Jennifer Fried
1 Bernard Baruch Way
New York, NY 10010
(123) 456-7890
Policy Memorandum
TO: The Department of Defense and The Law Enforcement Support Office (LESO)
FROM: Jennifer Fried
RE: Demilitarization of the Police
DATE: December 3, 2015
Executive Summary
Over the past decade, the United States Department of Defense has increased its funding for police militarization. Not surprisingly, much of this shift came after the wake of September 11, 2001. However, our country saw a peak in funding in 2013, when over $400 million worth of military gear was given to state and local law enforcement agencies.[i] While some qualified cities have benefited from this funding, many agencies have taken advantage of the loose process for gaining access to such weaponry. The result of this has been disastrous to many towns and families. This paper will detail the history, laws, and effects of the police militarization, and will conclude by suggesting three policy options to curb the problem as presented.
Background Information on Police Militarization
In May 2008, after their Wisconsin home had burned down, the Phonesavanh family was staying with relatives in Georgia. One night, a SWAT team armed with assault rifles invaded the home and threw a flash-bang grenade—despite the presence of kids’ toys in the front yard. The police were looking for the father’s nephew on minor drug charges. He wasn’t there, but a 19-month-old named Bou-Bou was—and the grenade landed in his crib.[ii]
A more widely known story involving police militarization occurred on August 9, 2014. On this day, an unarmed black teenager named Michael Brown was shot and killed by a white police officer named Darren Wilson in Ferguson, Missouri.[iii] In the days that followed, witnesses claimed Mr. Brown was shot as he walked toward Officer Wilson, while others say he was standing perfectly still.[iv] Some onlookers stated that Mr. Brown had his hands raised in the air, while others stated he had his arms by his side.[v] While the witness’ accounts were varied, the outcome remained the same: Darren Wilson fired 12 shots at Michael Brown, killing the 18 year old and starting a surge of protests and riots in the small town of Ferguson; a town with a population of only 21,000.[vi]
The police that arrived on scene were far from your ordinary deputy or sheriff. Instead, the police that came rolling into Ferguson resembled the soldiers whom had been deployed to Iran, Iraq, and other parts of the Middle East. They were dressed head to toe in camouflage—as if they might not be seen taking over the center of town—and carried rifles the size of small children.[vii] Behind them and their gas masks, sat uparmored trucks and snipers who were strategically placed throughout the city.[viii]
[ix]
Figure 1: Snapshot of an interactive map from the Cato Institute showing botched SWAT and paramilitary police raids in the United States. Updated November 2015. http://www.cato.org/raidmap.
An Overview of Federal Programs and Grants Allowing for Police Militarization
The Posse Comitatus Act of 1878 and its deconstruction
The Posse Comitatus Act of 1878 (“Act”) was initially enacted as a reflection of our nations distaste for military involvement in civilian affairs.[x] The Act itself forbade the use of the Army and, as amended, the Air Force, to execute civil law unless expressly authorized by the Constitution or by an act of Congress.[xi] The Act codified the US custom of keeping the military separate from civilian affairs.
While the Act itself has essentially remained unchanged, the legs upon which it stands have slowly been cut out from under it. For example, an exception to the Act was carved out to enable the application of the Insurrection Act of 1807. This act enables the President to call for the military during an insurrection or civil disobedience. [xii] Thus, between the Insurrection Act and later similar acts, the Posse Comitatus Act is essentially ineffective.
The 1033 Program
In 1989, congress once again used its power to enable the armed forces to support law enforcement when it enacted the National Defense Authorization Act (NDAA). As a part of the NDAA, Congress created a pathway for the Department of Defense to “directly transfer to federal and state agencies equipment…that was excess to the needs of the department….”[xiii] In other words, any extra weaponry, no matter what grade, is up for grabs for state and local police agencies.
In 1997, Congress expanded the NDAA by incorporating Title 10, Section 333, which eventually led to the development of the 1033 Program. The amendment authorizes the President “to use the Armed Forces to suppress any ‘insurrection, domestic violence, unlawful combination, or conspiracy’ if law enforcement is hindered within a state, and local law enforcement is unable to protect individuals….”[xiv] The program itself is administered by the Law Enforcement Support Office (LESO).
