[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
[H.A.S.C. No. 113-128]
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
__________
HEARING
BEFORE THE
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
OF THE
COMMITTEE ON ARMED SERVICES
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
HEARING HELD
NOVEMBER 13, 2014
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
___________
U.S. GOVERNMENT PUBLISHING OFFICE
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SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
JOSEPH J. HECK, Nevada, Chairman
K. MICHAEL CONAWAY, Texas NIKI TSONGAS, Massachusetts
MO BROOKS, Alabama JACKIE SPEIER, California
WALTER B. JONES, North Carolina TAMMY DUCKWORTH, Illinois
AUSTIN SCOTT, Georgia TULSI GABBARD, Hawaii
JIM BRIDENSTINE, Oklahoma
Christopher Bright, Professional Staff Member
Heath Bope, Professional Staff Member
Michael Amato, Professional Staff Member
Abigail P. Gage, Clerk
C O N T E N T S
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CHRONOLOGICAL LIST OF HEARINGS
2014
Page
Hearing:
Thursday, November 13, 2014, 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.............................................. 1
Appendix:
Thursday, November 13, 2014...................................... 29
----------
THURSDAY, NOVEMBER 13, 2014
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
STATEMENTS PRESENTED BY MEMBERS OF CONGRESS
Heck, Hon. Joseph J., a Representative from Nevada, Chairman,
Subcommittee on Oversight and Investigations................... 1
Tsongas, Hon. Niki, a Representative from Massachusetts, Ranking
Member, Subcommittee on Oversight and Investigations........... 2
WITNESSES
Bueermann, Jim, President, Police Foundation..................... 16
Estevez, Alan, Principal Deputy Under Secretary, Office of the
Under Secretary of Defense for Acquisition, Technology, and
Logistics, U.S. Department of Defense.......................... 3
Harnitchek, VADM Mark D., USN, Director, Defense Logistics Agency 5
Lomax, Mark E., Executive Director, National Tactical Officers
Association.................................................... 18
APPENDIX
Prepared Statements:
Bueermann, Jim............................................... 41
Estevez, Alan, joint with VADM Mark D. Harnitchek............ 33
Lomax, Mark E................................................ 54
Documents Submitted for the Record:
ACLU Written Statement on the 1033 program................... 73
Defense Logistics Agency Memorandum of Agreement with States. 83
Major County Sheriffs' Association letter on the 1033 program 71
Witness Responses to Questions Asked During the Hearing:
[There were no Questions submitted during the hearing.]
Questions Submitted by Members Post Hearing:
Ms. Duckworth................................................ 101
Ms. Tsongas.................................................. 101
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
----------
House of Representatives,
Committee on Armed Services,
Subcommittee on Oversight and Investigations,
Washington, DC, Thursday, November 13, 2014.
The subcommittee met, pursuant to call, at 3:59 p.m., in
room 2212, Rayburn House Office Building, Hon. Joseph J. Heck
(chairman of the subcommittee) presiding.
OPENING STATEMENT OF HON. JOSEPH J. HECK, A REPRESENTATIVE FROM
NEVADA, CHAIRMAN, SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
Dr. Heck. Subcommittee will come to order.
Before we begin, I would like to state upfront that I will
not tolerate disturbances of these proceedings, including
verbal disruptions, photography, standing, or holding of signs.
Thank you all for your cooperation in this matter.
I welcome the members of the subcommittee. We just finished
a conference meeting so we expect other members to be trickling
in, as well as other Members of the House and our distinguished
witnesses testifying before us this morning.
We meet to receive testimony from two panels of witnesses
about the administration, oversight, and accountability
mechanisms for the Department of Defense [DOD] program that
provides excess property to selected State and local law
enforcement agencies. The 1033 program, as it is commonly
known, was authorized by Congress in 1997 and subsequently
enacted into law. The program makes available a large variety
of surplus Department of Defense materiel to law enforcement
agencies. The Department reports that this program has saved
the 4,000 participating law enforcement agencies over $5
billion since the program's inception.
Personally, having worked in the past with the Las Vegas
Metropolitan Police Department, I have personally witnessed the
benefit and effectiveness of the 1033 program. I believe that
law enforcement should have the tools to keep our communities
safe. For the men and women who wear the badge, they need to
have the tools they need to protect us and also protect their
own lives. Nonetheless, I believe it is essential that agencies
receiving materiel from the Department of Defense utilize it
properly and efficiently.
Like other members, I look forward to learning how the
Department administers the 1033 program. I am also interested
in the details of the existing oversight mechanisms to ensure
and enforce accountability and compliance by organizations that
benefit from the 1033 program.
Please keep in mind that in light of the committee's
jurisdiction, the purpose of this hearing and the witnesses we
have before us today, I note that policing tactics and related
topics are outside the scope of today's hearing.
I now turn to the ranking member of the subcommittee, the
gentlelady from Massachusetts, Ms. Tsongas, for her opening
remarks.
STATEMENT OF HON. NIKI TSONGAS, A REPRESENTATIVE FROM
MASSACHUSETTS, RANKING MEMBER, SUBCOMMITTEE ON OVERSIGHT AND
INVESTIGATIONS
Ms. Tsongas. Thank you, Mr. Chairman.
And good afternoon, Vice Admiral Harnitchek and Mr.
Estevez. Thank you both for taking the time to speak with this
panel today. Additionally, I would like to thank Mr. Bueermann
and Mr. Lomax from our second panel, who we will hear from
later this afternoon.
Like many Americans, I was shocked at the recent events in
Ferguson, Missouri. One of the most troubling aspects of these
events were the scenes of police officers approaching peaceful
protesters in armored vehicles and pointing assault rifles at
United States citizens. I recognize that the majority of the
equipment used in Ferguson was not obtained through a
Department of Defense initiative, known as a 1033 program,
meant to transfer surplus military equipment to State and local
police departments and the subject of our hearing today. But in
light of these and other disturbing events from around the
country, it is our responsibility to review this Department of
Defense program.
I have spoken with a number of Massachusetts police chiefs
to get their sense of the program and have learned of instances
and reports that provoke serious questions about the
suitability of this program for local law enforcement efforts,
but I have also learned of instances where it has been
especially helpful, most notably during the Boston Marathon
bombing.
During this review, I see several key questions that need
to be addressed regarding the 1033 program. At the forefront, I
am concerned about what equipment is being transferred. While
the DOD may have surplus equipment, not all of that equipment
is necessarily appropriate for every State and local police
unit. Among other things, we need to reexamine how the DOD
determines what equipment can and cannot be transferred; how
does a particular police unit qualify to receive a particular
piece of surplus equipment; what oversight responsibilities
does DOD maintain for equipment provided through this program;
who is responsible for training in the use of donated items;
how are law enforcement agencies that receive such equipment
held accountable.
Given the main questions, I thank you for being here, and I
look forward to hearing your testimony.
Dr. Heck. Thank you.
I also want to inform the witnesses and the audience that
we expect a vote series somewhere around 4:30 to 4:45, so we
may need to break and then return.
Before recognizing our first panel, I note that some
committee members who serve on other subcommittees may be
present, therefore I ask unanimous consent that they be allowed
to participate and ask questions during this hearing after all
members of the subcommittee have had an opportunity to ask
questions. Without objection, so ordered.
The committee has received a written statement conveyed by
the Major County Sheriff's Association. I ask that this
statement be entered into the hearing record.
Ms. Tsongas. Without objection.
Dr. Heck. Without objection, so ordered.
[The information referred to can be found in the Appendix
on page 71.]
Dr. Heck. Now I welcome our first panel of witnesses.
Representing the Department of Defense, we have Mr. Alan
Estevez, Principal Deputy Under Secretary of Defense for
Acquisition, Technology, and Logistics; and Vice Admiral Mark
Harnitchek, the Director of the Defense Logistics Agency.
Gentlemen, thank you for joining us today.
Mr. Estevez, you are recognized for your opening statement.
STATEMENT OF ALAN ESTEVEZ, PRINCIPAL DEPUTY UNDER SECRETARY,
OFFICE OF THE UNDER SECRETARY OF DEFENSE FOR ACQUISITION,
TECHNOLOGY, AND LOGISTICS, U.S. DEPARTMENT OF DEFENSE
Mr. Estevez. Thank you. Mr. Chairman, Ranking Member
Tsongas, members of the subcommittee when they come in, thank
you for the opportunity to appear before you and discuss the
Department's transfer of excess military property to law
enforcement agencies. I appreciate the subcommittee's support
for the Department and your continued interest in ensuring the
success of our mission.
Our joint and written statement has more detail, and I ask
that it be submitted for the record.
Dr. Heck. Without objection.
Mr. Estevez. The transfer of excess military property to
law enforcement agencies is a congressionally authorized
program designed to ensure good stewardship over taxpayer
resources. The program has provided property that ranges from
office equipment and supplies to equipment that augments local
law enforcement capabilities and enhances first responders
support during natural disasters.
Approximately 8,000 Federal and State law enforcement
agencies actively participate in the program across 49 States
and 3 U.S. territories. More than $5.3 billion worth of
property has been provided since 1990. The key element in both
the structure and execution of the program is the State
coordinator, who is appointed by the respective State governor.
