A Legal Path for the 1033 Program

Civil policing is not soldiering.  It is indeed intellectually more difficult.   The “militarization of American police” over the past decade has been the most talked about domestic issue this month, with support from many parts of the political spectrum.  Even the president himself ordered a review  of the Defense Department’s program for supplying local police with its excess equipment.  This post seeks to outline a centrist legal path for the program moving forward.

Sixteen months ago, the Boston area population readily submitted to a curfew as heavily armed and armored police searched Watertown for a bombing suspect.  He was suspected of detonating a bomb with hundreds of casualties, shooting a police officer in cold blood, and, with his accomplice brother, hurling homemade bombs at police officers in a shootout.  I was surprised that day by the level of armament of the police as well as the lack of commentary about it.  As the suspect was captured, the Boston area police were cheered by the townsfolk and widely celebrated across the country.

This month, the police shooting of an unarmed black man in suburban St. Louis set off much controversy and intense national media scrutiny.  Police procedures regarding the shooting itself in the hours and days following have drawn criticism  for a lack of accountability and respect for the public.  However, the focus of this post is the Ferguson, Missouri Police’s show of force against protesters who were largely peaceful.  Armored vehicles and snipers appeared at protests.  Video footage showed police officers with guns drawn and pointed up at protesters.  All of these actions are against convention.

The police show of force has sparked a public debate on the level of armaments the police should have.  Congress is out on recess at this writing, but this initiative, known as the 1033 program, will likely come up during the next session.

My take is that in an era of mass shootings, criminals with body armor, and the threat of domestic terrorists intent on mass murder, police ought to have a reserve of heavy equipment.  Simply put, a trained cop with a semi-automatic rifle (e.g. and AR-15/M-16) should be within a ten minute response time, anywhere in America.  Surplus from the Defense Department is a free, logical way to put the materiel to use.  But that implies local police commanders who know how to tactically deploy the materiel, as well as officers who know how to use it.

Ferguson, Mo has laid bare the weak underbelly of this federal program.  This police department does not have the organizational discipline to handle the powerful equipment, and their officers were demonstrably ill-trained.

The U.S. Justice Department has programs to coordinate and provide support to local police.  However, it is its Civil Rights Division that may show the way forward.  Those attorneys sue departments that systematically deny civil rights to their citizens.  This often occurs from organizational dysfunction.  Thus many of their consent decrees have guidance for managerial reforms and processes to lead to more professionalism.  From studying those legal agreements, I have come up with some basic guidelines:

-With individual crimes, in hot pursuit or with warrants, procedures should be established and understood regarding how and when high power weapons and armored vehicles should be deployed.

-Similar procedures need to be established for large protests and civil disturbances.

-Training for marksmanship and properly brandishing weapons should be funded and planned before the receipt of any equipment.

-Using military style weapons needs to be documented after every use.  This data must be collected and continually evaluated.

The 1033 program is free regarding the Defense Department.  Training costs money, and could be provided by municipalities themselves if they feel it is that important to them.  Alternatively, the Department of Justice could assist with money.  The Department of Defense is not expert in the use of tactics for civil policing, and there could be issues under the Posse Commitatus Act if there is deemed to be undue influence of the military on law enforcement.

The 1033 program should continue, but only in departments which prove to the Justice Department that they are ready for it.  Hopefully, untrained departments (there are certainly other Fergusons out there) will after the fact, begin to adopt the policies and procedures of their sister cities and change can occur at the local level nationwide.