Over the last week, ACLU staff across the country have worked as legal observers; educated protesters about their rights; been arrested, tear-gassed and hit with rubber bullets; challenged curfews; organized town halls; talked to victims of police abuse; donated money to Black Lives Matter, local bail funds and other groups; and strategized about transformational change.

The ACLU is busier than ever — let’s not forget this is happening amidst a pandemic and during the Trump administration — but we don’t hesitate to prioritize this work at this time because we have witnessed this reality of police violence all too often.

The ACLU’s advocacy against police violence began in the 1920s, shortly after our founding, and has continued for the next 100 years. In 1931, we spearheaded the issuance of a government report, “Lawlessness in Law Enforcement.” In 1965, in response to the Watts Rebellion, we opened our first storefront office to directly document police abuse. In 1991, following the police beatings of Rodney King, we launched a fight against racial profiling, resulting in litigation and a vibrant nationwide advocacy effort. In 2015, we published “Picking up the Pieces,” a report documenting biased policing in Minneapolis. ACLU reports from New York, Chicago, Newark, Philadelphia, Boston, Detroit, and Nebraska have all documented police departments that reserve their most aggressive enforcement for people of color generally — and Black people in particular.
 
Despite the tireless work done by so many in the ACLU to address police violence in communities of color, there’s a fundamental truth that we must confront: It has not worked. Black people continue to be murdered and brutalized by police with near impunity. More of the same won’t fix this problem.

As we look to the future, the ACLU unites behind the profound fight that groups like Movement for Black Lives have been leading: the fight for a completely reimagined vision of the role, presence, and responsibilities of police in America.
 
The fight will be complex, but in practice what we want can be clearly stated: We need to fundamentally change the role of police in our society, and that role has to be smaller, more circumscribed, and less funded with taxpayer dollars. Money saved from reducing the size and scope of police departments must be reinvested into community-based services that are better suited to respond to actual community needs. Doing so will foster improved safety and health outcomes, and present opportunities in Black communities, where decades of underinvestment in everything except police has helped fuel a mass incarceration crisis.

HOW WE GOT HERE

Let’s talk about policing the way we too often don’t. The underlying problem with policing isn’t just the lack of oversight policies, more training, and better procedures. While radically changing these three areas remains essential for harm reduction, the problem itself is more insidious.

The core problem is modern policing itself. The original sin of policing in this nation is its attachment to the nation’s first and most devastating sin: chattel slavery. Modern police forces in this country can be traced back to slave patrols used in Charleston, South Carolina. From their inception, police have been tasked with protecting power and privilege by exerting social control over Black people.

Built upon Jim Crow-era racist constructs, spurious social science, and sprawling legal codes, law enforcement has sought to control Black and Brown people through racialized targeting and the criminalization of Black people generally. Since inception, police in the U.S. have been empowered to act as an occupying force in low-income communities and communities of color across the country, funded by astronomical sums of taxpayer dollars.

Every three seconds a person is arrested in the United States. According to the FBI, of the 10.3 million arrests a year, only 5 percent are for offenses involving violence. All other arrests are for non-violent offenses — these include many relatively minor infractions like money forgery, the alleged crime that the cops who killed George Floyd arrived to investigate; or selling single cigarettes without a tax stamp, the crime Eric Garner lost his life for; or for marijuana or other drug possession.

There is a different world, one in which people need not be arrested for many of these offenses or be otherwise racially targeted and criminalized. We can shrink outsized and misused police power and responsibilities, along with their budgets, and strive to ensure they don’t come into regular, unnecessary contact with community members.

We know this is possible because this different world exists today, for communities that are largely white. The harsh reality is that policing in communities of color looks very different than it does in wealthy, white communities. In those communities, police are often only present when responding to specific serious disruptions to the community, rather than just constantly intruding on people’s everyday lives. To understand the impact of this approach, one only has to look at the approach to policing marijuana — which is used at almost equal rates by Black and white people, though Black people are still arrested at a rate that is almost four times that of white people. Racialized policing is the best way to understand this disparity.

