The Logic of the Police State in America

Yves here. This piece by Matthew Haywood gives an update on how police forces are openly taking the position that they are not accountable to democratic processes and how that attitude is translating into policies and actions. Readers are likely to know about many of the developments cited here: militarization, heated rhetoric about how anyone who challenges police operations is a threat to public safety, open confrontations with elected officials. But some things in this article were new to me, such as police in many states securing much better rights against prosecution than the rest of us.

By Matthew Harwood, a senior writer/editor of the ACLU. His work has appeared at Al Jazeera America, the American Conservative, the Guardian, Guernica, Salon, War is Boring, and the Washington Monthly. Originally published at TomDispatch

If you’ve been listening to various police agencies and their supporters, then you know what the future holds: anarchy is coming — and it’s all the fault of activists.

In May, a Wall Street Journal op-ed warned of a “new nationwide crime wave” thanks to “intense agitation against American police departments” over the previous year. New Jersey Governor Chris Christie went further. Talking recently with the host of CBS’s Face the Nation, the Republican presidential hopeful asserted that the Black Lives Matter movement wasn’t about reform but something far more sinister. “They’ve been chanting in the streets for the murder of police officers,” he insisted. Even the nation’s top cop, FBI Director James Comey, weighed in at the University of Chicago Law School, speaking of “a chill wind that has blown through American law enforcement over the last year.”

According to these figures and others like them, lawlessness has been sweeping the nation as the so-called Ferguson effect spreads. Criminals have been emboldened as police officers are forced to think twice about doing their jobs for fear of the infamy of starring in the next viral video. The police have supposedly become the targets of assassins intoxicated by “anti-cop rhetoric,” just as departments are being stripped of the kind of high-powered equipment they need to protect officers and communities.  Even their funding streams have, it’s claimed, come under attack as anti-cop bias has infected Washington, D.C.  Senator Ted Cruz caught the spirit of that critique by convening a Senate subcommittee hearing to which he gave the title, “The War on Police: How the Federal Government Undermines State and Local Law Enforcement.” According to him, the federal government, including the president and attorney general, has been vilifying the police, who are now being treated as if they, not the criminals, were the enemy.

Beyond the storm of commentary and criticism, however, quite a different reality presents itself. In the simplest terms, there is no war on the police. Violent attacks against police officers remain at historic lows, even though approximately 1,000 people have been killed by the police this year nationwide. In just the past few weeks, videos have been released of problematic fatal police shootings in San Francisco and Chicago.

While it’s too soon to tell whether there has been an uptick in violent crime in the post-Ferguson period, no evidence connects any possible increase to the phenomenon of police violence being exposed to the nation. What is taking place and what the police and their supporters are largely reacting to is a modest push for sensible law enforcement reforms from groups as diverse as Campaign Zero, Koch Industries, the Cato Institute, The Leadership Conference, and the ACLU (my employer). Unfortunately, as the rhetoric ratchets up, many police agencies and organizations are increasingly resistant to any reforms, forgetting whom they serve and ignoring constitutional limits on what they can do.

Indeed, a closer look at law enforcement arguments against commonsense reforms like independently investigating police violence, demilitarizing police forces, or ending “for-profit policing” reveals a striking disregard for concerns of just about any sort when it comes to brutality and abuse. What this “debate” has revealed, in fact, is a mainstream policing mindset ready to manufacture fear without evidence and promote the belief that American civil rights and liberties are actually an impediment to public safety. In the end, such law enforcement arguments subvert the very idea that the police are there to serve the community and should be under civilian control.

And that, when you come right down to it, is the logic of the police state.  

Due Process Plus

It’s no mystery why so few police officers are investigated and prosecuted for using excessive force and violating someone’s rights. “Local prosecutors rely on local police departments to gather the evidence and testimony they need to successfully prosecute criminals,” according to Campaign Zero . “This makes it hard for them to investigate and prosecute the same police officers in cases of police violence.”

Since 2005, according to an analysis by the Washington Post and Bowling Green State University, only 54 officers have been prosecuted nationwide, despite the thousands of fatal shootings by police. As Philip M. Stinson, a criminologist at Bowling Green, puts it, “To charge an officer in a fatal shooting, it takes something so egregious, so over the top that it cannot be explained in any rational way. It also has to be a case that prosecutors are willing to hang their reputation on.”

