Public Contract Law Journal

Bring Out the Bearcat !1 Reprioritizing the Transfer of DoD Property Under the 1033 Program

by Emma O’Rourke-Friel

Emma O’Rourke-Friel, J.D., expected May 2019, The George Washington University Law School; B.A., 2009, McGill University; Eorourke@law.gwu.edu. I am grateful to Professor Collin Swan and the editors at the Public Contract Law Journal, including Kevin Park, Con- nor Luff, and Meghan McConnell for their time and effort spent editing this Note. Special thanks to my family for their constant love and support.

I.   Introduction

When asked in 2009 about the two grenade launchers the West Springfield, Massachusetts, police department added to its arsenal, then-Police Chief Thomas Burke explained, “The bad guys have no rules. We have all the rules. Don’t worry about us, we’re trained.”2 West Springfield, a sleepy industrial city of less than 30,000 people, acquired the launchers through the federal Law Enforcement Support Office (LESO). LESO, also known as the “1033 program,” in reference to the section of the National Defense Authorization Act (NDAA) of 1997 that created it, authorizes the Secretary of Defense to transfer Department of Defense (DoD) excess personal  property  to  state and federal agencies.3 The two M79 grenade launchers acquired by West Springfield in the late 1990s were intended to launch M651 military tear gas cartridges.4 But the two launchers sat gathering dust until 2016,5 when the department returned them to the federal government.6 Speaking to reporters in 2016, Police Captain Mark Spyek remarked: “We will not miss the launchers,” and “we will not replace the launchers.”7

The United States traditionally has maintained a clear division between military and civilian affairs.8 The Posse Comitatus Act of 1878 was enacted to end the use of federal military resources to enforce domestic policies within the United States.9 Despite this history, Congress at times has authorized the President to deploy military assets “to enforce, or assist in the enforcement, of various laws.”10 The 1033 program is a significant example of congressional authorization of military resources to support law enforcement.11

Since 1997, the 1033 program has permitted the Secretary of Defense to dispose of surplus DoD property by transferring it to federal, state, and local law enforcement agencies (LEAs).12 The statute gives preference to agencies that demonstrate the property will be used in counterdrug and counterterrorism activities.13 However, the program has come under fire repeatedly for militarizing law enforcement agencies by freely distributing weapons of war to local law enforcement.14 Transfers have included a Mine Resistant Ambush Protected (MRAP) armored vehicle and sixty-one M-16 rifles to the Los Angeles Unified School District15 (the nation’s second-largest public-school district),16 and two bomb disposal robots, ten tactical trucks, thirty-five assault rifles, over 100 infrared gun sights, and two pairs of footwear designed to protect against explosive mines to the police department of Johnson, Rhode Island (population 29,000).17 Public criticism of the program came to a head in 2014 when police in Ferguson, Missouri, deployed riot squads and SWAT teams in response to protests and riots following the fatal shooting of black teenager Michael Brown by white police officer Darren Wilson.18   Images   of police officers clad in helmets and body armor pointing rifles at crowds   of protestors drew widespread condemnation from many sources, including domestic and international press,19 politicians from both sides of the aisle,20and civil liberties organizations.21 Veterans of the wars in Iraq and Afghanistan took to social media to point out that they wore less personal body armor  and carried less weaponry in active combat zones than the Ferguson Police Department.22

Critiques of the 1033 program typically center on issues of police militarization and program oversight.23 Yet these approaches largely ignore the 1033 program’s significant role in the federal government’s property disposal regime. The program is a mechanism for DoD, the government’s largest procuring agency,24 to dispose of property that is excess and/or surplus to the military’s needs.25 DoD property was purchased with federal funding; as a general rule, the government seeks to promote the reuse of property by federal agencies to minimize new procurement costs.26 Transferring property to LEAs has significant value for recipient agencies. Jim Bueermann, the Police Foundation president, explained in testimony before Congress that the program “ensures that taxpayers do not have to pay for resources twice,” once for the military and another time if the police must purchase the same equipment and the military declares it to be a surplus.27 As a property disposal tool, the 1033 program helps allocate government resources to reduce or eliminate unnecessary expenditures on property at both the federal and local level.

But current implementation of the 1033 program prioritizes distribution   of DoD surplus to local LEAs before considering those materials for transfer to civilian federal agencies.28 As a consequence, property that could be reutilized by federal civilian law enforcement agencies29  is transferred instead to nonfederal police entities.30 This Note argues that the 1033 program shouldTbe reevaluated to maximize its efficiency as a property disposal system, prioritizing the transfer of surplus federal military property to federal agencies before making it available to local law enforcement. Reprioritization would limit the availability of controlled military property to local law enforcement agencies and help to reduce redundant procurements by the federal government. It would also appropriately distribute disposal costs associated with surplus DoD property, which under the current regime are transferred to local law enforcement agencies that acquire the property, saddling nonfederal entities with significant costs for questionable benefits.31 Finally, reprioritization of surplus military property would help realign the stated priorities of the 1033 program: supporting local law enforcement in drug interdiction, counterterrorism, and border security operations.

Part I of this Note lays out the federal government’s principles and practices regarding surplus/excess property disposal regimes, providing a historical look at the program’s foundations and an explanation of the program’s current practices. Part II argues that DoD should use its discretion to reprioritize the 1033 program — evaluating requests from local law enforcement agencies after considering requests by federal civilian agencies — and addresses the benefits that would flow from reprioritization.

II.  Background: Principles & Practices of the Federal Property Disposal Regime

Since 1991, DoD has transferred over $6 billion worth of surplus military personal property to law enforcement agencies through the 1033 program.32 Over 8,000 federal, state, and tribal LEAs from all fifty U.S. states plus territories participate,33 acquiring materials ranging from photocopiers  to High Mobility Multipurpose Wheeled Vehicles (HMMWVs),  MRAPs, and night-vision goggles.34 Understanding why the federal government should deprioritize distributions to nonfederal entities under the 1033 program requires an explanation of the history and aims of the federal property disposal regime. This Part first defines the mission of the 1033 program, describing the program’s  creation and evolution from its inception in 1989  to the present. It also explores the nature of the property made available to 1033 program participants. Finally, this Part situates the 1033 program in the broader context of DoD property disposal.

