On "unleashing" the police
Donald Trump doesn't really want cops to be unrestrained. He just wants to be the one holding the lead.
Note: This piece was first published at The Intercept.
Donald Trump says he wants to “unleash” the police. This week, the president signed the executive order “STRENGTHENING AND UNLEASHING AMERICA’S LAW ENFORCEMENT TO PURSUE CRIMINALS AND PROTECT INNOCENT CITIZENS” (all caps in the original), which lays out a host of authoritarian diktats intended to make police officers more brutal, more loyal to him, and less accountable to anyone other than him.
The proclamation is more virtue signaling than policy — more an expression of Trump’s mood than a serious proposal. And, when it comes to conventional crime, Trump’s mood is right where it’s always been: fearful, demagogic, and perpetually stuck in 1988.
The key term in the executive order is unleash, and it’s worth delving into what exaclty he means when he uses it. The literal definition is to remove from a restraint. In the context of law enforcement, it conjures images of cops siccing police dogs on suspects and protesters. Metaphorically, we tend to associate the word with starker imagery: we unleash fury, wrath, and retribution. Trump wants to project both.
As for the executive order itself, it is heavy on bluster and short on details, like most of Trump’s orders.
Some of the measures are nonsensical, like “indemnifying” police from damages. (They’re already indemnified by taxpayers in more than 99.9 percent of such cases.) For others, it isn’t clear if he’s referring to federal or state and local police.
Trump also provides no funding for his demands. Some would violate the law, such as charging progressive prosecutors for failing to prosecute some crimes to Trump’s satisfaction. Others, like directing law firms to do pro bono work defending cops accused of wrongdoing, are both unconstitutional on their own and build on previous executive orders that are also unconstitutional (as a federal court emphatically declared just this week). Still others would require approval from Congress.
How much of this agenda is actually feasible depends on whether Trump is willing to push through these barriers, and whether the federal courts are willing to stop him. That, however, is true with or without an executive order.
During his run in presidential politics, Trump has praised and encouraged police brutality. He has applauded violent crackdowns on protests, especially by authoritarian regimes.
He believes in projecting strength, and believes strong leaders demonstrate strength with violence. This is why he has often suggested that police officers will attack his enemies if called upon, and why the Capitol Police who defended Congress from his supporters received so much of MAGA’s wrath.
Yet you can’t unleash something that has never been restrained in the first place. And in the U.S., the police have never been restrained.
Last month, an Oklahoma City news station reported that a federal team of law enforcement officers had battered down the door of a Latino woman and her three daughters. The family was subjected to a terrifying raid, in which agents held them at gunpoint, forced them to stand in the rain, then rifled through their home.
The agents were looking for undocumented immigrants. Everyone in the home was a U.S. citizen. The man they were looking for had moved out months earlier.
If it had all stopped there, that would have been bad enough. This was a violent, volatile raid over an alleged immigration violation — an extraordinarily disproportionate use of force. After learning of their mistake, however, the agents weren’t apologetic or contrite. Instead, they confiscated the family’s computers, cellphones, and an undisclosed amount of cash.
The agents didn’t identify themselves or which agency they were with, and they left no contact information so the women could file a complaint or, at the very least, retrieve their property.
According to the victim, one officer told her as they left, “I know it was a little rough this morning.” After several days, the Department of Homeland Security finally acknowledged a mistake. If the family hadn’t attracted the attention of local news, its seems unlikely they’d have gotten even that acknowledgment.
This raid followed Trump’s executive order, but it’s part of a much longer pattern of hyper-aggressive law enforcement.
These certainly weren’t the actions of law officers who feel restrained. And why would they? Trump and his subordinates have made clear that one clear objective of his immigration policy is to inflict pain. It isn’t just about removing undocumented people, it’s about making people who do come suffer as much as possible in order to deter others from immigrating here.
When U.S. Immigration and Customs Enforcement agents confronted 19-year-old Merwil Gutiérrez in New York City, they knew right away he wasn’t the man they were looking for. According to Gutiérrez’s cousin, one agent said, “No, he’s not the one.” To which another agent replied, “Take him anyway.”
Gutiérrez has no criminal record. He was in the country legally. He doesn’t even have tattoos. Yet before his family could act, he was immediately sent to an ICE facility in Texas. He was then among the first batch of people sent to El Salvador’s Terrorism Confinement Center, or CECOT, prison, the slave labor prison. The ICE agents who arrested him haven’t even been identified, much less disciplined. Immigration “czar” Tom Homan later referred to such wrongful arrests of legal residents as “collateral.”
These are just two of a growing number of horrifying incidents in which federal agents, often concealing their identities with masks, have raided homes, snatched innocent people from the streets, and whisked some off to to detention centers hundreds of miles away or, worse yet, all the way to CECOT. None of this suggests a police force that feels remotely restrained.
The courts haven’t restrained them either. In the 2022 case Egbert v. Boulet, the Supreme Court all but barred anyone from suing individual federal law enforcement officers for violating constitutional rights. In so doing, the court overturned a 50-year-old precedent, arguing that the old ruling created a cause of action that had never been approved by Congress.