For many in law enforcement, however, none of this should concern any of us. When New York Governor Andrew Cuomo signed an executive order appointing a special prosecutor to investigate police killings, for instance, Patrick Lynch, president of the Patrolmen’s Benevolent Association, insisted: “Given the many levels of oversight that already exist, both internally in the NYPD [New York Police Department] and externally in many forms, the appointment of a special prosecutor is unnecessary.” Even before Cuomo’s decision, the chairman of New York’s District Attorneys Association called plans to appoint a special prosecutor for police killings “deeply insulting.”

Such pushback against the very idea of independently investigating police actions has, post-Ferguson, become everyday fare, and some law enforcement leaders have staked out a position significantly beyond that.  The police, they clearly believe, should get special treatment.

“By virtue of our dangerous vocation, we should expect to receive the benefit of the doubt in controversial incidents,” wrote Ed Mullins, the president of New York City’s Sergeants Benevolent Association, in the organization’s magazine, Frontline. As if to drive home the point, its cover depicts Baltimore State Attorney Marilyn Mosby under the ominous headline “The Wolf That Lurks.” In May, Mosby had announced indictments of six officers in the case of Freddie Gray, who died in Baltimore police custody the previous month. The message being sent to a prosecutor willing to indict cops was hardly subtle: you’re a traitor.

Mullins put forward a legal standard for officers accused of wrongdoing that he would never support for the average citizen — and in a situation in which cops already get what former federal prosecutor Laurie Levenson calls “a super presumption of innocence.”  In addition, police unions in many states have aggressively pushed for their own bills of rights, which make it nearly impossible for police officers to be fired, much less charged with crimes when they violate an individual’s civil rights and liberties.

In 14 states, versions of a Law Enforcement Officers’ Bill of Rights (LEOBR) have already been passed, while in 11 others they are under consideration.  These provide an “extra layer of due process” in cases of alleged police misconduct, according to Samuel Walker, an expert on police accountability. In many of the states without a LEOBR, the Marshall Project has discovered, police unions have directly negotiated the same rights and privileges with state governments.

LEOBRs are, in fact, amazingly un-American documents in the protections they afford officers accused of misconduct during internal investigations, rights that those officers are never required to extend to their suspects. Though the specific language of these laws varies from state to state, notes Mike Riggs in Reason, they are remarkably similar in their special considerations for the police.

“Unlike a member of the public, the officer gets a ‘cooling off’ period before he has to respond to any questions. Unlike a member of the public, the officer under investigation is privy to the names of his complainants and their testimony against him before he is ever interrogated. Unlike a member of the public, the officer under investigation is to be interrogated ‘at a reasonable hour,’ with a union member present. Unlike a member of the public, the officer can only be questioned by one person during his interrogation. Unlike a member of the public, the officer can be interrogated only ‘for reasonable periods,’ which ‘shall be timed to allow for such personal necessities and rest periods as are reasonably necessary.’ Unlike a member of the public, the officer under investigation cannot be ‘threatened with disciplinary action’ at any point during his interrogation. If he is threatened with punishment, whatever he says following the threat cannot be used against him.”

The Marshall Project refers to these laws as the “Blue Shield” and “the original Bill of Rights with an upgrade.’’ Police associations, naturally, don’t agree. “All this does is provide a very basic level of constitutional protections for our officers, so that they can make statements that will stand up later in court,” says Vince Canales, the president of Maryland’s Fraternal Order of Police.

Put another way, there are two kinds of due process in America — one for cops and another for the rest of us. This is the reason why the Black Lives Matter movement and other civil rights and civil liberties organizations regularly call on states to create a special prosecutor’s office to launch independent investigations when police seriously injure or kill someone.

The Demilitarized Blues

Since Americans first took in those images from Ferguson of police units outfitted like soldiers, riding in military vehicles, and pointing assault rifles at protesters, the militarization of the police and the way the Pentagon has been supplying them with equipment directly off this country’s distant battlefields have been top concerns for police reformers. In May, the Obama administration suggested modest changes to the Pentagon’s 1033 program, which, since 1990, has been redistributing weaponry and equipment to police departments nationwide — urban, suburban, and rural — in the name of fighting the war on drugs and protecting Americans from terrorism.  

