This article originally appeared at In Homeland Security
By Jeffrey T. Fowler, Ph.D.
Faculty Member, School of Security and Global Studies, American Military University
There is a long-standing tradition in the United States of separating police and military powers. This practice stems in part from Reconstruction (1865-77), the bitter post-Civil War experience of martial law when victorious Northern troops occupied the South.
After Reconstruction, Congress passed the Posse Comitatus Act of 1878. While the roots of this federal law are controversial, the law is generally recognized as limiting the power of the U.S. military to interfere with civilian law enforcement.
The use of military forces under Posse Comitatus remained relatively static until the events of September 11, 2001. Since then, the increasing militarization of U.S. law enforcement has been a topic of controversy, largely due to U.S. military surplus equipment given to civilian law enforcement agencies under the Department of Defense (DoD) 1033 Program.
The DoD 1033 Program Permits Civilian Law Enforcement to Get Military Equipment
The DoD 1033 Program, enacted by Congress with the passage of the Defense Authorization Act of 1997, allows all law enforcement agencies to obtain surplus equipment from the federal government for use in legitimate police activities. Earlier authorizations allowed the transfer of equipment to law enforcement agencies involved in the “War on Drugs.”
While the program has been in effect for 20 years, it was little known until after 9/11. More than $1 billion in surplus equipment has been distributed to law enforcement agencies since 1990 (including the pre-1997 allocations).
This equipment includes various military-grade firearms, night vision devices, armored vehicles and aircraft. Rural game wardens and campus police are among the many law enforcement agencies that have received equipment.
However, some dispersals of equipment seem to reflect poor decision making. For example:
- The Winthrop Harbor, Illinois, Police Department, policing a village of approximately 6,700 residents, has received 10 helicopters, a mine-resistant armored vehicle and two Humvees, as well as other equipment.
- The Oxford, Alabama, Police Department, policing 22,000 residents, has received nine Humvees, two armored vehicles, a general purpose truck and other equipment.
In the wake of events in Ferguson, Missouri, former President Obama issued Presidential Executive Order 13688 after reviewing feedback from two congressional committees. This executive order restricts civilian law enforcement agencies from receiving the following items from under the program:
- Grenade launchers
- Armored vehicles with tracks
- Weaponized vehicles and aircraft
- Firearms/ammunition of .50 caliber or larger
- Some types of camouflage
Transparency of the 1033 Program Remains a Problem
A major public concern in recent years is the 1033 Program’s lack of transparency. But this changed under the provisions of sections 1051 and 1052 of the National Defense Authorization Act of 2016.
Section 1051 mandates that the Secretary of Defense create a public website for posting data on controlled property transfers under the program. Controlled property is defined as property that requires the removal of some military-only characteristics prior to transfer.
The public website contains three categories of data. They are:
- Identify all controlled property provided to federal and state agencies and recipients
- List every pending transfer request
- Post all reports filed by agencies to the DoD under the Program
One interesting fact is that despite public concern, the revised Section 1052 expands the range of activities under which transfer of property under the 1033 Program may be authorized. The expansion encompasses counter-drug, counter-terrorism and border security operations. Nevertheless, the country remains divided on the pros and cons of police militarization.
The Benefits of Police Militarization
The primary argument in favor of police militarization is that law enforcement agencies face increasingly sophisticated threats from criminal gangs and terrorists. An example sometimes used to justify this argument is the North Hollywood Shootout (1997). The two heavily armed criminals in this incident wore body armor and had combat-modified assault weapons with 100-round drum magazines, a variety of other weapons, and hundreds of rounds of ammunition.
The Los Angeles Police Department (LAPD) initial responders were only armed with .38 caliber revolvers, nine-millimeter handguns and shotguns. LAPD officers checked local gun shops for military-grade weapons to return fire and defend themselves. Eleven officers were injured, one of the gunmen committed suicide and the second gunman was eventually killed.
In the aftermath of this incident, there was an understandable demand that officers be better armed to face such situations in the future. Since that time, gang violence in inner cities like Chicago and terrorist incidents after 9/11 have prompted many law enforcement agencies to ensure police officers are able to cope with heavily armed adversaries, whether those adversaries are domestic or foreign.
The Negative Aspects of Police Militarization
Arguments against police militarization center on the marginalization of the Posse Comitatus Act and the appearance of police as members of the military. One argument is that, unlike military forces that exist to defeat the enemies of the United States in combat, the role of the police in America is to protect and serve their communities.
Having police in military camouflage, carrying military weapons and patrolling in armored or other military vehicles gives communities the appearance of an armed police confrontation. That public image differs from the traditional image of police as servants of the community.
In the Fall 2015 issue of the Justice Policy Journal, criminal justice instructors Scott Tighe and William Brown of Western Oregon University posit that modern policing in America is now operating on a bifurcated model. One major initiative is to work closely with communities as part of the community policing philosophy. The second major initiative, diametrically opposed to the first, is to push the militarized police model down to the small-town level. The question of whether the two initiatives can co-exist and carry out modern American policing in an effective manner remains to be seen.
Do Our Communities Really Need Law Enforcement to Be Militarized?
As a retired U.S. Army Military Police officer and as a former deputy sheriff, I do not generally support the militarized policing model. However, I certainly support efforts to ensure officers can effectively dominate armed encounters.
However, does this really mean that communities with low crime rates need armored vehicles and officers in ballistic military helmets, camouflage uniforms and combat boots? Probably not.
The primary mission of the U.S. military is to destroy the enemies of the nation in battle. The primary mission of American police departments is to protect and serve the communities in which they live and work.
Civilian police referring to their fellow citizens as “civilians” is an example of how police militarization has creeped into our society. We should remember that the only police in America who can refer to their fellow Americans as “civilians” are the military police organizations of the armed service branches.
For civilian police officers to refer to their fellow community members as civilians promotes a “we – they” type of relationship in which the police are separate from the community. This practice is counter-productive to good police-community relations.
While most law enforcement officers regard themselves as protectors of the public, there are always a few military “wannabes” out there on the streets. Police militarization provides them with a great excuse to play at soldiering.
My advice to these wannabes is this: If you truly want to be a soldier and defend your country, then enlist, pick up your rifle and man a post.
About the Author
Jeffrey T. Fowler, Ph.D., is an Assistant Professor in the School of Security and Global Studies at American Military University. He holds a B.A. in law enforcement from Marshall University, an M.A. in military history from Vermont College of Norwich University and a Ph.D. in business administration with a concentration in criminal justice from Northcentral University. Jeffrey is also a published author, a former New York deputy sheriff and a retired Army Captain, having served over 20 years in the U.S. Army.