clock menu more-arrow no yes

There’s a loophole in Obama’s effort to keep military weapons from the police

Scott Olson/Getty Images

  1. The White House announced on May 18 that police departments will no longer be allowed to obtain certain kinds of military-style weapons from federal agencies, or use federal money to buy them. The transfer of another set of materials will be more closely regulated.
  2. Obama elaborated on the announcement at a Monday event in Camden, New Jersey, saying that the use of military equipment can give citizens the impression that law enforcement in their communities is like "an occupying force."
  3. Along with the new ban, the White House released a report by the Task Force on 21st Century Policing —a working group tasked with making recommendations for how to promote trust between communities and law enforcement. Obama used an executive order in December 2014 to create the group following the militarized police response to protestors in Ferguson, Missouri.

The new restrictions

One way that weapons and supplies are transferred from the military to local police departments is through the Department of Defense Excess Property Program, known as the 1033 program, which was originally intended to equip specialized units for extreme, dangerous situations such as fighting al-Qaeda sleeper cells or powerful drug cartels. Instead, police departments across the country have used it to stock up on military-grade equipment that critics — including Obama — say is hardly necessary to conduct local policing.

Under 1033, the transfer of certain types of weapons, like tanks and grenade launchers, was already disallowed under that program. But as the Washington Post's Radley Balko has reported, there are other, more popular ways for local police to get some of this military equipment — like using grants from the Department of Homeland Security to purchase it. The new rules are significant because they ban police from using the 1033 program or any federal funding or grants to obtaining the following military-like supplies:

Anand Katakam/Vox

In addition, the following items will be "controlled," meaning there will be additional requirements (like training, data collection, and approval from local officials) that have to be satisfied before local cops can get them from federal agencies:

Anand Katakam/Vox

The ban will take effect immediately, while the restrictions will be phased in over time, the Washington Post reports.

But there's a  loophole

Local police will be able to get around the federal regulations if they can buy the equipment covered by the ban themselves instead of getting it from a federal agency.

"They can still go to a private armored vehicle company and make a private order," University of South Carolina law professor and former police officer Seth Stoughton told Columbia, South Carolina, TV station WLTX 19. "The big difference is a fiscal difference — they now have to pay that cost up front themselves rather than getting it either for free or at a steeply discounted rate from the American military."

Whether local departments can afford to, or will choose to, spend money on this equipment remains to be seen.

The connection to Ferguson

After Michael Brown, an unarmed 18-year-old black man, was shot and killed by a police officer in Ferguson, Missouri, in August 2014, local law enforcement officers responded to the subsequent protests wearing riot gear and using military-style weapons.

The clashes between protesters and police were captured on social media and in news reports, leading many observers to wonder what weapons and supplies that looked like they belonged on a battlefield were doing in the small town, and whether their presence was making an already tense situation worse.

Obama's policing task force was created in part as a response to these criticisms and what the events in Ferguson meant for other communities around the country. As the Washington Post's David Nakamura and Wesley Lowery put it, "The appearance of heavily armored vehicles and police clad in military-grade body armor to quell the unrest in Ferguson led to widespread concerns that the federal program providing that gear, begun with the best intentions, had run amok."

The many issues with military-style equipment

Explaining the ban and restrictions Monday in Camden, Obama said that "militarized gear sometimes gives people a feeling like they are an occupying force as opposed to a part of the community there to protect them."

But there's more to it than just feelings. As Vox's  Amanda Taub explained in the midst of the Ferguson protests last August, the equipment is too often provided to police forces without adequate training or supervision. The American Civil Liberties Union's Kara Dansky, who authored the organization's report on the rising militarization of law enforcement, told Taub she was "not aware of any training that the government provides in terms of use of the equipment" or of "any oversight in terms of safeguards regarding the use of the equipment by the Defense Department."

Plus there's evidence that militarized police can make tense situations more dangerous, not less. The former law enforcement officials Taub spoke to all emphasized that communication, rather than confrontation, was the best way to de-escalate a situation like the Ferguson protests in order to ensure community safety.

"Guardian" versus "warrior" policing and the task force's other recommendations

The task force report contains recommendation for police that include "minimizing the appearance of a military operation" and
"avoiding provocative tactics" — the things Obama's new ban addresses. But it also contains much more than that.

A theme discussed under the heading "Building trust and legitimacy" is the embrace of what the group calls "a guardian — rather than a warrior" approach. The following quote from the report, by task force member Susan Raher, explains what that means:

In 2012, we began asking the question, "Why are we training police officers like soldiers?" Although police officers wear uniforms and carry weapons, the similarity ends there. The missions and rules of engagement are completely different. The soldier's mission is that of a warrior: to conquer. The rules of engagement are decided before the battle. The police officer's mission is that of a guardian: to protect. The rules of engagement evolve as the incident unfolds. Soldiers must follow orders. Police officers must make independent decisions. Soldiers come into communities as an outside, occupying force. Guardians are members of the community, protecting from within.

Another more concrete recommendation had to do with the use of social media. The task force suggested that it could be harnessed to fight crime directly, as well as to get a sense of how community members felt about issues:

Another technology relatively new to law enforcement is social media. Social media is a communication tool the police can use to engage the community on issues of importance to both and to gauge community sentiment regarding agency policies and practices. Social media can also help police identify the potential nature and location of gang and other criminal or disorderly activity such as spontaneous crowd gatherings.

It turns out that while all of the agencies the task force surveyed had websites, many didn't have a presence at all on Facebook or Twitter:

(Final report of the President's Task Force on 21st Century Policing)

(Final report of the President's Task Force on 21st Century Policing)

Other recommendations include: diverse police departments that reflect community demographics, policies that reflect community values, and better training for officers — including on "basic social interaction." These are reminders that when it comes to community-police relations, equipment is important, but so is the approach of the people using it.

Sign up for the newsletter Sign up for The Weeds

Get our essential policy newsletter delivered Fridays.