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pdfIMPLEMENTATION OF RECOMMENDATIONS:
Federal Support for Local Law Enforcement Acquisition
October 1, 2015
In May 2015, a Federal inter‐agency Working Group, established by Executive Order 13688 and
co‐chaired by the Departments of Justice, Homeland Security, and Defense with members from
several other Federal agencies, delivered a report to the President entitled, “Recommendations
Pursuant to Executive Order 13688: Federal Support for Local Law Enforcement Equipment
Acquisition” (Report).1 The Report, among other things, established consistent Federal
Government‐wide controlled and prohibited equipment lists, harmonized procedures across
Federal agencies governing the provision of controlled equipment to law enforcement agencies
(LEAs), and established policy and training requirements for LEAs that acquire controlled
equipment from the Federal Government. As the title and content of the Report make clear, the
recommendations were designed to support LEAs in – not prevent them from –acquiring
necessary equipment and using that equipment appropriately to protect and serve their
communities and promote officer safety.
Since delivering the Report to the President, Federal agencies have taken key steps specified in
the Report to ensure that its recommendations will take effect at the beginning of Fiscal Year
2016.2 These include the formation of a Permanent Federal Interagency Law Enforcement
Equipment Working Group (Working Group)3 to support oversight and policy development
functions for controlled equipment programs (see below) and engagement with relevant
stakeholders through multiple meetings and the receipt of written comments to obtain feedback
on implementation approaches. The Working Group will continue this type of interaction
throughout FY16 and beyond. 4
This Implementation Update (Update) describes the progress made on significant issues and
policy decisions related to the Report. Federal agencies should ensure that applicants for
controlled equipment are aware of all the requirements contained in the Report as well as in this
Update. It should be noted that, for any inconsistencies, the directives described in this Update
supersede the Report. Both documents are publicly available on the website of DOJ’s Office of
Justice Programs, Bureau of Justice Assistance (www.bja.gov) as well as through other Federal
agency guidance and communication materials. Applicants with questions about the Report’s
recommendations should contact the Federal equipment program from which they are requesting
controlled or other equipment.
1
https://www.whitehouse.gov/sites/default/files/docs/le_equipment_wg_final_report_final.pdf
Report, p. 5.
3
Report, p. 32, Recommendation 5.1.
4
Report, pp. 5, 35.
2
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GENERAL ISSUES
TRANSITION PERIOD. The Working Group will implement a six‐month transition period to allow
law enforcement agencies to perform their duties to the fullest extent while working to comply
with new training and policy requirements. The transition period provides LEAs the opportunity
to examine their policies and training programs and make adjustments so they are in compliance
with the Report’s recommendations. During the transition period, LEAs will be permitted to
apply for and acquire controlled equipment by certifying that they will be in compliance with the
appropriate policies, training, and other requirements by April 1, 2016. LEAs will not be able to
use any controlled equipment they receive during this six‐month period, except for training
purposes, until they have certified that the appropriate policies and training are in place.
TRIBAL. The Report stated that “[b]efore the recommendations are implemented with respect
to Tribal LEAs, the Working Group will ensure that the specific requirements triggered by
potential changes to Federal programs affecting sovereign tribes, including appropriate Tribal
consultation, are met.”5 The Working Group has initiated the process of Tribal consultation and
engagement in cooperation with DOJ’s Office of Tribal Justice. This process has included
contacting key tribes to solicit their initial input, developing a framing paper, and arranging to
participate in Tribal convenings, including the conferences of the National Congress of American
Indians and the International Association of Chiefs of Police. The Working Group also will solicit
written comments from Tribal Governments and Law Enforcement and, after review, will make
appropriate changes to the Report’s recommendations.
EQUIPMENT LISTS
RECALL OF PROHIBITED EQUIPMENT.6 Equipment in LEA inventories acquired through Federal
equipment programs that are now on the Prohibited Equipment List will be recalled during the
first six months of Fiscal Year 2016. This applies only to prohibited equipment acquired by LEAs
through the Department of Defense, which is the only Federal agency that has the authority to
recall. DOD will provide guidance and assistance to LEAs, especially on how to return large
prohibited equipment. Those LEAs returning tracked armored vehicles will receive priority for
equivalent wheeled vehicles as long as the relevant controlled equipment requirements are met.