Even the idea that the police shouldn’t sport the look of an occupying army in local communities has, however, been met with fierce resistance. Read, for example, the online petition started by the National Sheriffs’ Association and you could be excused for thinking that the Obama administration was aggressively moving to stop the flow of military-grade equipment to local and state police agencies. (It isn’t.)  The message that tops the petition is as simple as it is misleading: “Don’t strip law enforcement of the gear they need to keep us safe.”

The Obama administration has done no such thing. In May, the president announced that he was prohibiting certain military-grade equipment from being transferred to state and local law enforcement. “Some equipment made for the battlefield is not appropriate for local police departments,” he said. The list included tracked armored vehicles (essentially tanks), bayonets, grenade launchers, camouflage uniforms, and guns and ammo of .50 caliber or higher. In reality, what use could a local police department have for bayonets, grenade launchers, or the kinds of bullets that resemble small missiles, pierce armor, and can blow people’s limbs off?

Yet the sheriffs’ association has no problem complaining that “the White House announced the government would no longer provide equipment like helicopters and MRAPs [mine-resistant ambush-protected vehicles] to local law enforcement.” And it’s not even true. Police departments can still obtain both helicopters and MRAPs if they establish community policing practices, institute training protocols, and get community approval before the equipment transfer occurs. 

“Helicopters rescue runaways and natural disaster victims,” the sheriff’s association adds gravely, “and MRAPs are used to respond to shooters who barricade themselves in neighborhoods and are one of the few vehicles able to navigate hurricane, snowstorm, and tornado-strewn areas to save survivors.”

As with our wars abroad, think mission creep at home. A program started to wage the war on drugs, and strengthened after 9/11, is now being justified on the grounds that certain equipment is useful during disasters or emergencies. In reality, the police have clearly become hooked on a militarized look. Many departments are ever more attached to their weapons of war and evidently don’t mind the appearance of being an occupying force in their communities, which leaves groups like the sheriffs’ association fighting fiercely for a militarized future.

Legal Plunder

In July, the American Civil Liberties Union and the ACLU of Arizona sued law enforcement in Pinal County, Arizona, on behalf of Rhonda Cox. Two years before, her son had stolen some truck accessories and, without her knowledge, fitted them on her truck. When the county sheriff’s department arrested him, it also seized the truck.

Arriving on the scene of her son’s arrest, Cox asked a deputy about getting her truck back. No way, he told her. After she protested, explaining that she had nothing to do with her son’s alleged crimes, he responded “too bad.” Under Arizona law, the truck could indeed be taken into custody and kept or sold off by the sheriff’s department even though she was never charged with a crime. It was guilty even if she wasn’t.

Welcome to America’s civil asset forfeiture laws, another product of law enforcement’s failed war on drugs, updated for the twenty-first century. Originally designed to deprive suspected real-life Scarfaces of the spoils of their illicit trade — houses, cars, boats — it now regularly deprives people unconnected to the war on drugs of their property without due process of law and in violation of the Fifth and Fourteenth Amendments. Not surprisingly, corruption follows.

Federal and state law enforcement can now often keep property seized or sell it and retain a portion of the revenue generated. Some of this, in turn, can be repurposed and distributed as bonuses in police and other law enforcement departments.  The only way the dispossessed stand a chance of getting such “forfeited” property back is if they are willing to take on the government in a process where the deck is stacked against them.

In such cases, for instance, property owners have no right to an attorney to defend them, which means that they must either pony up additional cash for a lawyer or contest the seizure themselves in court.  “It is an upside-down world where,” says the libertarian Institute for Justice, “the government holds all the cards and has the financial incentive to play them to the hilt.”

In this century, civil asset forfeiture has mutated into what’s now called “for-profit policing” in which police departments and state and federal law enforcement agencies indiscriminately seize the property of citizens who aren’t drug kingpins. Sometimes, for instance, distinctly ordinary citizens suspected of driving drunk or soliciting prostitutes get their cars confiscated. Sometimes they simply get cash taken from them on suspicion of low-level drug dealing.

