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Opinion The Orlando shooting was not a vindication of police militarization

On Tuesday, a police officer stands guard at a roadblock near the scene of the mass shooting at the Pulse nightclub in Orlando on Sunday. (David Goldman/Associated Press)

In the few days since the horrific mass shooting at the Pulse nightclub in Orlando, a number of pundits and law enforcement officials have cited the incident and the ensuing police response as vindication for the idea that we need to further militarize the United States’ police forces. Or more to the point, they’re citing Orlando as proof that critics of police militarization are wrong.

I’m a longtime critic of police militarization. I disagree. It’s a pretty facile and simplistic way of looking at the issue. It gets the criticisms of police militarization wrong, it ignores important context and subtlety and, perhaps most critical, it doesn’t accurately reflect what happened in Orlando.

So here are a few responses to those critics:

1. Few people think SWAT teams shouldn’t exist.

I certainly don’t believe that. I don’t know of any prominent police militarization critics who do. SWAT-like force is perfectly appropriate when the police are using violence to defuse an already violent situation. The problem is that the vast majority of deployments of SWAT teams today are to serve search warrants with overwhelming force in an effort to catch a suspect off-guard. Which is to say that the vast majority of SWAT deployments today are creating violence, risk and confrontation where there was none. Even that could be justified if these were, say, arrest warrants for escaped fugitives with a violent history, or even search warrants for evidence related to violent crimes. But that isn’t the case. Most SWAT deployments are to serve search warrants for drug crimes.

Here’s another way to look at it: SWAT tactics are necessarily aggressive and violent, and require a very low margin of error. There’s a lot of risk involved in these operations — to the SWAT officers, to the suspect and to bystanders. The tactics themselves are punishing, by design. A SWAT deployment is essentially a legalized assault and battery. Flashbang grenades, which are often used during SWAT operations, are designed to inflict temporary injury on everyone near them. All of that risk and violence is acceptable when it’s being used to apprehend someone who is in the process of committing a violent crime, and will continue to do so unless he’s stopped. The risk is acceptable when not using a SWAT team almost certainly means more people will die. It’s much more difficult to justify that level of risk and violence when you’re talking about searching the home of someone suspected of selling marijuana. Here, you’re using overwhelming force and violence not to apprehend someone who is in the process of committing a violent crime, but to collect evidence against someone who is still only suspected of committing a nonviolent crime.

While it’s true that when used appropriately, SWAT teams can serve a useful purpose, it’s also true that not every town and county in the United States needs one. At least 80 percent of towns with 35,000 or more people now have a SWAT team. Throw in sheriff’s departments, task forces and state police, and most such towns are served by several.

Here’s a good example that occurred about 90 miles from this weekend’s shooting: A couple of years ago, a Tampa resident named Jason Westcott reported to police that someone had broken into his home and threatened him. The police tracked down the suspect, whom they apparently already knew to be a dangerous person. A police officer advised Westcott, “If anyone breaks into this house, grab your gun and shoot to kill.” A short time later, armed men broke into Westcott’s home. It wasn’t the man who threatened him. It was a Tampa SWAT team. They were serving a search warrant on Westcott, based on a tip from a confidential informant that Westcott was selling marijuana. When Westcott grabbed his gun as the SWAT officers piled into his home, they shot him dead. The informant later said he had lied about Westcott, both voluntarily and then after pressure from police officers. The police found about $5 worth of pot in Westcott’s home.

But we can also look at Orlando itself, where there’s a history of using paramilitary-style force to serve drug warrants. Back in 1998, an Orlando Weekly investigation found that 47 percent of SWAT deployments in Orange County resulted in no arrests at all. A look at the surrounding counties produced similar results — nearly half of the SWAT deployments resulted in fines for misdemeanors, or in no charges at all.

Of course, that was nearly 20 years ago. How about something more recent? In September 2014, the U.S. Court of Appeals for the 11th Circuit refused to toss out a lawsuit against the Orange County Sheriff’s Office filed by the owners and customers of several Orlando-area barbershops, most of which were owned by blacks or Latinos. It seems that the police suspected there was drug activity going on in these barbershops but didn’t have enough evidence to get a search warrant (which means that had very little evidence at all). So instead, the Sheriff’s Office went to the Florida Department of Business and Professional Regulation, which oversees the licensure of the state’s barbershops. I’ll just quote from the opinion from there:

It was a scene right out of a Hollywood movie. On August 21, 2010, after more than a month of planning, teams from the Orange County Sheriff’s Office descended on multiple target locations. They blocked the entrances and exits to the parking lots so no one could leave and no one could enter. With some team members dressed in ballistic vests and masks, and with guns drawn, the deputies rushed into their target destinations, handcuffed the stunned occupants—and demanded to see their barbers’ licenses.

The Orange County Sheriff’s Office was using SWAT-like tactics to check hair-cutting licenses. Moreover, the opinion points out that in 2007, the same appeals court “held that other deputies of the very same Orange County Sheriff’s Office who participated in a similar warrantless criminal raid under the guise of executing an administrative inspection were not entitled to qualified immunity.”

