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

Over the last three decades, the militarization of policing in America has grown exponentially, transforming an already troubled culture in many parts of law enforcement for the far worse. The result of this militarization—where local police take on the appearance, armament, and behavior of soldiers at war—is that the public is both less safe and less free. And those who encounter militarized police, whether in their daily lives or at a demonstration, are far more likely to end up dead or injured as a consequence of an officer’s militarized mindset.

Militarization did not kill George Floyd, the unarmed Black man killed by Minneapolis police officers late last month, but it undoubtedly contributed to the mindset that has seemingly overcome many American policing organizations. And as the American public reacts to police violence, a vicious cycle unfolds: The police use more violence to quell protests of police brutality, which results in more death. This dynamic has played out dramatically across the country in recent weeks. But it is not new.

As police officers drape themselves in the trappings of a military force, they increasingly look like members of an army prepared to go to war against unarmed civilians, escalating tensions between the police and peaceful protestors. And as a 2017 study showed, in law enforcement agencies that use military equipment, officers are more likely to display violent behavior and are more likely to kill the civilians they are supposed to protect and serve.

The numbers are jarring: In 2019, police killed over 1,000 people in the United States. That number has consistently been over 1,000 in each of the last seven years. Nearly 24% of the victims last year were Black, even though Black Americans make up just 13% of the population. Many of the victims were unarmed, some were experiencing a mental health crisis, and some were children. America’s rate of police violence far outstrips that of any other western democracy.

To be sure, militarization is but one of many causes of fatal police shootings and violence. American policing has always been fraught with explicit and implicit bias and racism. It has a long history of being used as a conduit for the oppression of marginalized groups and communities, from the slave patrols of the 1800s to enforcement of racial apartheid and attacks on activists during the civil rights movement to stop and frisk, and on and on and on. The history of policing in America is inextricably linked to America’s exertion of power for racial control.

Fear also adds to the noxious mix. Rookie police officers are taught that “hesitation can be fatal.” Coupled with the prevalence of firearms in this country—which outnumber the total population—police encounters become deadlier. Officers fear being killed, even if the person shot by police was not actually in possession of a weapon. Fear plus racial bias often proves to be the deadliest formulation: George Floyd—like many Black men killed by police—was not armed, and in fact was handcuffed, when an officer suffocated him.

And, of course, the courts have effectively greenlit officers to “shoot first and think later” by granting them far-reaching immunity from legal accountability, even in the face of gross misconduct and abuse.

A Danger to the Public and to the Constitution

By now, the public may be eerily accustomed to local police officers looking like a paramilitary force. Just in the last two weeks, we have seen reels of footage of officers stationed at protests across the country, clad in military gear—helmets, tactical dress, flak jackets, and carrying assault rifles, looking ready for combat—instead of the traditional uniforms worn by our public servants. Although some tactical gear and special weapons may be suitable to handle a dangerous emergency, such as an active shooter, the use of this type of equipment outside of these limited and isolated circumstances should be restricted to combat zones. It is wholly unsuitable for normal policing.

The streets of America are not some far-off battlefield, and our police are not an occupying force. The military’s function is to fight foreign enemies, which requires specialized weapons, gear, and tactics. Domestic police, however, are meant to protect individuals and uphold the rights that every American is afforded under the Constitution, including the rights to free speech and to assemble. By definition, civil servants are not members of the military and are, instead, civilians charged by the government with the responsibility of protecting and serving the people in their moments of greatest need. These roles, however, can become dangerously conflated when civilian police don military gear and carry specialized weapons.

The militarized policing of protests is made all the more troubling by President Donald Trump’s description of demonstrators as terrorists last week while his top civilian Pentagon official described the public spaces across America in which they march as a “battlespace” that state governors must “dominate.” (Several days after making the remark, Defense Secretary Mark Esper told reporters he regretted his word choice.) Now when the commander in chief addresses the nation and police forces—who are given tools of war and military training—with rhetoric promoting violence, he runs the risk of stoking further violence (as have his years’ worth of attacks on marginalized communities, including immigrants and people of color).