To participate in the 1033 Program, law enforcement agencies can apply to LESO through their states’ 1033 program coordinator. Those enforcement agencies that are approved by LESO can then send appointed officials to place specific requests for items. Those items that LESO approves are then transferred to the law enforcement agency, at the cost of the agency.[xv] Over 8,000 federal and state law enforcement agencies participate in the program.[xvi]
The Homeland Security Grant Program
In the wake of September 11, 2001, the Department of Homeland Security developed the Homeland Security Grant Program (HSGP).[xvii] The program has two main components: the State Homeland Security Program (SHSP) and the Urban Area Security Initiative (UASI).[xviii] Together, these programs provide funding to state and local governments to achieve the goal of a “secure and resilient Nation.”[xix]
Through HSGP, “the Department of Homeland security has handed out anti-terrorism grants to cities and towns across the country, enabling them to buy armored vehicles, guns, armor, aircrafts, and such other heavy equipment as seen fit.”[xx] And what is the result of HSGP? As one town gains a SWAT team, a neighboring town wants one too. Although SWAT teams and the like are necessary to protect our nation, a town such as Doraville, Georgia hardly seems the place for one. From 2001 to 2013, Doraville experienced 8 murders and 0 incidents of arson.[xxi] Yet, the town of 8,500 people has its own SWAT team, equipped with military grade weaponry, including an armored tank.[xxii]
The Problem: Turning Our Officers Into Armies
In 2010, New Haven Connecticut sent a SWAT team to a bar suspected of serving underage drinkers.[xxiii] And, according to one reporter for Business Insider, the police officers’ uniforms in Ferguson “would [have been] mistaken for a soldier’s if it weren’t for their ‘Police’ patches.”[xxiv] Such incidents beg the question, when did it become okay for police to respond in the same manner as the military?
Dr. Peter Krasak, a professor of justice studies at Eastern Kentucky University, estimates that the number of SWAT raids has increased from approximately 3,000 annually in the 1980’s to 50,000 annually today.[xxv] While “There is a legitimate role for the police to keep the peace…there should be a difference between a police response and a military response.”[xxvi] Labeling a gathering of like-minded people a “riot” should not automatically equate to sending the troops, and the use of military grade weaponry should not be the police’s first resort—it should be their last.
[xxvii]
The Causes and Harms Associated with Giving Police Officers Military Grade Weaponry
In 1971, renowned psychologist Philip Zimbardo conducted his famous Stanford Prison Experiment. The purpose of his experiment was to determine if the callousness reported among guards in the American prison system was due to the natural disposition of the guards or was situational and based on the conditions of the prison environment.[xxviii] Participants were assigned either the role of prisoner or guard and were placed in a life-like prison setting.[xxix] Zimbardo found that all participants quickly adopted the roles they had been given. Guards began harassing and dehumanizing prisoners, while prisoners became more and more submissive.[xxx] Although Zimbardo planned to run the experiment for two weeks, he concluded it within six days.[xxxi]
The results of Zimbardo’s 1971 experiment ring true today. As social beings, we take on the roles we are given and even the most well trained police are no exception. “In Ferguson and beyond, it seems that some police officers shed the blue uniform and have put on the uniform and gear of the military, bringing the attitude along with it.”[xxxii] The result here is that, if you hand police officers military grade weaponry they are going to use it—whether fittingly or not.
As Americans, the term “war” is often associated with battles overseas, and if we look in our history books we see that such an association is somewhat correct. In America’s comparatively young life, it has played host to few wars; some notable examples include the War of 1812, the American Civil War, and the Mexican-American War.[xxxiii]
Today, the word “war” is being applied to incidents more closely tied to US soil. Our nations use of the phrases “the war on drugs” and “the war on terror” has brought conflicts to our home front, and with it, an altering of the attitudes of our police officers. “Military equipment is used against an enemy…so if you give the same equipment to local police, by default you create an environment in which the public is perceived as an enemy.”[xxxiv] Thus, we have created an environment where the police are no longer protecting our neighborhoods from everyday criminals, but they are acting as our nations homeland security.