A.  Defining the Mission: The Evolution of, and Property Available Under, the 1033 Program

The Federal Property and Administrative Services Act of 194935 allocated “responsibility for the disposition of government real and personal property within the General Services Administration (GSA).”36 Facing the disposal of significant surplus military equipment from World War II,37 Congress codified the process for federal government property disposal in the Property Act of 1949.38 The Act was designed to increase the efficiency and economy of government operations regarding procurement, utilization, and disposal of property, and to provide for efficient records management.39 In 1972, “GSA delegated the responsibility for disposal of DoD personal property to the Secretary of Defense, who in turn delegated it to the Defense Logistics Agency.”40 (DLA created the Defense Reutilization and Marketing Services, or DRMS.)41 DLA is the nation’s combat logistics support agency, managing the global supply chain — from raw materials to end user, and finally to disposition.42

A DLA component, DLA Disposition Services, addresses the disposal of government equipment and supplies that are “surplus or deemed unnecessary, or excess to the agency’s currently designated mission.”43 Surplus government property44 refers to “excess personal property no longer required by the Federal agencies as determined by GSA.”45 Personal property includes “all DoD property except real property, records of the federal government, and certain naval vessels (battleships, cruisers, aircraft carriers, destroyers, and submarines).”46 Property disposition describes the process of “reusing, recycling, converting, redistributing, transferring, donating, selling, demil[itarizing], treating, destroying,” or other ultimate disposition of personal property.47 Disposal represents the “final stage” before DoD relinquishes property.48 In cooperation with Congress, DLA has developed a multistage process to dispose of DoD excess property.49 DLA disposes of a wide range of property, from office chairs to helicopters.50 All DoD surplus equipment transferred through DLA has a military specification, called a demilitarization (DEMIL) code,51 which allows DoD to identify and apply appropriate control over property to prevent its unauthorized use.52

Property with a significant military utility or capacity must be controlled and/ or demilitarized to the extent necessary to eliminate its functional or inherent military capabilities.53 The term “controlled property” describes equipment within a specific range of DEMIL codes54 that is typically sensitive, cannot be released to the general public, and must be subjected to specific actions to ensure proper disposal.55 Examples of controlled property include small arms, night vision devices, tactical vehicles, and aircraft.56 Controlled property is loaned conditionally, and recipients must return the property to DoD at the end of its useful life.57 DLA is responsible for all conditionally loaned equipment and may recall this property at any time.58 Since 1991, DoD has transferred over $6 billion worth of surplus controlled and non-controlled property to LEAs through the 1033 program; of this property, only four to seven percent of the total items was considered controlled.59 By contrast, non-controlled property is property that lacks military attributes and includes commercial vehicles, office furniture and supplies, generators, tarps, tents, tool kits, first aid kits, blankets, safety glasses, hand-tools, vehicle maintenance equipment, storage containers, lockers, shelving, and forklifts.60

Starting in 1989, Congress enacted legislation intended to facilitate the transfer of DoD material to  civilian  law  enforcement.61  This  began  with the 1989 National Defense Authorization Act (NDAA), which made DoD equipment available to any federal, state, or local law enforcement official for drug interdiction activities.62 The NDAA for fiscal years (FYs) 1990 and 1991 “authorized DoD to transfer personal property, including small arms and ammunition, to federal and state agencies so long as the property was excess to DoD’s needs, suitable for use in counterdrug activities, drawn from DoD’s existing stocks and transferred without expense of DoD funds appropriated for procurement of defense equipment.”63 The 1997 NDAA replaced the property donation program created by the 1990 and 1991 NDAAs (which required reauthorization each fiscal year) with the more permanent 1033 program,64 expanding the list of preferred law enforcement uses to include counterterrorism and border security activities.65

States interested in participating in the 1033 program must first establish a relationship with DLA by signing a Memorandum of Agreement (MOA).66 The MOA sets out the terms and conditions binding on the parties, including notice that “property obtained under [the] MOA must be put into use within one (1) year of receipt” and any transportation, repair, maintenance, insurance, disposal, or other expenses associated with this excess DoD property is the sole responsibility of the State/ LEA.67 DLA then liaises with state coordinators, who are appointed by their respective state governors, to approve LEA participation in 1033 and requests for surplus property.68 DLA has final authority to make decisions regarding the type, quantity, and location of DoD property to be made available through LESO.69

Although at first glance this process appears to provide numerous opportunities for checks on inappropriate requests, in practice the execution and administration of DLA’s guidelines are uneven at best. This issue was highlighted during a Senate Committee on Homeland Security and Governmental Affairs hearing, which reviewed the 1033 program following public outcry over police militarization during the Ferguson unrest.70 During his testimony, Alan Estevez, Principal Deputy Under Secretary of Defense for Acquisition, Logistics and Technology, explained that DLA’s review of state coordinator requests is primarily focused on three elements: the size of the requesting LEA, the justification for the request, and the state coordinator’s confidence in the requesting LEA.71 For example, he remarked that “a requesting [LEA] of [ten] officers would not receive a transfer of [twenty] M-16 rifles.”72 Although Mr. Estevez noted the “justification for the request” would have some bearing on DLA’s review, he testified that “[t]he Department of Defense does not have expertise in police functions and cannot assess how equipment is used in the mission of an individual [LEA].”73

There is some logical tension between DLA’s position that it lacks the expertise to assess the appropriateness of equipment used for police functions and its obligation to review LEA justifications in applications for military equipment through 1033. The application of one small New Hampshire town proves instructive in this regard. In 2011, officials in Keene, New Hampshire, took pains to describe the risks posed by terrorism in the city’s application for a Ballistic Engineered Armored Response Counter Attack Truck (BearCat), a tactical armored vehicle.74 The city (population 23,406)75 is best known for its annual pumpkin festival, where residents attempt to amass the largest number of lit jack-o’-lanterns in one place to meet or beat the world record.76 Between 1999 and 2012, the town recorded three homicides.77 In its application for a BearCat, Keene police explained:

The terrorism threat is far reaching and often unforeseen. Terrorists’ goals, regard- less of affiliation, usually encompass the creation of fear among the public, convincing the public that their [g]overnment is powerless to stop the terrorists, and get immediate publicity for their cause........ Keene currently hosts several large public functions to include: an annual Pumpkin Festival, which draws upwards of 70,000 patrons to the City.78

