On January 16, 2015, President Barack Obama issued Executive Order 13688, “Federal Support for Local Law Enforcement Equipment Acquisition” (EO), to identify actions that can improve Federal support for the appropriate use, acquisition, and transfer of controlled equipment by State, local, and Tribal law enforcement agencies (LEAs). The EO established a Federal interagency Law Enforcement Equipment Working Group, which consulted with stakeholders and deliberated to develop the recommendations described in this report.
Establishment of Federal Government‐wide Prohibited Equipment Lists.
The Prohibited Equipment List identifies categories of equipment that LEAs will not be able to acquire via transfer from Federal agencies or purchase using Federally‐provided funds (e.g., Tracked Armoured Vehicles, Bayonets, Grenade Launchers, Large Caliber Weapons and Ammunition). The Prohibited Equipment List will take effect upon transmission of the recommendations to the President. Establishment of Federal Government‐wide Controlled Equipment Lists. The Controlled Equipment List identifies categories of equipment (e.g., Wheeled Armoured or Tactical Vehicles, Specialized Firearms and Ammunition, Explosives and Pyrotechnics, Riot Equipment) that LEAs, other than those solely serving schools with grades ranging from kindergarten through grade 12, may acquire if they provide additional information, certifications, and assurances. While inclusion on these lists would not preclude an LEA from using other funds for such acquisitions, the Working Group’s report urges LEAs to give careful consideration to the appropriateness of acquiring such equipment for their communities. Harmonization of Federal Acquisition Processes. All Federal equipment acquisition programs must require LEAs that apply for controlled equipment to provide mandatory information in their application, including a detailed justification with a clear and persuasive explanation of the need for the controlled equipment, the availability of the requested controlled equipment to LEA in its inventory or through other means, certifications that appropriate protocols and training requirements have been adopted, evidence of the civilian governing body’s review and approval or concurrence of the LEA’s acquisition of the requested controlled equipment, and whether the LEA has been or is in violation of civil rights and other statutes, regulations, or programmatic terms. Ongoing coordination among the various Federal agencies will ensure that a uniform process is in place to assess the adequacy of the justification in each application. Required Protocols and Training for LEAs that Acquire Controlled Equipment. LEAs that acquire controlled equipment through Federal resources must adopt General Policing Standards, including community policing, constitutional policing, and community input and impact principles. LEAs also must adopt Specific Controlled Equipment Standards on the appropriate use, supervision, evaluation, accountability, transparency, and operation of controlled equipment. LEAs must train its personnel on General Policing and Specific Controlled Equipment Standards on an annual basis. Required Information Collection and Retention for Controlled Equipment Use in Significant Incidents. LEAs must collect and retain certain information when the LEA uses controlled equipment in operations or actions that are deemed to be Significant Incidents. LEAs also must collect and retain information when allegations of unlawful or inappropriate police actions involving the use of controlled equipment trigger a Federal compliance review of the LEA. Upon request, the LEA must provide a copy of this information to the Federal agency that supplied the equipment/funds. This information also should be made available to the community the LEA serves in accordance with the LEAs applicable policies and protocols. Approval for Third‐Party Transfers or Sales. LEAs must receive approval from the Federal agency that supplied the funds or equipment before selling or transferring controlled equipment. Third‐party LEAs acquiring controlled equipment must provide to the Federal Government the same information, certifications, and assurances that were required of selling/transferring LEAs. Sales or transfers to non‐LEAs are restricted to certain types of controlled equipment that do not pose a great risk of danger or harm to the community if acquired by non‐LEAs. Increase Federal Government Oversight and Compliance. The Federal Government will expand its monitoring and compliance capabilities to ensure that LEAs acquiring controlled equipment adhere to protocols, training, information collection and retention, and other requirements proposed by the recommendations this report. Additionally, the Federal Government will create a permanent interagency working group to, among other things, evaluate the Controlled and Prohibited Equipment Lists for additions and deletions, track controlled equipment purchased with Federal resources, develop Government‐wide criteria for evaluating applications and conducting compliance reviews, and sharing information on sanctions and violations by LEA applicants. The United States Digital Service will assist Federal agencies in the creation