Like most criminal justice issues, race matters in civil asset forfeiture. This summer, the ACLU of Pennsylvania issued a report, Guilty Property, documenting how the Philadelphia Police Department and district attorney’s office abused state civil asset forfeiture by taking at least $1 million from innocent people within the city limits. Approximately 70% of the time, those people were black, even though the city’s population is almost evenly divided between whites and African-Americans.  

Currently, only one state, New Mexico, has done away with civil asset forfeiture entirely, while also severely restricting state and local law enforcement from profiting off similar national laws when they work with the feds. (The police in Albuquerque are, however, actively defying the new law, demonstrating yet again the way in which police departments believe the rules don’t apply to them.) That no other state has done so is hardly surprising. Police departments have become so reliant on civil asset forfeiture to pad their budgets and acquire “little goodies” that reforming, much less repealing, such laws are a tough sell.

As with militarization, when police defend such policies, you sense their urgent desire to maintain what many of them now clearly think of as police rights. In August, for instance, Pinal County Sheriff Paul Babeu sent a fundraising email to his supporters using the imagined peril of the ACLU lawsuit as clickbait. In justifying civil forfeiture, he failed to mention that a huge portion of the money goes to enrich his own department, but praised the program in this fashion:

“[O]ver the past seven years, the Pinal County Sheriff’s Office has donated $1.2 million of seized criminal money to support youth programs like the Boys & Girls Clubs, Boy Scouts, YMCA, high school graduation night lock-in events, youth sports as well as veterans groups, local food banks, victims assistance programs, and Home of Home in Casa Grande.”

Under this logic, police officers can steal from people who haven’t even been charged with a crime as long as they share the wealth with community organizations — though, in fact, neither in Pinal County or elsewhere is that where most of the confiscated loot appears to go. Think of this as the development of a culture of thievery masquerading as Robin Hood in blue.

Contempt for Civilian Control 

Post-Ferguson developments in policing are essentially a struggle over whether the police deserve special treatment and exceptions from the rules the rest of us must follow. For too long, they have avoided accountability for brutal misconduct, while in this century arming themselves for war on America’s streets and misusing laws to profit off the public trust, largely in secret. The events of the past two years have offered graphic evidence that police culture is dysfunctional and in need of a democratic reformation.

There are, of course, still examples of law enforcement leaders who see the police as part of American society, not exempt from it. But even then, the reformers face stiff resistance from the law enforcement communities they lead. In Minneapolis, for instance, Police Chief Janeé Harteau attempted to have state investigators look into incidents when her officers seriously hurt or killed someone in the line of duty. Police union opposition killed her plan. In Philadelphia, Police Commissioner Charles Ramsey ordered his department to publicly release the names of officers involved in shootings within 72 hours of any incident. The city’s police union promptly challenged his policy, while the Pennsylvania House of Representatives passed a bill in November to stop the release of the names of officers who fire their weapon or use force when on the job unless criminal charges are filed. Not surprisingly, three powerful police unions in the state supported the legislation. 

In the present atmosphere, many in the law enforcement community see the Harteaus and Ramseys of their profession as figures who don’t speak for them, and groups or individuals wanting even the most modest of police reforms as so many police haters. As former New York Police Department Commissioner Howard Safir told Fox News in May, “Similar to athletes on the playing field, sometimes it’s difficult to tune out the boos from the no-talents sipping their drinks, sitting comfortably in their seats. It’s demoralizing to read about the misguided anti-cop gibberish spewing from those who take their freedoms for granted.”

The disdain in such imagery, increasingly common in the world of policing, is striking. It smacks of a police-state, bunker mentality that sees democratic values and just about any limits on the power of law enforcement as threats. In other words, the Safirs want the public — particularly in communities of color and poor neighborhoods — to shut up and do as it’s told when a police officer says so. If the cops give the orders, compliance — so this line of thinking goes — isn’t optional, no matter how egregious the misconduct or how sensible the reforms. Obey or else.

The post-Ferguson public clamor demanding better policing continues to get louder, and yet too many police departments have this to say in response: Welcome to Cop Land. We make the rules around here.

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  1. Tom Stone

    This is why we need to get rid of Gunz in the hands of the general public. Ordinary people don’t know what’s good for them, they need a strict but loving government to watch over them to keep civil order at a time when the Homeland is besieged by enemies from within and without.
    Thank goodness CISA passed!