State coordinators approve local law enforcement agencies
within their State to participate in the program and validate
all requests for property.
Working through State coordinators, law enforcement
agencies determine their need for different types of equipment
and they determine how it is used. The Department of Defense
does not have expertise in State and local law enforcement
functions and cannot assess how equipment is used in the
mission of individual law enforcement agencies.
During the 12-month period ending August 2014, law
enforcement agencies received approximately 1.9 million pieces
of excess equipment; 1.8 million pieces of noncontrolled or
general property; and 78,000 pieces of controlled property,
that is property that is more tactical in nature. Noncontrolled
items range from file cabinets to medical kits, generators to
tool sets. Examples of controlled property include small arms,
night vision devices, high-mobility multipurpose-wheeled
vehicles or Humvees, and mine-resistant ambush-protected
vehicles, or MRAPs.
Law enforcement agencies currently possess approximately
460,000 pieces of controlled property that they have received
over time. The Department does not provide tanks, grenade
launchers, sniper rifles, crew-served weapons or uniforms, and
a slew of other type of offensive equipment.
Property obtained through this program has been used
extensively for protection of law enforcement officers and the
public, as well as for disaster relief support. For example,
during the height of Superstorm Sandy, New Jersey police drove
two cargo trucks and three Humvees through water too deep for a
commercial vehicle to save 64 people. In Texas, armored
vehicles received through the program protected police officers
during a standoff and a shootout with a gun.
The Department of Defense is participating in the
administration's interagency review of Federal programs for
equipping State and local law enforcement agencies to ensure
that equipment provided is appropriate to their needs while
enhancing the safety of law enforcement personnel and their
communities. We will alter our procedures and propose any
legislative changes we believe necessary that come as a result
of that review.
Although the interagency review is not complete, the
Department is already pursuing changes to strengthen the
program. The Department will increase consultation with the
Department of Justice and the Department of Homeland Security,
and will notify both Justice and Homeland Security when a law
enforcement agency has been suspended or terminated from the
1033 program.
The Department is also pursuing stronger implementation
criteria with the States. We have informed State coordinators
of the Department's intent to amend the memorandum of agreement
[MOA] with each State coordinator to ensure law enforcement
agencies have a training plan in place if they request assets,
such as armored vehicles, that require specialized training.
In summary, the congressionally authorized 1033 program
provides property that is excess to the needs of the Department
for use by agencies in law enforcement, counterdrug, and
counterterrorism activities. It enables first responders and
others to ensure the public's safety and save lives.
The Department of Defense does not push equipment on any
police force. State and local law enforcement agencies decide
what they need and access our excess equipment through their
respective State coordinator. While administrating the program
does not further the Department's mission, the program is a
good use of taxpayer dollars and enables first responders and
law enforcement. We are ready to work with Congress in a
deliberate manner to review the program's scope and mission.
Thank you for the opportunity to discuss the Department's
mission with this regard, and I look forward to answering your
questions.
[The joint prepared statement of Mr. Estevez and Admiral
Harnitchek can be found in the Appendix on page 33.]
Dr. Heck. Thank you. Thank you.
Admiral Harnitchek, you are now recognized for your opening
statement.
STATEMENT OF VADM MARK D. HARNITCHEK, USN, DIRECTOR, DEFENSE
LOGISTICS AGENCY
Admiral Harnitchek. Mr. Chairman, Ranking Member Tsongas,
distinguished members of the subcommittee, thank you for the
opportunity to discuss section 1033 of the 1997 National
Defense Authorization Act. Section 1033 allows the transfer of
excess Department of Defense equipment to Federal and State law
enforcement agencies in support of their law enforcement
duties.
As the Director of the Defense Logistics Agency [DLA], I am
responsible for the disposal of excess property received from
the military services. The excess property inventory includes
thousands of items ranging from air conditioners to watercraft.
The property is first offered for reuse in the Department of
Defense, then to other Federal agencies, and finally to State
and local governments. Reutilization results in substantial
savings for the taxpayers with over $9 billion in property
reused over the last 4 years.
DLA also executes the 1033 program through our Law
Enforcement Support Office in Battle Creek, Michigan. Today,
over 8,000 Federal and State law enforcement agencies in 49
States and 3 U.S. territories take part in the program. To
participate in the program, States must develop a plan of
operation which details how they will comply with program
guidance, policies, and procedures. Each State must also
appoint a State coordinator, who is the liaison between DLA and
the State's law enforcement agencies. The State coordinator is
responsible for approving program participation, requests for
excess equipment, and providing the Law Enforcement Support
Office with the justification of the intended use of the
equipment.
Approximately 95 percent of the equipment provided to the
law enforcement agencies are common items like office
furniture, blankets, first-aid kits, computers, and cold-
weather clothing. Weapons, aircraft, boats, and vehicles
account for the remaining 5 percent of the transfers.
Controlled property, such as aircraft, weapons, and vehicles,
are on conditional loan, meaning that this equipment must be
returned to the Department of Defense at the end of its useful
life or if the law enforcement agency is terminated from the
program. DLA maintains accountability over all conditionally
loaned equipment and may recall this property at any time.
Over the past several years, significant improvements have
been made to strengthen the program. In early 2012, DLA imposed
a nationwide suspension, with the exception of New Hampshire,
for noncompliance with weapons inventory accountability
requirements. This was done to ensure mandatory inventories of
all issued firearms were provided by the law enforcement
agencies as required by the memorandum of agreements.
We also implemented a new inventory accounting system,
replaced the program manager in Battle Creek, Michigan,
increased the program staff by 30 percent, and added
significant detail to the memorandums of agreements with the
State. We also initiated a system of biannual performance
compliance reviews, where 20 percent of a State's weapons are
physically inventoried by my staff.
Finally, we increased the routine day-to-day focus on
compliance and accountability. Currently, 2 States and 695 law
enforcement agencies are suspended from the program.
Additionally, 10 law enforcement agencies have been terminated
since 2012.
DLA is also supporting the administration's interagency
review. In the interim, we have engaged both the Department of
Justice and the Department of Homeland Security, and
implemented program changes to increase collaboration and
oversight of the program. These changes include notifying the
Department of Justice on all law enforcement agencies'
applications for enrollment in the program; on all suspended
law enforcement requests for inclusion back into the program;
and on allocations of weapons, armored vehicles, and aircraft.
We have also agreed to notify the Department of Justice and the
Department of Homeland Security [DHS] when a law enforcement
agency has been suspended or terminated from the 1033 program.
Last week, I met with the State coordinators at our annual
Law Enforcement Support Office conference in Battle Creek,
Michigan, and discussed the importance of their role in
strengthening the program. Representatives from the Departments
of Justice and Homeland Security also participated in the
conference.
We also recently amended the memorandum of agreement with
each State coordinator to require a training plan for an asset
that requires specialized training, to include vehicles and
aircraft. These initiatives expand our focus stepping beyond
inventory accountability into further interagency coordination
and oversight of the program.
Thank you for this opportunity to discuss the 1033 program,
and I look forward to answering your questions.
[The joint prepared statement of Admiral Harnitchek and Mr.
Estevez can be found in the Appendix on page 33.]
Dr. Heck. I thank you both for your opening comments.
And understanding that you are approaching this without
having the expertise of civilian policing tactics, who makes
the final decision as to whether or not a particular Department
should receive a specific type of equipment? For instance, a
small, three-person rural sheriff's office who puts in a
request for an MRAP, is that the State coordinator or is it
ultimately DOD or does it go through a process where either one
can deny the equipment?
Admiral Harnitchek. Sir, generally, it is the State
coordinator. So, for example, the State coordinator in Georgia,
a guy named Mr. Don Sherrod, tells me that he reviews every
request for an armored vehicle and basically makes the judgment
in that, does the mission of that police department require
such a vehicle? Is that police department staffed to man and
operate that vehicle? And then do they have the funding to
sustain it? So we generally rely on the expertise of the State
coordinators to make those decisions, but we also review them
as well.
And I can tell you across the board these State
coordinators take their duties very seriously, and in my view
they run a pretty tight ship.
Dr. Heck. Do you know off the top of your head, has there
ever been an instance where a request came through the State
coordinating office but the DOD reviewer thought that it was
not appropriate and denied the materiel?
Admiral Harnitchek. Yes, sir, there have. Generally it's--I
remember we got one a couple months ago from a prison. And of
course to be part of the program your primary duty has to be
apprehension and basically regular law enforcement duties. And
since their mission is corrections, we denied their request.
Dr. Heck. Okay. Mr. Estevez, in your comments you talked
about requiring agencies to now have a training plan in place
for equipment they may receive that requires specialized
training. Who is actually responsible for training on, and
sustainment of, the items donated under the program? I mean, if
they get a specific military piece of equipment that may not be
commercially available, how do they go out and get the
training?
Mr. Estevez. So the States and the local law enforcement
are required for sustainment of that material and they are
required to develop their training curriculum for that
material. And I will give credit to Admiral Harnitchek for
requiring that they now come in with the training plan.
