Equipping Law Enforcement Agencies with Military and Tactical Equipment

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    Sep 3, 2014

    In light of recent events in Ferguson and St. Louis County, Missouri, members of Congress and senior Administration officials have expressed the need to examine the federal government’s efforts to transfer military-style equipment to local law enforcement agencies (LEAs). Senator Claire McCaskill of Missouri, a member of the Senate Homeland Security and Government Affairs Committee, recently expressed an imperative to “take a timeout and look at these policies.” Attorney General Eric Holder also stated the importance of examining the purposes and training mechanisms involved in the acquisition of military-style equipment by law enforcement officers.
    With pending congressional hearings and a White House-led review on the subject, it is useful to examine the different programs involved, including their histories, present-day applications, and concerns over implementation.

    Q1: What federal programs for acquiring military equipment are available to LEAs?

    A1
    : Several programs facilitate the transfer of excess military-style equipment to LEAs. Many headlines have focused on the Department of Defense’s (DoD’s) so-called “1033 Program”, which appeared in section 1033 of the National Defense Authorization Act for Fiscal Year 1997 (Public Law 104-201) and which is codified in section 2576a of title 10, United States Code. This program allows federal and state agencies to acquire excess DoD property as-is and at no charge, except for transportation costs and operations/maintenance costs subsequent to the transfer. The authorizing statute indicates that LEAs can obtain any items from existing DoD stocks that are in excess of DoD requirements; thus, excess items can include not only tactical items such as Humvees, M-16 rifles, ammunition, and riot shields but also office furniture, computers, printers, tents, and generators. In fact, DoD sources indicate that 95 percent of the property transferred through this program is not tactical.

    While the 1033 Program represents LEAs’ main source for excess military-style equipment, programs for purchasing or leasing equipment also exist. For example, the “1122 Program” (from section 1122 of the National Defense Authorization Act for Fiscal Year 1994 (Public Law 103-160)) allows state and local governments to purchase surplus DoD equipment at prices often lower than commercial value. These purchases may occur through the Army, the Defense Logistics Agency, or the General Services Administration. According to several subject matter experts, agencies primarily use this program to supplement the 1033 Program through the purchase of spare parts; the sources can also sell vehicles and other tactical equipment directly to the state and local governments. In addition, the Electro-Optics Program allows LEAs to lease night vision and thermal imaging equipment for $300 per item per year. While participation in these two programs is significantly less than the 1033 Program, agencies still take advantage of these tools to develop and employ capabilities.

    Q2: What is the origin of the 1033 Program? How is it used today?

    A2
    : The first program to transfer excess DoD property to federal and state agencies appeared in the National Defense Authorization Act for Fiscal Years 1990 and 1991 (Public Law 101-189), soon after Congress passed a comprehensive Anti-Drug Abuse Act and created the Office of National Drug Control Policy (ONDCP).  The original of this program – which was the predecessor to the 1033 Program – was to support LEAs in counterdrug activities specifically. Toward that end, the program required the Secretary of Defense to consult with the Attorney General and ONDCP Director in executing equipment transfers.

    The 1993 World Trade Center and the 1995 Oklahoma City bombings focused similar national-level attention on another transnational problem: terrorism. Soon after the passage of the Antiterrorism and Effective Death Penalty Act of 1996, Congress expanded the existing DoD transfer program through section 1033 of the National Defense Authorization Act for Fiscal Year 1997. Instead of simply supporting counterdrug operations, the 1033 Program now includes the transfer of property suitable for all law enforcement activities, including small arms and ammunition, provided that the Secretary of Defense determines that the excess military equipment is “suitable for use by the agencies in law enforcement activities, including counter-drug and counter-terrorism activities”.

    Since 1997, LEAs have used the program to receive over $5 billion worth of equipment. In 2013 alone, the value of property transferred through the 1033 Program totaled approximately $450 million, which represents about 20 percent of all transferred DoD property last year. The program has grown over time; for example, the number of individual items transferred in fiscal year 2013 nearly tripled from the previous year, perhaps due in part to increased stocks of excess DoD equipment from overseas combat operations. The range of law enforcement missions supported has also increased. In May, the House of Representatives passed its version of the National Defense Authorization Act for Fiscal Year 2015 (H.R. 4435) with a provision that would require the DoD to prioritize transfers for border security activities.