Presumably in recognition of the BearCat’s radiation and chemical detection capabilities,79 the application explained that threats to the Pumpkin Festival could include “the use of Radiological Dispersion Devices by terrorists.”80 Commenting on the city’s application, one city council member remarked, “the danger of domestic terrorism was just something you put in the grant application to get the money. What red-blooded American cop isn’t going to be excited about getting a toy like this?”81 The references to a potential (if inconceivable) terrorist threat in the Keene application are a clear effort to bring the request in line with the 1033 program mandate to support LEAs    in counterrorism efforts. DLA approved Keene’s request,82 and the town received a BearCat in 2012.83

The 1033 program has experienced high-profile lapses in administration and oversight,84 most notably documented in a 2017 Government Account- ability Office (GAO) report where GAO investigators, posing as members of a fictitious government agency, were “approved for the transfer of over 100 controlled property items with a total estimated value of about $1.2 million.”85 GAO issued four recommendations to DLA following the sting, including  “strengthening internal controls over the approval and transfer of DoD excess controlled property to [LEAs], and conducting a fraud risk assessment to institute comprehensive fraud prevention and mitigation measures.”86 DoD has approved all four recommendations and is taking steps to reform DLA’s internal accountability procedures.87

B.   DoD’s Disposal Process: An Overview, and Where 1033 Fits In

DoD’s guidance for excess personal property disposal prioritizes the disposal of federal property “in a manner that ensures maximum use to satisfy valid needs, permits authorized donations of surplus property, obtains optimum monetary return to the U.S. government for property sold, and, among other things, minimizes the need for abandoning or destroying property.”88 To that end, DLA Disposition Services utilizes DoD’s four-step “Reutilization, Transfer, Donation, and/ or Sale” process.89

The four steps of the disposal process are (1) reutilization: property is requisitioned to another DoD component; (2) transfer: property is no longer needed by DoD but can be requisitioned to another federal government agency and transferred to that agency; (3) donation: property is not needed by any part of the federal government and can be donated to approved state governments and organizations; and (4) sale: if no federal or state government need for the property exists, the property may be sold through government auction to U.S. persons or entities via contractors.90 “DoD’s primary disposal objective is to maximize the reuse of surplus property within the military services, various levels of government, and authorized organizations before offering the property for sale to the general public.”91 If property is not disposed during one step of the disposal process, it moves to the next step of disposal.92 The entire process spans forty-two days, where requesting agencies and organizations may screen, request, and obtain excess property at the appropriate stage.93 All property undergoes a “last chance screening” for viability before proceeding to public sale.94

DoD surplus property becomes available to different groups at various points of priority within the disposal process; for example, other federal agencies may claim property during reutilization, whereas state governments and agencies gain access to property during the later donation period.95 The disposal process nevertheless has continued to evolve and change as new statutes permit non-federal program recipients to obtain surplus DoD property.96 The statute authorizing the 1033 program and its attendant property disposal regime “is silent on the issue of whether state and local law enforcement agencies are to be prioritized over federal law enforcement agencies for the receipt   of DoD excess property.”97 DoD has exercised its discretion to permit beneficiaries of new non-federal programs to screen and request property in the   first stage of the disposal process — reutilization, a phase otherwise restricted to other federal agencies.98 As a result, 1033 program LEAs, which include any governmental agency whose key function is the enforcement of federal, state  and local laws and whose “compensated law enforcement officers have the powers of arrest and apprehension,”99   may request property in the first stage of DoD property disposal (reutilization), bypassing federal  civilian  agencies and state and local governments, which obtain property during later stages (transfer or donation).100 In short, requests for DoD surplus property by the Keene, New Hampshire, police department would have priority over requests  for the same property by the Department of Homeland Security, a federal civilian LEA. Moreover, LESO officials who were surveyed as part of a 2016 GAO program audit indicated the program generally allocates property on a “first come, first served basis.”101  For example, if LESO officials first received   a request from a state or local LEA and later received a request for the same property from a federal agency, the state or local LEA would typically secure  the requested property.102

III.  Deprioritization: Realigning the 1033 Program with Federal Property Disposal Goals & Best Practices

DLA’s current approach to distribution allows LEAs access to DoD surplus during the first phase of the property disposal regime (reutilization).103 Surplus property that could be reutilized by other DoD components or distributed to federal civilian entities is distributed instead to LEAs. This Note argues that DoD should deprioritize 1033 program recipients and consider requests from LEAs only after fulfilling requests from other federal entities and DoD components. Surplus property was purchased originally with federal funding, and promotion of its reuse by federal agencies — both within DoD and by civilian federal agencies — minimizes new procurement costs at the federal level.104 Prioritizing distribution of DoD surplus to federal entities will help to reduce the amount of controlled property available to LEAs, which may address concerns regarding the militarization of local police. Finally, limiting the transfer of surplus federal property will end the federal government’s practice of passing on disposal costs for surplus property to local jurisdictions.

A. Minimizing Duplicate Procurements and Costs at the Federal Level

Under DLA’s current approach to excess property disposal, special program recipients, such as LEA participants in the 1033 program, are considered during the first phase of property disposal: reutilization.105 Although DoD revised its procedures in October 2015 to preference reutilization by DoD components over transfer to special program recipients, requests by special program recipients still have priority over requests from other federal agencies.106 Prioritizing distribution of DoD surplus property to federal agencies will help minimize the need for duplicate procurements at the federal level.107

A 2016 GAO audit of DoD excess personal property disposal procedures found that 1033 program recipients in FY 2014 received 32.6% (about $922 million in original acquisition value) of property disposed during the first stage of federal property disposal (reutilization).108 Property in the reutilization phase is available only to DoD components and special programs; federal agencies must wait for property to move to the second phase of disposal (transfer) before they can request access to the surplus.109 The FY 2014 transfer to 1033 program recipients during reutilization represented twenty-nine percent of all of the property that DoD reutilized, transferred, or donated in FY 2014.110 Federal agencies — who are likely appropriate recipients given that the majority of the excess property is non-controlled property111 — lose out on the opportunity to access DoD surplus until after requests from 1033 program recipients have been fulfilled.