White communities are also more likely to see significant investment in community resources that are purposefully and programmatically used to maintain safety, health, and stability, all without police intervention. The lived reality that white communities already enjoy and take for granted is what we are demanding for communities across the country — an end to over-policing, an end to constant surveillance and harassment, an end to enforcement of non-serious offenses, and an end to the targeting of people of color.

WHAT COMES NEXT

Our Vision for 21st Century policing can be accomplished for a fraction of what we currently spend. Current police budgets are enormous, totaling more than $115 billion per year, collectively. Spending on police and the criminal legal system has dramatically outpaced expenditures in community-based services that help people build stable, safe communities. We have an obligation to change this paradigm and support efforts in Black and Brown communities to develop and build community-controlled institutions and interventions that have been proven to improve public safety and health more effectively than oppressive, terrifying, ineffectual, and deadly modern policing.

There are few instances that warrant the deadly use of force we have witnessed in recent years. Certainly not “knee-to-neck” restraint for an allegedly counterfeit bill. Or a chokehold for selling loose cigarettes. Nor a fatal shooting for jaywalking. Or failing to comply with orders to put your hands above your head.

It’s time to prohibit the use of lethal force unless it is absolutely necessary. The “necessary” standard that was just enacted in California, offers an example that we hope to build off in other states and federally by adding an exhaustion of alternatives requirement. 

It’s time to embrace alternatives like civilian-led crisis intervention teams composed of highly trained professionals, including nurses, doctors, psychiatrists, and social workers, to respond to incidents with people who are in mental health crises.
 
It’s time to put more counselors and more teachers — not police — into our schools.
 
It’s time to stop criminalizing families experiencing homelessness.

That is the future worth fighting for. The health and wellbeing of our society depends on it, as do the values we have subscribed to as a nation.

Reducing funding to police departments and reinvesting those funds into Black and Brown communities are necessary steps to prevent further harm and to restore the promise of our Constitution for all people.
 
The ACLU will work to support Black- and Brown-led community organizations to implement a three-part formula to bring an end to our country’s long nightmare with police violence:

• Prohibiting police from enforcing a range of non-serious offenses, including issuing fines and making arrests for non-dangerous behaviors, thus eliminating many of the unnecessary interactions between the police and community members that have led to so much violence and so many deaths;
• Reinvesting savings from the current policing budgets into alternatives to policing that will keep local communities safe and help them thrive;
• Implementing enforceable legal constraints so that there will be only rare instances in which police officers can use force against community members.

These three steps are the most urgent, impactful steps we can take as a country to protect communities from police harm. Together with our partners and allies, the ACLU will help reimagine an effective and far more limited role for police in our country; implement changes that will save lives, advance civil rights and safeguard liberties; and create the conditions to start repairing decades of harm and violence inflicted on overpoliced communities of color.

Anthony D. Romero, ACLU Executive Director

Across the country, people are protesting police brutality and systemic racism. They are relentlessly demanding justice for George Floyd, Breonna Taylor, and the countless other Black people killed by police. In response, President Trump, supported by belligerent enablers in Congress and his administration, has threatened to deploy federal troops into states, and federal agencies are investigating protestors for domestic terrorism. These presidential threats and actions are authoritarian, irresponsible, dangerous, and wrong. 

Trump’s threat to invoke the Insurrection Act of 1807 was extraordinary — over the last 50 years, presidents have rarely used this extreme authority, and rightly so. In this country, we have a strong norm against deploying the military on domestic soil, recognizing the threat it poses to liberty and individual civil rights. This norm is reflected in law — Congress passed the Posse Comitatus Act in 1878 to prohibit the use of federal military forces “to execute the law” unless the Constitution or Congress authorize it. That means the federal military can’t, for example, search, seize, arrest, apprehend, stop and frisk, surveil, pursue, interrogate, or investigate civilians.

