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Getting Police Militarization Under Control

August 20, 2015

Law enforcement agencies must explain how often and why they use lethal force. The PRIDE Act should be passed into law as soon as possible and the Obama administration should give it the stick it needs to be useful.

As the nation marks a year since the shooting of Michael Brown and heavily policed responses to subsequent protests of the shooting, police militarization is again making the news. Of particular interest is the Department of Defense-run 1033 Program. Begun in 1990 via the National Defense Authorization Act (NDAA) and expanded in 1997, the program permits the secretary of defense to transfer equipment, including small arms and ammunition, to law enforcement agencies in consultation with the attorney general. Police organizations get equipment for free, primarily to fight the “wars” on drugs and terrorism, and the Department of Defense decreases its excess equipment stock. But with little oversight, the program has become embroiled in controversy.

This previously little-known program garnered attention last August because of the militarized response by the Ferguson Police Department to protests over their conduct. Commentators — veterans specifically — wondered why local police forces took such an aggressive posture and if they should be trusted with equipment originally designed for the battlefield and not the streets of America. Increased scrutiny has only raised more questions about the program than it has answered.

Recently, Mother Jones published an article on the rationales police organizations used to justify their requests for armored vehicles over a two-year period. In spite of the rather narrow intent of the law to combat drug crimes, fight terrorism, and assist in the apprehension of violent criminals, police forces provided a wide variety of reasons for wanting to obtain MRAPs, vehicles designed for troops braving roadside bombs in Iraq and Afghanistan. Some were reasonable; others were less so. The most egregious request was that of the Ohio State University Police Division. They wanted an MRAP for, among other operations, “homeland security” and “football missions.” And they got their MRAP.

Beyond the dubious justifications for this equipment, there are some signs that its transfer is being mismanaged at the state level. This summer, the Department of Defense let the City of Ferguson know that it was taking back two Humvees. The vehicles, however, were not being repossessed because they were used improperly. Rather, federal officials noticed that the police department had four of the vehicles instead of the two they were allocated. It seems the Missouri state clearinghouse for 1033 Program gave Ferguson twice as many Humvees as the paperwork in Washington said they were permitted. Ferguson will still keep the two they were allowed. Little is known on how widespread the similar misallocation of equipment may be across the country.

In response to blowback, the Obama administration took action to place some controls on the program. Among administrative steps, the administration barred the transfer of some types of equipment (including bayonets and grenade launchers), created a controlled equipment list (including armored vehicles and riot equipment), mandated training on controlled items, and required some information collection when controlled equipment is used in “significant incidents.” The reforms are a major step forward, but there remains little oversight on the rationale for transfers or, importantly, what effect military equipment is having on recipient police forces.

Scrutiny of law enforcement in the wake of Ferguson has extended well beyond equipment transfers, as Americans have been asking questions about how we should expect the police to act in the conduct of their duties. The most important of these deal with the use of force, particularly deadly force. We simply do not know how many Americans are killed by police, to say nothing of the justifications for these deaths. The most prominent cases will be investigated, but most will not. This is especially troubling considering the possible scope of the problem: As of June, there were somewhere near 400 such deaths in 2015. But we simply do not know the exact total.

In spite of legal requirements and the appropriation of funds to develop statistics on nearly every aspect of crime and criminal justice systems throughout the country, data collection is spotty at best. While collecting and storing the data is technically required by law, reporting to either the Bureau of Justice Statistics or the FBI’s Uniform Crime Reporting Program has been less than uniform. With over 17,000 different state and local law enforcement agencies throughout the country, few funds to help these organizations pay for collection, and little interest in actual transparency, most agencies simply choose not to report data. This is particularly true for statistics on people killed or grievously injured by police.

In June a group of senators introduced the Police Reporting Information, Data and Evidence Act of 2015, or PRIDE Act, to require the states to report incidents involving shootings of civilians by law enforcement officers, shootings of law enforcement officers, and those that result in serious bodily harm to either. The act also provides grants to the states to cover the costs of this reporting. This is important legislation that should be enacted into law, despite opposition from groups such as the National Association of Police Organizations. However, attempts to incentivize states to report on similar matters have mostly failed. It is past time to introduce a stick to ensure that police are acting with the transparency we expect in a democratic society.

