Protecting Civil and Human Rights
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Report

Demilitarizing America’s Police: A Constitutional Analysis

TCP Demilitarizing Americas Police 1330
(AFP Photo / Michael B. Thomas)

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.

Introduction

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.