How two changes to two laws could make future Fergusons very different


A police officer in Ferguson. (Scott Olson/Getty Images)

With tensions in Ferguson, Mo., waning — hopefully for good — attention is turning to ways  in which what happened this week might have been avoided or otherwise unfolded differently.

The aggressive response to protesters that unfolded in front of cameras Wednesday night drew new attention to a longstanding policy allowing police agencies across the country access to military gear no longer needed by the Department of Defense. The Post's Christopher Ingraham has documented the department's 1033 program, which allows a simple application process for police forces to request items. In Missouri, the state Department of Public Safety has a Web page explaining to local agencies how to apply, and two staffers waiting to help. Missouri law enforcement has received more than $17 million in gear through the program.

Rep. Hank Johnson (D-Ga.) plans to introduce a bill that would change that program. Johnson has long argued against the militarization of police departments, including co-authoring an opinion piece in USA Today in March. "Americans should ... be concerned," he wrote then, "unless they want their main streets patrolled in ways that mirror a war zone." It's a call that was echoed in Sen. Rand Paul's (R-Ky.) essay in Time on Thursday. "There is a legitimate role for the police to keep the peace, but there should be a difference between a police response and a military response," he wrote.

Once Congress returns to D.C. next month, Johnson plans to introduce a bill that would overhaul the legislative authorization for the program (granted under 10 U.S. Code §2576a). A full delineation of the changes he proposes is at the bottom of this article, but it can be summarized fairly easily.

  • Limiting the types of equipment that can be issued to police forces, including disallowing distribution of armored vehicles and large-caliber weaponry
  • Creating an annual accountability system for the equipment
  • Verifying that officers are trained in using it
  • Removing references to fighting the war on drugs from the policy

It's not yet clear how much support Johnson's proposal will receive. If it passes, however, it could mean a gradual scaling back of military-grade equipment owned — and therefore used — by local police forces.

There's another proposed piece of legislation that has garnered some attention in the wake of the Ferguson tension. A state legislator in Missouri introduced a bill that would add the identity of police officers involved in shootings to the list of things mandated to remain private during public records requests, unless the officer was charged with a crime. Which, were it in effect at this point, would have made Friday's announcement of the identity of the officer who shot Michael Brown not legally necessary.

The proposal, from state Rep. Jeff Roorda (D), predates the events in Ferguson by several months. Roorda's motivation  appears to be his experience working with law enforcement. In addition to serving in the legislature, Roorda is also the business manager of the police officer's union in St. Louis. He explained his position to the St. Louis Post-Dispatch in response to the events in Ferguson. "These guys face threats during their eight-hour shifts. They shouldn’t have to face them at home."

This echoes the argument the Ferguson police used in withholding the name of officer Darren Wilson until Friday: That identifying him put him at risk of retaliation. Roorda's proposal didn't go anywhere in the current session of the legislature, and it isn't clear whether it will be reintroduced. But if it were to go into effect, it would shift the arguments surrounding one of the key causes of the tension that erupted in Ferguson this week.


Key: Section removed. Section added.

Rep. Johnson's proposed changes

10 U.S. Code §2576a: Excess personal property: sale or donation for law enforcement activities

(a) Transfer Authorized.—
(1) Notwithstanding any other provision of law and subject to subsection (b), the Secretary of Defense may transfer 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 the agencies in law enforcement activities, including counter-drug and counter-terrorism activities; and
(B) excess to the needs of the Department of Defense.
(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; and
(5) the recipient certifies to the Department of Defense that it has the personnel and technical capacity, including training, to operate the property; and
(6) the recipient certifies to the Department of Defense that if the recipient determines that the property is surplus to the needs of the recipient, the recipient will return the property to the Department of Defense.

(c) Consideration.— Subject to subsection (b)(4), the Secretary may transfer personal property under this section without charge to the recipient agency.

(d) Preference for Certain Transfers.— In considering applications for the transfer of personal property under this section, the Secretary shall give a preference to those applications indicating that the transferred property will be used in the counter-drug or counter-terrorism activities of the recipient agency.

(d) ANNUAL CERTIFICATION ACCOUNTING FOR TRANSFERRED PROPERTY.—For each fiscal year, the Secretary shall submit to Congress certification in writing that each Federal or State agency to which the Secretary has transferred property under this section has provided to the Secretary documentation accounting for all personal property, including arms and ammunition, that the Secretary has transferred to the agency. If the Secretary cannot provide such certification for an agency, the Secretary may not transfer additional property to that agency under this section.

(e) REPORT ON SURPLUS PROPERTY.—Before making any property available for transfer under this section, the Secretary shall submit to Congress a description of the property to be transferred together with a certification that the transfer of the property would not violate this section or any other provision of law.

(f) LIMITATIONS ON TRANSFERS.—
(1) The Secretary may not transfer the following arms and ammunition under this section:
(A) Automatic weapons not generally recognized as particularly suitable for law enforcement purposes, including those that are .50 caliber or greater.
(B) Tactical vehicles, including highly mobile multi-wheeled vehicles, armored vehicles, and mine-resistant ambush-protected vehicles.
(C) Armored drones.
(D) Aircraft.
(E) Flash-bang or stun grenades.
(F) Silencers.
(2) The Secretary may not require, as a condition of a transfer under this section, that a Federal or State agency demonstrate the use of any small arms or ammunition.

(g) CONDITIONS FOR EXTENSION OF PROGRAM.— Notwithstanding any other provision of law, amounts authorized to be appropriated or otherwise made available for any fiscal year may not be obligated or expended to carry out this section unless the Secretary submits to Congress certification that for the preceding fiscal year—
(1) each Federal or State agency that has received property under this section has demonstrated 100 percent accountability for all such property to the State coordinator in accordance with paragraph (2) or has been suspended from the program pursuant to paragraph (3);
(2) the State coordinator responsible for each such agency has verified that the coordinator or an agent of the coordinator has conducted an in-person inventory of the property transferred to the agency and that 100 percent of such property was accounted for during the inventory or that the agency has been suspended from the program pursuant to
8 paragraph (3);
(3) the eligibility of any such agency for which 100 percent of the equipment was not accounted for during an inventory described in paragraph (2) to receive property transferred under this section has been suspended; and
(4) each State coordinator has certified, for each Federal or State agency located in the State for which the State coordinator is responsible that—
(A) the agency has complied with all requirements under this section; or
(B) the eligibility of the agency to receive property transferred under this section has been suspended.

Philip Bump writes about politics for The Fix. He is based in New York City.
Comments
Show Comments
Most Read Politics

politics

the-fix

Success! Check your inbox for details.

See all newsletters

Next Story
Aaron Blake · August 15, 2014