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Poisoning Our Police: How the Militarization Mindset Threatens Constitutional Rights and Public Safety [1]

['Wayne Mcelrath', 'Sarah Turberville']

Date: 2023-07

The following recommendations are drawn from Demilitarizing America’s Police: A Constitutional Analysis, the 2016 report of The Constitution Project’s Committee on Policing Reforms.

Recommendations at the Federal Level

1. The role of local police as “guardian” must be effectuated and reinforced through law enforcement training, policy, and culture. As part of this effort, the federal government should continue to reiterate the peacekeeping role of police officers, as distinct from military personnel. The COPS Office [Department of Justice Office of Community Oriented Policing Services] should work with stakeholders—including law enforcement groups, civil rights and civil liberties organizations, and communities—to develop best practices on de-escalation techniques for use by state and local law enforcement. The federal government can do more to provide law enforcement agencies with the tools and practical guidance to best implement de-escalation techniques. The COPS Office can issue detailed guidance modeled after the comprehensive research and guidelines for implementation that it has developed for law enforcement agencies on the use of body-worn cameras.

2. To protect the rights of community members, as well as to promote constitutional policing by law enforcement agencies, the federal government must ensure that, prior to any state or local law enforcement agencies’ use or acquisition of military and tactical equipment, the agencies adopt and adhere to specific, written policies and protocols on training, deployment, use, data-keeping, and reporting regarding the equipment. The policies endorsed by this Committee should address the following areas:

Appropriate use of equipment, understanding that misuse may undermine the legitimacy of law enforcement within the community;

Supervision of use of equipment;

Recordation of instances in which the equipment is deployed, including evaluation of the effectiveness of the equipment; and

Training on use of equipment.

The importance of law enforcement’s adoption of a “guardian” mindset as the central component to building trust and legitimacy is the first pillar of the final report of the President’s Task Force on 21st Century Policing; specifically, the report states that “[b]uilding trust and nurturing legitimacy on both sides of the police/citizen divide is the foundational principle underlying the nature of relations between law enforcement agencies and the communities they serve.”

3. With regard to recording and reporting on deployment of military equipment on the controlled equipment list, this equipment is intended for use only in emergency or other special circumstances. Thus, any time this equipment is deployed for tactical or training purposes, there should be a record. Data should include information regarding if and how the equipment was used and, to the extent possible and where observable, information about those who were affected by its use, including their race, religion, ethnicity, sex, and sexual orientation, with redactions to protect community members’ identities.

4. Transparency and an understanding of how tactical military equipment is being used are necessary for building trust between law enforcement and communities, as well as to ensure that the constitutional rights of those affected by deployment of such equipment are protected. Accordingly:

All data collected should be annually transmitted to the federal agency from which the equipment was procured. The federal government can ease the burden of any reporting requirements by creating a uniform reporting form for law enforcement agencies to complete following the use of tactical military equipment.

All federal agencies that provide for the transfer of or funding for tactical military equipment should make these data, policies, and procedures publicly available.

5. The federal government should also require that law enforcement agencies that have already acquired equipment now on the “controlled” list be required to comply with the above recommendations. Agencies should not be permitted to use existing equipment unless they adhere to the policy adoption, data collection, and reporting requirements above.

6. Widespread and general training of police officers directly by military personnel should be prohibited. If elements of the government’s counterterrorism strategy, operations, or tactics must be communicated to law enforcement agencies, a highly qualified law enforcement team should be trained and then become the trainers for the wider law enforcement community. This “train the trainers” approach will ensure that military training is adapted cautiously and appropriately to the peacekeeping and public safety mission of law enforcement.

7. Many police departments around the country contend that they do not have the proper funding to record and produce adequate data. We recommend that the DOJ [Department of Justice] condition a portion of federal grants given to law enforcement for data collection rather than for the purchase of more military equipment.