During protests, the police’s role is to protect peaceful demonstrators. Instead, we have seen numerous displays of military-style force and equipment to silence those exercising their First Amendment rights. In the last week, we’ve seen video after video of militarized police, often with their faces obscured, beating protestors (hundreds of videos of police brutality, in fact, as accounted for on one particularly prolific Twitter account). Pointing weapons at demonstrators’ faces, shooting them with rubber bullets, dousing crowds with pepper spray or tear gas, and using excessive force, all while clad in military garb, undermines the safety and trust of the people the police are sworn to protect.

The danger of police militarization is not limited to posing threats to demonstrators. The militarization of day-to-day policing also destabilizes the often precarious relationship between law enforcement and the communities they serve. Communities’ trust in law enforcement is vital for effective crime prevention and resolution. As a Justice Department task force on policing wrote in 2015, “Law enforcement cannot build community trust if it is seen as an occupying force coming in from outside to rule and control the community.”

Indeed, many police departments use military tactics and equipment in their everyday police work at an astonishing rate. The number of police agencies that now have Special Weapons and Tactics teams, known as SWAT teams, increased by 1,500% from 1980 to 2000.

SWAT teams—possessing military dress and armaments such as launchable ballistics, sniper rifles, and armed rescue vehicles—were designed to be used in extraordinary, emergency situations, such as a hostage situations. But with the advent of the war on drugs, followed by the war on terror, money and equipment became increasingly available to law enforcement, leading to an alarming increase in the number of jurisdictions with such specialized units.

Today, it is rare that SWAT is deployed to handle a genuine emergency. Instead, there has been an unnecessary expansion in the use of specialized force like SWAT teams to execute search warrants in non-high-risk scenarios or based on faulty information which has led to the injury and death of innocent people, including children and infants.

One such tragedy is the May 13, 2020 killing of Breonna Taylor, a Black woman, in Louisville, Kentucky, during the botched execution of a “no-knock” search warrant. The warrant was not for Taylor. Using a battering ram, police forcibly entered the residence without announcing who they were and shot Taylor eight times.

Militarized domestic policing is also antithetical to our constitutional structure. The framers of the Constitution enshrined several safeguards in our founding document to ensure the separation of civilians from the military. They gave Congress the power to declare war and to control military spending, they created a civilian commander-in-chief to head the armed forces, and they generally prohibited the quartering of troops in war or in peacetime.

Surely, the framers did not mean that local law enforcement could simply don military gear, weapons, tactics, and ethos, but survive a constitutional challenge because they call themselves “police.”

The militarization of many police departments now appears to be a means to threaten and menace the public, rather than a tool to protect public safety in exceptional circumstances.

How Do They Get the Gear and Who Is Keeping Tabs?

With the advent of the 1033 program in 1990, lawmakers allowed the Pentagon to release more than $6 billion in surplus military equipment for use by local, state, and federal law enforcement for policing purposes. This includes everything from tanks, MRAPS (“mine-resistant ambush-protected” vehicles), and assault rifles and bayonets, to night-vision goggles, specialized printers, and office furniture. Other federal programs have also permitted the transfer of military equipment and the funds for purchase of that equipment to local law enforcement, at a value of $18 billion from 2009 to 2014.

Once the 1033 program began, police forces soon developed an ever-increasing appetite for military apparel and equipment for what has amounted to urban warfare. Over 7,000 state and local agencies have participated in the 1033 program, transforming the map of American policing organizations from civil servants into a patchwork of geographically dispersed militias, each with its own agenda and rules of engagement.

Now, police forces in localities as big as Los Angeles (population nearly 4 million) and as small as Morven, Georgia (population under 600 people), have military-grade weapons and equipment.

There has been scant accountability for the transfer of this equipment. In a 2017 study, the Government Accountability Office (GAO), the investigative arm of Congress, revealed that it had created a fictitious law enforcement agency that was able to obtain over $1 million in excess military equipment, including simulated pipe bombs and rifles, through the 1033 program. The GAO report—created by one of the authors of this piece—stated that even though law enforcement organizations received hundreds of thousands of pieces of military equipment, valued at nearly $1.1 billion, over the course of two years, the program does not have a comprehensive system for preventing or detecting fraud. There is little oversight to determine the veracity of state applications to the program, and the federal government does not assess how the equipment is used once it is distributed.

