President Donald Trump recently revoked the Obama-era executive order that placed prohibitions and controls on the transfer of excess military equipment from the Department of Defense (DoD) to local law enforcement agencies. Now, these agencies—to include many small- and medium-sized police departments—may lawfully obtain military-issued equipment to include grenade launchers, bayonets, and Mine-Resistant Ambush Protected (MRAP) vehicles at virtually no cost and without standardized training. This military equipment transfer is authorized as part of the government’s “excess personnel property program,” commonly referred to as the “1033 program” after the legislative provision in the 1997 National Defense Authorization Act. Congress initially put the program in place with an eye toward countering illicit drug activity in local communities. But the wars in Iraq and Afghanistan changed both the volume and lethal nature of the equipment and weaponry being transferred to local police.
The 1033 program gained notoriety in 2014 during the civil unrest in Ferguson, Mo., with images shown around the world of local police with military-style assault rifles in armored vehicles. The Ferguson protests and riots, prompted by the fatal shooting of Michael Brown by a police officer, and concerns over excessive force by police, prompted the Obama administration to issue its executive order and corresponding guidance that placed oversight and common sense controls over the 1033 program. While the Trump administration pointed to studies that suggested the use of such equipment had saved officers’ lives, other studies demonstrate that more militarized law enforcement agencies were associated with more civilians killed each year by police. Under the Obama guidance, bayonets, grenade launchers, and large caliber weapons and ammunition were prohibited from being transferred from DoD to local law enforcement, while other items were strictly controlled. Trump’s recent executive order now re-opens the door for the transfer of more lethal weaponry and equipment.
Because it means getting more equipment at drastically reduced prices, many police departments have embraced the 1033 program. And many state and local police departments have suffered fiscal austerity measures in recent years, making the 1033 program a particularly attractive resource. Indeed, the 1033 program has transferred in excess of $5.4 billion worth of equipment to over 8,000 participating police departments since its inception. But it has been riddled with oversight issues. Just last month the Government Accountability Office created a fictitious federal agency through which it was able to obtain over 100 controlled items via the 1033 program.
The militarization of police departments and the continual blurring of lines between military and law enforcement functions are trends that should be reversed, not accelerated. Trump’s revocation of the Obama ban raises several additional unresolved issues that get to the heart of our civil society and the relationship between the police and the local community.
First, the 1033 program is broadly written to authorize the transfer of military-grade equipment to encompass both offensive and defensive equipment. Prior to transfer, only two requirements need to be met: (1) the equipment must be in excess to the needs of the DoD; and (2) the equipment is “suitable for use by the agencies in law enforcement activities” to include “counter-drug” and “counter-terrorism.” While the 1033 program authorizes what may be fairly characterized as defensive gear such as helmets and military-grade protective vests, it also includes “small arms and ammunition” which has been interpreted to include a whole host of military-grade weapons. There is a strong argument to be made for maintaining the transfer of the life-saving defensive equipment, but we should question the utility of allowing the transfer of the more advanced weapons with uniquely military purposes. For example, it remains unclear why, exactly, a local police department would ever need bayonets, grenade launchers, or .50 caliber machine guns to conduct effective local policing. The bayonet is a bladed weapon designed as a weapon of last resort for close-quarter, hand-to-hand combat. In what circumstance, would a police department need this?
Secondly, the 1033 program does not mandate any sort of standardized training requirement for the law enforcement agency prior to receiving and utilizing the military’s excess property. Contrast this to the training and certification requirements put in place prior to the employment of equipment and weapons by military personnel within the Army, Navy, Air Force, and Marines. Before military personnel utilize automatic weapons or drive armored vehicles, they are required to undergo extensive training and continual re-certifications. In contrast, per the plain language of the 1033 program, no training requirement is mandated prior to the receipt of such military hardware. Even IKEA will provide you a pamphlet before you put together a bookcase. While President Barack Obama sought to install reasonable standards for training as a condition for receiving the equipment, Trump’s executive order appears to invalidate this. While some local police departments attempt to invest time and effort to properly train on their new equipment, others simply do not. If a training requirement is there for a military service member employing the equipment or firing a weapon, shouldn’t a similar, uniform requirement be put in place prior to a local police officer employing military hardware and weaponry in our communities?
Third, as a nation we need to understand the unintended consequences of this military transfer program and continue to ask ourselves how blurring the lines between the military and law enforcement should be addressed in our civil society. As I have previously argued, the 1878 Posse Comitatus Act is a flawed but vital law that serves to prevent the military from playing an active role in law enforcement. It has served us well in limiting the military’s role in day-to-day law enforcement and public life. But that boundary is being eroded.
Today, many police departments have more advanced military equipment and are more heavily armed than the National Guard. The 1033 program facilitates the militarization of local law enforcement, and in some ways, fills the void imposed by the Posse Comitatus Act’s prohibition on the military’s participation in local law enforcement. Without proper oversight, training, and common-sense controls, accidents are bound to happen. And surely the widespread use of such equipment by local police departments creates a further divide between law enforcement and the community which they are sworn to protect. Consider the trust deficit between the community and police departments in the aftermath of the fatal shootings by police and the ensuing civil unrest in Ferguson and Baltimore. This trust deficit will take years to heal. Bayonets and other such equipment are simply not helpful tools to regain the community’s trust.
Image: Getty/Scott Olson