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.

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