Obama and Law Enforcement: What Will He Do?

No one knows how Obama's presidency will play out. The only thing we do know is what he has said that he plans to do in the next four years. The following is an examination of what he's said about issues near and dear to American law enforcement and commentary from leading law enforcement experts on how it will affect you.

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As this issue of POLICE arrives in your mailbox, Barack Obama is preparing to become the 44th President of the United States. And if you assembled the other 43 men who have held the office and asked them to give him advice, they would tell him that regardless of what your goal was when you ran for president or the positions of your platform, events shape the presidency more than the presidency shapes events.

Case in point: George W. Bush. The much despised departing President Bush came into office with the goal of healing the divide between Democrats and Republicans and uniting the country. He leaves office with the country more divided than ever.

Such are the perils of the office.

No one knows how Obama's presidency will play out. The only thing we do know is what he has said that he plans to do in the next four years. The following is an examination of what he's said about issues near and dear to American law enforcement and commentary from leading law enforcement experts on how it will affect you.

The Courts

One of the greatest powers of the president is the constitutional duty to nominate justices to the U.S. Supreme Court.

Justices don't serve at the pleasure of the president or at the electoral will of the people. Once seated, they and all federal judges serve until they choose to leave the office, die, or are impeached. Some judges serve for decades. Which means that the choice of Supreme Court judges is often the only lasting legacy of a president's term.

Even before President Obama was elected, pundits and legal scholars were handicapping his court appointments. Experts believe that between now and the time that he runs for re-election in 2012, the new president will have the opportunity to replace two justices. John Paul Stevens, 88, and Ruth Bader-Ginsburg, 75, are expected to retire.

POLICE Magazine legal columnist Devallis Rutledge says that little will change if Obama gets to name replacements for these liberal justices because he would just be replacing liberal with liberal.

"Just replacing Stevens and Ginsburg with people of like philosophy wouldn't make a substantial difference," Rutledge explains. "Where the difference would come is if President Obama gets to nominate a successor for one of the justices who consistently favors law enforcement."

According to Rutledge, right now the court is constituted with four liberals and four conservatives with Justice Anthony Kennedy swinging back and forth. That has been to the benefit of law enforcement.

But if Obama gets to replace a conservative justice, that could end the conservative advantage in many rulings. "Just about everything would be affected if that happens," Rutledge says.

Some examples of what Rutledge believes could happen if a liberal majority is seated in the Supreme Court include:

  • Expanded application of the evidence exclusionary rule
  • Reduced consideration of the "good faith" exception for bad warrants
  • More lawsuits against police officers
  • A prohibition or restriction on the death penalty
  • Three strikes laws could be judged as constituting cruel and unusual punishment

That's a nightmare scenario for law enforcement, but it's unlikely to happen. Like Rutledge says, Obama will probably only be able to swap liberal for liberal. Also, what happens when a judge becomes a Supreme Court justice is anyone's guess. For example, David Souter was nominated by Republican George Herbert Walker Bush, but he's generally voted liberal. So there's no guarantee that a liberal president like Obama will necessarily end up nominating a justice who consistently votes liberal.

Since the Supreme Court is likely to remain largely conservative at least for now, Rutledge says a bigger concern is the lower courts. "The Supreme Court hears 80 to 110 cases per year. Most cases are settled at another level," he says. "There are a lot of openings at the district court and the appeals court levels that the next president will fill. Those judges are set for life, and they will affect a lot more cases because they rule on a lot more cases."


Crime and Punishment

During the heat of a campaign most liberal presidential candidates get characterized as soft on crime. Obama's record on this issue is more centrist than say a Michael Dukakis or a John Kerry.

As a U.S. senator, he has co-sponsored legislation to combat methamphetamine production and use, helped establish a national database of sex offenders under the Adam Walsh Child Protection Act, supported reauthorization of the Community Oriented Policing Services (COPS) program, and sought to expand the hate crimes statutes with the Matthew Shepard Act.

Also, while serving in the Illinois State Senate, Obama worked with law enforcement to establish a compromise on a bill that would have made it necessary for agencies to videotape all capital crimes interrogations. Under that compromise, smaller agencies with no video equipment are allowed to audio tape the interrogation.