Federal civilian agencies that operate their own law enforcement agencies (such as Customs and Border Patrol under the Department of Homeland Security) may access DoD surplus through the 1033 program specifically for those agencies.112 However, the 1033 program makes no distinction in priority between federal LEA program recipients and those from local jurisdictions.113 The 1033 program instead distributes property among requesting LEAs on a first-come, first-served basis.114

Prioritizing federal LEAs specifically (and federal agencies generally) over requests from nonfederal entities would ensure that more surplus DoD property, originally purchased with federal dollars, stays with federal agencies. Under the status quo, federal agencies that may have a need for DoD surplus property may not be able to obtain it through the disposal process  because the current system permits state or local LEAs to claim this property first.115 A 2016 GAO inquiry into federal property disposal found that between 2013 and 2014, 150 LEAs “obtained 285 pieces of earth-moving and excavating equipment (non-controlled property) through the 1033 program,” while during the same period, “at least [nine] federal agencies purchased earth-moving equipment to meet their mission requirements.”116 These figures strongly suggest the federal government would save money on procurements by prioritizing distribution of DoD surplus property to federal agencies over 1033 program recipients.

B.     Reducing LEA Access to Controlled Property

An associated benefit of prioritizing distribution of DoD surplus property to federal agencies is that the reprioritization likely will result in a significant reduction in the availability of controlled property to local LEAs. Federal law enforcement agencies eligible for property under the 1033 program include Customs and Border Protection, the Drug Enforcement Administration, the Federal Bureau of Investigation, and the Bureau of Alcohol, Tobacco, Firearms, and Explosives, among others.117 Under DLA’s current approach, requests by these federal LEAs are considered at an equivalent level of priority as requests from local LEAs. Prioritizing requests by federal LEAs likely will reduce the pool of controlled property available to state LEAs.

The acquisition of 1033 property by nonfederal LEAs is subject to inadequate oversight at both the local and federal level. Because 1033 program property is effectively “free,” there is no requirement that LEAs obtain approval from local governing bodies to acquire controlled property.118 Indeed, DoD’s stated position that “[it] does not have expertise in police functions and cannot assess how equipment is used in the mission of an individual [LEA]”119 limits its ability to assess the appropriateness of the use of any 1033 equipment by local LEAs. Local LEAs are subject theoretically to oversight by local governing bodies, and DoD depends on those organizations to develop policies regarding the use of controlled property.120

By contrast, federal law enforcement agencies are subjected to internal agency controls and congressional oversight.121 Additionally, many federal LEAs are tasked explicitly with addressing the security issues at the heart of the 1033 program: drug interdiction, border security, and counterterrorism.122 Prioritizing the distribution of DoD surplus to federal LEAs will help lead to an overall reduction in the availability of controlled property to local LEAs and ensure that surplus property ends up in the hands of agencies that are both equipped and directed to address the 1033 program mission.

C.  Limiting the Transfer of Federal Property Disposal Costs

Finally, prioritizing distribution of DoD surplus property to federal agencies will more appropriately direct disposal costs for DoD surplus to the federal government and avoid transferring these costs to nonfederal jurisdictions. Procuring agencies, including DoD, are expected to consider the lifecycle cost of a product in their acquisition planning processes.123 A product’s lifecycle cost includes the cost of disposal.124 When DoD transfers certain categories of property to nonfederal LEAs, costs incurred for disposal are borne instead by the recipient LEA.125 As a result, local LEAs, who likely were able to obtain DoD surplus without initial local oversight or approval,126 must absorb a cost that ought to have been accounted for in DoD’s acquisition planning process for the item’s procurement.127 This disposal cost is in addition to “costs associated with the preparation, handling, and movement of the property,” and any necessary maintenance and repairs, insurance costs, and storage fees.128

The costs transferred to local jurisdictions  through  the  1033  program can be staggering. In 2005, the city of Newark, New Jersey, obtained a Vietnam-era OH-58A Bell Kiowa helicopter ostensibly for “free” through the 1033 program.129  Over the next decade,  the city would spend ultimately over $2 million for a helicopter that barely left the ground: $1.13 million in maintenance costs, annual insurance premiums of $30,000, storage and hangar fees of $3,600, and $961,000 in pilot salaries — including an “emergency appropriation” of $81,000.130 While the purchase of a new helicopter outside of the program would come with serious costs for Newark, 131 those costs would be subject to oversight and approval by Newark’s local government.132 Prioritizing federal agencies for DoD surplus before considering requests by nonfederal entities like Newark would help to keep these costs more appropriately allocated to the federal government.

This problem was documented in a 2014 report from the Executive Office of the President, the culmination of a review of federal support for local law enforcement equipment acquisition.133 Following the Ferguson unrest, the Obama administration134 engaged a Task Force comprised of federal agencies, law enforcement stakeholders, civil rights stakeholders, and academics in reviewing federal funding and programs providing equipment to state and local LEAs, including the 1033 program.135 The report noted:

Both law enforcement and civil rights stakeholders agreed that there is often insufficient transparency to decisions surrounding the acquisition of equipment outside of a local government’s standard budget process and without civilian (non-police) government approval. Local elected officials are frequently not involved in the decision-making, and the general public is frequently unaware of what their LEAs possess. As noted by some of the law enforcement stakeholders who contributed to this review, this lack of transparency can adversely impact neighboring LEAs in the event of an emergency when they do not know what resources may be nearby. Additionally, this lack of transparency can result in the proliferation of equipment in amounts that are often inconsistent with the size and training capacity of smaller LEAs.136

Advocates of the 1033 program’s distributions to local LEAs would argue that the 1033 program saves taxpayer money by providing local LEAs with access to property that they might not be able to independently afford.137 However, DoD’s guidance for disposal of excess personal property prioritizes the disposal of federal property “in a manner that ensures maximum use to satisfy valid needs, permits authorized donations of surplus property, obtains optimum monetary return to the U.S. government for property sold, and, among other things, minimizes the need for abandoning or destroying property.”138 This mission prioritizes the reutilization of surplus federal property by federal agencies over donation (such as transfers of property through the 1033 program to state or local LEAs). Prioritizing distribution of DoD surplus property to federal agencies more appropriately directs disposal costs for DoD surplus to the federal government,139 instead of transferring these costs to nonfederal jurisdictions, where there is often little local control over LEA acquisitions.140