Most of what we provide, there are commercial versions of
that, so we are not providing things like attack helicopters,
jets, combat track vehicles. So things they are getting, even
an MRAP, which is really just a truck, are things that there
are commercial versions of that they can develop their training
around.
Dr. Heck. Okay. And then, Admiral, you talked about some
programs that have been terminated----
Admiral Harnitchek. Yes, sir.
Dr. Heck [continuing]. Some agencies that have been
terminated from the program. Can you give us an example of what
circumstances would result in an agency's termination?
Admiral Harnitchek. Of the 10, 4 of them were terminated at
the request of the State coordinator. Basically, they weren't
abiding by the rules of the road, so the State requested that
we terminate them. Probably the most recent one was a sheriff's
department in Arizona, and they were terminated over weapons
accountability issues. We worked with them for quite some time
and they just never quite got it. You are either accountable
for your weapons or you are not, and if you choose not to be,
you are out of the program.
Dr. Heck. Thank you.
I now yield to Ms. Tsongas.
Ms. Tsongas. Thank you.
It is my understanding that the Defense Logistics Agency
maintains a list of approved equipment that can be transferred
under the 1033 provisions, and currently that that list
contains many items that can be used as offensive weapons, such
as bayonets and assault rifles. Can you tell me a little more
about the process of determining what equipment is placed onto
your list? Specifically, what are the criteria used to make
that determination? Who is responsible for approving the list?
And how often is the list updated? I know you have referenced
some of what is on and what is not, but I am curious if there
is sort of a template for figuring this out.
Admiral Harnitchek. Yes, ma'am. Basically, if it is a piece
of military equipment that is used for military offensive
capabilities, armored vehicles, Bradleys, tanks, attack
helicopters, crew-served weapons, .50-caliber machine guns,
none of those are authorized for transfer. So we work that in
conjunction with the service that owns that equipment, the
Army, the Marine Corps. But pretty much, if it is an offensive
military capability that the Armed Forces would use, that is
not available for transfer.
Ms. Tsongas. So where do bayonets and assault rifles fall
into that? Would you exclude that from that description?
Admiral Harnitchek. Yes, ma'am. Bayonets, actually, they
don't stick them on the end of the rifles we give them. They
put them in their go bags and in the trunks of their cars. They
use them to cut belts. I mean, a bayonet is just a nice strong
utility knife. They use it if they need to cut the windshield
out of a car that has that membrane in between, so they will
jam the bayonet in there, pull it down. They just basically use
it as a knife.
Assault rifles would be an M16 or an M14, that is an
infantryman's weapon, also applicable in our view and the view
of the services and the police departments for law enforcement
use. But in general, almost all of the police departments that
I know convert automatic weapons to semiautomatic weapons
because they really don't have a requirement for a fully
automatic weapon.
Ms. Tsongas. So as you are making this determination to
create this list, is there a process for vetting it? What is
that process? Is it somebody sitting in an office? What is
the----
Admiral Harnitchek. It is a process that we work with the
law enforcement agencies and we also work with the services.
For example, we used to issue body armor and Kevlar helmets.
The Army decided that wasn't appropriate for law enforcement
use, so we took them off. Prior to 2008, we used to issue
uniforms, but we decided it is not appropriate for law
enforcement agencies to be wearing, you know, in-use current
military uniforms, so we took them off the list. So it is
actually an iterative process that goes on all the time.
Mr. Estevez. And if I could jump in there, Congresswoman,
this is also one of the topics that we are having in the
interagency review right now, is how can we strengthen the
process by which we say this is available or not available and
what is the view of--you know, we have been talking about this.
This isn't settled, but, you know, looking for Justice and DHS'
view on that, who are closer to law enforcement than we are.
Ms. Tsongas. I would like to also just address the issue of
the State coordinator. How are the responsibilities of those
coordinators defined? How are they defined?
Admiral Harnitchek. Yes, ma'am. They are defined in a
memorandum of agreement that DLA signs with each of the State
coordinators. And it delineates in very specific details the
duties and responsibilities of the Defense Logistics Agency,
the Department of Defense, and then, in turn, the State
coordinators.
Ms. Tsongas. And is that a standard MOU [memorandum of
understanding] across the country----
Admiral Harnitchek. Yes, ma'am.
Ms. Tsongas [continuing]. Every State has signed the same?
Admiral Harnitchek. All 53.
Ms. Tsongas. And as you confront terminating or suspending
States, are there different standards for a termination or
suspension, or are they virtually the same thing?
Admiral Harnitchek. They are pretty much the same thing.
Ms. Tsongas. And how do you get back on? How do you reunite
your relationship?
Admiral Harnitchek. You have to prove to the Defense
Logistics Agency that you are worthy of participation in the
program.
Ms. Tsongas. And what would that worthiness entail?
Admiral Harnitchek. Worthiness would entail that you are
aware of the rules and regulations of, for example, the State
of Massachusetts, you know, the strictures in place by the
memorandum of agreement. You have to have procedures in place
locally to ensure that you can properly account for the weapons
that we give you, that you are not asking for too much, you are
asking for just the right amount.
And, again, it is not sort of a cosmic bar of compliance
there, but there is some minimum level of compliance, and if
you don't meet that, you are terminated from the program. And
then to get back in you have to prove that you are ready to
comply with the rules of the road of the LESO [Law Enforcement
Support Office] program.
Ms. Tsongas. Thank you.
Dr. Heck. Mr. Conaway.
Mr. Conaway. Thank you.
Gentlemen, thanks for being here. Appreciate it.
Admiral, would you give us a quick difference between a
belt-fed weapon and a crew-served weapon? And do you give
them--are belt-fed weapons on your list?
Admiral Harnitchek. No, they are not.
Mr. Conaway. Okay. Never mind, then.
The role--it is one thing to have equipment, but the
tactics, techniques, and procedures that a particular police
force would use----
Admiral Harnitchek. Right.
Mr. Conaway [continuing]. The more militaristic they act,
is that driven from your end or from their own end?
Admiral Harnitchek. Sir, I think that is their end.
Mr. Conaway. So your team would not be necessarily involved
in developing techniques and tactics----
Admiral Harnitchek. No, sir. No. With regards to rules of
engagement, we leave that to the police departments.
Mr. Conaway. Okay.
Mr. Estevez. In fact, we think that would be a very bad
idea, to have----
Mr. Conaway. Say again?
Mr. Estevez. We think that would be a bad idea, to have the
military developing tactics for----
Mr. Conaway. Thank you. I think most of us here would agree
with you.
On your inventory violations, how many weapons are missing
overall?
Admiral Harnitchek. 421 as of yesterday.
Mr. Conaway. And those are all M16s, M4s?
Admiral Harnitchek. M16s, 1911, .45s, and M14s.
Mr. Conaway. So you said 464?
Admiral Harnitchek. I am sorry, 421.
Mr. Conaway. 421.
Admiral Harnitchek. Right.
Mr. Conaway. Okay. And you believe now that you have got
better attention to detail in terms of----
Admiral Harnitchek. Oh, much better.
Mr. Conaway [continuing]. Inventory control?
Admiral Harnitchek. Since 2012. Right. We are pretty----
Mr. Conaway. Give me the stat again on how often you
observe the inventory?
Admiral Harnitchek. We visit each State every other year
and we physically inventory 20 percent of their weapons. So
that is our eyes on their weapons.
Mr. Conaway. Okay. So 10 percent a year, per each State?
You said every other year.
Admiral Harnitchek. Every other year we visit every State,
and then when we visit a State we inventory 20 percent of their
weapons.
Mr. Conaway. All right.
Mr. Estevez. And if I could jump in there, Congressman.
They require an annual inventory by the States.
Admiral Harnitchek. Right.
Mr. Estevez. State certified.
Mr. Conaway. State coordinator is responsible for also
observing it?
Mr. Estevez. Yes.
Admiral Harnitchek. Right.
Mr. Estevez. So annual inventory comes in.
Mr. Conaway. And since then, you have not seen the same
kind of sloppiness, for lack of a better phrase? I am a CPA
[certified public accountant], so I understand inventory.
Admiral Harnitchek. No. No sir.
Mr. Conaway. Same kind of issues that you had pre-2012?
Admiral Harnitchek. No. And, frankly, some of it was on our
end. The system that we gave the States to account for the
inventory was sort of a 1970s clunker. So the new system that
we borrowed from the forestry department is much better in
terms of ease of use. It allows pictures. So we are able to
photograph every weapon.
Mr. Conaway. Okay. Have any of these weapons showed up in a
crime?
Admiral Harnitchek. No, sir.
Mr. Conaway. You have got the serial numbers of all these
weapons?
Admiral Harnitchek. We do. All 421 weapons are entered in
NCIC [National Crime Information Center], so they are clearly
out there.
Mr. Conaway. Ok. I appreciate that. I will yield back.
Thank you.
Admiral Harnitchek. Yes, sir.
Dr. Heck. Mr. Scott, you are recognized for 5 minutes.
Mr. Scott. Thank you, Mr. Chairman.
In the--I guess my question gets back to what are we really
talking about here with regard to the equipment. And if the
goal is to prevent law enforcement from having certain kinds of
equipment, wouldn't it be better to just give that direction or
pass that at the State level with the State coordinator to ban
that particular equipment if State citizens didn't want it in
their State than to pass some broad restriction, either your
level or through Congress?
