In August 2016, The Constitution Project Committee on Policing Reforms released this report (excerpted below) on the problem of police militarization. In recent decades, state and local police departments across the country have obtained increasing amounts of military-style gear, ranging from guns and explosives to camouflage uniforms to armored vehicles. The influx of this equipment, and the aggressive tactics that accompanied it, has all too often led to police officers acting like soldiers at war with their communities rather than guardians protecting them. Militarized police encounters undermine community trust and threaten constitutional rights. And all too often, they have led to the deaths of innocent Americans, disproportionately people of color.
The nearly 30 members of the committee came from diverse backgrounds, including law enforcement, the civil rights community, academia, and the military. Their recommendations are just as relevant now as they were in 2016, and unfortunately, likely even more so. When the report was published, the Obama administration had taken a few small steps to rein in the militarization problem, and the committee sought to build on those. Over the past four years, most of those steps have been undone.
Our military’s core function is to fight and deter foreign enemies, which often requires speed, surprise, and the use of specialized weapons and heavy artillery. Civilian police, in contrast, are meant to keep the peace and to protect local communities while safeguarding civil liberties. Regrettably, and to a dangerous degree, those lines are blurring.1
High-profile encounters—many deadly—between law enforcement and community members in Ferguson, Baltimore, New York, Chicago, North Charleston, and elsewhere have renewed a public discussion around policing reforms and the troubling trend of police militarization. This trend has serious constitutional and public policy implications. An over-militarized police culture threatens our constitutional guarantees of free speech and freedom from unreasonable search and seizure. The use of military equipment often begets unnecessarily aggressive tactics and over-enforcement, which are more prevalent in communities of color and poor neighborhoods, and raises serious concerns about disparate treatment and constitutional deprivations in those communities in particular.2
From a policy perspective, the use of military equipment and tactics by law enforcement risks eroding public trust and poisoning the crucial, but often precarious, relationship between communities and local law enforcement. Indeed, militarization breeds an ethos of adventure over service; encourages the use of force over innovative and collaborative problem-solving; and inhibits the development of meaningful, sustainable partnerships between police and the people they serve.
The Constitution Project Committee on Policing Reforms believes that we must take steps to reverse this trend. While there are a variety of factors that contribute to police militarization, federal programs providing military equipment to state and local law enforcement greatly exacerbate the problem. Such programs—to the extent they provide military equipment or facilitate its acquisition3—must be severely curtailed due to those programs’ corrosive impact on constitutional and community policing.
To its credit—as discussed in further detail in Section IV—the Obama administration has reviewed several federal programs that provide state and local governments with military equipment or facilitate its acquisition.4 The administration also conducted a review of effective policing strategies and has pushed for law enforcement agencies to commit to community policing models. In early 2015, a task force appointed by the President held several nationwide listening sessions and issued a report aimed at strengthening the relationship between local law enforcement and the communities that they serve.5 The Department of Justice (“DOJ”) has also published practical guidance in implementing the task force’s recommendations.6 The administration’s efforts have resulted in a number of recommendations for reform that we applaud.7 However, we believe that more must be done to address the substantial constitutional and public policy concerns described in this report, which stem from the use of military equipment and tactics in local communities.
Read the full report
An over-militarized police culture threatens our constitutional guarantees of free speech and freedom from unreasonable search and seizure. The use of military equipment often begets unnecessarily aggressive tactics and over-enforcement, which are more prevalent in communities of color and poor neighborhoods, and raises serious concerns about disparate treatment and constitutional deprivations in those communities in particular.Download
The Constitution Project seeks to safeguard our constitutional rights when the government exercises power in the name of national security and domestic policing, including ensuring our institutions serve as a check on that power.
See Radley Balko, Cato Inst., OverkIll: The Rise of Paramilitary Police Raids In America 15 (2006), http://object.cato.org/sites/cato.org/files/pubs/pdf/balko_whitepaper_2006.pdf.2 See Kami Chavis Simmons, Future of the Fourth Amendment: The Problem with Privacy, Poverty and Policing, 14 U. MD. L.J. Race, Religion, Gender& Class 240, 257–58 (2015) (reporting that “aggressive tactics are typically reserved for traditionally disadvantaged or marginalized members ofsociety, and there is an overwhelming consensus that minorities experience a greater rate of police brutality and misconduct”); see also Amelia L.Diedrich, Secure in Their Yards? Curtilage, Technology, and the Aggravation of the Poverty Exception to the Fourth Amendment, 39 Hastings Const.L.Q. 297, 317 (2011), http://www.hastingsconlawquarterly.org/archives/V39/I1/Diedrich.pdf; Brett G. Stoudt et al., Growing Up Policed in the Age ofAggressive Policing Policies, 56 N.Y.L. Sch. L. Rev. 1331, 1347–48 (2011–12), http://www.nylslawreview.com/wp-content/uploads/sites/16/2012/04/56-4.Growing-up-Policed-in-the-Age-of-Aggressive-Policing-Policies.Stoudt-Fine-Fox.pdf. 3 See 10 U.S.C. § 2576a (1996) (amended 2015). The 1033 Excess Property Program also permits the transfer of other types of equipment, such asstandard office supplies, routine administrative items, and the like. This report takes no position on the provision of such items through the program. 4 Exec. Office of the President, Review: Federal Support for Local Law Enforcement Equipment Acquisition 2 (2014), https://www.whitehouse.gov/sites/default/files/docs/federal_support_for_local_law_enforcement_equipment_acquisition.pdf [hereinafter Federal Review]. 5 See President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century Policing (2015), [hereinafter Final Task Force Report]. 6 President’s Task Force on 21st Century Policing, Implementation Guide 5–7 (2015), http://www.cops.usdoj.gov/pdf/taskforce/Implementation_Guide.pdf[hereinafter Implementation Guide]. 7 See id. at 6; Law Enf’t Equip. Working Grp., Recommendations Pursuant to Executive Order 13688 Federal Support for Local Law Enforcement EquipmentAcquisition (2015), https://www.bja.gov/publications/LEEWG_Report_Final.pdf [hereinafter Working Group Report].