But Congress also passed exceptions to the Posse Comitatus Act, the most expansive and potentially dangerous of which is the Insurrection Act of 1807. In the Insurrection Act, Congress gave presidents the authority to deploy active-duty federal troops and National Guard members under federal control — to suppress insurrection, acts of massive or widespread violence that “make it impracticable” to enforce federal law, or similar violence that obstructs federal law or the course of justice. Historically, presidents have invoked this authority to deploy troops at the request of a state, but also sometimes over a state’s objections — for example, to enforce civil rights protections and court-ordered desegregation. That is the opposite of what Trump would do.

Much as Trump loves the rhetoric of “war” and sees Black and Brown protest as a threat, the reality is that we are not at war in this country. Nor is it impracticable for civilian authorities to respond calmly and responsibly to unrest, especially when it is over their own abuses. Protestors are demanding that law enforcement end decades of unjust, unequal, and racist treatment of Black communities.

What Trump doesn’t seem to understand when he threatens to unleash “unlimited” military power domestically is that there are limits. Even if he were to wrongly and unnecessarily invoke the Insurrection Act, federal troops would still be subject to all of the safeguards and restrictions the Constitution imposes. Even so, the escalation would carry obvious dangers of excessive government surveillance and use of force, in violation of the Constitution. Civilian police, National Guard forces in D.C., and some National Guard forces in states are already engaging in serious abuses and violence.

An even more militarized response to civilian dissent would escalate the tension, fear, and pain we’re seeing and feeling across the country, especially in communities already traumatized by police violence. It would worsen the over-policing of Black lives — the very reason why people around the country are protesting.
 
Current and former military leaders are rightly warning against calling out more troops, and reminding troops of the fundamentals of the Constitution. Still, the fact that military leaders are being hailed as calming influences is a stark marker of how broken our politics, norms, and country are. It was not so long ago that military leaders had to reaffirm the prohibition against torture when it was systematically used against Brown and Black men abroad.

We have not come a long way, America. Perhaps policymakers will finally wake up to the harms of decades of rights-violating, war-based foreign policy — and its connections to militarized policing and racism at home. Every politician who is quick to laud Dr. Martin Luther King Jr. needs to remember his radical call to action against “the giant triplets of racism, extreme materialism, and militarism.” There is so much to fundamentally reform, and the people in the streets are demonstrating their urgent will for change. Yet much like during Dr. King’s time, federal agencies are viewing civil rights protests and protestors as domestic terrorists — enemies of the state.

Public attention has mostly focused on Trump blaming Antifa for violence and asserting that he would designate it as a domestic terrorist organization, even though he does not have that legal authority. That the same day, the FBI’s Washington Field Office reported it “has no intelligence indicating Antifa involvement/presence” in violence, and a later Department of Homeland Security intelligence assessment reportedly found the violence that has occurred is opportunistic.

Focusing on the threat against Antifa alone, though, misses the broader harms and consequences. Attorney General Barr this week enthusiastically announced that the Justice Department is using its broad and abusive domestic terrorism investigative powers in response to civil unrest.

Terrorism is an inherently political label, easily abused and misused. Communities of color already know this from 20 years of experience being targeted for discriminatory surveillance and investigation under the Patriot Act’s broad and vague definition of domestic terrorism. Black communities have long been in federal law enforcement’s cross-hairs: in 2017, the FBI concocted the label “black identity extremists,” opening the door to bias-based profiling of Black people and Black-led organizations who use their voices to demand racial justice. The agency appears to have conducted similar investigations of indigenous activists and protest. Civil rights leaders and groups have long demanded reform of national security and criminal authorities that discriminatorily suppress and punish Black and Brown people, and raise significant equal protection, due process, and First Amendment concerns. But Congress has stubbornly refused to act. 

Now, Trump and Barr appear willing to bring the massive weight of the federal government’s expanded post-9/11 investigative powers and agencies down on new generations of racial justice and civil rights activists crying out for the right of Black people to live, and a more equal and just America. 

These are some of the real threats we face right now — and reject.