IV.  Conclusion

The 1033 program has come under scrutiny for its distribution of con- trolled property to local law enforcement agencies. To be sure, the program serves an important property disposal function for the federal government, while providing nonfederal LEAs with access to valuable, even lifesaving, equipment.141 But as the program is currently implemented, DoD’s prioritization of 1033 recipient LEAs over federal civilian agencies violates a fundamental goal of the DoD property disposal regime: to minimize the need for duplicate procurements by promoting reuse within the federal government.142 Using its discretion to reassess and reprioritize its current distribution model, DoD should prioritize other federal entities to minimize new procurement costs at the federal level and reduce the overall amount of controlled property available to nonfederal LEAs. Limiting the transfer of surplus federal property also will end the federal government’s practice of passing on surplus property disposal costs to local jurisdictions. Taken together, these benefits should help realign the 1033 program with the goals of the federal property disposal regime without negatively impacting the program’s specific statutory mission of supporting drug interdiction, border security, and counterterrorism efforts.

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  1. The Lenco BearCat, an eight-ton armored personnel carrier, is but one example of Department of Defense surplus property made available to nonfederal law enforcement agencies through the 1033 program. In October 2014, police in a small New Hampshire town confronted a drunken riot at the town’s annual Pumpkin Festival. The crowd taunted the police, chanting, “Bring out the Bearcat!” See Ana Swanson, State Police Have Received Billions of Dollars of Military Equipment. Here’s Where It All Went, Wash. Post (Apr. 16, 2015), https://www.washingtonpost.com/news/wonk/wp/2015/04/16/state-police-have-received-billions-of-dollars-of-military-equipment-heres-where-it allwent/?utm_term=. 2208bc058a44; see infra Part II.A.
  2. ABC40, Police & Military Weapons, YouTube (June 17, 2009), https://www.youtube.com/watch?time_continue=119&v=kefKF1ekEfk.
  3. See Daniel H. Else, Cong. Research Serv., R43701, The “1033 Program,” Department of Defense Support to Law Enforcement (2014) [hereinafter DoD Support to Law Enforcement].
  4. The M651 cartridges, described by the military as a pyrotechnical round “known to cause fires,” are notable for their use by the FBI during the 1993 Waco siege. For an analysis of the M651 cartridge, see Memorandum from the Tex. Rangers Dep’t of Public Safety on Review of Evidence Related to Branch Davidian Investigation 4–5 (Sept. 10, 1999), available at https://www.dps.texas.gov/director_staff/public_information/branch_davidian/to%20casteel%20090999.pdf.
  5. Police Chief Campurciani indicated that, in addition to posing a fire risk, the M651 canisters acquired from the federal government shot inaccurately when fired by West Springfield officers at a shooting range; this was their only test. See Michelle Williams, ACLU Calls into Question Why West Springfield Police Have Two Grenade Launchers, MassLive (July 8, 2014), http://www.masslive.com/news/index.ssf/2014/07/aclu_calls_into_question_why_w.html#incart_m-rpt-1.
  6. See Matt Rocheleau, Goodbye, Grenade Launchers: Mass. Towns Return Military Equipment to Feds, Boston Globe (Feb. 3, 2016), https://www.bostonglobe.com/metro/2016/02/03/goodbye-grenade-launchers-mass-towns-returning-military-equipment-feds/qA17sxeCPtad9chrM2kyVP/story.html.
  7. Id.
  8. See Else, supra note 3, at 1.
  9. 18 U.S.C. § 1385. “Posse comitatus” refers to a common law power empowering law enforcement officers to conscript able-bodied men to assist in keeping the peace. See generally Charles Doyle & Jennifer K. Elsea, Cong. Research Serv., R42659, The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law (2012); see also Matt Matthews, The Posse Comitatus Act and the United States Army: A Historical Perspective (2006).
  10. See Else, supra note 3, at 1.
  11. For more on the Posse Comitatus Act and the constitutional implications of the 1033 program, see Laura Withers, Note, How Bearcats Became Toys: The 1033 Program and Its Effect on the Right to Protest, 84 Geo. Wash. L. Rev. 812 (2016).
  12. U.S. Gov’t Accountability Off., GAO-16-44, Excess Personal Property: DOD Should Further Reassess the Priorities of Its Disposal Process 8, 20 (2016) [hereinafter GAO-16-44].
  13. See Excess Personal Property: Sale or Donation for Law Enforcement Activities, 10 U.S.C. § 2576(a) (2012).
  14. See, e.g., Lyle Jeremy Rubin, A Former Marine Explains All the Weapons of War Being Used by Police in Ferguson, Nation (Aug. 20, 2014), http://www.thenation.com/article/181315/catalogferguson-police-weaponry.
  15. Stephen Ceasar, L.A. Schools Police Will Return Grenade Launchers but Keep Rifles, Armored Vehicle, L.A. Times (Sept. 16, 2014), http://www.latimes.com/local/lanow/la-me-schools-weapons-20140917-story.html.
  16. See T.D. Snyder et al., National Center for Education Statistics, U.S. Dep’t of Educ., Digest of Education Statistics 2015, 209 (2016).
  17. See Shawn Musgrave et al., “The Pentagon Finally Details its Weapons-for-Cops Giveaway,” The Marshall Project (Dec. 3, 2014), https://www.themarshallproject.org/2014/12/03/the-pentagon-finally-details-its-weapons-for-cops-giveaway#DoD-graphic.
  18. See, e.g., John Elgion & Manny Fernandez, In Protests from Midwest to Both Coasts, Fury Boils Over, N.Y. Times (Nov. 24, 2014), https://www.nytimes.com/2014/11/25/us/frustration-months-in-the-making-boils-over-on-the-streets-of-ferguson.html.
  19. See, e.g., Adam Taylor & Rick Noack, How the Rest of the World Sees Ferguson, Wash. Post (Aug. 18, 2014), https://www.washingtonpost.com/news/worldviews/wp/2014/08/18/how-the-rest-of-the-world-sees-ferguson/?utm_term=.47cabeaf1ec2.