    Q3: What are the non-DoD programs that support LEAs’ purchase of tactical equipment?

    A3
    : As reflected in media reports on the equipment deployed in Ferguson, LEAs may draw from a variety of sources for military-style or tactical equipment. In addition to DoD programs, LEAs may purchase equipment directly from manufacturers, using grants from the federal government or funds from their own budgets.

    The Department of Homeland Security (DHS) provides grants to state and local governments to prevent, protect against, mitigate, respond to, and recover from acts of terrorism and other catastrophic events. Grant-funded purchases must meet targets for core capabilities outlined in DHS’s National Preparedness Goal. Because primary law enforcement capabilities include interdiction and disruption, access control and identity verification, and on-scene security and protection, grants may be used to support bomb, crowd control, and SWAT/tactical teams. DHS’s resource typing catalogue includes items such as robotic vehicles for countering improvised explosive devices, soft body armor (helmet and face shields, gloves, shin guards), riot control batons, chemical agents and delivery systems, less lethal munitions, long-range weapons, shotguns, utility vehicles, and communication systems.

    The Department of Justice’s Edward Byrne Memorial Justice Assistance Grant Program also contributes funding to state and local governments for a range of criminal justice activities, including law enforcement, indigent defense, corrections, and crime victim and witness initiatives. Within the law enforcement subset, agencies can use grant funding to purchase assets that range from communication equipment to vehicles and weapons.

    Q4: How can the federal government address concerns over these programs?

    A4
    : Following the display of force in Ferguson, people – local communities, members of the media, politicians, and policy-makers alike – began publicly questioning the value of military-style equipment in the hands of law enforcement officers. Many have called for a thoughtful, thorough examination of the 1033 Program and the various non-DoD grant programs.

    Regarding the 1033 Program, DoD currently has several accountability mechanisms in place. DoD determines which property to make available to LEAs and requires both justifications for all requests and certification of an annual physical inventory of all high profile property. DoD also conducts biennial, in-person compliance reviews and has authority to suspend noncompliant agencies. DoD requires that agencies modify the two automatic weapons (i.e., M-16, M-14) that are available through the 1033 Program; these modifications include a fire control change from automatic to semiautomatic. Additionally, for aircraft and armored vehicles (e.g., Mine-Resistant Ambush-Protected vehicles), agencies must certify that they have the appropriate funds, qualified personnel, space, and equipment to operate and maintain the items.

    Despite these measures, two key areas are ripe for further examination: the determination of equipment suitability for LEAs and the employment of the equipment by LEAs.  Such an examination should explore:

    • How DoD and other federal departments do/should determine if equipment is suitable for LEAs;
    • The training mechanisms and standard operating procedures that are/should be in place to control use of the equipment;
    • Coordination among other federal departments and LEAs to include, but not be limited to, oversight and accountability mechanisms; and
    • The appropriate consequences for improper use.

    Ultimately, programs that support state and local agencies in achieving law enforcement missions, including managing hostage, active shooter, bomb disposal, and natural disaster situations, can maximize the taxpayers’ dollar by reusing equipment already procured for the military to support these activities. These benefits should be weighed along with the shortcomings in determining the best method to maintain public safety and the delineation between military and law enforcement.

    Stephanie Sanok Kostro is a senior fellow in the International Security Program at the Center for Strategic and International Studies (CSIS) in Washington, DC. Garrett Riba is a consultant for the Homeland Security and Counterterrorism Program at CSIS.

    Critical Questions
    is produced by the Center for Strategic and International Studies (CSIS), a private, tax-exempt institution focusing on international public policy issues. Its research is nonpartisan and nonproprietary. CSIS does not take specific policy positions. Accordingly, all views, positions, and conclusions expressed in this publication should be understood to be solely those of the author(s).

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