Hina Shamsi, Director, ACLU National Security Project

A police officer with his hand casually in his pocket knelt on George Floyd’s neck for almost 9 minutes while several colleagues watched or knelt on other parts of Mr. Floyd’s body. The officers knew people were filming, but they were confident no one would stop them. They were right, and they killed Mr. Floyd without interference from anyone, apart from the cries of horrified bystanders. After all, they had badges and guns. On that day, Minneapolis police conducted a racial terror lynching of George Floyd in broad daylight that was filmed by onlookers and then sent across America.  President Trump’s reaction tells you all you need to know about his commitment to seriously address racism in America. 
 
The President called Mr. Floyd’s family. The call was “so fast,” Mr. Floyd’s brother Terrence recalled. “He didn’t give me the opportunity to even speak. It was hard. I was trying to talk to him, but he just kept, like, pushing me off, like ‘I don’t want to hear what you’re talking about.’”
 
Once the call was finished, so was any expression of concern about the racism that enabled Mr. Floyd’s murder. When demonstrations turned violent, Trump quoted an infamous Miami police chief from the 60s: “When the looting starts, the shooting starts.” When people across party lines expressed outrage, Trump claimed he did not mean police should shoot people committing property crime. Yet when protestors showed up at the White House, he threatened to unleash vicious dogs and ominous weapons, later adding that the power of the federal military should be used. 
 
On a conference call with Governors, Trump was as clear as he could be when he said, “You have to arrest people, you have to try people, you have to put them in jail for 10 years and you’ll never see this stuff again.” He added, “You have to dominate. If you don’t dominate, you’re wasting your time.” His solution to the protests is the response that has always been embraced in America — suppress them aggressively. Send some people to prison. Harass some activists. Maybe next time, they will take the thoughts and prayers and shut up.
 
These demonstrations are about more than murder by police officers. Earlier this year, Trump claimed that there was a need to study the impact of COVID-19 on Black America. This is necessary only if, like the President, you have turned a blind eye to history and fact. COVID-19 stripped away any cover we had to avoid seeing the true impact of inadequate health care, under-funded education, gentrification, and economic disparities — conditions in communities of color, and in Black communities in particular, that are the direct result of centuries of intentionally created structural racism.
 
These are the things behind the unrest in America. However, the racism and hatred behind the murder of George Floyd has faded from our President’s focus because he has identified something more important than a racial terror lynching by police. He has identified the real enemy.
 
Who is it? Well, depending on the circumstances, for Trump it is Mexicans, Muslims or the Chinese. This time, the real enemy is not the racism in America that let police officers choke the life out of a man in front of numerous witnesses with unfettered confidence. It is the demonstrators — Trump calls them “thugs” — many of whom are Black Americans.
 
So instead of actions to eliminate the racism that pressed the knee into Mr. Floyd’s neck, we get threats about what is coming for these “thugs.” Unless cities respond with an overwhelming law enforcement presence, he will “deploy the United States military and quickly solve the problem for them.” If you wonder what he meant by domination, you have your answer.

How many times can a country offer thoughts and prayers in the face of senseless death with no progress or solutions before it becomes clear that the thoughts and prayers were meaningless? George Floyd must remind you of Eric Garner. Breonna Taylor and Terence Crutcher should be alive today. Trayvon Martin and Ahmaud Arbery are dead because their blackness alone marked them as criminal. If thoughts and prayers made a difference, why are we living in this moment of crisis 99 years after the Tulsa Massacre, 52 years after the King assassination, and 29 years after Rodney King was beaten?  
 
The federal government is pushing for cities and states to make a maximum effort to prevent property damage. The President is willing to commit federal law enforcement resources and even the military to defeat the enemy, protect property, and reinstate the status quo. What would America look like if we ever put the same commitment and resources into the elimination of and reckoning with racism?
 
Take a good look at Mr. Floyd’s lynching and the centuries of unaddressed racism in America. What’s it going to be this time — more thoughts and prayers, with Trump’s military threat waiting if anyone complains? Or, for the first time in our history, a maximum effort with dedicated local, state, and federal resources to transform America’s history of racism? 
 
Our President has given you his answer. America is going to have to answer the same question.

Jeffery Robinson, ACLU Deputy Legal Director and Director of the Trone Center for Justice and Equality