Because this discussion was invoked by an attack on a gay bar, it’s worth noting that Atlanta recently paid out a $1 million settlement after a 2009 SWAT-style raid on the Eagle, also a gay bar. Patrons were thrown to the ground at gunpoint, frisked, had their IDs confiscated and their names entered into a database, and were held for more than two hours, all based on unconfirmed tips about lewd behavior and unlicensed dancing. Some were handcuffed. Customers and employees reported that the officers mocked them and used homophobic slurs. The commanding officer of the raiding vice unit claimed the aggressive tactics were necessary because in his experience, gay people are more violent than straight people.

The same year, police in Fort Worth launched a similar raid, on a bar called the Rainbow Lounge, that resulted in one customer being hospitalized for head injuries. The raid was conducted on June 28, which happened to be the 40th anniversary of the Stonewall riots. The raid was officially an “alcohol inspection” and included agents from the Texas Alcoholic Beverage Commission.

Three years earlier, raid team stormed a gay gym in Albuquerque. Patrons were forced to lie on the ground at gunpoint. Officially, the raid was due to suspicion that the gym was serving alcohol without a license. On the search warrant, the police claimed the high level of force was necessary because the officers feared being sexually assaulted by the gym’s customers.

The discussion about police militarization that came out of Ferguson, and to a lesser extent after the Occupy protests, stemmed from objections to police putting on an overwhelming show of force in response to protests. It’s not only an intimidation tactic that threatens free expression (it isn’t difficult to see how people might feel reluctant to express themselves while a cop in military garb points a sniper rifle at them), there’s good evidence that when cops show up at a protest expecting violence, violence becomes inevitable. It’s instantly confrontational, and it dehumanizes both sides of the protest line in the eyes of those on the other side.

A city the size of Orlando should have a SWAT team. There’s nothing inconsistent about believing both that and that SWAT teams and paramilitary SWAT-like tactics ought to be used appropriately.

2. No one objects to Kevlar.

I’ve seen lots of people on social media share a photo of the bullet-damaged helmet an Orlando police officer was wearing when he exchanged gunfire with suspected gunman Omar Mateen. The photo has usually been accompanied by some comment about how this too refutes critics of police militarization.

But it doesn’t. No one objects to Kevlar helmets, bulletproof vests or bulletproof vehicles. I know of no police militarization critics who think police officers shouldn’t use tools, drive vehicles or wear gear that protects them from bullets while apprehending dangerous people. And just as few critics of police militarization would call for the abolition of SWAT teams, few would argue that a city of Orlando’s size shouldn’t have some armored, bulletproof vehicles.

The objection is more to gear like tracked vehicles with rotating gun turrets that shoot belt-fed, .50-caliber bullets. Or to grenade launchers. Or to tiny towns across the United States acquiring behemoth mine-resistant trucks designed to protect against improvised explosive devices during convoys in Iraq and Afghanistan, and that have no practical application in domestic policing.

3. Imagery and mind-set are important.

There are two components of police militarization. There’s the guns, gear and gadgets. And then there’s the mind-set. The latter often gets overlooked, but it’s a critically important concept for policing in a free society. Police groups and their supporters will often look at criticism of a callous, door-busting raid by a narcotics task force or vice unit and object to classifying it as a “police militarization” problem because the tactics and gear don’t strictly meet the definition of paramilitary. But it is still part of the larger problem of image and mind-set. A cop’s job is to protect the rights of his or her fellow citizens. A soldier’s job is to kill foreign combatants. These are two extraordinarily different jobs, and it’s important that liberal societies keep them distinct. When cops start using the language of ground troops, wearing camouflage when there’s no real reason for it and talking about how they’re at war with the people they’re supposed to serve, they’re adopting a military mind-set. And that’s a dangerous thing in policing.

So while few of those of us who are concerned about police militarization object to the idea of armored cars, Kevlar helmets or ballistic body armor, the cosmetics are important. This is why the Obama administration wisely barred the transfer of camouflage uniforms through the Pentagon’s 1033 program. No, a pair of camouflage pants isn’t going to kill anyone. It’s more about how the officer who puts on those pants sees himself, his job and his role in the community. Just as important, it’s about how that officer is seen by the community he serves. People who defend the use of overtly militaristic gear say that projecting power and intimidation scares criminals into surrendering peacefully. I doubt it. When used properly, this gear is deployed after someone is already in the process of committing a violent crime. It seems unlikely that Omar Mateen would have surrendered if only he had known that there was a scary-looking armored vehicle outside. The people far more likely to be intimidated by the battlefield look are protesters, “cop watch” groups and everyday citizens.

I’ve said before that I like the idea proposed by the Boston Police Department after Newtown that some police officers keep a high-powered rifle in the trunks of their patrol cars. The first responder to a mass shooting is rarely the SWAT team. It’s usually the nearest patrol officer. There’s nothing wrong with being prepared. That’s why they’d have the bigger guns. But we also have to remember and adhere to the values of a free society. That’s why they’d keep them in the trunk, and get them out only under a very narrow set of circumstances.

