Who Are the Cops?: The Semantic Fight Between Local and Federal Law Enforcement

While outrage over President Trump’s stance on immigration enforcement proliferates on social media, the new administration’s policies have also led to tension with an unexpected adversary: local law enforcement. The City of Los Angeles recently pushed back, with an objection that potentially has broad implications for law enforcement in the United States. In a strongly worded letter to the U.S. Customs and Immigration Services and Secretary of Homeland Security John Kelly, the city’s top officials (including the mayor and city attorney) urged Immigration and Customs Enforcement (ICE) agents not to identify themselves as “police” in the course of their investigations. The city claims that when ICE agents represent themselves as police, they undermine the “hard-won confidence” that the Los Angeles Police Department (LAPD) has cultivated among residents. The complaint is more than semantic: it’s this very confidence that encourages residents to interact openly with police, regardless of their immigration status.

The city’s concerns are not without basis; reporting has documented several instances of ICE agents calling themselves “police” when knocking on doors. Los Angeles has a long-standing policy of prohibiting local police from initiating contact with residents to question their immigration status, as do many other so-called “sanctuary cities.” Such policies allow undocumented residents to report crimes, come forward as victims or witnesses, and call local authorities for help without fearing possible detention and deportation. In a city like Los Angeles, with an estimated 375,000 undocumented residents, the practice is vital to prevent a large segment of the population from living in the shadows.

The desire to integrate undocumented immigrants into society is an especially pressing concern, but the policy implications of the city’s ask extend beyond immigration enforcement. The same logic applies to DEA agents in states that have legalized medical or recreational marijuana. Users and growers in Colorado or California should feel comfortable speaking to a local police officer about an unrelated crime, without fearing the agent may in fact be with the DEA. Similarly, Muslim Americans should not fear an investigating officer might actually be a profiling FBI counterterrorism agent. With the administration’s talk of travel bans, such a fear would not be totally irrational. The president’s racially charged threat to “send in the Feds” to Chicago and his general promises to clean up “inner cities” could also reasonably stoke fear of federal agents among African Americans.

But the problem is not limited to the current administration, and the federal-local distinction is also important where the mistrust runs the other direction, where the public could see federal agents as benevolent players in contrast to a feared local police department. Historically in certain regions, federal officials were at the forefront of enforcing civil rights laws, while local police maintained cultures of bias and discrimination. If these federal officials are conflated with police generally, residents may avoid them altogether, impeding their ability to do their job, much in the same way confusing ICE with police impedes local law enforcement from doing its job. Federal agents may not need to be compelled to distinguish themselves from police in these cases, but the example furthers the point that federal-local distinctions in law enforcement are historic and pervasive.

The term “police” should be synonymous with the people citizens call when there is an emergency, the public servants who are the first responders when a crime is reported. Conflating the idea of police in the public mind with bureaucracies that enforce federal policy alters the way people perceive the purpose of law enforcement. When the sheriff’s department, ICE, and FBI all go by the same moniker, the public starts to see the police less as a community protecting agent and more as an arm of national security, as a tool of a far-away Big Brother. The “police state” becomes more real. Federal law enforcement may have a role to play, but encroaching too much into the sphere of local police erodes public trust in a representative police force. It is imperative that the public view their police as being of, by, and for the community, that officers look and speak like the citizens (or non-citizens) they might arrest, that they associate with these same people in settings outside of law enforcement, while not wearing a uniform. Reserving the term “police” for local departments provides a rhetorical check on the bureaucratization of law enforcement and sharpens the two-way connection between cops and communities that is essential for public trust.

To be clear, as the civil rights enforcement example suggests, local police are currently far from perfect. In many neighborhoods, especially those with minority and immigrant populations, fear and distrust remain irrespective of masquerading ICE, DEA, or FBI agents. Police reform is a challenging and complex policy issue, the full extent of which is beyond the scope of this post. But any effort to transform law enforcement into community policing is thwarted by a perception that local police and federal agencies – by definition not derived from the community – are functionally the same. We cannot begin to see law enforcement as neighborhood protectors rather than an arm of a military state until we disassociate local police from federal bureaucracies.

Even if Los Angeles has a strong policy argument, the city would face significant legal hurdles should it decide to take a more aggressive stance than a strongly worded letter. Law enforcement officials of any kind are not required by law to represent themselves truthfully at all, much less identify exactly which agency they belong to.[1] The many DEA agents working undercover across the country certainly appreciate this latitude. An act of Congress could prohibit ICE from calling themselves police (or any federal agency from doing so, with a carve out for those undercover), but in the current political climate, and with a signature from President Trump required, I wouldn’t hold my breath. A possible avenue could be found in the Fourth Amendment’s “knock-and-announce” requirement, which mandates that law enforcement knock on the door and announce their presence before executing a warrant, when they are reasonably capable of doing so.[2] Most of the jurisprudence on “knock-and-announce” has focused on the knock portion, rather than the announce. An interpretation could be made that in announcing their presence, officials should identify themselves by their agency, for citizens have a right to know who is searching their home, seizing their property, or arresting them. Such a rule would only govern searches and seizures, not all interactions with law enforcement. However, when questioned by the press as to their identification practices, agencies responded by providing their knock-and-announce procedures, suggesting this is a common mode of contact between agencies and individuals.[3] The rule would be a major doctrinal development, and so in the same vein as an act of Congress, I’m not planning on holding my breath. But with the flurry of litigation the new administration has brought upon itself surrounding core issues of federalism and executive authority, the country likely will be entering uncharted legal territory sooner rather than later.

Such a policy would also face practical complications. In many ways federal law enforcement agencies do operate much like police; they are empowered to make arrests and execute lawful searches and seizures, and I am not advocating stripping them of such powers. ICE responded to the letter from Los Angeles officials by noting that they often identify as “police” because it is the universal term for law enforcement, and agents interact with people from all over the world. The agency stresses that immediately being able to identify as law enforcement can be a “life-or-death issue.” I’m not entirely convinced that undocumented persons frequently fail to understand the meaning of a knock on the door by uniformed officials proclaiming “immigration.” Nevertheless, I understand the concern that distancing federal agents from more traditional notions of law enforcement could weaken the perceptions of authority these agents have. Changing semantics is not a perfect or complete solution to the broader issue of centralized law enforcement, and may come with tradeoffs. But I do not believe drawing a brighter line between local and federal agencies is mutually exclusive with society’s ability to understand and accept that the latter can still put you in handcuffs. And as the City of Los Angeles has shown, police identification has become a particularly acute manifestation of the problem in the Trump era.

 

 

[1] See Lewis v. United States, 385 U.S. 206 (1966).

[2] Wilson v. Arkansas, 514 U.S. 927 (1995).

[3] ICE and the Bureau of Alcohol, Tobacco, Firearms, and Explosives both said they use the term “police” while knocking and announcing, but DEA stated they generally refer to themselves as DEA, not police.

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Zach is a 2L who is interested in consumer rights, public education, police reform, and criminal justice. On campus he is involved in the Predatory Lending and Consumer Protection Clinic, the Harvard Prison Legal Assistance Project, and the Harvard ACLU chapter. Last summer, Zach worked in the Consumer Law Section of the California Attorney General's Office. He graduated from the University of California, Berkeley with a major in history and a minor in public policy.

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