilant and demonstrate powerful leadership around how we build a mass movement to stop fascism and stop white supremacy,” Barry said.

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