    1. Zeke

      I’m right with you Tom. Those federalist paper writers had no idea what they were talking about. Yay for CISA, we welcome our Economic Elite betters and their Police Enforcers. Please take away my scary weapons:

      “Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped;…if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.” -Federalist Paper #29

      1. Jim Haygood

        Horrible irony is that while Hamilton, Madison and Jay suavely said what folks wanted to hear, the centralized government they advocated morphed into the permawar, post-constitutional regime that systematically tramples the Bill of Rights today.

        I can’t read the Federalist Papers no more except as a sick parody.

    2. jgordon

      I’ve been somewhat persuaded by NC over the past few months, so I also have to chip in my agreement. I think it’s a good thing for the public to be complete disarmed and defenseless, because safety. If people encounter any danger, they can just shelter in place and wait for the proper authorities to resolve everything.

      It’s really unfortunate that so many police departments across the US are downsizing and disbanding, while others are filled with self-righteous and thieving homicidal maniacs. But well–they’ll certainly prioritize protecting your safety–even if you aren’t a high-income white person. Just trust them.

  2. washunate

    Great read. I’d emphasize though that in the big picture, law enforcement isn’t the problem. They’re doing what they’re told to do, not making the decisions.

    We have civilian control of the police. The problem is that the primarily Democratic mayors, prosecutors, judges, national politicians, media pundits, and other highly paid people in positions of authority and influence in our major cities task the police with entrenching inequality rather than enforcing rule of law.

    1. Fool

      That was my view — that is, having grown up in New York where cops were always kind to me and made me feel safe, as a gringo — even though I learned as I got older how much different things would be, say, 10 blocks uptown.

      That said, it became hard for me to simply pin their conduct solely on “systemic forces” when, at a police funeral last year, the NYPD collectively turned their backs on the mayor, blaming him for cop that had been killed. Then again, perhaps the systemic forces at play are such that, today, it’s a certain personality that gravitates to the police force.

      1. washunate

        That raises the really interesting question of what, exactly, has Mayor de Blasio done to dismantle the police state? These kinds of things are mostly image items around the margins.

        The core of the two-tiered justice system (namely, that poor and minority residents face disparate outcomes compared to wealthier and whiter residents) remains firmly entrenched.

        It would be interesting, for example, if de Blasio directed the NYPD to arrest more senior financial fraudsters than low-income drug users and the NYPD refused to comply. But he hasn’t made such a proclamation so we’ll conveniently never know for sure just how much of the total problem is systemic and how much is individual police officers.

        1. Fool

          Apologies for the late response, but for one thing he fought against stop-and-frisk, and he publicly criticized the NYPD while invoking his son. Granted, the backlash overstated the latter’s significance, but it was an important gesture nonetheless.

          Second, what “senior fraudsters” would you like arrested?

  3. Steve H.

    Cognitive dissonance: I have a conditioned response that “Unions are Good.” A quick check indicates that less than half of law enforcement officers are members of the FoP, and the FoP seems to be a coordinating mechanism for local unions, rather than a Union itself.

    What other unions have been able to negotiate such favorable terms for its workers? Baseball? Maybe baseball.

    More curious: to legally shoot non-citizens (by joining the military), you sign away some constitutional rights (like a jury of peers). But to legally shoot citizens (police), you seem to get more rights, as a signing bonus.

    1. so

      You can write all the laws in the world but to kill a person, then all bets are off. I care more about my soul then the chemical clothing of just this lifetime. I’ll never own a gun.
      If it gets that bad I’ll go to home depot for some rope and be done with it. If I have the courage.
      The courage to be non violent.
      If it feels wrong then it probably is.

      1. Steve H.

        I’ll hope you’d apply the principle of non-violence to yourself, as well.

        Stick around and be a voice.

        1. so

          Thanks. Let’s hope that at some time the human race realizes how connected we all are. What’s the phrase…..what you do to others you do to yourself.

  4. fresno dan

    “But some things in this article were new to me, such as police in many states securing much better rights against prosecution than the rest of us.”
    “Mullins put forward a legal standard for officers accused of wrongdoing that he would never support for the average citizen — and in a situation in which cops already get what former federal prosecutor Laurie Levenson calls “a super presumption of innocence.”