Admiral Harnitchek. Yes, sir, absolutely. I mean, if the
State of Texas, for example, decides that MRAPs are not
appropriate for use in the State of Texas, the governor can
give that direction to the State coordinator and we won't issue
any MRAPs, for example, to Texas.
Mr. Scott. And they can do that right now?
Admiral Harnitchek. Yes, sir, absolutely.
Mr. Scott. Are you aware of any armored vehicles that have
been misused?
Admiral Harnitchek. I am not. No, sir, I am not.
Mr. Scott. If an armored vehicle was misused in a State,
the governor and local officials would have the ability to
resolve that, wouldn't they?
Admiral Harnitchek. Yes, sir, absolutely.
Mr. Estevez. In fact--again, if I could jump in--I believe,
just to be clear, I think there was an incident where someone
was speeding with an armored vehicle, and I think that law
enforcement got hammered by their State for doing that.
Mr. Scott. I mean, well, with that equipment comes a
responsibility. Most people are aware of that. I mean, I
certainly don't like--I will admit--I don't like seeing any of
my police agencies in military style uniforms. I just, as an
American, I prefer that they be in the sheriff's deputy uniform
or State trooper or police.
But, you know, when we talk about these rifles, I mean,
what people refer to as assault rifle in this country is mostly
cosmetic when you get right down to it. I mean, I can buy a
Browning .30-06 BAR, and it basically functions the same way.
It is a semiautomatic rifle. I guess I do have one question in
that should we convert the rifles from fully automatic to
semiautomatic before they are ever transferred to the local law
enforcement agencies.
Admiral Harnitchek. We could probably do that. I mean, it
is an easy fix. The States normally do that now, but, I mean,
just to ensure that no automatic weapons are given to States.
It would come at some cost, obviously, but that--I mean,
because we have about 94,000 weapons out there. So it would be
hard to refit all those.
Mr. Scott. Right. But a 1911 is not an automatic.
Admiral Harnitchek. No, it would be M16s and 14s.
Mr. Estevez. And, again, if I could jump in, Congressman,
and I mentioned this in my opening comments and so did
Congresswoman Tsongas, if you look at the images that brought
us to this hearing, we didn't buy any of--none of those weapons
that were in that came from the Department of Defense. So you
can go out, police forces can certainly buy weapons that look
like our weapons.
Mr. Scott. All right. I don't have any further questions
right now, Mr. Chairman.
Dr. Heck. Thank you.
Mr. Johnson, you are recognized for 5 minutes.
Mr. Johnson. Thank you.
And both you gentlemen have read the legislation that I
have filed, and it does not ban State and local governments
from actually going out on the market and purchasing whatever
equipment they can find out there on the market, including that
kind which is distributed under the 1033 program. Is that
correct?
Mr. Estevez. That is correct.
Mr. Johnson. And so we are not about banning, by this
legislation, law enforcement agencies from having this
equipment, but it is true that local and State law enforcement
agencies and even Federal law enforcement agencies can acquire
this equipment, surplus equipment, directly from the Department
of Defense without having any civilian governing authority
input into the process. Isn't that correct?
Mr. Estevez. That is not correct. The State coordinator of
the State, the governor-appointed, a civilian authority State
coordinator is the person who makes those decisions.
Mr. Johnson. All right. Well, let's look at it like this
then. A State agency official then put in charge of this
program by a governor can decide that it is okay for a local
government law enforcement agency to acquire this equipment
directly from the Department of Defense, correct?
Mr. Estevez. They put in their request through that State
coordinator. That State coordinator follows through with the
request.
Mr. Johnson. And that State coordinator has no legal
requirement to confer with any State or local official about
that law enforcement agency request, correct?
Mr. Estevez. He is appointed by the governor and that is
his mission.
Mr. Johnson. Well, but he does not work for a county or a
city government, correct?
Mr. Estevez. That is correct.
Mr. Johnson. So that State authority can make a decision
for a local municipality or county government without any input
from that local government authority, correct?
Mr. Estevez. The local government authority, the police
authority of that local government is requesting the equipment.
Mr. Johnson. Yes. Let's take the Ferguson Police
Department, for example. The Ferguson Police Department would
be able to fill out the paperwork and send it in and request a
piece of equipment, let's say an armored vehicle, an MRAP, from
the Department of Defense that has been declared surplus
property. Isn't that theoretically a possibility?
Mr. Estevez. That is correct.
Mr. Johnson. And they could do it without the input from
the local governing authority there in Ferguson, correct?
Mr. Estevez. Yes, I guess, that is correct.
Mr. Johnson. So you are bypassing your local governing
authority----
Mr. Estevez. Congressman, from the Department of Defense's
perspective, we are making excess equipment, taxpayer-procured
equipment available.
Mr. Johnson. I understand that.
Mr. Estevez. I understand.
Mr. Johnson. I am looking at the process by which----
Mr. Estevez. But how the States want to manage that process
is up to the States, not to the Department of Defense.
Mr. Johnson. Well, it is actually a Federal Government
program that allows these State and local law enforcement
agencies to acquire this military-grade weaponry without any
input from the civilian governing authority.
Mr. Estevez. Okay.
Mr. Johnson. And that is the point that I am making. And I
think that that is not good, when the citizens, through their
local governing authorities, have not made a decision about
whether or not they want this kind of equipment on their
streets.
Now, with respect to the qualifications of a State
coordinator, the Federal Government has no qualifications that
it insists that these coordinators have. Is that correct?
Admiral Harnitchek. The States appoint those coordinators.
Mr. Johnson. And so there is no requirement that that
individual, that State coordinator, be a law enforcement
officer?
Admiral Harnitchek. Mr. Johnson, I am not sure. I can't
speak for all 52, but----
Mr. Johnson. So it can--Do you know the qualifications of
the Georgia coordinator that you named earlier?
Admiral Harnitchek. I believe Mr. Sherrod has experience in
law enforcement.
Mr. Johnson. But it is not true that he has to have
experience in law enforcement in order to be in that
coordinator's position, correct?
Admiral Harnitchek. Sir, that is not a requirement by the
government.
Mr. Johnson. So anybody could be appointed and there can
just be a rubber stamp and run the requests through without
paying any attention to it whatsoever, just signing their name?
Admiral Harnitchek. Sir, that could be, but that is not my
experience with how the process works.
Mr. Johnson. All right. And then that kind of setup could
yield to the local law enforcement agency a fully automatic
weapon that you would assume that they would turn it into a
semiautomatic weapon before they would place it in use, but
there is no guarantee or requirement that the local law
enforcement agency do so. Isn't that correct?
Admiral Harnitchek. That is correct. Sir, absolutely, you
know, execution of the program is left to the State
coordinators, and in my experience they are good public
servants, they take their duties very seriously, and they run a
pretty tight ship.
Mr. Johnson. Well, I tell you, in my State of Georgia----
Dr. Heck. Gentleman's time has expired. Gentleman's time
has expired.
Mr. Johnson. Thank you.
Dr. Heck. Gentlemen, you have referenced quite a few times
the MOA or MOU that is the template that is used for all 50
states. Is that a public document?
Admiral Harnitchek. Yes, sir.
Dr. Heck. Could we get a copy submitted for the record to
the committee?
Admiral Harnitchek. Yes, sir.
[The information referred to can be found in the Appendix
on page 83.]
Dr. Heck. And then, Ms. Tsongas, you had a follow-up?
Ms. Tsongas. I would like to follow up on Mr. Johnson's
questions. The roles and responsibilities of the State
coordinator are defined where?
Admiral Harnitchek. They are defined in the memorandum of
agreement.
Ms. Tsongas. They are, okay.
Admiral Harnitchek. Yes, ma'am.
Ms. Tsongas. So that would be something--thank you for
submitting it for the record.
And I think Mr. Johnson has raised an interesting question,
because I have heard it from my constituents as well, which is
that they are unaware of these various programs--and we are
here to focus on the 1033 program--until the unfortunate
events. And the question they have is how do they know what
kinds of surplus materials have been made available to a
particular police department in a particular community? Is
there a record of that?
Admiral Harnitchek. Yes, ma'am.
Ms. Tsongas. Is there a Web site of that----
Admiral Harnitchek. Yes, ma'am.
Ms. Tsongas [continuing]. So that it is transparent, there
is great transparency as to which weapons are making their way
to which police departments in the communities across this
country?
Admiral Harnitchek. Yes, ma'am, there is.
Ms. Tsongas. And where would that be?
Admiral Harnitchek. We have that in our database.
Ms. Tsongas. In your database. Is that easily accessible
by----
Admiral Harnitchek. Yes, ma'am.
Ms. Tsongas. Do you have a Web site? What do you have?
Admiral Harnitchek. I am not sure what the Web site is, but
that data is available for anybody that would like to see it.
Ms. Tsongas. Could you submit to me----
Admiral Harnitchek. Sure.
Ms. Tsongas [continuing]. Some reference point that I could
convey to my constituents that says these kinds of materials
have made their way. As I said, as I have talked to my various
police departments, very few have taken advantage of the 1033
program. That may not be the case with the Department of
Justice or Homeland Security, but I do know that my
constituents would like to know what it is that has been made
available.