  20. See, e.g., Justin Amash (@justinamash), Twitter, (Aug. 13, 2014, 9:12 PM), https://twitter.com/justinamash/status/499740253633388546 (Republican member of House of Representatives tweeted, “Images & reports out of #Ferguson are frightening. Is this a war zone or a US city? Gov’t escalates tensions w/ military equipment & tactics”); Senator Claire McCaskill, Press Conference (Aug. 14, 2014), available at https://www.nbcnews.com/video/mccaskill-police-militarization-escalated-unrest-in-ferguson-318143555756 (“I think last night the militarization of the response . . . escalated the situation, it didn’t deescalate the situation.”).
  21. For a timeline of the ACLU of Missouri’s response to the Ferguson unrest, see The ACLU Response to Ferguson, ACLU Missouri, https://www.aclu-mo.org/en/node/135.
  22. In the days after the Ferguson unrest, some veterans took to social media to criticize what they perceived as the improper militarization of a local police force, including one veteran who tweeted, “FWIW [for what it’s worth] I led foot patrols in downtown Baquba, Iraq in 2005-2006 w/ less firepower than Ferguson PD.” See Kelsey D. Atherton (@AthertonKD), Veterans on Ferguson, Storify (Aug. 2014), https://storify.com/AthertonKD/veterans-on-ferguson.
  23. See, e.g., Bill Ong Hing, From Ferguson to Palestine: Disrupting Race-Based Policing, 59 How. L. J. 559 (2016) (outlining seven procedural innovations to respond to and prevent shootings by law enforcement officers, including 1033 program reforms).
  24. “In FY 2015, DoD obligated more money on federal contracts than all other federal agencies combined.” Moshe Schwartz et al., Cong. Research Serv., R44010, Defense Acquisitions: How and Where DOD Spends and Reports Its Contracting Dollars 2 (2012).
  25. GAO-16-44, supra note 12, at 3–4.
  26. Id. at 6.
  27. The Department of Defense Excess Property Program in Support of U.S. Law Enforcement Agencies: An Overview of DoD Authorities, Roles, Responsibilities, and Implementation of Section 1033 of the 1997 National Defense Authorization Act Before the H. Committee on Oversight and Investigations, 113th Cong. 92 (2014) (statement of Jim Bueerman, President, Police Foundation) [hereinafter Bueerman statement].
  28. GAO-16-44, supra note 12, at 26.
  29. Relevant federal civilian law enforcement agencies include the Bureau of Alcohol, Tobacco, Firearms and Explosives; the Department of Agriculture; the Department of Homeland Security, and its affiliate, Customs and Border Patrol; the Department of the Interior; the Environmental Protection Agency; the Federal Bureau of Prisons; and the Federal Bureau of Investigation. See infra Part III.A.
  30. See U.S. Gov’t Accountability Off., GAO-16-375SP, 2016 Annual Report: Additional Opportunities to Reduce Fragmentation, Overlap, Duplication and Achieve Other Financial Benefits 13 (2016).
  31. See, e.g., Ted Sherman, How a Free Army Helicopter Cost Newark Police More than $2M, NJ.com (Jan. 12, 2015), http://www.nj.com/news/index.ssf/2015/01/how_a_free_army_helicopter_cost_newark_police_more_than_2m.html.
  32. See U.S. Gov’t Accountability Off., GAO-17-532, DOD Excess Property: Enhanced Controls Needed for Access to Excess Controlled Property 1 (2017) [hereinafter GAO-17-532].
  33. See Defense Logistics Agency, 1033 Program Frequently Asked Questions (2018), http://www.dla.mil/DispositionServices/Offers/Reutilization/LawEnforcement/ProgramFAQs.aspx (last visited Apr. 9, 2018).
  34. See GAO-17-532, supra note 32, at 2.
  35. See Federal Property and Administrative Services Act of 1949, 40 U.S.C. § 541 (2012).
  36. U.S. Gov’t Accountability Off., GAO/T-NSIAD-97-257, Federal Property Disposal: Information on DOD’s Surplus Property Program 1–2 (1997) [hereinafter GAO/T-NSIAD-97-257].
  37. See Valerie Bailey Grasso, Cong. Research Serv., RS20549, Defense Surplus Equipment Disposal: Background Information (2007).
  38. See generally 40 U.S.C. §§ 101–1309 (2012).
  39. See 40 U.S.C. § 541 (2012).
  40. GAO/T-NSIAD-97-257, supra note 36, at 2.
  41. See id.
  42. See Defense Logistics Agency, DLA at a Glance, http://www.dla.mil/AtaGlance.aspx (last visited Apr. 9, 2018).
  43. Grasso, supra note 37.
  44. See Dep’t of Defense, Manual 4160.21-2, Defense Materiel Disposition: Property Disposal and Reclamation 75 (2015) [hereinafter Manual].
  45. 41 CFR § 102-36.40 (2017).
  46. GAO-17-532, supra note 32, at 1.
  47. Manual, supra note 44, at 66.
  48. See Grasso, supra note 37, at 1.
  49. See GAO-16-44, supra note 12.
  50. See id. at 22.
  51. See Grasso, supra note 37, at 6.
  52. See Dep’t of Defense, Defense Demilitarization Manual I-1 (1991).
  53. See id.
  54. See Defense Logistics Agency, Controlled Property Definition, http://www.dla.mil/Portals/104/Documents/DispositionServices/LESO/DISP_ControlledPropertyDefinition_11012017.pdf?ver=2017-11-01-084354-133 (last visited Apr. 9, 2018).
  55. GAO-17-532, supra note 32, at 1–2.
  56. See Exec. Office of the President, Review: Federal Support for Local Law Enforcement Acquisition, 3 (2014) [hereinafter Review].
  57. The Department of Defense Excess Property Program in Support of U.S. Law Enforcement Agencies: An Overview of DOD Authorities, Roles, Responsibilities, and Implementation of Section 1033 of the 1997 National Defense Authorization Act Before the H. Committee on Oversight and Investigations, 113 Cong. 3 (2014) (statement of Alan Estevez, Principal Deputy Under Secretary, Office of the Under Secretary of Defense for Acquisition, Technology, and Logistics, U.S. Dept. of Defense) [hereinafter Estevez statement].
  58. SeeReview, supra note 56, at 7.
  59. See GAO-17-532, supra note 32, at 1.
  60. Review, supra note 56, at 7.
  61. See GAO-17-532, supra note 32, at 6.
  62. National Defense Authorization Act, Fiscal Year 1989, Pub. L. No. 100-456, § 1101-4, 102 Stat. 2042-3 (1988).