EQUIPMENT DEFINITIONS.7 In general, if an LEA has a question as to whether equipment is
prohibited or controlled, it should contact the Federal agency to which it is applying. For DOD,
equipment that is either controlled or prohibited will be identified by the National Stock Number
(NSN). For DHS, equipment that is either controlled or prohibited will be identified on the
Approved Equipment List (AEL).
5
Report, p. 10, n. 13.
Report, p. 13, n. 22.
7
Report, p. 12, n. 20.
6
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MODIFICATIONS. LEAs may not modify equipment acquired using Federal resources that would
cause it to be considered prohibited equipment, or, absent specific approval from the Federal
agency and adherence to all relevant requirements, controlled equipment.
POLICIES, TRAINING, AND PROTOCOLS FOR CONTROLLED EQUIPMENT
MODEL POLICIES AND DEFINITION OF POLICY GUIDELINES. 8 DOJ has provided funding to a
group led by the International Association of Chiefs of Police (IACP), in partnership with the
National Tactical Officers Association and the Commission on Accreditation for Law Enforcement
Agencies, to provide more detailed definitions for the General Policing and Specific Controlled
Equipment Standards and to develop model policies. The IACP‐led group has consulted a number
of subject matter experts during this process and has produced the detailed definitions, which
the Working Group has accepted.9 Each Federal agency‐member of the Working Group will
ensure that applicants are made aware of the detailed definitions, as well as the other
recommendations in the Report and Update, through normal agency guidance and processes.
The model policies will be available at the end of Calendar Year 2015.
RESPONSIBILITY OF ACQUIRING LEA. LEAs are responsible for ensuring that whoever uses
controlled equipment acquired by the LEA through Federal resources adheres to the LEA’s
relevant policies or the regional sharing agreement, regardless of whether the user is employed
by that LEA.
ACQUISITION PROCESS FOR CONTROLLED EQUIPMENT
CIVILIAN GOVERNING BODY REVIEW.10 The Working Group has amended this requirement for
LEAs where the chief executive is popularly elected (e.g., Sheriffs). Such LEAs must provide
official written notice to – but are not required to obtain approval from – their civilian governing
body at least 30 days in advance of any application to acquire controlled equipment from the
Federal Government. This change takes into account the fact that popularly‐elected heads of
LEAs are directly accountable to their community‐constituency.
“REASONABLE OPPORTUNITY” FOR CIVILIAN GOVERNING BODY REVIEW.11 A reasonable
opportunity for a civilian governing body to review an LEA’s application for controlled equipment
is 30 days. Thus, an LEA in its application must certify that (1) the civilian governing body explicitly
approved of or concurred in the LEA’s acquisition of the controlled equipment listed in the
application, or (2) it provided formal written notice to the civilian governing body at least 30 days
prior to the submission of the application of its intent to acquire the specified controlled
equipment and has not received disapproval or non‐concurrence.
8
Report, p. 20.
Appendix.
10
Report, p. 28, Recommendation 3.1.
11
Id.
9
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CAMPUS LAW ENFORCEMENT AT INSTITUTIONS OF HIGHER EDUCATION (IHEs). The Working
Group has clarified the requirements for Campus LEAs operating in Institutions of Higher
Learning. First, the Campus LEA’s civilian governing body – which is the IHE’s Board of Governors
or an equivalent body – must explicitly approve the acquisition of controlled equipment, and
such approval must be evidenced in the Campus LEA’s application to the Federal equipment
program. In other words, silence or inaction by the Campus LEA’s civilian governing body does
not constitute evidence of approval, and the “reasonable opportunity to review” standard does
not apply to Campus LEA applications. Second, Campus LEAs must certify that their policies and
training include specific provisions on using equipment in a way that does not chill speech, is not
disruptive to the educational environment, and does not foster a hostile climate among
students. Third, Campus LEAs must remove the militaristic appearance of any controlled
equipment vehicles they acquire (if allowed by the Federal program) by, for example, painting
them a different color. The U.S. Department will advise the Permanent Working Group about
the specific criteria appropriate for the detailed justification that apply to Campus LEAs.