Admiral Harnitchek. Yes, ma'am.
Mr. Estevez. And I believe, Congresswoman, if my memory
serves me, I think The Washington Post or New York Times, I
want to give credit to the proper newspaper, did an assessment
of that through a Freedom of Information Act request and
published a pretty accurate list of what went where back in
August when all this was breaking.
Ms. Tsongas. One other follow-on question. I understand
that if equipment is not used by a particular law enforcement
agency within a year that it has to return it. Is that the
case?
Admiral Harnitchek. Yes, ma'am.
Ms. Tsongas. And I can sort of see that as a double-edged
sword. It makes sense that if equipment is not going to go to
any particular use that you might bring it back in and send it
back out. But I can also see how this kind of policy would
encourage police departments to use something unnecessarily. So
can you just give me a sense of your reasoning behind this
policy, and is it serving the intended purpose?
Admiral Harnitchek. Yes, ma'am. One of the things that we
found, that we had a few police departments that were getting a
lot of excess noncontrolled equipment and selling it for their
own use, in other words, to augment their department's budgets.
So the use within a year is sort of control, you know, buying
everything they can possibly get their hands on.
With regard to controlled equipment, we have certain rules,
so that is one weapon per police officer. If we are going to
give out a Humvee, it is one vehicle for every three officers.
So we expect that their weapons, they are issued to officers,
they are in their records, the officers are taking those
weapons on patrol with them. So it is actually to control sort
of--``hoarding'' is probably a strong term--but it is to
prevent these law enforcement agencies from getting more than
they actually need.
Mr. Estevez. And, again, just to reiterate, uncontrolled is
file cabinets, medical gear, not things that we retain title
to. So weapons, Humvees, MRAPs, helicopters, we retain--night
vision devices, the Department of Defense retains title to and
we can pull that back at any time.
Ms. Tsongas. So what would the use of a Humvee entail to
satisfy that requirement?
Admiral Harnitchek. They have to have it on their records,
you know, it has to be maintained. Our folks will go out and
look at it, talk to the law enforcement agency about how they
use it, how they don't use it. So it is just good old-fashioned
leadership and management.
Ms. Tsongas. Has there ever been an instance in which a
police department sold a Humvee?
Admiral Harnitchek. I don't know of one, but it wouldn't
surprise me if there was. In other words, when there is that
many vehicles out there, I don't know. We have had instances of
law enforcement agencies selling weapons, and they are out of
the program.
Mr. Estevez. That leads to suspension and termination.
Ms. Tsongas. Thank you.
Dr. Heck. Gentlemen, I just want to follow up real quickly
on a question Ms. Tsongas had to make sure that I am clear on
it. When she refers to a Web site that is accessible, I want to
know, we are not talking about a Web site that is on the Army
network. What we are talking about is a publicly accessible Web
site with a URL where somebody can go in and query their police
agency and find out what they have received. That is available?
Admiral Harnitchek. That is not available, but we could
probably make it available.
Dr. Heck. Okay. So you have it on your net where you can
run a query for someone, but it is not publicly available?
Admiral Harnitchek. Yes, sir. It is not publicly available,
but we have the data.
Dr. Heck. Okay. All right.
Well, gentlemen, I appreciate both of you being here this
evening to present your view on the 1033 program. We will take
a short recess while the first panel is excused and the second
panel is seated.
[Recess.]
Dr. Heck. Hearing will come back to order.
I would like to welcome our second panel of witnesses. With
us now we have Mr. Jim Bueermann, president of the Police
Foundation, and Mr. Mark Lomax, executive director of the
National Tactical Officers Association.
Gentlemen, thank you for joining us today. And, Mr.
Bueermann, we will begin with you. You are recognized for your
opening statement.
STATEMENT OF JIM BUEERMANN, PRESIDENT, POLICE FOUNDATION
Mr. Bueermann. Mr. Chairman, distinguished members of this
subcommittee, thank you for this opportunity to appear before
you to discuss the very important topic of the Department of
Defense's 1033 program.
My name is Jim Bueermann, and I am the president of the
Washington DC-based Police Foundation. The Police Foundation,
established in 1970 by the Ford Foundation, is America's oldest
nonmembership, nonpartisan police research organization. Our
mission is to advance democratic policing through innovation
and science. We conduct rigorous scientific research, provide
technical assistance, and conduct critical incident reviews
that help the police become more effective and responsive to
the communities they serve.
Prior to my work with the foundation, I was a police
officer in Redlands, California, for 33 years, the last 3 years
serving as the chief of police. I have extensive experience and
expertise in advancing policing through science, innovation,
and community policing.
During my career in Redlands, I directed the police
department's use of the 1033 program to acquire surplus
military equipment. This included M16 rifles, pickup trucks,
utility vehicles, desks, tables, filing cabinets, and
electronic office equipment. Since my retirement, the
department has acquired a mine-resistant ambush-protected
armored vehicle, otherwise known as an MRAP.
As have many Americans, I have been closely following the
troubling events in Ferguson, Missouri. Among the many aspects
of the national discussion regarding those events is the
potential militarization of this country's civilian police
forces. A focal point of this discussion is the DOD's 1033
program.
I believe most community policing experts will agree that
1033 equipment is not as problematic as the context and
situation in which it is used. In fact, the 1033 program
provides valuable equipment to law enforcement nationwide. But
it needs to be closely examined to ensure appropriate surplus
equipment is transferred in a thoughtful manner, with adequate
guidelines in place. A law enforcement agency's transparent,
accountable, and collaborative relationship with its community
relates to the degree to which people agree with the police
position on the appropriate context of the use of tactical
equipment.
A principal function of the police is to respond to the
public safety threats that face our communities. Adequate and
updated equipment is a necessity to keep both officers and our
citizens safe. For law enforcement leaders operating with
highly constrained budgets, the 1033 program may be the only
means by which they can acquire equipment they believe they
need to enhance community safety. I believe it is important
that the program be retained with appropriate transparency,
accountability, and oversight guidelines incorporated.
Completely eliminating it could have substantial impact on
public safety and local budgets. The 1033 program ensures that
taxpayers do not have to pay for resources twice, once for the
military and another time if the police have to purchase the
same equipment the military declares to be surplus.
While you review it, I urge you to consider the program's
local public safety benefits. Based on my experience and
familiarity with municipal government, contemporary policing,
and the 1033 program, I propose the following changes to the
program to ensure it continues to strike a balance between the
needs of the police and community interests.
I recommend that pursuant to Federal legislation or
regulation every State and local police agency that desires
access to surplus military armored vehicles or tactical
military equipment via the 1033 program should be required as
part of the application process to provide proof to the DOD
that, one, it has received public input regarding the possible
acquisition of the equipment; two, it has obtained local
governing body approval of the department's acquisition of the
property, except in the case of elected sheriffs; three, it has
implemented a publicly accessible policy governing the use of
armored vehicles and tactical equipment; and four, it makes
publicly available the number of times and context it utilized
the acquired armored vehicles and certain types of tactical
equipment.
In my opinion, these requirements would not be overly
burdensome for the police because they already have to follow a
similar procedure for expensive items they now purchase. In
addition, this ensures that local communities have an
opportunity to voice their support or opposition to the
proposed acquisition, consider the police justification for the
equipment, and have access to the number of times and the
context the tactical equipment was used.
In addition, I believe the program needs to incorporate a
training component for certain types of equipment. For example,
that there should be some requirement that before a civilian
police agency takes possession of an MRAP it must participate
in a DOD training session on how to operate it and submit proof
that the police driver is licensed to drive the vehicle. As I
understand the process now, once an MRAP is cleared for release
to a police civilian agency the DOD simply conveys the vehicle
to the agency's representative with little or no training how
to operate it. Simply handing the untrained officer the keys to
a surplus MRAP is a recipe for potential problems.
In conclusion, I urge the committee members and Congress to
implement the changes to the 1033 program I have outlined in my
testimony. I believe they are fair and balanced. It is
imperative the committee and Congress take a balanced view of
Federal efforts to assist local law enforcement in controlling
crime and disorder and doing so in a democratic manner. The
notion of militarizing civilian police forces is problematic in
this country and it should be addressed. However, it is
important to remember that the police have a tough, dangerous
job and need adequate resources to protect their communities
and themselves. But in providing the police with these
resources, we must never lose sight of the basic tenets of
democratic, community-oriented policing that requires police
transparency and accountability, public input, and the
coproduction of public safety between the police and the
communities they serve.
Thank you.
[The prepared statement of Mr. Bueermann can be found in
the Appendix on page 41.]
Dr. Heck. Thank you.
Mr. Lomax, you are recognized for your opening statement.
STATEMENT OF MARK E. LOMAX, EXECUTIVE DIRECTOR, NATIONAL
TACTICAL OFFICERS ASSOCIATION
Mr. Lomax. Thank you, Chairman.
I would like to thank Chairman Heck, Ranking Member
Tsongas, and the esteemed members of the subcommittee to have
the opportunity to speak to you today. Since its inception in
1983, the National Tactical Officers Association [NTOA] has
served as a not-for-profit association representing law
enforcement professionals and special operation assignments in
local, State, and Federal law enforcement agencies.