  63. GAO-17-532, supra note 32, at 51; see also National Defense Authorization Act for Fiscal Years 1990 and 1991, Pub. L. No. 101-189, § 1208, 103 Stat. 1566 (1989).
  64. The name “1033” refers to the specific section of the House Resolution which created the permanent program. H.R. 3230, 104th Cong. (1996) (enacted).
  65. 10 U.S.C. § 257 (a)(1)(A) (2012).
  66. See 1033 Program Frequently Asked Questions, supra note 33.
  67. See, e.g., Memorandum of Agreement between New Jersey and the Federal Government, New Jersey Office of Emergency Management, (2018), available at http://ready.nj.gov/programs/pdf/1033/082214_statelocalmoa.pdf.
  68. See Estevez statement, supra note 57, at 68.
  69. See 1033 Program Frequently Asked Questions, supra note 33.
  70. See generally The Department of Defense Excess Property Program in Support of U.S. Law Enforcement Agencies: An Overview of DoD Authorities, Roles, Responsibilities, and Implementation of Section 1033 of the 1997 National Defense Authorization Act Before the H. Committee on Oversight and Investigations, 113 Cong. 3 (2014) (statement of Senator Thomas R. Carper, Committee Chairman) (“[T]he purpose of today’s hearing is to examine the effectiveness of federal programs that provide State and local police with surplus military equipment and grant funding for equipment, exercises, planning and training.”).
  71. See Estevez statement, supra note 57, at 68.
  72. Id. In practice, DLA’s application of its own criteria appears haphazard at best. Despite Mr. Estevez’s testimony that DLA reviews requests with respect to the size of the requesting LEA, between 2011 and 2013, law enforcement agencies with fewer than ten full-time officers received MRAPs through 1033, including the Payne County Sheriff’s Department in Oklahoma, which received two MRAPs despite having only one full-time sworn officer; accord Claire McCaskill, Department of Defense 1033 Program (undated), https://www.mccaskill.senate.gov/imo/media/doc/FactsFiguresEquippingPolice.pdf (reporting that police departments with fewer than ten full-time officers received MRAPs during the period from 2011 to present).
  73. Estevez statement, supra note 57, at 68.
  74. See Robert Windrem, Pumpkin Festival Cited as Terror Target Hit by Drunken Riots, NBC News (Oct. 20, 2014), http://www.nbcnews.com/news/investigations/pumpkin-festivalcited-terror-target-hit-drunken-riots-n229996.
  75. Community Profiles: Keene, NH, New Hampshire Employment Security: Economic + Labor Market Information Bureau (Nov. 2017), https://www.nhes.nh.gov/elmi/products/cp/profiles-htm/keene.htm.
  76. See generally Nancy Sporborg, History, Let It Shine! Pumpkin Festival (2017), http://www.pumpkinfestival.org/index.php/history/.
  77. See Paramilitary Police: Cops or Soldiers? The Economist 27–28 (Mar. 20, 2014).
  78. Windrem, supra note 74.
  79. It is interesting that Lenco, the BearCat manufacturer, offers free step-by-step grant writing assistance to help LEAs secure funding to acquire the armored vehicles. See Grant Help: No Cost and No Obligation Grant Writing Service, Lenco, https://www.lencoarmor.com/grant-help (last visited Apr. 9, 2018).
  80. Windrem, supra note 74.
  81. Id.
  82. See Tom MacLennan, Keene’s Bearcat Has Residents Unleashing Claws, The Equinox (Feb. 22, 2012), http://kscequinox.com/2012/02/keenes-bearcat-has-residents-unleashing-claws.
  83. In October 2014, Keene officials’ worst fears materialized when the Pumpkin Festival devolved into a drunken riot. Students from nearby colleges smashed windows, slashed tires—and kicked in a lot of pusmpkins. The crowd taunted the police, reportedly chanting, “Bring out the Bearcat!” See Swanson, supra note 1; see also Pumpkin Festival Chaos in Keene, N.H. Leaves Plenty of Blame to Go Around, Boston Globe, (Oct. 21, 2014), http://www.bostonglobe.com/opinion/editorials/2014/10/20/pumpkin-festival-chaos-keene-leaves-plenty-blame-around/iiH6IyXZLYcOBLsFtXDKXP/story.html (citing plans by Keene State College officials to publish the names of the rioters, “ensuring [they] will spend the next few years trying to explain any pumpkin-related indiscretions to future employers”).
  84. In February 2018, as this Note was being written, reports surfaced of an internal audit of DLA conducted by private accounting firm Ernst & Young, which found that DLA failed to properly document more than $800 million in construction projects. In a statement to news outlet Politico, the agency responded, “DLA is the first [agency] of its size and complexity in the Department of Defense to undergo an audit so we did not anticipate achieving a ‘clean’ audit opinion in the initial cycles. The key is to use auditor feedback to focus our remediation efforts and corrective action plans, and maximize the value from the audits. That’s what we’re doing now.” See Bryan Bender, Exclusive: Massive Pentagon Agency Lost Track of Hundreds of Millions of Dollars, Politico (Feb. 5, 2018), https://www.politico.com/story/2018/02/05/pentagon-logistics-agency-review-funds-322860.
  85. Controlled items approved for transfer included night vision goggles, reflex (reflector) sights, infrared illuminators, simulated pipe bombs, and simulated rifles. GAO noted in its report that these controlled items could be made potentially lethal if modified with commercially available items. GAO-17-532, surpa note 32, at 21–2.
  86. Id.
  87. For a discussion of steps taken by DoD and DLA to address deficits identified by the GAO sting, seeJared Serbu, Pentagon Fixing Problems That Let Fake Federal Agency Get $1.2 Million in Military Hardware, Federal News Radio (July 31, 2017), https://federalnewsradio.com/defense/2017/07/pentagon-fixing-problems-that-let-fake-federal-agency-get-1-2-million-in-military-hardware.
  88. GAO-16-44, supra note 12, at 6.
  89. Id. at 12.
  90. See U.S. Dep’t of Army, Pam. 27-50-443, Herding Cats II: Disposal of DoD Personal Property (2010) 7 [hereinafter Herding Cats].
  91. GAO/T-NSIAD-97-257, supra note 36, at 5.