But when Congress has tried to hold police accountable, the Supreme Court has been just as protective of law enforcement. Incredibly, constitutional lawyer Patrick Jaicomo first learned about the above raid in Oklahoma City this week as he was leaving the Supreme Court. Jaicomo, who works for the libertarian nonprofit Institute for Justice, had just given oral arguments for a case in which federal law enforcement officers waged a violent drug raid on the wrong home, holding an innocent family and 10-year-old child at gunpoint.
Because the court in Egbert already prevented victims like Jaicomo’s clients from suing under the Constitution, he was left to argue that they should be able to sue under the Federal Tort Claims Act, the only remaining, less-than-ideal remedy still available to hold abusive federal cops accountable. After a series of botched federal drugs raids on innocent people in the 1970s, Congress amended law specifically to allow for lawsuits in cases of botched raids. Yet here too federal courts have refused to allow the lawsuit to go forward, and judging from oral arguments, the Supreme Court doesn’t seem eager to allow it either.
Congress also passed a law to give people a way to sue when state and local police violate their rights: the KKK Act, passed during Reconstruction. The Supreme Court has been whittling away at that too, through the doctrine of qualified immunity, a legal fiction the court invented from whole cloth.
Several years ago, I wrote about a mistaken drug raid of two Detroit women by a multi-jurisdictional task force in which the women were manhandled and abused. The officers refused to provide their names or badge numbers. The women spent a decade trying to sue. Their lawsuit was ultimately thrown out, not on the merits, but because the courts refused to let them sue if they couldn’t identify the specific officers involved, but those same courts also refused to force the relevant police agencies to reveal who the officers were.
In other words, this version of reality in which police officers are hamstrung by overly restrictive rules, activist judges, and woke prosecutors only really exists in Donald Trump’s mind, and in the minds of his followers.
In truth, state and local police are protected by qualified immunity, and in the tiny percentage of cases in which victims can actually get in front of a jury, convince that jury to rule in their favor, and then award damages, the police are further shielded by indemnification. Federal police — and any state and local police who serve on federal drug, gang, or immigration task forces — are all but immune from lawsuits.
Well, from most lawsuits. There is at least one federal lawsuit that has a decent shot at a substantial settlement: Last year Donald Trump himself sued the FBI for a preposterous $100 million over the agency’s search of his Mar-a-Lago estate. Unlike the raids in Oklahoma City or Atlanta, the FBI agents did not batter down the door or storm the place with flash grenades. Instead, they intentionally conducted the search while Trump was out of town to avoid embarrassing him. They even gave Trump’s security detail a heads-up that they were coming.
Trump is suing anyway, despite declaring in his 2024 campaign that police should be immune from such lawsuits. Among the indignities Trump claims to have suffered: The FBI agents didn’t remove their shoes before entering his bedroom.
The big difference now of course is that Trump controls the Justice Department, and the Supreme Court has given him the green light to exploit the department’s power and resources for whatever corrupt purpose he pleases.
It wouldn’t be at all surprising if Trump ordered the department to settle with him for $100 million for the indignity of shoed FBI feet traipsing through his bedroom — while simultaneously directing federal police to continue with violent, warrantless raids on anyone who speaks with an accent.
Truly trusting the police would also mean, to give one example, believing local police officials when they say that aggressive enforcement of immigration law by local cops makes it more difficult to fight crime. It erodes trust, and makes immigrant communities less likely to cooperate with law enforcement. Instead, the administration is threatening to arrest those officials.
In the end, Donald Trump doesn’t really want to unleash the police. He just wants to be sure he’s the one holding the lead.
It boils down to a simple fundamental: You can't have a police state without the police.
Of course the Republicans want a docile national police apparatus that understands its mission as purely political, a matter of power politics.
In this vision, the police power is legitimate when it is directed against "the left" and dissidents and enemies of the state (as defined by the Party) and those who have expediently been designated "criminal" in an era when the definition of crime itself is in a constant state of expedient flux and could include anyone from a carjacker or pickpocket to someone guilty of an act of dissent or journalism.
It is illegitimate when it is organized around objective principles: a coherent, consistent legal code, or due process, or equal application of the rule of law--anything that might objectively expose the powerful and political insiders to sanctions.
What a time it is.
Thank you for the invaluable work you do. I read your piece about the lawyer and then saw the others. Yesterday I read that he had been fired. It is not a surprise to me how fast people turn on others but I am surprised by how many are. I thought the ratio would be more 60-40 (fascists-non) but it’s more 80-20. At least where I live and how it seems across all reporting. I hope I’m wrong about that.
In the last few months I’ve noticed something quite worrisome. The small town I live in (pop. 15k) in very red Indiana is increasing the local police force, switching to more blackened out, unmarked SUV’s that practically bristle with hostile hardware and the state police presence has more than doubled. Driving 55 miles to Indianapolis it is now ‘normal’ to see at least 12 state police vehicles and 3-6 of the unmarked cars. Crime hasn’t exploded here. Nor have traffic accidents. This feels like a buildup for something planned. (I’m a veteran & notice things like this.) The local police force jumped on Bush’s irresponsible and unethical program that sold military hardware to police departments and have since thought themselves to be some sort of black ops group. This attitude combined with the hardware and firepower combined with this new increase in presence is highly problematic.