The mission of the NTOA is to enhance the performance and
professional status of law enforcement personnel by providing a
credible and proven training resource, as well as a forum for
the development of tactics and information exchange. The NTOA
believes that those law enforcement officers that are asked to
conduct the most difficult and dangerous missions deserve the
appropriate level of training and equipment to ensure as much
as possible their success and safety.
The Department of Defense 1033 program has supported that
effort by providing much-needed rescue and emergency response
equipment. The DOD 1033 program allows agencies to acquire the
necessary equipment rapidly and at a considerable cost savings
to the local taxpaying public. From developing a robust and
capable homeland security system to everyday patrolling, the
1033 program has benefitted law enforcement and the communities
it serves.
For example, ever since the 1999 Columbine school shooting,
law enforcement has recognized that minutes and even seconds
count in an active shooter situation. Lives are at risk if
immediate police actions do not occur quickly and effectively.
No longer can police departments wait for specialized units to
respond to active shooter incidents. Therefore, many agencies
across the country have also added the patrol rifle to their
general issue inventory for officers. Numerous surplus rifles
have been acquired by agencies through the 1033 program to
supplement this effort. This is often the first line of rescue
in saving lives for victims in mass casualty response by
police.
Moreover, after September 11, 2001, first responder
agencies across the country willingly volunteered to
collaborate with local Federal partners in domestic security.
The 1033 program allowed local agencies to acquire necessary
equipment to build out its homeland security capacity and to
include heavy-duty high wheeled vehicles, forklifts,
generators, and vehicles that improve operational capabilities
and responder safety in disaster operations.
The threat that firearms pose to law enforcement officers
and the public during violent, critical incidents has proven
that armored rescue vehicles have become as essential as
individually worn body armor or helmets in saving lives. The
recent ambush murder of Pennsylvania State Police Corporal
Byron Dickson and the shooting of Trooper Alex Douglass makes
it real as to the weaponry--in this case, a .308-caliber
rifle--criminals are using against our finest, the men and
women of law enforcement. I trained Corporal Dickson, so I take
this personal.
The 1033 program has provided the necessary equipment to
protect our brave officers and provide security and effective
response to our communities. The DOD's oversight of surplus
equipment issued is adequate in the sense that an annual
inventory is conducted at the State level and the recipient
agencies are held accountable. The initial application and
screening process that determines which agencies receive the
equipment could be improved. It would be reasonable to have
applying agencies demonstrate an articulated need based on
current threat assessment matrices and that appropriate
training and agency policies exist based on national standards
prior to the receipt of such equipment.
Again, on behalf of the 40,000 law enforcement
professionals that the NTOA represents, I thank you for this
opportunity to speak to you today on these current issues and
challenges, and look forward to answering any questions the
subcommittee has. Thank you.
[The prepared statement of Mr. Lomax can be found in the
Appendix on page 54.]
Dr. Heck. Thank you both for representing the law
enforcement side of the 1033 program. I will pose this question
to both of you since you both have had experience with
receiving equipment through the 1033 program. How do you assess
DOD's current oversight and accountability mechanisms that are
in place for the program? Do you think it is too much? It is
too little? It is just right? How easy is it to get the
equipment? What is your opinion of the oversight and
accountability programs?
Mr. Bueermann. Well, I think that, just listening to the
Admiral, it certainly changed since I retired in the summer of
2011. And I can tell you in my 33 years that we were there we
never had a visit from the DOD. So it sounds like they have
changed their policy where they show up on site to do audits
about firearms, which I think is a very thoughtful approach.
Firearms have a tendency to go missing either through
misappropriation or through the inadvertent destruction of
those kinds, the 1033 weapons, when they are destroying
evidence. I think that is appropriate for them to do.
I think most agencies, their interaction is really with the
State coordinator, and that is probably the point that you
should focus on if you want to really focus on this program.
Dr. Heck. Mr. Lomax.
Mr. Lomax. Yes, I agree with Mr. Bueermann. I retired from
the Pennsylvania State Police and our bureau emergency and
special operations never acquired any 1033 equipment and
currently does not have any 1033 equipment. But just speaking
with law enforcements throughout the country, that there
definitely is a need for some more oversight in this program,
starting from the DOD side and all the way down to the State
coordinator side. So I agree with Mr. Bueermann's assessment of
that.
Dr. Heck. Mr. Bueermann, you mentioned in your statement
the need for transparency in the program. And as we heard from
the previous panel, while they may have data located on a
server that is behind a firewall, there is no publicly
available Web site where somebody can go to see what equipment
has been put into their communities. Would either of you have
concerns as law enforcement officers if that information was
readily available, that your Department received so many rifles
or so many armored vehicles or whatever equipment through the
1033 program, or would the Pennsylvania State Police have a
similar concern if that information was made publicly
available?
Mr. Bueermann. I would not, and I would like to point out
that in some places it already is. I personally went to the
State of California, went to the governor's Web site and looked
under the Office of Emergency Services, and found not only the
Excel spreadsheet that delineated all of the California
equipment, but my recollection is there was also a spreadsheet
that delineated all of the equipment nationwide, at least for
that particular year. So I think it is out there.
This is one of the things I think this committee and
Congress ought to seriously consider, is contracting or somehow
funding an outside audit of the program and an evaluation,
whether the program is achieving the goals and objectives that
Congress intended when the program was created, that would also
create a set of guidelines. Because I think there are questions
here that an outside entity that doesn't have a dog in the
fight probably ought to answer for you.
Mr. Lomax. Yes. We have no concerns that providing that
list to the public will jeopardize any operational issues or
anything like that.
Dr. Heck. Great. I want to thank both of you. Obviously,
law enforcement is an inherently dangerous occupation. As
everybody is running away from the sounds of gunfire, you are
the guys that are running towards it. And we have seen our
adversaries change, just like we have seen in the military. We
have seen our adversaries, our criminals change their tactics,
techniques, and procedures too over time. I remember, you can
go as far back as 1966 when Charles Whitman climbed to the top
of the UT [University of Texas] Austin, Texas, clock tower and
took out 16 people with a high-powered rifle. And everybody
responding, all they had were the old wheel guns and had to go
and actually get hunting rifles from students on campus to try
to mount a response. Or to the 1997 Hollywood bank robbery
where the law enforcement agencies were severely outgunned.
So there has to be a balance, obviously, and I am glad that
you gentlemen are here to present your side of the story on how
we can achieve that balance.
Ms. Tsongas.
Ms. Tsongas. Yes. Thank you both for being here. I think it
is an important discussion we are having as we are trying to
sort out what that balance might be. And one of the questions I
have, and I saw it as I was having my conversations with the
various police chiefs, a different point of view between police
departments in major cities with their larger budgets as
opposed to police departments in smaller towns where in many
instances it was hard to imagine a need for some of the more
concerning equipment.
So do you see appropriate line drawing between what should
be made available to one kind of community or another given the
larger resources, the ability to better train, even to
articulate a use that is more appropriate? I would sort of
welcome your views on that.
Mr. Bueermann. I think there needs to be more thoughtful
discussion about that. There are certainly some agencies that
are very, very small that have acquired some equipment, I
think, that would raise a red flag. It doesn't mean that it is
inappropriate, but I think somebody needs to ask that
particular question, about whether that is justified.
I think it would be difficult to draw a line between urban
centers and suburban centers, for instance, or even rural
centers. I come from a part of southern California that has all
of those rolled up into one, and the policing issues there,
while they may be different, are unfortunately becoming a
reality in places that are rural, suburban, and urban.
What I think I haven't heard discussed here, I think, as
part of this discussion is the need for regionalizing certain
assets. So that may be a regionalized tactical team, it may be
a regionalized set of armored vehicles, or an MRAP. As opposed
to every agency needs an MRAP, maybe there needs to be one in a
regional sense.
I think not allowing smaller agencies, Watertown Police,
for instance, found themselves right in the middle of a
tremendously difficult situation for everybody there to handle.
That is a small community in the outskirts of Boston.
Obviously, I think, saying to Watertown that you shouldn't have
access to these things is not a thoughtful approach. Whether
they need their own is a whole 'nother discussion.
And that becomes difficult for the Federal Government to
do. I think that is a more appropriate discussion to be had at
either the State or the local level, but that could be part of
some guidelines that are implemented, that there needs to be
some discussion about whether you have thought this through at
the local level or is there just this funnel of equipment that
goes from the Feds down to the locals.
Ms. Tsongas. Thank you.
Mr. Lomax.
Mr. Lomax. Yes. With approximately 87 percent of all law
enforcement agencies had less than 50 officers and 60, 70
percent of those are less than 25 officers, there is a
financial component to tactical equipment that larger agencies
may not see a problem, but as--over the years we are seeing
most smaller agencies requiring more and more 1033 equipment.
I agree with Mr. Bueermann, and the National Tactical
Officers Association developed standards for tactical teams
years ago. And part of that is the multijurisdictional regional
concept where we are not saying that you should not have access
to a SWAT team, but maybe you don't need a, you know, a 12-
person department with a SWAT team, but you can have a regional
team or a multijurisdictional team. So that way the assets or
the equipment can be shared and the personnel and training can
be shared also.
