Fix the law enforcement equipment tranfer program

After the protests, riots and the police response in Ferguson, Missouri following the controversial shooting by police of a black teenager, some in Congress and around the nation are calling for an end to the Department of Defense’s (DoD’s) law enforcement equipment transfer program fearing it has militarized state and local police. Rather than ending these transfers, Congress and DoD should fix the program.

The military’s equipment transfer program was created in 1990 under the National Defense Authorization Act. The program’s worthwhile goal is to allow access to needed excess equipment rather than have taxpayers at the state or local level purchase equipment that taxpayers at the national level have already acquired and no longer need. To date, according to DoD, only five percent of this transferred equipment consists of weapons, and less than one percent are armored vehicles of the type that were used by police in Ferguson.

{mosads}In reforming the program, DoD must end the first-come, first-serve approach to distributing equipment. This produces absurd results where one person departments end up with a Mine-Resistant Ambush Protected (MRAP) vehicle and fourteen M16 rifles. The military has made adjustments to how it distributes armored vehicles, with an emphasis on serving high intensity drug trafficking areas, but more changes are needed and Congress should codify them.

Distribution of equipment, especially weapons and vehicles such as boats, armored trucks and helicopters, should be based primarily on the risk of violent crime and the ability of the receiving agency to manage the equipment. The law currently requires the Secretary of Defense to coordinate with the Attorney General presumably for this very purpose. The Justice Department must supply DoD with continuous data on where the actual risk and needs are.

Each state must supplement the Justice data by more aggressively screening requests for equipment to help ensure agencies are capable of managing it.  The maxim better to take the equipment and not need it than need it and not have it is untenable. That approach has no limiting principle and can be used to justify transferring virtually anything to anyone. No agency should receive equipment merely because it’s available.

Even if a law enforcement agency has a legitimate need, the equipment must still be appropriate for transfer. Critics of the program argue that any weapon or vehicle in possession of the military is unfit for transfer even if, for example, that weapon or vehicle or their equivalent could be purchased independently from a commercial vendor. This view wrongly makes the owner of the equipment rather than the nature of the equipment dispositive on the question of transferability.

Some equipment should obviously not be transferred, e.g., tanks and aircraft carriers. Other equipment types are less clear and may or may not be appropriate depending on where they fall on a scale of capability and lethality. For example, an unarmed Blackhawk helicopter should be transferable, but an Apache Attack Helicopter should not be. There should be a presumption against transferring any class or type of weapon or vehicle that cannot be purchased on the commercial market by law enforcement.

For those eligible agencies, a detailed sustainment and training regimen for weapons and vehicles should be required to ensure the equipment is used appropriately. Moreover, users of the equipment should be mandated to hold all applicable federal and state licenses, certifications and accreditations. In certain cases, new accreditation and certification standards should be imposed to raise performance standards on the usage of weapons and vehicles.

The program must also be made more transparent and accountable at the state and local level. To that end, each state or local legislative body should vote on accepting the DoD equipment. In some cases state or local law already requires this, but in others it does not. A vote should be a federal prerequisite in order to support local control and oversight of local law enforcement. No federal program should come between the police and the state and local elected officials responsible for overseeing them. Each year, DoD should publish the names of the agencies and the equipment they received. Some states, to their credit, are proactively publishing this information already. Equipment recipients in turn should publish a report on how they used any weapons and vehicles in a given year.

The DoD law enforcement equipment transfer program requires significant oversight from Congress and management by DoD. While both have been lacking in recent years, Congress should mend the obvious defects rather than scrap the program entirely.

Filler was the director of the Office of State and Local Government Coordination for the Department of Homeland Security from 2003 to 2005.