This is where the 1033 Program comes back into the story. Organizations looking to augment their capabilities should be particularly responsible for their actions. The Department of Defense should require compliance with the PRIDE Act, once enacted, for the transfer of items on the controlled equipment list. The secretary of defense is not required by the 1997 NDAA to provide equipment to any agency, but is merely authorized to do so. If the secretary does agree to transfer equipment, he or she should do so in consultation with the attorney general. If the attorney general is unable to confirm that the requesting agency is in compliance with the PRIDE Act, he or she should halt the flow of equipment to that agency. This requirement could be made through executive order, as it is an administrative issue and therefore would not require legislation.

All police forces, but especially those that request equipment built for military purposes, should be held accountable for their actions. The 1033 Program needs more oversight on how the equipment is used by the recipient agency. It is essential that law enforcement agencies are able to explain how often and why they use lethal force. This proposal begins to address both of these issues. The PRIDE Act should be passed into law as soon as possible and the Obama administration should give it the stick it needs to be useful, all the while getting an idea of the effects wrought by the provision of military equipment for civilian policing.

 

Jason Fritz is a senior editor at War on the Rocks. He is also a doctoral student in the Department of Justice, Law and Criminology at American University’s School of Public Affairs and a senior researcher at Valens Global.

 

Photo credit: Aranami

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5 thoughts on “Getting Police Militarization Under Control”

  1. We need to decouple equipment from posture. I’ll agree that the optics of seeing paramilitary style police on the streets of the US is unsettling, however there is a place for appropriate and effective PPE and armored vehicles in limited cases. So in the case of civil disturbances, it would be totally appropriate for police to be outfitted with riot gear: body armor, shields, batons, gas masks, bean bag guns, and even shotguns, and to have armored vehicles – appropriately painted in civilian police colors – available. It is not appropriate to wear ACUs and full battle rattle with M4 carbines, and desert camo armored vehicles. I suppose the purpose was to intimidate the crowd, but the overall presentation failed at both the local and national levels. One wonders what the mindset is among some localities’ law enforcement officials. Minor public officials need oversight.

    1. Tactical teams becoming a prestige capability is likely the culprit. The inability for the Ferguson Police to field a riot squad is interesting though, riot police didn’t show up until the State Troopers took over. Is this because small suburbs are too small or too poor for the manpower required for riot policing (which is large), or is it just easier (and sexier) to put cops on individual tactical courses, rather than drill en masse for riots?

      Having so many police organizations is, I feel, almost certainly a hindrance in this matter, rather than a help. For example, do universities even need their own police organization?

      The Anglo tradition of policing has always been more civilian than that of continental Europe, where the Italian Carabinieri even have their own parachute battalion, but I wonder if times are changing. I certainly hope not.

  2. Yes, all police forces are accountable for their actions (and should be held accountable for mistakes), but I disagree with the implication that it should be federal. That just makes it a political football. I agree that there is an argument for federal compliance when you are using federal assistance, but don’t see a gain in federal oversight over every police officer. That is just asking for more beauracracy and spending with little to no real effect.

    And I see that federal might not have a comprehensive tracking system for fatalities, but does that mean it’s not tracked? Just because someone isn’t compiling it nationally doesn’t mean that “we don’t know it” – just that no one has bothered to make the effort into pulling the data. Someone go wake up the interns.

  3. I disagree with a couple of the premises raised in “Getting Police Militarization Under Control.” The first premise that needs to be examined is whether state/county or local police agencies need surplus military equipment? Sadly, the federal government, as with most of its programs, has provided little or no oversight to a program it administers. It is the federal government’s responsibility to audit the use of this equipment pursuant to the request submitted by the police department wanting the equipment. If the reason for requesting the equipment was illogical, the federal government should not have given them the equipment to begin with. Once the equipment was issued the federal government is responsible for seeing that it is being used in accordance with the request that was provided to them. As usual, the federal government has done a dismal job of it. The second premise I disagree with is, “We simply do not know how many Americans are killed by police, to say nothing of the justifications for these deaths. The most prominent cases will be investigated, but most will not.” If we don’t know how many people are killed by police how can the author make a judgment call saying most killings by police will not be investigated? While we may not have hard numbers I can tell you all officer involved shootings are investigated. I base this on having worked in federal law enforcement for 25 years, across three states I will tell you every officer involved shooting of a person (whether the person is killed or not) is thoroughly investigated by police and the State’s Attorneys Office having jurisdiction over the area in which the shooting occurred. If the police department does not have the investigative capabilities necessary to conduct these investigations themselves, they have mutual assistance agreements where a larger department will come in and conduct the investigation for them. All shootings are investigated. You hear very little about most of them because they are justified. I really think the author’s gripe is he cannot easily find this information. Perhaps he can become part of the solution by developing and proposing a system that comports with the various legal systems in our 16 territories, 50 states and the federal government?