But make no mistake about it, Obama was a liberal legislator both at the state and the national level. For every cop-friendly, pro-law and order stance that he has taken in his career, he has also taken at least one predictably liberal stance. He opposed an Illinois bill that would have mandated the death penalty for gang members who kill cops; he supports drug courts for "non-violent" drug offenders; he wants crack cocaine penalties to match powder cocaine penalties; and he helped draft a racial profiling law that requires Illinois officers to record the race, age, and gender of all drivers they stop for traffic violations so that it can be analyzed by the state.

Jim Pasco, executive director of the National Fraternal Order of Police, says that he believes Obama is a practical man. And that conservative law enforcement officers should not worry so much that the new president is a liberal. "A principled liberal just like a principled conservative is no threat to the republic," Pasco says.

Pasco adds that Obama's history shows that he is willing to work with law enforcement to find a middle ground. "I am told by the Illinois FOP, by the state president and by the Chicago president, that while Obama was in the state legislature he was instrumental in crafting a compromise [on racial profiling] that our members could live with."

The FOP endorsed Republican John McCain in the presidential election. Yet Pasco believes it can work with Obama.

The National Association of Police Organizations (NAPO) did endorse Obama, primarily because of his support for collective bargaining legislation that covers public safety officers nationwide. But NAPO also says it believes law enforcement will receive more funding from the Obama administration than it would have from McCain.

"In no way do we feel that President Obama is going to be 'happy land,'" says Andy Mournighan, NAPO's director of governmental affairs. "We have no guarantees, but we are looking forward to more funding and more federal support for state and local law enforcement."

Mournighan says that NAPO was very pleased with the Clinton administration's approach to funding law enforcement, and it expects that Obama will also loosen the spigot on grants for additional personnel and training.

Former Clinton administration "Drug Czar" and former NYPD commissioner Lee Brown also believes that the Obama administration will be good for law enforcement funding. "Under President Bush we have seen a cutback in the monies available for law enforcement and criminal justice. I think there will be a major difference when President Obama takes over," Brown says.

Brown, former president of the International Association of Chiefs of Police (IACP), says that he and IACP have called for the new Obama administration to create a commission on crime similar to the one that the Johnson administration created in 1967. "We have to bring together the best minds in the country from all disciplines to look at what can be done to reverse the trend of crime." According to Brown, the new president is receptive to the idea. "He has consistently indicated his support for law enforcement and that he will be more accessible to the leaders in law enforcement [than President Bush]. That being the case, they can lay out the issues as they see them and with the receptive ear of the president, I believe we can get things done."

Gun Control

So much has been written about President Obama and guns that there's no reason to spend a lot of time discussing it here. The Internet is on fire with pro-gun groups claiming that Obama is going to make it more difficult, if not impossible, to buy semi-auto pistols and so-called "assault rifles." Consequently, at a time when the rest of the country is financially depressed and nobody is buying anything, gun stores are making monumental sales.

Is there reason for all of this panic? Maybe.

Obama has come out in favor of the rights of cities to regulate gun ownership; he supports laws that allow victims of gun violence to sue gun manufacturers; he didn't support a law in the Illinois Senate to exempt from prosecution people who use guns to defend their homes and families in cities that prohibit gun ownership; his Attorney General nominee Eric Holder filed a friend of the court brief supporting the District of Columbia's draconian gun restrictions in D.C. v. Heller; and Vice President Joe Biden authored the 1994 crime bill that included the assault weapon ban.

All of that said, Obama has supported law enforcement access to guns, including concealed carry for off-duty and retired law enforcement officers. And experts say there is no interest in Congress in rolling back the officer carry law known as H.R. 218.

FOP's Pasco believes the panic over Obama and gun control is just that, panic. "We specifically asked President Obama in a meeting last June what he favored in the way of additional firearms legislation. His response to us was that he would not support any firearms legislation that the FOP did not support. At this point we are not supporting any firearms legislation. And we take him at his word."


Homeland Security

If you read Barack Obama's position papers on homeland security and anti-terrorism, they sound great. He wants to strengthen cyber-security, secure chemical plants, prevent nuclear and bio terror attacks, monitor ports, enhance airline security, tighten border security, and in general make America safer.