Agencies and the communities they police were not ready for the long-lasting effects of a program that gives military equipment and weapons to local, domestic police. Without community input, sufficient safeguards to prevent abuse, or accountability for misuse, the 1033 program has dramatically changed the policing landscape, with few checks on its proliferation.

The Militarization Mindset

Perhaps most troublingly, militarization has led to a cultural shift in law enforcement’s view of its role in society from guardian to that of warrior. Police training modeled on military boot camp—which, according to former Justice Department policy analyst Karl Bickel, “tends to create an ‘us versus them’ mind set in rookie officers”—can have a profoundly adverse effect on how a police officer views their role in the community and the individuals who reside in it. Recruitment of new officers that focuses on a warrior mentality also fails to attract applicants who would be best suited to protect and serve the community, rather than viewing community members as the opponent.

Dispatching an officer trained at the academy to operate out of fear—who may view community members as a threat and is clad in a battle dress uniform—to handle a volatile situation such as a mass demonstration is a recipe for disaster.

Police also don’t need to dress in the trappings of battle-ready members of the armed services for militarization to contribute to poisoning their policing mindset.

Back to George Floyd: Why did the uniformed police officer pressing his knee into Floyd’s neck continue to do so long after the prone, handcuffed man ceased to plead for his breath, ceased to cry out for his mother, ceased to move, ceased to breathe? And why did the officer’s peers, hearing Floyd’s cries for help, merely stand by and watch? Even in a place like Minneapolis, which had banned “warrior-style” training just last year, law enforcement officers may view themselves as warriors and not see community members as partners, but as enemies. Still, even the law of war requires more humane treatment of the enemy than the officers showed George Floyd or that law enforcement is presently showing peaceful protestors in America’s streets.

As a matter of policy, under the Trump administration, the thin barrier distinguishing the police from the military has been further eroded. In 2017, the president signed an executive order permitting federal agencies to ignore all of the recommendations issued by the Obama administration in 2015 that were intended to limit the transfer of military equipment and provide additional accountability measures.

And unlike the Obama-era Task Force on 21st Century Policing, which emphasized the importance of law enforcement taking on the role of “guardian” for the communities they serve, under Trump the Justice Department has assembled a commission comprised entirely of law enforcement officials to examine various components of policing, including “the need to promote public respect for the law and law enforcement officers.” While the commission has not yet publicly produced recommendations, a framing of respect for law enforcement hardly embraces the importance of community engagement and consent when it comes to militarization, and could further antagonize law enforcement’s frayed relations with the communities they serve.

The effects of militarization of police on American communities are sure to reverberate long beyond the protests going on now. The normalization of paramilitary police poses a threat to the personal safety of the people the police are meant to protect. It destroys trust in and the legitimacy of law enforcement, and it destroys the community cooperation upon which effective policing depends. And it chills Americans’ exercise of their constitutional rights.

It doesn’t have to be this way. The city of Minneapolis has already voted to dismantle its police department. Even short of this, there is still much work to be done. In conjunction with law enforcement, civil rights and liberties advocates, and former military officers, in 2016 The Constitution Project developed a set of recommendations to rein in militarization and create robust oversight and accountability mechanisms for current practices at all levels of government. Our recommendations account for the fact that there may be limited instances in which military-style equipment is appropriate for use by local police. But the federal, state, and local governments must first urgently address the serious constitutional and public safety concerns that have resulted from the militarization of domestic law enforcement, which has poisoned the mindset, management, and manner of policing in America.

The following recommendations are drawn fromDemilitarizing 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.

Recommendations at the State and Local Levels

1. Local law enforcement agencies should engage in more community outreach, focusing on getting to know the members of the communities they serve and protect. For example, officers may want to engage in “know your rights” presentations at community centers or schools, either with local activist groups or by themselves.