So there is that divide, in a way, between the larger
departments that have the financial capabilities, have full-
time teams, and the smaller rural areas that may not have that
advantage.
Ms. Tsongas. I thank you for your testimony. Thank you for
being here this evening.
Dr. Heck. Mr. Scott, you are recognized for 5 minutes.
Mr. Scott. Thank you, Mr. Chairman.
And one of the things I do hope we will stay on, you know,
whether or not a community, if it is regional and/or
multijurisdictional, that should be a decision for the local
governments and for the States, not for us at the Federal level
to make.
And, Mr. Lomax, you were in uniform for 27 years with the
Pennsylvania State Police. Is that right?
Mr. Lomax. That is correct, yes, sir.
Mr. Scott. Thank you for your service. That is a long, long
time.
Mr. Lomax. Thank you.
Mr. Scott. I want to--the question of automatic rifles, and
when I say automatic I mean fully automatic rifles versus
semiautomatic rifles, if we changed so that the rifles, before
they were transferred to the States, were already converted
back to the semiautomatic, would that have any type of
detrimental impact on the local law enforcement agencies?
Mr. Lomax. I don't think so, sir. I mean, those agencies
that require an automatic weapon for whatever purpose can
purchase that through the DOD and other sources. So I don't
think, as far as this program, the DOD program, by converting
them to semiautomatic would have a significant impact on law
enforcement.
Mr. Scott. Do most of the men who carry an M4 or a similar
rifle in a patrol car, are most of those rifles semiautomatic,
or are they fully automatic rifles?
Mr. Lomax. Most of them are semiautomatic, yes, sir.
Mr. Scott. That is my understanding from the officers that
I know.
And I just--you know, one is I want to thank both of you
for testifying. And I just hope we keep this based on the
facts.
Mr. Lomax. Yes, sir.
Mr. Scott. And if we keep it based on the facts, I think we
can find that right balance.
Thank you for being here.
Mr. Lomax. Thank you.
Dr. Heck. Ms. Gabbard.
Ms. Gabbard. Thank you very much, Mr. Chairman.
And thank you both for your service and sacrifice to
keeping people safe.
Mr. Lomax, I understand that your organization has been
compiling a national survey on SWAT operations and that you are
expected to complete it by the end of this year. I think, as we
have been looking at this, one of the major issues that I have
found is that there is just not a lot of information available
with regards to how our SWAT teams are deployed and exactly
what tactics they are using.
And I am wondering if you can speak to how often military-
grade weapons are used, weapons, both weapons and equipment
such as flash-bangs, are used by our SWAT teams and under what
circumstances.
Mr. Lomax. Well, thank you for the opportunity to speak.
And, yes, the NTOA hired the International Association of
Chiefs of Police and also the University of Chicago National
Opinion Research Center to develop a SWAT survey. That was sent
out about a month ago to over 800 agencies, small, large, east,
west, sheriff's departments, police departments.
And one of the many reasons that the National Tactical
Officer Association thought of this is just like what you said,
Congresswoman, is that we did not have much information from
the law enforcement side as far as how the equipment is being
deployed, who is making those decisions, what is out there, and
whether, you know, flash-bangs are being used or not.
So hopefully at the end of this survey, which should be
done by beginning of January, we should have the rough
statistics. We will be looking at exactly what you are asking,
looking at--one of the biggest concerns, and we have been
working with the ACLU [American Civil Liberties Union] and with
others out there, it is not the equipment, and it is not the
personnel--it is the decisionmaking, it is who decides to
deploy it, where it is being deployed, whatever. It is that.
And so we were very fortunate, in developing our advisory
panel that is leading this SWAT survey, to have other
stakeholders outside of law enforcement to give us direction on
what are the concerns out there. So part of that survey is
decisionmaking and the leadership component and training
component.
So we are definitely willing to provide that to the
subcommittee once that information is done.
Ms. Gabbard. Thank you. I think that is going to be of
interest and important as, collectively, we look at this
discussion. There is a lot of talk that is going on about SWAT
teams being deployed for nonviolent offenders or also being
deployed in situations where it is, you know, the wrong address
at the wrong house or the other Mr. Smith as opposed to the
correct Mr. Smith. And, obviously, of great concern when these
tactics are being used in that way.
For both of you, I guess I know you touched on this a
little bit earlier, but if you could just speak to any
requirement that you already see of law enforcement agencies
having to demonstrate proficiency on equipment requested prior
to it being dispersed by the DOD.
Mr. Bueermann. I don't----
Ms. Gabbard. If any.
Mr. Bueermann. I don't think there is any.
Ms. Gabbard. Okay.
Mr. Bueermann. I mean, I have recently spoken with police
chiefs about MRAPs specifically, because my former agency has
one, and I can tell you that they handed them the keys and
didn't have a good drive.
Ms. Gabbard. Got it.
Mr. Lomax. Yes, and----
Mr. Bueermann. And that is problematic, you know. I----
Ms. Gabbard. Very problematic.
Mr. Bueermann. Right. And I don't think the agencies wanted
that. I think that there was an understanding on the part of
the military officials that were giving them that that that was
off limits to them. I don't think that they were trying to not
be helpful, but that is a specialized piece of equipment. It
takes special driving, and it is a lot like a fire truck. And,
in fact, that is who is driving them in my community right now
when they take them out, because the police officers have not
yet received training, so they have to get firefighters to
drive those because they have training in that. And I think
that doesn't quite make sense.
The other thing is that they probably know already how to
use a lot of that equipment, but these specialized things are
important.
Mr. Lomax. I agree. And there is a lack of training with
this program. And it is not the 95 percent; it is the 5
percent.
Mr. Bueermann. Right.
Mr. Lomax. And so that is where, you know, there needs to
be more training and accountability, for that 5 percent.
Ms. Gabbard. Got it. Thank you.
Thank you, Mr. Chairman. I yield back.
Dr. Heck. Mr. Johnson, you are recognized for 5 minutes.
Mr. Johnson. Thank you, Mr. Chairman.
I would ask that a paper written by the ACLU on the 1033
program for purposes of this hearing be submitted for the
record, without objection, and also the ACLU report entitled
``War Comes Home: The Excessive Militarization of American
Policing.'' Both these documents for the record.
Dr. Heck. Without objection.
[The ACLU paper on the 1033 program can be found in the
Appendix on page 73.]
[The ACLU ``War Comes Home'' report is retained in the
subcommittee files and can be viewed upon request.]
Mr. Johnson. Thank you.
And, gentlemen, thank you all for being here today.
You both have read the legislation that I have proposed?
Mr. Bueermann. I have not.
Mr. Lomax. Yes.
Mr. Johnson. And you agree that it does not call for a ban
on the transfer of all firearms from under this program, it
just--just for that which is 50-caliber or more.
Mr. Lomax. Yes.
Mr. Johnson. And you are both familiar with that?
Mr. Lomax. Yes.
Mr. Johnson. And----
Mr. Bueermann. I am not.
Mr. Johnson. Okay.
Mr. Bueermann. So I'll let----
Mr. Johnson. Well, would you think that that is an
appropriate restriction on this program, to limit the amount,
or to firepower of the weaponry to 50 calibers or below?
Mr. Lomax. Yes, that is fine.
Mr. Johnson. That is reasonable?
Do you think so also, Mr. Bueermann?
Mr. Bueermann. That makes sense, yes.
Mr. Johnson. And, also, with respect to armored military
vehicles, flash-bang grenades, drones, silencers, do either one
of you have a reason that would justify the transfer of a
silencer to civilian law enforcement? Is there a civilian law
enforcement need for silencers?
Mr. Lomax. In certain situations, in tactical situations,
there are, but that is very limited.
Mr. Johnson. But under the current program, it is unlimited
in terms of what agency can request and receive a silencer.
Mr. Lomax. Yeah.
Mr. Johnson. And that should not be.
Mr. Lomax. No.
Mr. Johnson. Don't you agree?
Mr. Lomax. Yes, sir.
Mr. Johnson. You, Mr. Bueermann?
Mr. Bueermann. I think it depends. I think it is very hard
to come up with a broad rule that applies to all law
enforcement agencies. Law enforcement agencies in this country
can buy silencers----
Mr. Johnson. Well, certainly. This legislation would not
preclude a State or local law enforcement agency from going out
and purchasing silencers. But the question is, should we be
distributing them direct from the battlefield to the streets of
our Nation?
And you believe that the transfer of silencers is something
that could be--that should be restricted under the 1033
program?
Mr. Bueermann. Sir, as my testimony indicated, I think that
the program needs to be reexamined, and there needs to be some
thoughtful decision about just that question, whether or not
certain kinds of equipment should or should not be put on that
list. As the Admiral said, you can't get an F-16 off this
program, you can't get an Apache helicopter.
Whoever makes that decision----
Mr. Johnson. Well, you should not be able to get an MRAP.
Mr. Bueermann. And that may be a decision that other people
can, but as long as it is on that list and as long as it is
part of that program, I think you have to look at an individual
agency's rationale for why they need----
Mr. Johnson. Well, and----
Mr. Bueermann [continuing]. That piece of equipment.
