JURIST Guest Columnist Kevin Govern
of Ave Maria School of Law
in Naples, Florida, discusses the Department of Defense Excess Property Program—commonly known as the ‘1033 Program’—under scrutiny for the recent events in Ferguson, Missouri and concludes that this will result in stricter delineations concerning military cooperation than ever before…
Last year, JURIST highlighted the notable subject of the Defense Support for Civil Authorities [PDF], in the context of man-made and natural disasters. A variety of historic laws and policies are the foundations for providing defense support to civilian authorities. One law garnering very little public scrutiny before the Fall of 2014—but tremendous media coverage since—is the Department of Defense Excess Property Program, commonly referred to as the ‘1033 Program.’ The ‘1033 Program’ is primarily oriented towards counter-drug activities, but sometimes leads to very different capabilities and employments.
Section 1208 of The National Defense Authorization Act for Fiscal Year 1990, allowed the Secretary of Defense to:
[T]ransfer to Federal and State agencies personal property of the Department of Defense, including small arms and ammunition, that the Secretary determines is– (A) suitable for use by such agencies in counter-drug activities; and (B) excess to the needs of the Department of Defense.”
The law further provided that:
2) The Secretary shall carry out this section in consultation with the Attorney General and the Director of National Drug Control Policy.
(b) Conditions for Transfer-The Secretary of Defense may transfer personal property under this section only if-
(1) the property is drawn from existing stocks of the Department of Defense;
(2) the recipient accepts the property on an as-is, where-is basis;
(3) the transfer is made without the expenditure of any funds available to the Department of Defense for the procurement of defense equipment; and
(4) all costs incurred subsequent to the transfer of the property are borne or reimbursed by the recipient.
In 1996, Congress replaced Section 1208 with Section 1033 that subsequently became Section 2576a, yet is still colloquially called the ‘1033 Program’ through the present.
The Defense Logistics Agency (DLA) notes that “[s]ince its inception, the ‘1033 Program’ has transferred more than $5.1 billion worth of property. In 2013 alone, $449,309,003.71 worth of property was transferred to law enforcement.” As part of its outreach to civilian agencies, the DLA predicted that, “[i]f your law enforcement agency chooses to participate, it may become one of the more than 8,000 participating agencies to increase its capabilities, expand its patrol coverage, reduce response times and save the American taxpayer’s investment.
Critics of the program, such as the ACLU, have remarked that “a disturbing range of military gear [is] being transferred to civilian police departments nationwide” and allege that “one-third of all war materiel parceled out to state, local and tribal police agencies is brand new.”
Accountability problems are also surfacing as 184 state and local police agencies have been reportedly suspended from participating in the Pentagon’s ‘1033 Program’ for losing weapons or failing to comply with other stipulations. Notably, on August 26th the nationally-known sheriff of Maricopa County, Joe Arpaio, admitted that his department had been suspended from the program and is currently missing nine firearms—eight .45-caliber pistols and one M-16 rifle—issued to the agency out of 200 weapons from the surplus program. Twenty to 22 of the weapons vanished over the years, but roughly half were recovered from retired or current deputies who, incredibly, took them home. Under the ‘1033 Program,’ the Maricopa County Sheriff’s Office amassed an arsenal of “a Hummer, a tank, 90 M-16 rifles, 116 .45-caliber pistols, 34 M-14 rifles and three helicopters.”
This ‘1033 Program,’ coupled with National Guard troops deployment to Ferguson, Missouri, became the subject of critical medial focus in August 2014. Following the police shooting of the teenager Mike Brown, the Ferguson Police Department responded to protests and riots with a robust show of force, using gear that one media outlet documented as not obtained through the ‘1033 Program’, yet others speculated to the contrary.
In response to calls for a ‘demilitarization’ of civilian police forces, Attorney General Eric H. Holder Jr. said “[a]t a time when we must seek to rebuild trust between law enforcement and the local community…I am deeply concerned that the deployment of military equipment and vehicles sends a conflicting message.”
On Friday, August 15th, Senate Armed Services Chair Carl Levin (D-MI) called for a review of the so-called ‘1033 Program,’ saying:
Congress established this program out of real concern that local law enforcement agencies were literally outgunned by drug criminals. We intended this equipment to keep police officers and their communities safe from heavily armed drug gangs and terrorist incidents. Before the defense authorization bill comes to the Senate floor, we will review this program to determine if equipment provided by the Defense Department is being used as intended.
Missouri Democratic Senator Claire McCaskill, the chairman of the Subcommittee on Financial & Contracting Oversight, also announced she will lead a hearing, observing that:
We need to de-militarize this situation—this kind of response by the police has become the problem instead of the solution. I obviously respect law enforcement’s work to provide public safety, but my constituents are allowed to have peaceful protests and the police need to respect that right and protect that right. Today is going to be a new start, we can and need to do better.
Shortly thereafter, President Obama ordered a “comprehensive review of the government’s decade-old strategy of outfitting local police departments with military-grade body armor, mine-resistant trucks, silencers and automatic rifles,” according to media interviews of senior officials.
Early on August 21st, Missouri Governor Jay Nixon announced that the National Guard—which was brought in to provide security for the police command center—would be withdrawn from Ferguson; this withdrawal began the next day, some five days after being dispatched to help “quell the unrest” and four days before the burial of Michael Brown.
These recent developments—along with Congressional review of the surplus Department of Defense military equipment program—will lead to even stricter delineations than ever before regarding military cooperation with civil authorities, while still focusing on preparation, partnerships and vigilance.
Kevin Govern is an associate professor at Ave Maria School of Law in Naples, Florida where he teaches military law, national security law, administrative law, directed research and contracts I and II. Professor Govern began his legal career as an Army Judge Advocate, serving 20 years at every echelon during peacetime and war in worldwide assignments involving every legal discipline. In addition to currently teaching at Ave Maria School of Law he has also served as an Assistant Professor of Law at the United States Military Academy and teaches at California University of Pennsylvania and John Jay College. Unless otherwise attributed, the conclusions and opinions expressed are solely those of the author and do not reflect the official position of the US Government, Department of Defense, or Ave Maria School of Law.
Suggested Citation: Kevin Govern, Military Firearms in Ferguson and Beyond: Arms Transfers to Civilian Law Enforcement Under The 1033 Program, JURIST – Forum, Sept. 3, 2014, http://jurist.org/forum/2014/09/kevin-govern-military-transfers.php