2. Recruiting efforts by local law enforcement agencies should emphasize crime prevention, peacekeeping, and public safety, rather than the tactical use of firearms and military experience as key factors in successful policing. Law enforcement agencies need not ignore the value of technical and firearms experience of applicants, but the focus on military experience in recruiting may undervalue other important skills that are necessary for a community-based policing model.

3. Training required of state and local law enforcement candidates and officers must be augmented to entrench a “guardian” mindset among peace officers. Training at the local level should:

• Include a component to help officers identify, confront, and discard biases that affect the way they interact with community members; and
• Emphasize communication and interpersonal skills, such as interviewing, investigation, and professionalism, as much as firearms training and other tactical, weapons-focused skills.

4. Performance evaluations should include factors other than the number of arrests an officer makes and the amount of inventory obtained. These metrics incentivize “pre-emptive” policing and devalue the intangible skills that make for effective community policing. Evaluations should emphasize metrics that indicate the legitimization of police in communities, like the extent to which officers exercised discretion to divert community members away from the criminal justice system.

Special Concerns Related to SWAT and Execution of Search Warrants

The current rate of SWAT deployments across the country poorly supports the public safety needs of law enforcement and communities, increases tensions between the police and those they serve, and is fiscally irresponsible. Accordingly, the use of SWAT must be properly circumscribed.

1. States should work to create standards for law enforcement regarding the deployment and training of SWAT teams and other tactical teams. Any such standards, at a minimum, should include the following:

• Policies limiting the use of SWAT and other tactical teams to situations in which there is a serious threat to the lives of community members or police, requiring corroborating evidence other than, or in addition to, an anonymous source in making that determination.
• Prior to any deployment, written plans setting forth the reasons for the use of SWAT or other tactical team, including a description of the operation. This includes any circumstance in which SWAT may be used to execute a search warrant.
  • In emergency circumstances involving an imminent risk of death or serious bodily injury, such that development of a pre-deployment written plan is not feasible, law enforcement must—within 48 hours after deployment—describe the deployment in detail in writing. This description must include a specific explanation of the facts and circumstances that made development of a pre-deployment written plan infeasible.

• Policies requiring SWAT teams to include trained crisis negotiators.

2. States and/or law enforcement agencies should create standards for application and issuance of no-knock warrants. It may be helpful to set forth various factors that may be considered—such as the confirmed presence of weapons at the location to be searched and corroborating evidence other than, or in addition to, an anonymous source—and require documentation of these criteria and supervisory approval prior to requesting a no-knock warrant from a judicial officer.

3. States should enact laws that would prevent the use in legal proceedings of evidence that was obtained in violation of the traditional rule that police should knock and announce their presence, unless such evidence was properly obtained with a no-knock warrant.

Recommendations for Transparency and Oversight

1. States should enact laws that require law enforcement agencies to report data regarding the use of SWAT teams. A non-exhaustive list of important content to be captured in these data include when SWAT teams were deployed, where they were deployed, the circumstances of the deployment and compliance with the applicable deployment standard, what equipment was used, whether any people or animals sustained injury or were killed, the demographics of community members affected, and whether any drugs, weapons, or other contraband were recovered. These data should be reported on a regular and uniform basis and be publicly accessible, with redactions to protect community members’ identities.

2. States should impose the same reporting requirements for the issuance of no-knock warrants. The data concerning the deployment of SWAT teams should also include details regarding race, gender, and age of the police officer deployed and civilians investigated.

3. States should enact laws that require law enforcement agencies to report data regarding uses of deadly force, excessive force, and other circumstances involving potential constitutional violations. Data should include information regarding the victim’s race, religion, and other protected classes. States should also collect information such as witness statements as well as figures regarding settlements and awards paid in litigation for police misconduct and wrongful death lawsuits. Data should be publicly available with redactions to protect community members’ identities.

4. Jurisdictions should ensure that there is an independent agency or civilian review board that monitors SWAT deployments, no-knock warrants, and use of military equipment by law enforcement, and that the agency or board has the ability to address complaints from community members as well as recommend or implement reform. Such bodies should be empowered to evaluate trends and address patterns that emerge, rather than to merely review individual cases as they arise.