Mr. Johnson [continuing]. Certainly, when a local governing
authority can take that issue up and decide whether or not
citizens of that jurisdiction want to have that kind of
equipment on the streets, then they can go out and spend the
money and purchase it. Correct?
Mr. Bueermann. I completely agree that the local
authorities----
Mr. Johnson. And so----
Mr. Bueermann [continuing]. Local elected officials should
have that input.
Mr. Johnson. And so what we are talking about here is not
limiting a law enforcement agency from having this kind of
equipment. We are just simply talking about the transfer of it
from the military or DOD to the local law enforcement agency.
And I want to make sure that we all agree that that is a
reasonable course of action to take.
And, you know, as far as flash-bang grenades are concerned,
those require specialized training in terms of when, how, and
where to use, correct?
Mr. Lomax. Yes.
Mr. Bueermann. That is correct.
Mr. Johnson. And so, to ban the military from being able to
transfer that kind of equipment directly to a State or local
law enforcement agency or even to a State university law
enforcement agency--I mean, we had the Kent State situation
take place. Can you imagine what would have happened in 1970 if
this program had been in existence and if the Kent State Police
Department had all of this kind of weaponry that they could get
under this program and then used it against the students? Can
you all imagine what America would be like?
Mr. Bueermann. Absolutely.
Mr. Johnson. And so I think you must agree that we must
have some limits on this 1033 program. And I look forward to
working with you to fine-tune what we have put in place. But,
you know, I think we really need to look seriously about this,
and it is resulting in a militarization of our police forces.
And I thank the chairman for his indulgence.
Dr. Heck. Mr. Scott, you had a follow-up?
Mr. Scott. I just want to--when we talk about Humvees or
MRAPs, we are talking about an up-armored heavy truck. But the
weapons are removed from those vehicles before they are
transferred to local law enforcement agencies, is my
understanding. Correct?
Mr. Bueermann. That is correct.
Mr. Lomax. Correct.
Mr. Scott. So it is an armored vehicle, not an armed
vehicle.
Mr. Bueermann. Correct.
Mr. Lomax. Yes.
Mr. Scott. And so, when our people see a picture of an MRAP
in one of the fights that we are in now that has a belt-fed
rifle on top of it, that rifle is removed before it is ever
transferred to any local law enforcement agency----
Mr. Lomax. Correct. Yes.
Mr. Scott [continuing]. Here in the United States. And we
don't allow belt-fed rifles through this transfer.
Mr. Lomax. No, sir.
Mr. Scott. And do we allow 50-calibers?
Mr. Lomax. Currently, I believe, yes. No.
Mr. Bueermann. I don't--I don't know. I don't know.
Mr. Johnson. I would--I would--if I might interject, I
would say that, yeah, any caliber weapon is permissible under
the 1033 program.
Mr. Lomax. I believe the admiral mentioned that that
caliber was not transferrable.
Mr. Bueermann. Right.
Mr. Johnson. That may be according to military policy, but
in terms of law, legislation.
Mr. Scott. With respect to my friend and colleague from
Georgia, when you talk about an MRAP with a 50-caliber, the
picture, I think, that people get in their mind is a belt-fed,
heavy weapon on top of that vehicle. And that is not what is
being transferred to our law enforcement officers.
Mr. Lomax. It is just----
Mr. Scott. It is the truck----
Mr. Lomax. It is the vehicle.
Mr. Scott [continuing]. That is up-armored, but it is not
an armed vehicle when it is transferred to our local law
enforcement agencies.
Mr. Lomax. That is correct.
Mr. Scott. I yield the remainder of my time.
Dr. Heck. And just as a point of clarification, on the
prohibited list is nothing larger than a 762 at the current
time. So a 50-caliber would not be transferrable.
Mr. Lomax. Thank you.
Dr. Heck. Thank you.
Ms. Tsongas, a closing statement?
Ms. Tsongas. Just to thank you both here. Between you and
our previous panel, I think we have begun an important
discussion around a lot of issues. And I appreciate very much
your insights, given the world you come from and your
experience in the law enforcement world. And I thank you for
your service.
Mr. Lomax. Thank you.
Mr. Bueermann. Thank you.
Dr. Heck. Likewise, I want to add my thanks for your taking
the time to be here and presenting the law enforcement
perspective on the 1033 program. A lot of good information and
food for thought as we look to try to strike the balance in
maintaining this program but preventing the overmilitarization
of our local law enforcement.
I want to thank the ranking member, Ms. Tsongas, for
requesting this hearing.
There being no further business, the hearing is adjourned.
[Whereupon, at 5:16 p.m., the subcommittee was adjourned.]
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A P P E N D I X
November 13, 2014
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PREPARED STATEMENTS SUBMITTED FOR THE RECORD
November 13, 2014
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DOCUMENTS SUBMITTED FOR THE RECORD
November 13, 2014
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QUESTIONS SUBMITTED BY MEMBERS POST HEARING
November 13, 2014
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QUESTIONS SUBMITTED BY MS. TSONGAS
Ms. Tsongas. You stated in response to a question from Chairman
Heck that four agencies were most recently terminated from the 1033
program, including one sheriff's department in Arizona which was
terminated for weapons accountability issues. When a law enforcement
agency is terminated from the 1033 program, what efforts are made to
recover the DOD equipment that was provided to the law enforcement
agency through the 1033 program? How successful are those efforts, and
how does DLA account for or make record of those items that cannot be
recovered?
Admiral Harnitchek. When a law enforcement agency (LEA) is
terminated from the program, the LEA must turn in all controlled
property to the Defense Logistics Agency (DLA) within 60 days from the
date of termination or, subject to the approval of DLA and the State
Coordinator, transfer the property to another LEA within the State that
has a valid requirement for the property. The Memorandum of Agreement,
which is signed between DLA and each State (section XIV Part C1)
specifies the responsibilities of the State and State Coordinator upon
the termination of an LEA. With the exception of items previously
reported missing, which may have led to the termination, DLA's efforts
recovering controlled property from terminated LEAs have been
successful. For example, State Coordinators, in an effort to ensure
their State remains in good standing with the Defense Logistics Agency,
have obtained State Police escorts to assist in recovering Department
of Defense property if necessary.
______
QUESTIONS SUBMITTED BY MS. DUCKWORTH
Ms. Duckworth. What constitutes non-compliance under the 1033
program? How does the Defense Logistics Agency (DLA) identify instances
of non-compliance? If found to be non-compliant, what corrective
actions do states need to take in order to become compliant again? What
actions result in a permanent suspension?
Mr. Estevez and Admiral Harnitchek. Non-compliance is defined as a
violation of the terms of the Memorandum of Agreement (MOA) between the
Defense Logistics Agency (DLA) and each State Coordinator. DLA
identifies instances of non-compliance through Program Compliance
Reviews (PCRs), which entail a physical inspection of at least 20
percent of the weapons and 10 percent of the general property for each
state participating in the program on a biannual basis. Additionally,
non-compliance can be determined through the Annual Inventory and
Compliance Reviews required by the MOA to be performed by the State
Coordinator. DLA also reserves the right to suspend a law enforcement
agency (LEA) for any reason, suspect or actual.
If non-compliance by an LEA is identified during a PCR, the LEA is
suspended. If an LEA cannot account for a piece of high visibility
property such as a weapon, aircraft, or tactical/armored vehicle, the
entire state is suspended for a minimum of 30 days. Additionally, if
the State Coordinator fails to complete an Annual Inventory as required
by the MOA, the entire State is suspended. In order for an LEA or State
to be reinstated, it must submit a signed memorandum that documents:
(1) the events leading to the situation that resulted in the
suspension; and (2) an acceptable corrective action plan that details
how the LEA plans to mitigate further risk associated with the non-
compliance, or (3) the State completes the annual inventory
requirements.
Grounds for a permanent suspension (referred to by DLA as
termination) include failure by states and/or LEAs to comply with
program requirements or to correct identified discrepancies after a
suspension. Since 2012, 11 LEAs have had their participation
terminated, including: (1) five requested by the State Coordinator
(Arizona); (2) four as the result of missing weapons (Arizona, Georgia,
West Virginia, and Minnesota); and 3) two agencies disbanded (Arizona/
Ohio).
Ms. Duckworth. Currently, what are the training requirements that
law enforcement agencies must adhere to when receiving equipment under
the 1033 program? Who establishes those standards and who ensures that
the relevant police departments are actually trained according to
standard?
Mr. Estevez and Admiral Harnitchek. The states are responsible for
training on the use and sustainment of items. The Department of Defense
does not have expertise in state and local police force functions and
cannot assess how equipment is used in the mission of an individual law
enforcement agency (LEA).
In November 2014, the Defense Logistics Agency (DLA) amended the
Memoranda of Agreement with each of the States requiring the State
Coordinator and/or LEAs to certify that they have a training plan in
place that covers use of equipment and to provide training plan
documentation when making requests for Tactical Vehicles, Aircraft and/
or Weapons. Additionally, DLA has modified its compliance review
procedures to ensure verification that LEAs have and can provide copies
of the required training plans.
[all]