WASHINGTON (Aug. 28, 2017) – Yesterday, President Trump released an executive order that will once again open the door for local police departments to obtain certain surplus military equipment through a controversial federal program. The reversal of an Obama administration ban on specific types of equipment available through the 1033 program won’t have much practical impact, but it does have symbolic significance.

Attorney General Jeff Sessions reportedly pushed for the change in policy. He announced the new executive order Monday morning in an address at the annual meeting of the Fraternal Order of Police. According to a summary of the new program recently circulated to law enforcement groups and obtained by USA Today, the EO restores “the full scope of a longstanding program for recycling surplus, lifesaving gear from the Department of Defense, along with restoring the full scope of grants used to purchase this type of equipment from other sources,”

In the wake of the Ferguson riots, Pres. Obama signed an executive order limiting some types of surplus military equipment available through federal programs or funding. A prohibited equipment list developed based on the Obama EO included tracked armored vehicles; weaponized aircraft, vessels and vehicles of any kind with weapons installed; firearms of .50-caliber or higher; ammunition of .50-caliber or higher; grenade launchers; bayonets; and camouflage uniforms. It also placed limits on other equipment, including aircraft, wheeled tactical vehicles, mobile command units, battering rams and riot gear. Local agencies were required to develop a use plan and get federal approval before they could obtain these items.

The Obama executive order was largely window dressing and left the 1033 program effectively intact. Most of the items on the prohibited list had been previously banned, or were rarely transferred through federal surplus programs. Even with the Obama limits, police continued to have access to military surplus equipment, including high powered “assault” rifles, mine resistant vehicles (MRAPs) and armored Humvees, aircraft, drones, night vision equipment, battering rams and other military grade items.

According to an AP report, through December 2016, the Defense Logistics Agency (DLA) had recalled at least 100 grenade launchers, more than 1,600 bayonets and 126 tracked vehicles. But this represents just a drop in the bucket when compared with the massive amounts of equipment transferred through 1033 and other federal programs. According to the DLA, the federal government transferred more than $2.2 billion worth of military equipment to state and local law enforcement agencies across the U.S. between 2006 and 2016.

In other words, the Obama EO did little to stem the flow of military equipment to state and local law enforcement agencies. It was largely symbolic. In fact, the banned list was clearly intended to serve as a psychological band-aid. It made the public feel better about police militarization without actually changing the militarization policy in any substantive way. Obama said he wanted to remove some of the intimidation factor inherent in militarized police forces.

“We’ve seen how militarized gear can sometimes give people a feeling like they’re an occupying force, as opposed to a force that’s part of the community that’s protecting them and serving them.”

The reversal of the ban yanks Obama’s window dressing off and sends the opposite message. Trump appears to be pandering to his “law and order” base. The administration can point to the move as a “tough on crime” measure. And of course it reasserts the intimidation factor, something the administration probably sees as desirable in the wake of violence in Berkeley and Charlottesville.

Of course, the order does open the door for police to once again obtain some of the most powerful and intimidating surplus items, including .50 caliber guns and tracked vehicles – essentially tanks. Police lobbyists protested the Obama ban, despite its narrow application and have pushed the Trump administration to reverse it. This shows law enforcement interests essentially want no limits placed on their ability to arm up and project maximum force on America’s streets. They want to maintain the intimidation factor.

The federal government has aggressively worked to arm local police through 1033 and other federal programs for years. Proponents of police militarization always talk about protecting police officers and the danger of terrorism. But the main function of local police militarization revolves around the unconstitutional “war on drugs.” After all, wars require soldiers, and the federal government doesn’t have the manpower to fight alone. The feds need state and local police to serve as foot-soldiers in their drug war. Militarization, combined with asset forfeiture cash, incentivizes the necessary cooperation.

In fact, a survey of applications made to federal programs by state and local law enforcement agencies revealed the drug war was by far the most common reason given for needing to militarize police officers.

Over the last two decades, police militarization has fundamentally changed policing. Law enforcement has evolved from “serve and protect” to “command and control.”

Both the Obama ban and Trump’s reversal underscore an important truth. We cannot depend on the federal government to limit militarization of police departments.

Last spring, after the DOD sent me an email criticizing me for characterizing MARPs as “unarmed tanks,” I pointed out the fact that if Obama felt it necessary to specifically prohibit specific equipment by EO it implies that it was theoretically available at some point, and could become available again down the road.

“Just because the DOD doesn’t currently provide tanks, body armor, or armed aircraft doesn’t mean it won’t in the future. In fact, according to a followup email from Lowe, the program did offer body armor to local police until 2008, and it still makes the vests available minus the armor plates. In practice, it would only take a new executive order by Pres. Trump, or any future president, to once again make all of the currently prohibited equipment available.”

That paragraph turned out to be prophetic.

Just because the feds offer military equipment doesn’t mean local police have to take it. In fact, state and local action can stop it. The first step is requiring police departments to get local government approval during a public meeting before obtaining any military surplus equipment. This creates an environment of transparency and oversight. The second step is for state and local government to outright ban acquisition of military gear.

Mike Maharrey

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