of a database that tracks information about controlled equipment acquired through Federal programs. These recommendations, if accepted and approved by the President, will be implemented by the beginning of Fiscal Year 2016 (October 1, 2015); the Prohibited Equipment List will take effect upon transmission of the recommendations to the President. The recommendations on protocols, training, acquisitions, and transfers and sales to third parties apply to all items on the Controlled Equipment List and are triggered when an LEA acquires controlled equipment using Federalresources beginning in Fiscal Year 2016. Within 45 days after the President receives these recommendations, Federal agencies will meet with stakeholders to further discuss the specifics of the recommendations and receive feedback on the potential approaches to implementing them. By the end of Fiscal Year 2015, Federal agencies will provide an update to the President on the progress of implementing the recommendations and any additional recommendations, suggestions, or clarifications to be considered based on stakeholder feedback. BACKGROUND For decades, the Federal Government has provided, and continues to provide, State, local, and tribal law enforcement agencies (LEAs) with funding and equipment, either directly or indirectly, to support and augment LEA operations. This equipment ranges from standard office supplies and administrative items (e.g., desks or computers) to weapons and military or “military‐style” equipment (e.g., firearms, ammunition, and tactical vehicles). The purpose of providing this equipment to LEAs via Federal programs is to enhance and improve the LEAs’ mission to protect and serve their communities. Equipment provided through Federal sources has become a critical component of LEAs’ inventory, especially as fiscal challenges have mounted and other sources of equipment and funding have diminished. LEAs rely on Federally‐acquired equipment to conduct a variety of law enforcement operations including hostage rescue, special operations, response to threats of terrorism, and fugitive apprehension. Use of Federally‐acquired equipment also enhances the safety of officers who are often called upon to respond to dangerous or violent situations; being improperly equipped in such operations can have life‐threatening consequences, both for the law enforcement personnel and the public they are charged with protecting. Over the last several years, however, community members, LEA leaders, civil rights advocates, and elected leaders have voiced concerns about what has been described as the “militarization” of law enforcement due to the types of equipment at times deployed by LEAs and the nature of those deployments.1 The most widely publicized example of this phenomenon occurred during the widespread protests in Ferguson, Missouri, in August 2014. At times, the law enforcement response to those protests was characterized as a “military‐style” operation, as evidenced by videos and photographs that showed law enforcement officers atop armoured vehicles, wearing uniforms often associated with the military, and holding military‐type weapons.2 Even before the events in Ferguson, however, civil rights organizations conducted significant research on the perceived harms of “militarization” of civilian law enforcement agencies in the United States and advocated for systemic change.3 In August 2014, the President ordered a government‐wide review of military equipment, including personnel carriers and high‐caliber firearms, provided to LEAs.4 As a result of this directive, the Executive Office of the President, in December 2014, released, “Review: Federal 1 See, e.g., https://www.aclu.org/feature/war‐comes‐home. 2 http://www.washingtonpost.com/politics/militarized‐police‐in‐ferguson‐unsettles‐some‐pentagon‐gives‐cities‐ equipment/2014/08/14/4651f670‐2401‐11e4‐86ca‐6f03cbd15c1a_story.html. 3 .https://www.aclu.org/feature/war‐comes‐home. 4 In addition to the Federal Review, Congress conducted hearings on how Federal programs provide equipment to LEAs. On September 9, 2014, the U.S. Senate Committee on Homeland Security and Governmental Affairs held a hearing on “Oversight of Federal Programs for Equipping State and Local Law Enforcement.” On November 13, 2014, the U.S. House of Representatives Armed Services Committee held a hearing on “The Department of Defense Excess Property Program in Support of U.S. Law Enforcement Agencies: An Overview of DOD Authorities, Roles, Responsibilities, and Implementation of Section 1033 of the 1997 National Defense Authorization Act.” Support for Local Law Enforcement Equipment Acquisition” (Federal Review).5 The Federal Review identified and assessed multiple Federal programs that provide equipment to LEAs through excess and surplus equipment transfers, asset forfeiture programs, or Federal grant programs. LEAs may acquire equipment from the Federal Government from excess accumulations from the U.S. Department of Defense (DOD) or surplus accumulations from the U.S. General Services Administration’s (GSA) Federal Surplus Personal Property Donation Program, purchase it using grant funding provided by the U.S. Department of Justice (DOJ) or the U.S. Department of Homeland Security (DHS), or purchase it using asset forfeiture‐related funding from DOJ or the U.S. Department of the Treasury (Treasury), among other Federal programs.6 The findings of the Federal Review highlighted a “lack of consistency in how Federal programs are structured, implemented, audited, and informed by conversations with stakeholders.”7 The Federal Review also identified several areas of focus that could better ensure the appropriate use of Federal programs to maximize the safety and security of law enforcement officers and the communities they serve, including: (1) harmonizing Federal programs so that they have consistent and transparent policies; (2) mandating that LEAs that participate in Federal equipment programs receive necessary training; (3) ensuring that those LEAs have policies in place that address appropriate use and employment of controlled equipment; and (4) requiring that those LEAs also adopt policies addressing protection of civil rights and civil liberties in the use of equipment.8 Finally, the Federal Review recommended the issuance of an Executive Order identifying actions to enhance Federal support to LEAs regarding the acquisition of controlled equipment. 1. EXECUTIVE ORDER 13688 On January 16, 2015, the President issued Executive Order No. 13688, “Federal Support for Local Law Enforcement Equipment Acquisition” (Executive Order or EO).9 The EO emphasizesthe need to better coordinate Federal support for the acquisition of certain Federal equipment by State, local, and Tribal law enforcement agencies and ensure that LEAs have proper training regarding the appropriate use of that equipment, including training on the protection of civil rights and civil liberties. Specifically, the EO identifies 11 issue areas for inquiry, which can be divided into five general categories: Equipment Lists Develop a consistent, Government‐wide list of controlled equipment allowable for acquisition by LEAs, as well as a list of those items that can only be transferred with special authorization and use limitations. Policies, Training, and Protocols for Controlled Equipment Develop policies to ensure that LEAs abide by any limitations or affirmative obligations imposed on the acquisition of controlled equipment or receipt of funds to purchase controlled equipment from the Federal Government and the obligations resulting from receipt of Federal financial assistance. Require that LEAs participating in Federal controlled equipment programs receive necessary training regarding appropriate use of controlled equipment and the implementation of obligations resulting from receipt of Federal financial assistance, including training on the protection of civil rights and civil liberties. Require after‐action analysis reports for significant incidents involving Federally‐ provided or Federally‐funded controlled equipment. Acquisition Process for Controlled Equipment Harmonize Federal programs so that they have consistent and transparent policies with respect to the acquisition of controlled equipment by LEAs. Require local civilian government (non‐police) review of and authorization for LEAs’ request for or acquisition of controlled equipment. Transfer, Sale, Return, and Disposal of Controlled Equipment Ensure a process for returning specified controlled equipment that was acquired from the Federal Government when no longer needed by an LEA. Create a process to monitor the sale or transfer of controlled equipment from the Federal Government or controlled equipment purchased with funds from the Federal Government by LEAs to third parties. Oversight, Compliance, and Implementation Establish a process to review and approve proposed additions or deletions to the list of controlled equipment. Plan the creation of a database that includes information about controlled equipment purchased or acquired through Federal programs. Provide uniform standards for suspending LEAs from Federal controlled equipment programs for specified violations of law, including civil rights laws, and ensure that those standards are implemented consistently across agencies. To examine these issues, the Executive Order established a Federal interagency Law Enforcement Equipment Working Group (Working Group), which was charged with “providing specific recommendations to the President regarding actions that can be taken to improve the provision of Federal support for the acquisition of managed equipment by LEAs.”10 The Working Group is co‐chaired by the Attorney General, the Secretary of Defense, and the Secretary of Homeland Security. The Working Group’s membership is composed of the Secretaries of the Treasury, Interior, and Education; the Administrator of General Services; the Directors of the Domestic Policy Council, the Office of National Drug Control Policy, and the Office of Management and Budget; the Assistants to the President for Intergovernmental Affairs and Public Engagement, and for Homeland Security and Counterterrorism; and the Assistant to the President and Chief of Staff of the Office of the Vice President. The Executive Director of the Working Group is the Assistant Attorney General for the Office of Justice Programs, who was appointed by the Attorney General, as directed by Section 2(c) of the Executive Order.
