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Turning Sheriffs Into Soldiers: A Quick Look at the 1033 Program

By on July 15, 2020 Categories: ,

Since May, millions of demonstrators have taken to the streets to protest the killing of George Floyd and the countless other victims of police violence. In response, they’ve been met with armored vehicles, helicopters, and law enforcement officers decked out in tactical gear. With law enforcement agencies looking more like military forces than local policemen, these demonstrations have reopened the dialogue about escalating police militarization.

In the context of police militarization, there is perhaps no program as widespread or as controversial as the “1033 program.” This federal program, which provides Department of Defense (“DOD”) equipment to law enforcement agencies at no cost, received a fair share of scrutiny in 2015 following the Ferguson unrest. Although it underwent some reform as a result, billions of dollars of property have been transferred through the program since then. This post provides a quick look at the 1033 program and some of the publicly available information provided by the DoD.

The 1033 program, codified at 10 U.S.C. § 2576a, is the primary vehicle by which law enforcement agencies obtain military equipment. The program allows the DoD to transfer its excess property to federal, state, and local law enforcement agencies at no cost other than what is required for transfer and maintenance. This property includes “vehicles, helicopters, weapons, ammunition and other property that is needed by law enforcement agencies.”

Originally passed in Section 1033 of the National Defense Authorization Act for 1997, the program was initially an extension of a counter-narcotics program, intended to be used in the War on Drugs. Today, the statute expresses a preference towards applicants intending to use the equipment in counterdrug, counterterrorism, and border security activities, but the program is not restricted to such activities.

As of 2020, $7.4 billion worth of property has been transferred to federal, state, and local law enforcement agencies. Around 8,200 agencies from 49 states and 4 U.S. territories currently take advantage of the program, with Hawaii being the only state not participating. Last year, 92% of the property provided through the 1033 program was considered “non-controlled” property, or property without any military attributes: things like furniture, first aid kits, sleeping bags, and computers. The remaining 8% is known as “controlled property,” because it is transferred conditionally or on loan from the DoD. Controlled property includes night vision equipment, small arms, tactical vehicles, and aircraft, and is the type of property most relevant to the discussion of police militarization. Controlled property has been making up a higher proportion of 1033 equipment transfers over the past few years. Additionally, although controlled property makes up a smaller percentage, a majority of the most transferred items and the most expensive items are all controlled.

Following public outrage during the Ferguson unrest, President Obama issued Executive Order 13688 in January 2015, which established a working group to help address some of the concerns regarding law enforcement acquisition of military equipment. Following the recommendations of this working group, the DoD implemented a series of reforms to the 1033 program, including the creation of a prohibited items list. The program also began requiring law enforcement agencies to obtain certification of protocols on appropriate use, training, maintenance, sustainment, and accountability. President Trump revoked Obama’s executive order in August 2017, which rescinded all of the working group’s recommendations. Despite this, the DoD has chosen to keep most of the reforms, only removing some items off of the prohibited items list such as bayonets and tracked armored vehicles.

The prohibited items list today consists of: “[A]ny aircraft, vessels or vehicles that inherently contain weaponry, (e.g. tanks, Bradley fighting vehicles, armed drones); crew served/large caliber (.50 caliber or greater) weapons and ammunition; military uniforms; body armor; Kevlar helmets; and explosives or pyrotechnics of any kind.” Besides these prohibitions, some of the DoD’s equipment may need to be modified for more specific law enforcement use before it is transferred. For example, firearms are often converted from fully automatic to semi-automatic, and armored vehicles are stripped of their weapons.

Advocates of the program claim that the use of military-style equipment represents a safer and more effective way of handling the dangerous situations that police officers face, and assert that it has a positive impact on public and officer safety. However, the verdict is still out regarding the accuracy of these claims. While some studies attribute a decrease in crime rates to an increase in military aid and transfers, others have found it to “provide no detectable benefits in terms of officer safety or violent crime reduction, on average.” While there are some contradictory results in this respect, studies do seem to agree that police militarization is often correlated with increased shootings and violence by officers. Some researchers have suggested that “officers with military hardware and mindsets will resort to violence more quickly and often.”  Consequently, even if police militarization does decrease crime, that benefit might be negated by the increase in police violence.