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August 26, 2020

Equipping Law Enforcement Agencies

Should there by limits on using military equipment?

The Department of Defense has a program through which state and local law enforcement agencies may acquire surplus military equipment.

The Department of Defense has a program through which state and local law enforcement agencies may acquire surplus military equipment.

As Americans are watching the civil unrest unfold across the country, there have been growing concerns about the use of military equipment by civilian law enforcement in state and local communities. The United States Senate recently passed a police reform measure that received little fanfare but, if enacted, would make an important difference.

The Department of Defense has a program through which state and local law enforcement agencies may acquire surplus military equipment – the “1033 Program,” so named for the original statute that authorized its creation (today it is 10 U.S.C. 2576). On July 21, 2020, Senate Armed Services Committee Chairman James Inhofe (R-OK) proposed amending this program in S. 4049, the National Defense Authorization Act of FY 2021, to make small but important changes. The amendment would require that law enforcement not only receive training in the use of acquired military equipment, but also in “respect for the rights of citizens under the Constitution of the United States and de-escalation of force.” The amendment would also expand the list of prohibited items that cannot be transferred to add bayonets, grenades, weaponized tracked combat vehicles (like variations on tanks), and weaponized drones. The full Senate approved the amendment by a vote of 90-10. Two days later, the Senate passed S. 4049 by a bipartisan vote of 84-16. The House and Senate are now negotiating their competing Defense bills.

Congressional response to the civil unrest attributed to actions by local law enforcement is important. This past summer, protests erupted nationwide following the death of George Floyd while Minneapolis police restrained him, resulting in criminal charges against the officers involved. Demonstrations were predominantly nonviolent, and police response was mixed – with some law enforcement agencies showing support for the protesters. But some agencies engaged in tactics reminiscent of the militarized response by Ferguson, Missouri police in 2014 following the shooting death of Michael Brown. Those tactics – dressing in combat-style uniforms while brandishing military weapons and using armored vehicles – led then-President Obama to issue Executive Order 13688: “Federal Support for Local Law Enforcement Equipment Acquisition” in 2015. The order called for a review of the 1033 program and issued comprehensive recommendations for restricting and regulating the program.  That Executive Order was revoked in 2017. 

In 2018, the ABA adopted policy supporting the recommendations in the 2015 Executive Order. While the changes proposed by the current Inhofe amendment are more narrow than the 2015 recommendations and ABA policy, they are important because they show there is consensus that increased accountability of the 1033 program is needed and the program is not going away.

The move to militarize police operations began around the time of Prohibition to help law enforcement agencies better respond to organized crime. As the 1033 program currently exists, it also provides much needed supplies to law enforcement agencies such as bandages, cold weather clothing, sandbags, flashlights, etc.  But while the need for the program may still be defensible, lawmakers are split on whether combat-related property should be used when the American people exercise their right to peaceably demonstrate. Given that divide, the Inhofe amendment’s restriction on what property should be available and requirement for civil rights and de-escalation training are small but important steps in the right direction.

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