8. The Project On Government Oversight (POGO) endorses the recommendation of the 2015 Law Enforcement Equipment Working Group that certain equipment and weapons be designated as “prohibited” from being transferred to state or local law enforcement agencies. We agree with the working group that a prohibition is “appropriate because the substantial risk of misusing or overusing these items, which are seen as militaristic in nature, could significantly undermine community trust and may encourage tactics and behaviors that are inconsistent with the premise of civilian law enforcement.” The following items should be prohibited:

Tracked armored vehicles;

Armed aircraft of any kind;

Firearms of .50 caliber or more;

Ammunition of .50 caliber or more;

Grenade launchers;

Bayonets; and

Camouflage uniforms.

9. Many of the other forms of tactical and military equipment presently available to law enforcement agencies on the 2015 working group’s “controlled equipment list”—a list that subjects applicants to a more rigorous screening process before an agency may obtain certain items—should either be prohibited altogether or available only for agencies seeking the explicit use of such equipment for emergency, humanitarian purposes. The tactical equipment described below, much of which is presently on the controlled list, is not necessary for state and local law enforcement to successfully ensure public safety, and its use is generally antithetical to building strong community policing models. Specifically:

Because many of the incidents described throughout this report involve the use of explosives and pyrotechnics—such as flash bang grenades—and because there are other equipment less prone to misuse, the Committee recommends these items be placed on the “prohibited equipment list.”

LRADs [Long Range Acoustic Devices] should be placed on the “prohibited equipment list.”

Armored vehicles and tactical vehicles should not be available to agencies unless they agree to operate the equipment for emergency rescue purposes only. Law enforcement agencies seeking to acquire armored and tactical vehicles must have in place policies and procedures that circumscribe the instances these vehicles may be deployed to specified emergencies and humanitarian disasters.

10. Designate the following items as “controlled equipment” that can be acquired through federal programs subject to the safeguards described throughout these recommendations. These items include:

Manned Aircraft, Fixed and Rotary Wing;

Unmanned Aerial Vehicles;

Command and Control Vehicles;

Breaching Apparatus (e.g. battering ram or similar entry device);

Riot Batons (excluding service-issued telescopic or fixed-length straight batons);

Riot Helmets; and

Riot Shields.

The working group also designated as controlled equipment “Specialized Firearms and Ammunition under .50‐Caliber (exclud[ing] firearms and ammunition for service‐issued weapons).” Jurisdictions seeking to acquire such equipment should additionally be required to demonstrate with specificity that its use is reasonably likely to reduce the chance of harm to police, suspects, and bystanders during an incident.

11. The federal government must not lend or transfer any tactical or military equipment, including weapons, to any law enforcement agencies working exclusively in K–12 schools. In addition, all law enforcement agencies—whether or not the agency exclusively serves a K–12 school—that have acquired any tactical or military equipment should be prohibited from using, storing, or displaying such equipment in K–12 schools, with the following narrow emergency exception:

If there exists an imminent risk of death or serious bodily harm, such as an active shooter or hostage situation in a K–12 school, law enforcement may use or display: Tactical or military equipment on the “controlled” list (see Recommendation 10), but only such equipment, and Only when equipment ordinarily available to law enforcement—i.e., non-tactical non-military equipment—would be insufficient to address the emergency.

At any time, should law enforcement use or display such equipment in a K–12 school, within 48 hours law enforcement agents must demonstrate, in writing, that each element of the emergency exception was met. These written reports must be publicly available.

12. The federal government should require all law enforcement agencies to provide evidence of approval from their civilian governing body (e.g. city council, mayor) prior to any application for controlled equipment from the federal government. Merely providing written notice to the governing body—even if the law enforcement agency chief executive, such as a sheriff, is an elected official—is not sufficient.

13. The federal government should support state-level legislation that requires notification to the public when weapons are acquired through federal equipment programs and that limits the types of weapons that state and local agencies may acquire through such programs.

14. Law enforcement agencies that wish to or are required to return military equipment received through federal programs should be able to apply for assistance with shipping or transportation costs incurred for return of the equipment.

[END]
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[1] Url: https://www.pogo.org/analysis/2020/06/poisoning-our-police-how-the-militarization-mindset-threatens-constitutional-rights-and-public-safety

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