4. Here’s what actually happened in Orlando.

In theory, the argument that an active shooter is precisely the sort of scenario for which a SWAT team is appropriate makes a lot of sense. In practice, it gets more complicated. In most cases, active-shooter situations are over well before even an armed and ready SWAT team could possibly scramble to the scene. (Hence, the point about patrol cops in the paragraph above.) There have been few incidents in which the crime has drawn on. The response from SWAT teams in those cases has been a mixed bag.

The most notorious example is Columbine, where multiple SWAT teams were on the scene as Dylan Klebold and Eric Harris were still killing people. One SWAT team did enter the building about 45 minutes after the shooting began but moved at an incredibly slow pace. It took them more than four hours to finally clear the building, during which teacher David Sanders bled to death. The Jefferson County Sheriff’s Office later said the officers feared they were outgunned (they weren’t), and that “a dead police officer would not be able to help anyone.” The other SWAT teams watched from the perimeter for hours, also having concluded it was too dangerous to go inside. More than two hours after the shooting began, some did eventually start to make their way into the building, but ended up frisking and marching out students and faculty instead of seeking out the gunmen.

As SWAT teams continued to proliferate through the late 1990s and early 2000s, Columbine prompted the question: If SWAT teams outfitted with bulletproof gear and high-powered weapons won’t apprehend active shooters in order to save lives out of fear for their own safety, what exactly is the point of having a SWAT team? To serve drug warrants?

There was also some criticism after the  Virginia Tech shootings. As the spree began, Virginia Tech already had its own tactical team on campus. (The heavily armed campus SWAT team is also an increasingly common phenomenon. The University of Central Florida in Orlando has a grenade launcher and 23 M-16 rifles.) The SWAT team was at the scene of the shooting in three minutes, but took an additional five minutes to enter the building. By that time, shooter Seung Hui Cho had killed 32 people, plus himself. Again, this prompted the question: What’s the point of having a SWAT team on campus if they can’t respond in time to prevent an active shooter from killing 32 people? (Again, the answer appears to be “to serve drug warrants.”)

There are also some counterexamples, though they don’t involve SWAT teams. In both the Newtown and San Bernardino shootings, local police had been trained to immediately confront active shooters instead of waiting for the SWAT team to arrive. There’s good evidence that in both cases, such training saved lives. The first responding officer to the Sikh temple shooting in Wisconsin also quickly confronted the shooter. It isn’t clear that he saved lives, but his bravery was heroic.

In Orlando, three hours passed between the first shots and the time the SWAT team entered the building. In that time, Mateen shot more than 100 people, killing 49. Over the last few days, policing experts across the country — few of whom are are opposed to police militarization more generally — have questioned that delay.

Orlando officials have offered a couple explanations. They’ve said that after an initial round of shooting (including an exchange of gunfire with an early-responding officer), Mateen took hostages in a bathroom, at which point the scenario evolved from an active-shooter to a hostage situation. But once a shooter has shown a propensity to kill indiscriminately, it seems odd to treat that person as a hostage taker who is open to negotiation. Mass shooters typically aren’t looking for a helicopter and a satchel of unmarked bills. Most have already decided that they’re going to die. This is why so many police departments now train officers to confront shooters immediately. According to Orlando police, Mateen himself made no real demands during their attempts to negotiate with him. Instead, he just promised “imminent loss of life.”

Orlando officials have also claimed that they had reason to believe Mateen was armed with bombs. But one could argue that to delay entry as a shooter is killing people out of fear that he may detonate bombs values the lives of the heavily armed, heavily armored SWAT officers — who assume some risk when they take the job — above the lives of the unarmed, unprotected victims. Are we ready to tell future mass shooters that if they can create even the illusion that they’re carrying explosives, the police will give them free rein to kill as many people as their supply of ammunition will allow? Moreover, to the extent that the bomb/explosives explanation is somewhat more persuasive, it also turns out not to have been true.

It isn’t yet clear how many people died between the time the SWAT team arrived at the club and the time they forced entry (at least from what I’ve read so far). The police have suggested that nearly all of Mateen’s victims were shot early. But that’s also a self-serving assertion. If it’s indeed confirmed that most or all of Mateen’s victims were already dead by the time the SWAT team showed up, then the delay would seem to have been less harmful, at least in retrospect. That still wouldn’t mean it was a smart approach.

In any case, there is still a lot to learn. And as I’m sure many law enforcement officers and their supporters who might read this post will point out, it’s easy for an opinion journalist who has never worn a badge to second-guess the police decisions in Orlando, or to make presumptions about their willingness to risk their lives, from the safety of his office.

But other law enforcement officials were the first to raise these questions. My point here isn’t really to criticize the police response to the Orlando shooting. My point is that the Orlando shooting isn’t within the realm of scenarios for which people criticize the police for being overly militarized. And to the extent that it is relevant to the discussion, it’s an example of the limitations of SWAT teams, even in scenarios for which nearly everyone agrees, at least in principle, that they’re appropriate.

I’ll leave it to tactical experts to suss out whether police officials in Orlando made the right call. But whatever history decides about the tactics themselves, it wasn’t anything close to a vindication of police militarization. Nor was it proof that critics of the trend are wrong.