2. STAKEHOLDERS Critical to the Working Group’s development of recommendations and implementation plans in support of the Executive Order was outreach to and engagement of stakeholders.11 As tasked by the Executive Order, the Working Group throughout the recommendation development process solicited input from numerous stakeholder groups, associations, and concerned individuals representing law enforcement, civil rights and civil liberties organizations, State, local, and Tribal government, and academia.12 This outreach effort built on and expanded the stakeholder engagement that was conducted as part of the Federal Review. Stakeholders were also encouraged to submit written comments to the Working Group. The majority of the stakeholders who provided comments to the Working Group expressed support for the appropriate use of controlled equipment by LEAs and the development of LEA policies for the procurement, deployment, and general use of the equipment. A majority of stakeholders who provided comments also indicated theirsupport of mandatory training for LEAs on the appropriate use and deployment of such equipment. Stakeholders also articulated that training on civil rights and civil liberties is necessary to prevent potential civil or human rights violations resulting from the misuse of controlled equipment. These comments and suggestions were carefully considered and incorporated into this report, as appropriate. In addition to stakeholder outreach, in April 2015, the Executive Director of the Working Group convened a focus group composed of representatives of relevant stakeholder groups. Further, the Working Group engaged the Institute for Intergovernmental Research (IIR), a non‐profit organization specializing in criminal justice issues, and its subject matter experts to assist in the drafting of this report. 10 See Appendix A. 11 See Appendix A. 12 See Appendix C for a representative list of stakeholders that the Working Group RECOMMENDATIONS The recommendations presented in thisreport are the product of a 120‐day process during which the Working Group conducted an in‐depth examination of existing Federal procedures, policies, and oversight mechanisms related to the provision of controlled equipment to LEAs. The Working Group also studied the use of Federally‐acquired equipment by LEAs and the impact it has on members of the community. Through this process, the Working Group developed a comprehensive set of programmatic and policy recommendations that lay out a blueprint for positive change. Following these recommendations will improve Federal equipment acquisition programs and allow Federal agencies to better support their state and local law enforcement partners and the communities they serve. 13 In developing these recommendations, the Working Group was cognizant of the seemingly competing priorities of a diverse set of stakeholders. Equipment provided through Federal acquisition programs is extremely important to LEAs, especially in times of fiscal uncertainty when other resources are unavailable. LEAs frequently depend on this equipment for law enforcement operationsto prevent crime, ensure officersafety, and protect and serve the public. Yet, in some neighborhoods and communities, incidents of misuse, overuse, and inappropriate use of controlled equipment occur, and the resulting strain placed on the community and its relationship with law enforcement is severe. Although law enforcement as a whole should not be castigated for the actions of some, the Federal Government has a responsibility when significant issues arise to examine its equipment programs to determine what changes are needed to ensure appropriate use. The Working Group also was aware that creating new requirements or changing existing procedures could have a tangible effect on the workload of LEAs, State and Tribal Coordinators, and Federal agency staff. This burden likely would fall hardest on smaller LEAs that do not have the capacity to quickly adapt to Federal mandates, as well as on large LEAs that cover populous areas and conduct a significant number of operations. To the extent possible, the Working Group therefore attempted to work within existing processes so as to avoid creating additional administrative burdens for law enforcement. With these considerations in mind, the Working Group submits the following recommendations for the President’s consideration.14 13 These recommendations are intended to apply also to Tribal LEAs that acquire controlled equipment through Federal resources. Before the recommendations are implemented with respect to Tribal LEAs, the Working Group will ensure that the specific requirements triggered by potential changes to Federal programs affecting sovereign tribes, including appropriate Tribal consultation, are met. These recommendations do not apply to controlled equipment acquired or used solely for the purpose of participating in Federal Task Forces in which LEA personnel are cross‐designated as Federal law enforcement agents or operate under the policies or direction of a Federal law enforcement agency. 14 The recommendations in this report are proposals for the President’s consideration, even though they are written