It sounds wonderful. But it's short on details such as how do you accomplish these things and who is going to pay for it.

One of the first things that President Obama is likely to accomplish in this area is really pretty easy to do. He will remove the Federal Emergency Management Agency (FEMA) from the Department of Homeland Security. Experts contacted for this article applaud this move.

"Culturally, FEMA does not belong in DHS," says FOP's Pasco. "Culturally, police officers are proactive. They work to prevent things from happening. Culturally, FEMA is reactive. FEMA officials show up after something has happened and try to make things better. We opposed putting FEMA into DHS in the first place, and we would support any effort by Obama to move it out of there."

Another change that Obama wants to make at DHS is to allocate Homeland Security grants based on need and threat level and not to every agency. On the campaign trail he said that DHS grants had been transformed into "pork" by Congress. Lobbyists and law enforcement officials are skeptical that he can do anything to end this practice. They shrug their shoulders and say that it's just the way that Washington works.

One specific homeland security detail that Obama says he wants to address is improving communications between public safety agencies. He has even proposed creating the position of National Chief Technology Officer that would be responsible for making sure that law enforcement has the tools it needs to respond to mass casualty incidents.

Of course, the biggest concern that homeland security hawks have about Obama is his belief that terrorism is a law enforcement, not a military, concern. They fear that his desire to close the Camp X-Ray detention camp at Guantanamo Bay Naval Base; his opposition to wiretaps; his stance on Iraq; and his belief that terrorists can be tried in federal courts may lead to more 9/11s and handcuff American intelligence operations in the War on Terror.

Only time will tell. But it should be noted that President Obama may be more reluctant to limit anti-terrorism measures than candidate Obama. One month after the election, he was already receiving flak from anti-war groups such as Code Pink for his cabinet nominees. And as a senator, he did vote to reauthorize the PATRIOT Act.

What this means is that Obama will likely take a centrist point of view on homeland security and neither Code Pink nor homeland security hawks will be happy during the next four years.

Illegal Immigration

President Obama supports immigration reform. He believes that illegal immigrants who pay a nominal fine, learn English, and have not violated any other laws should have access to a path to citizenship. Opponents of this reform call it "amnesty."

The one thing that both sides can agree on is that the system as it exists is broken. Nobody knows this better than the men and women of the DHS agency called Immigrations and Customs Enforcement (ICE).

John Clark, former deputy assistant secretary for ICE, says he is optimistic that President Obama and the next Congress can address immigration. As is, he says ICE officers are frustrated by the nation's schizophrenia about illegal immigration.

"We could do too much or too little," Clark says. "It didn't matter. There was always somebody on the other side saying more or less or whatever."

One person who said that ICE was doing too much was President Obama himself.

In a speech to the National Council of La Raza in San Diego last June, Obama told the audience that the nation's immigration system "isn't working" and "communities are being terrorized by ICE and nursing mothers are being torn from their babies."

That comment elicited howls of protest from the Federal Law Enforcement Officer's Association, and Obama backpedaled.

Clark says such comments are infuriating. "We were given laws to uphold and enforce, and our politicians who can't seem to grapple with the immigration problem are pointing fingers at us saying we're not doing the right thing."

He adds: "Interior immigration enforcement is very, very sticky. Having been messed up as long as it has, it's almost an impossible task trying to make some sense of it and use the resources we have to do the job."

Perhaps more than anything Obama has said or done, his appointment of Arizona Gov. Janet Napolitano to head DHS gives Clark reason to believe that illegal immigration will be a front burner issue in the new administration. "She came to our headquarters and discussed some issues, and I am cautiously optimistic that she's a very good pick. I think the way she's been dealing with the immigration issue in Arizona is a pretty good model."

Interesting Times

In our October Briefing Room survey, POLICE asked our readers if they were voting for McCain or Obama. More than 82 percent said they were voting for McCain.

The overwhelming majority of POLICE readers did not vote for Obama, but he is now president.

Whether that will be good or bad for American law enforcement no one really knows. What we do know is that the next four years will be interesting. Of course, "interesting" doesn't necessarily mean good.

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