    I first became aware of this when I lived in Maryland – a cop can’t be interviewed for 3 days after he starts being investigated. What an OUTRAGE – whatever happened to equal rights under law?
    I suspect that police actually break the law at a higher rate than the average citizen – my experience when I was growing up in Fresno was that the county Sheriffs officers were always being prosecuted for drug crimes or spouse abuse. And this is way before phone cameras – how much abuse of people in custody and actual framing of people was taking place is anybody’s guess….
    To me, there is no better example of how illiberal democrats are than the police states that have been instituted in most major cities.

    “The city’s police union promptly challenged his policy, while the Pennsylvania House of Representatives passed a bill in November to stop the release of the names of officers who fire their weapon or use force when on the job unless criminal charges are filed. Not surprisingly, three powerful police unions in the state supported the legislation.”

    The theory of how representative government works and how in reality it can and has been manipulated for the benefit for the few is to me the greatest challenge humanity faces.

    On average, about 22 people a day are murdered by guns. (CDC for 2013)
    So why exactly is 14 deaths by terrorism worth weeks of hysterical coverage, while more people being killed DAILY is not newsworthy? Dog bites man story? Americans shooting Americans is as common as a sunrise – – but a terrorist shooting an American is so rare that it is newsworthy?

    Or is it part of a vast conspiracy to make people terrified – so that there can be ever more police and war??? Put me in the tinfoil hat crowd, because I am finding it extremely difficult to believe this has all just spontaneously happened…..
    I think I have posted Goering’s statement about the people being manipulated into war enough that I don’t need to do it again…

  5. Jerry Denim

    “…those who take their freedoms for granted”

    This upsidedown attitude and presumed unassailable truth by those in favor of a police state always sticks in my throat. I haven’t heard of a single foreign autocrat, islamic terrorist or a common street criminal who wants to curtail any of my freedoms but the government and the police of my own country want to take away lots of my freedoms, including my money and my car/house.

    Bumper sticker idea: “Freedom Isn’t Free- Donate to the ACLU today!” Perhaps even have a gang of cops brutually assaulting Lady Liberty in the background. Unfortunately putting such a sticker on your car might be enough to get you killed by the police these days. They’re armed to the teeth, paranoid, angry, and aggrieved with a false sense of victimhood.

  6. Elizabeth Burton

    Cab drivers are more likely to be injured while working than law enforcement officers in both the US and Canada, according to studies. Does this mean 1033 should be extended to cover cabbies, so they can drive MRAPs instead of sedans and minivans and have sufficient armament to provide protection for themselves and their passengers?

    Clearly “To protect and serve” has been replaced by “We got ours, and we want yours, too.”

  7. Lin1

    I think we’re long past being able to control or direct the forces at work hurtling the United States towards its expiration date. If its any consolation police corruption and violence are probably creating the seam along which the rupture will occur, when it finally does occur. One day, like any other day, but in the not-so distant future we will become aware of some new police outrage.Protesters will trickle into the streets in cities, here and there – to be abused by the rank and file members of a violent and unaccountable police bureaucracy.I predict it will happen as the result of video of a protester being killed, piling outrage on top of outrage while the crooked bloated, entitled institution goes on fearing no end to its wickedness. The trickle of protesters becomes a stream while images of police bashing heads and stomping faces are accompanied daily by the obligatory department spokesmen refusing to accept even a single particle of responsibility for the fatal culture of their profession . The stream of protesters becomes a torrent and one day, like any other day, the entire rotten architecture of a society long in decline,will collapse under the weight history pooling in one of its many hollow crevasses.

      1. Oregoncharles

        Only it doesn’t really happen that way.

        This whole article and string of comments is deeply disturbing.

  8. Tom_b

    The police should not be routinely issued guns. They have failed repeatedly to demonstrate appropriate restraint. And I sincerely doubt the average cop in his entire career has a legitimate reason to ever draw his weapon.

    The police unions would argue the criminals have guns. I’m sure many do, but that’s an entirely separate problem, which could be substantially addressed by a Congress willing to stand up to the homegrown terrorist organization known as the NRA.

    The cops may feel “above the law”, but, as civil servants, they should instead be held to a HIGHER standard.

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