Fueling the Fire: DOD's Practice of Arming Abusive Police Departments With Military Weapons

“Where-ever law ends, tyranny begins.” -John Locke

The federal government, through the Department of Defense (DOD), has been in the business of transferring excess military equipment to state and local law enforcement agencies for decades.  One of the most prominent of these “reutilization” methods is the 1033 Program.  For a law enforcement agency to receive equipment through the 1033 Program, the Secretary of Defense need determine only that the requested equipment is “suitable for law enforcement activities” and “excess to the needs of [DOD],” giving priority to those activities involving counterdrug, counterterrorism, or border security purposes.  See 10 U.S.C. § 2576a.  Although on its face this Program may appear to be an efficient method of recycling surplus military equipment, its application has drawn massive criticism.

Many Americans have decried the 1033 Program since late 2014 when police dressed in military gear responded to protests in Ferguson, Missouri.  Although these events in Ferguson fully illustrated the ultimate effect of the 1033 Program, they provided only a glimpse of the Program’s proliferation.  Over the past twenty years, DOD has transferred about $2.2 billion worth of military equipment to state and local law enforcement agencies throughout the country.  These transfers include a vast array of non-tactical and tactical items, ranging from backpacks and bandages to assault rifles and armored vehicles.  Although many observers find the mere appearance of a militarized police department to be inherently problematic, the more troubling issue lurks below the surface.

Currently, DOD permits police departments to participate in the 1033 Program regardless of whether these departments have engaged in a pattern or practice of unconstitutional policing, including improper officer-involved shootings.  Some of the most controversial transfers involved the Los Angeles Police Department, the Washington Metro Police Department, and the New Orleans Police Department.  In these three examples, DOD dispersed thousands of military rifles among these police departments shortly after the Department of Justice (DOJ) concluded each department was grossly unsupervised, poorly trained, and frequently engaged in improper shootings.  To make matters worse, these participants, and all others in the 1033 Program, are required to use the transferred equipment within a year or schedule its return.  Essentially, DOD gifts military weapons to police departments known to be incapable of properly using such weapons, and tells them, “use it or lose it.”

This practice clearly needs to change.  Congress should amend the 1033 Program to require DOD to closely scrutinize an applying agency’s internal training and supervision, as well as all allegations of misconduct against said agency.  Many of these background checks should be easy to conduct as DOJ has already gone through the trouble of investigating numerous problem agencies.  DOD need only review DOJ’s reports, and act reasonably.  Even if Congress fails to amend the law, DOD can implement this recommendation unilaterally as the Secretary of Defense has broad discretion in determining which agencies may participate in the Program.  See 10 U.S.C. § 2576a.  The burden of making this policy change is minimal; the benefit is substantial.  Failing to change under these circumstances borders on negligence.  Tort liability aside, DOD should, at the very least, refrain from fanning the flames of the already agitated relationship between police and the public.