  92. See GAO-16-44, supra note 12, at 12.
  93. See id.
  94. See id.
  95. Herding Cats, supra note 90, at 7.
  96. GAO-16-44, supra note 12, at 17.
  97. Id. at 20.
  98. See id. at 17–18.
  99. See Defense Logistics Agency, Application for Participation/Authorized Screeners Letter 1 (Oct. 31, 2017), http://www.dla.mil/Portals/104/Documents/DispositionServices/LESO/Application%20Instructions%20October%2031st%202017%20version.pdf?ver=2018-01-25-143223-013. Note that this definition includes university campus police and school resource officers.
  100. GAO-16-44, supra note 12, at 17–18.
  101. Id. at 15.
  102. See id. at 20.
  103. See id. at 17–18.
  104. See id.
  105. See id.
  106. See id.
  107. Note that the Administrative Procedure Act’s procedural requirements for rulemaking, which would typically impose formal strictures on the federal agency’s ability to redesign its process, does not apply to the government’s management of public property. See 5 U.S.C. § 553(a)(2) (2012) (“Rulemaking. This section applies, according to the provisions thereof, except to the extent that there is involved . . . a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.”).
  108. GAO-16-44, supra note 12, at 18–19.
  109. Herding Cats, supra note 90, at 7.
  110. GAO-16-44, supra note 12, at 18.
  111. See GAO-17-532, supra note 32, at 1.
  112. See, e.g., Lauren Fox & Lindsey Cook, Border War: Pentagon Program Sends Military Gear South, U.S. News & World Rep. (Sept. 17, 2014), https://www.usnews.com/news/articles/2014/09/17/pentagon-1033-program-sends-surplus-military-gear-to-us-borders.
  113. See GAO-16-44, supra note 12, at 17.
  114. See id. at 20.
  115. See id. at 22–23.
  116. Id. at 23.
  117. Each civilian federal LEA listed here has compensated law enforcement officers with the powers of arrest and apprehension. See Application for Participation/Authorized Screeners Letter, supra note 99, at 1.
  118. See Bueerman statement, supra note 27, at 94.
  119. Estevez statement, supra note 57, at 70.
  120. Not all local governments have adopted this approach; in his statement before the Senate Committee on Homeland Security and Governmental Affairs, Jim Bueerman, president of the Police Foundation and the former Chief of the Redlands, California, Police Department proposed formalizing the oversight relationship between local governments and 1033 program recipient LEAs. See Bueerman statement, supra note 27, at 93.
  121. Congressional oversight is an implied authority that derives from Congress’s expansive enumerated constitutional powers. For more on Congressional oversight, see Frederick M. Kaiser, Cong. Research Serv., 97-936 GOV, Congressional Oversight 3 (2001).
  122. See generally Fox & Cook, supra note 112.
  123. See FAR 7.105.
  124. See FAR 7.101.
  125. Categories of property where the recipient state/LEAs bear the cost of disposal include controlled property (e.g., items with DEMIL Code Q, like 5.56 MM Rifles), as well as non-controlled property (e.g., items with DEMIL Code A, like a computer screen projector). See, e.g., Unsigned Memorandum of Agreement Between New Jersey and the Federal Government, supra note 67, at 6.
  126. See Bueerman statement, supra note 27, at 94.
  127. See FAR 7.105.
  128. See GAO-16-44, supra note 12, at 6.
  129. See, e.g., Sherman, supra note 31.
  130. See id.
  131. See id. (citing the cost to the city of a new helicopter acquired outside of the 1033 program as starting at $1 million).
  132. In addition to the typical level of oversight mandated by the New Jersey state constitution and the city of Newark’s bylaws, Newark’s budget has been subject to oversight by the state of New Jersey since 2014 as a consequence of its receipt of state aid to manage the city’s staggering $60 million deficit. The state Local Finance Board must ratify the budget adopted by the Newark city council. The city’s request for “transitional aid . . . constitutes an admission that the city is ‘incapable of meeting its obligations and managing its finances without special state assistance, oversight, and intervention,’” according to its aid application. See Pew Charitable Trusts, Atlantic City’s Watchdogs: How Strong State Oversight Helps New Jersey Municipalities Avoid Bankruptcy 3 (2015).
  133. See generally Review, supra note 56.
  134. See Steve Holland & Andrea Shalal, Obama Orders Review of Military Hardware Distributed to State and Local Police, Reuters (Aug. 23, 2014), https://www.reuters.com/article/us-usa-missouri-shooting-militarization/obama-orders-review-of-u-s-police-use-of-military-hardware-idUSKBN0GN0O920140823. President Obama indicated “he wanted to make sure police were purchasing equipment they actually needed.”
  135. Subsequent to the Task Force’s recommendations, the federal government initiated bans on certain military supplies previously distributed under the program. See David Nakamura & Wesley Lowery, Obama Administration Bans Some Military-Style Assault Gear from Local Police Departments, Wash. Post (May 18, 2015), https://www.washingtonpost.com/news/post-politics/wp/2015/05/18/obama-to-visit-camden-n-j-to-tout-community-policing-reforms/?utm_term=.101e56915b94. President Donald Trump revoked the Obama order, in a move intended to restore “state, tribal, and local law enforcement’s access to life-saving equipment and resources.” Exec. Order No. 13809, 82 Fed. Reg. 41499 (Aug. 31, 2017).
  136. See Review, supra note 56, at 4.
  137. See Bueerman statement, supra note 27, at 93.
  138. GAO-16-44, supra note 12, at 6.
  139. The federal government is required by law to consider disposal costs as part of its acquisition planning process. See generally FAR 7.105.
  140. See Bueerman statement, supra note 27, at 94.
  141. See, e.g., id. at 2–3 (citing multiple instances where LEA utilization of 1033 program property resulted in positive outcomes for public safety).
  142. See GAO-16-44, supra note 12, at 1.