RECOMMENDATIONS The recommendations presented in this report are the product of a 120‐day process during which the Working Group conducted an in‐depth examination of existing Federal procedures, policies, and oversight mechanisms related to the provision of controlled equipment to LEAs. The Working Group also studied the use of Federally‐acquired equipment by LEAs and the impact it has on members of the community. Through this process, the Working Group developed a comprehensive set of programmatic and policy recommendations that lay out a blueprint for positive change. Following these recommendations will improve Federal equipment acquisition programs and allow Federal agencies to better support their state and local law enforcement partners and the communities they serve. 13 In developing these recommendations, the Working Group was cognizant of the seemingly competing priorities of a diverse set of stakeholders. Equipment provided through Federal acquisition programs is extremely important to LEAs, especially in times of fiscal uncertainty when other resources are unavailable. LEAs frequently depend on this equipment for law enforcement operations to prevent crime, ensure officer safety, and protect and serve the public. Yet, in some neighbourhoods and communities, incidents of misuse, overuse, and inappropriate use of controlled equipment occur, and the resulting strain placed on the community and its relationship with law enforcement is severe. Although law enforcement as a whole should not be castigated for the actions of some, the Federal Government has a responsibility when significant issues arise to examine its equipment programs to determine what changes are needed to ensure appropriate use. The Working Group also was aware that creating new requirements or changing existing procedures could have a tangible effect on the workload of LEAs, State and Tribal Coordinators, and Federal agency staff. This burden likely would fall hardest on smaller LEAs that do not have the capacity to quickly adapt to Federal mandates, as well as on large LEAs that cover populous areas and conduct a significant number of operations. To the extent possible, the Working Group therefore attempted to work within existing processes so as to avoid creating additional administrative burdens for law enforcement. With these considerations in mind, the Working Group submits the following recommendations for the President’s consideration.14 13 These recommendations are intended to apply also to Tribal LEAs that acquire controlled equipment through Federal resources. Before the recommendations are implemented with respect to Tribal LEAs, the Working Group will ensure that the specific requirements triggered by potential changes to Federal programs affecting sovereign tribes, including appropriate Tribal consultation, are met. These recommendations do not apply to controlled equipment acquired or used solely for the purpose of participating in Federal Task Forces in which LEA personnel are cross‐designated as Federal law enforcement agents or operate under the policies or direction of a Federal law enforcement agency. 14 The recommendations in this report are proposals for the President’s consideration, even though they are written mandatory (or, in some cases, permissive) requirements.
1. EQUIPMENT LISTS
Develop a consistent, Government‐wide list of controlled equipment allowable
for acquisition by LEAs, as well as a list of those items that can only be
transferred with special authorization and use limitations.
Executive Order 13688, Section (3)(i)
The Executive Order initially tasked the Working Group with developing a Government‐wide list
identifying the types of equipment that LEAs could acquire through Federal programs, as well as
establishing a process to review and approve proposed additions and deletions to these lists.
With slight modification, the recommendations described below were provided in an interim
report to the President on March 16, 2015, in accordance with Section 4 of the EO.
To develop a recommended listing of controlled equipment available to LEAs, as well as a list of
prohibited equipment, the Working Group first examined the existing Federal agency equipment
lists to determine the types or categories of equipment that are eligible for transfer or purchase
by LEAs through federal acquisition programs. The lists that the Working Group reviewed
included DHS’s Authorized Equipment List (AEL),15 DOJ’s Justice Assistance Grant (JAG)
program,16 and the DOD 1033 program17 (based on the Department of State Munitions Control
List and the Department of Commerce Control List). The Working Group also reviewed program
guidance from the Treasury and the DOJ Asset Forfeiture offices, GSA, the U.S. Department of
the Interior (DOI), and ONDCP. These lists were also compared against the U.S. Munitions List
(22 U.S.C. § 2278; 22 C.F.R. Part 121)18 and the Commerce Control List (15 C.F.R. Part 774)19 to
identify any other items that should be considered within this review process.
The equipment lists reviewed by the Working Group were expansive and included routine items
such as office equipment, cameras, and plywood; equipment that may be more hazardous but
does not have a particular law enforcement purpose, such as locomotives; and equipment that
may have militaristic connotations, such as armored personnel carriers, high‐powered assault
rifles, and aircraft. The Working Group focused on items that may have an operational law
enforcement nexus/justification, further narrowing the results to identify equipment that
merited discussion for inclusion in either a controlled or prohibited list. Items that were already
prohibited and clearly had no law enforcement nexus or justification, such as nuclear weapons,
are not included on the Working Group’s recommended prohibited list. Equipment not listed on
the recommended Prohibited or Controlled Equipment Lists are still subject to the restrictions
and prohibitions set by the applicable Federal agency’s guidelines, regulations, and statutory
15 http://www.fema.gov/media‐library‐data/20130726‐1825‐25045‐
7138/fema_preparedness_grants_authorized_equipment_list.pdf 16
http://www.gpo.gov/fdsys/granule/CFR‐2012‐title22‐vol1/CFR‐2012‐title22‐vol1‐part121. 19
http://www.gpo.gov/fdsys/pkg/CFR‐2012‐title15‐vol2/pdf/CFR‐2012‐title15‐vol2‐part774‐appNo‐.pdf.