Options for Curbing Police Militarization
The problem here is not the officers themselves or the towns that want to appear as safe as their neighboring town. The problem is with the $34 billion in grants that have been given out since HSGP’s inception and the lack of oversight that has been attached to that funding.[xxxv] This is not to say that these programs should be cut overall. Between the 2013 Boston Marathon bombing and the number of ISIS supporters being found in US cities, clearly our officers need to be ready to handle extreme circumstances.[xxxvi] However, the allocation of military grade weaponry should not be considered the norm. Protesters should not fear going up against riot police armed with tear gas, and the small town of Doraville Georgia should not be fighting its daily crimes with an armored tank.
Downsizing The Available Programs
The first step that should be taken by the Department of Homeland Security is to downsize the aforementioned grant programs. By downsizing these programs and encouraging police to engage in what we might think of as traditional policing practices, our country can re-learn how to respond to criminal and civil acts of disobedience.
In May 2015, President Obama announced that his administration would be banning federal transfers of certain types of military gear to local police departments.[xxxvii] “The banned items are tracked armored vehicles, bayonets, grenade launchers, ammunition of .50-caliber or higher, and some types of camouflage uniforms.”[xxxviii] However, local police can still bypass such federal restrictions by purchasing equipment from private sellers.[xxxix]
While Obama’s announcement has brought forth praise from many, it ultimately falls short of solving the greater issue at hand. “Anti-police brutality and law enforcement reform groups…, [praised] the move by the Obama administration but [painted] it a small step in…a long process….”[xl] Removing six items from a list of plenty is like making a dent in an armored vehicle—practically unnoticeable.[xli] By limiting funding and further restricting the equipment to be handed out and as it is handed out, we will be discouraging the use of military grade materials to resolve civilian affairs.
Higher Standards and Vetting Process to Participate in the Program(s)
By downsizing its programs, the Department of Homeland Security will naturally need to be more selective of what cities and townships receive grants. Thus a more comprehensive vetting process should be developed in order to choose the locations actually in need of military grade weaponry and also those locations most suited to train their officers in the proper use of such weaponry.
In creating higher standards, the Department of Defense should require participating agencies to demonstrate an explicit, individualized justification for receiving 1033 support. Furthermore, restrictions on the amount of and type of equipment given away should be in place. Although agencies have the opportunity to put in specific requests for equipment and LESO has the opportunity to grant or deny those requests, such granting or denying should be based on the specific needs of the requesting agency.
A perfect example of a request that should have been denied, but was somehow granted, can be seen in the small town of Keene, New Hampshire. When the police chief of Keene was asked to explain his purchase of an approximately $300,000 BearCat armored personnel-carrier, he stated it would be used to patrol Keene’s “Pumpkin Festival and other dangerous situations.”[xlii] Unless Keene’s previous pumpkin festivals resulted in the detonation of mines and other such warfare, Keene’s purchase, at a minimum, was extravagant and unwarranted.
Increasing Accountability and Follow-Up Procedures
In August 2014, Senior Counsel at the ACLU’s Center for Justice stated, “…Not only has policing become excessively militarized, but this militarization has occurred with almost no oversight.”[xliii] Without increasing accountability, the above options will lack any real backbone. Thus, a third consideration is to increase accountability of those who receive grants by implementing follow-up procedures on both ends—the receiving agencies and the Department of Defense.
Currently, there is a biannual Program Compliance Review that simply utilizes the checklist method. It is not rigorous and only requires a few check marks affirming that participating agencies: are still eligible (i.e. a law enforcement agency), maintain their records and inventory, and have in place a compliance review process.[xliv]
Clearly, greater oversight is needed, and relying merely on internal management is simply not enough. Therefore, more comprehensive follow-ups should require agencies to give a detailed report of their use or nonuse of any equipment they received through the grant program. The Department of Defense should then evaluate that agencies use of the equipment and determine if it is being operated and maintained properly, or if the agency should be required to return the weaponry. Furthermore, the Department of Defense should periodically physically go to the locations where the equipment has been deployed and evaluate the controls in place at that local agency.