QUARTERLY SAMPLE AND REVIEW OF APPLICATION STANDARDS. In an ongoing effort toward
uniformity of the standards and processes to assess the adequacy of each application, including
the detailed justification, the Permanent Working Group will meet quarterly to review a sample
of applications from each Federal agency to determine the factors and the weight given to each
element that were considered in approving or disapproving an application. The continued
engagement and inter‐agency coordination will lead toward a more dependable, standardized
process throughout the Federal equipment programs.12
EFFECT OF FINDINGS OF CIVIL RIGHTS VIOLATIONS. As the Report indicates, LEAs are required
to state in their application to acquire controlled equipment “whether they have been found to
be in violation of a Federal civil rights statute or programmatic term during the past three (3)
years and, if so, whether any disposition was reached or corrective actions were
taken.”13 Accordingly, LEAs must disclose any finding by a Federal court or a Federal government
agency, including an agency’s Office of Civil Rights or the Civil Rights Division of the U.S.
Department of Justice, that the LEA has violated a Federal civil rights law with respect to its
policing functions. LEAs must also disclose any admissions of liability they have made regarding
violations of Federal civil rights law in their policing functions. Federal agencies should obtain as
much information as possible about the violation, which, along with any effort the LEA has taken
to cure the violation, will be considered in determining whether the LEA should acquire
controlled equipment.
CAMOUFLAGE UNIFORMS.14 Federal agencies must ensure that LEA applicants are aware that
Federally‐acquired camouflage‐patterned uniforms are authorized to be worn only in
environments where they actually camouflage the wearer, as opposed to, for example, cities,
towns, and other urban or populous areas. Implementing this requirement can be accomplished
12
Report, p. 27.
Report, p. 26.
14
Report, p. 13.
13
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through changes to Memoranda of Understanding/Agreement, Federal agency guidance, or the
application form.
TRANSFER / SALE OF CONTROLLED EQUIPMENT
TRANSFER / SALE OF CONTROLLED EQUIPMENT TO NON‐LEAs. Recommendation 4.2 limits the
type of equipment that LEAs can transfer or sell to non‐LEAs to fixed‐wing aircrafts, rotary‐wing
aircrafts, and command and control vehicles.15 The Working Group has added a fourth category
of vehicles to this list – Tactical Vehicles, such as HMMWVs, which are not armored vehicles.
Consistent with the Report, any equipment in these four categories must be stripped of law
enforcement insignias and markings prior to transferring or selling the equipment; sensitive or
potentially dangerous components must also be removed. The LEA also must notify and receive
approval for the sale from the Federal agency through which it acquired the controlled
equipment.
OVERSIGHT, COMPLIANCE, AND IMPLEMENTATION
PERMANENT WORKING GROUP.16 As stated above, a Permanent Working Group has been
established and has met regularly since the Report was delivered to the President to plan for the
implementation of the recommendations. The Working Group has held three meetings with law
enforcement stakeholders and two meetings with civil rights and civil liberties groups to discuss
their implementation questions and concerns. Additionally, Federal agencies have conducted
briefings for their respective State Coordinators and Administrative Agencies who are key
partners in implementing the recommendations.
Beginning in October 2015, the Working Group will meet quarterly to review implementation
efforts, address concerns and questions from applicants, provide and review information for the
interagency database (see below), and continue to harmonize the standards for Federal
equipment programs. Additionally, the Working Group is planning to hold a July 2016 annual
review of the implementation of the Report’s recommendations, including an assessment of
whether equipment categories should be added or deleted from the prohibited or controlled
equipment lists. This review will include engagements with stakeholders from the law
enforcement, civil rights and civil liberties, and other interested communities.
DATABASE.17 The Working Group has established the criteria for an interagency database that
will be managed by the Bureau of Justice Assistance at DOJ and will be staffed by a dedicated
contractor. The Database will include information on applicant‐LEAs; the controlled equipment
they acquired; whether any controlled equipment was transferred, sold, or otherwise disposed;
and whether the LEA has been found to be in violation of any programmatic rule or statute,
including civil rights violations, that would raise concerns of suitability for acquiring controlled
15
Report, p. 31.
Report, pp. 33‐34, Recommendation 5.1.
17
Report, p. 33.
16
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equipment. This information will be collected quarterly in advance of the regular Working Group
meetings.
COORDINATION OF OFFICES OF CIVIL RIGHTS AND RELEVANT MOUs.18 In October 2015, the
Federal Coordination and Compliance Section (FCS) of DOJ’s Civil Rights Division will begin
meeting with Federal Offices of Civil Rights (OCRs) to begin planning ongoing training and
coordination consistent with the recommendations of the report. FCS is charged under Executive
Order 12250 with coordinating the enforcement of the nondiscrimination provisions in various
civil rights laws, including Title VI of the Civil Rights Act of 1964. FCS will train OCRs on how to
respond to complaints received from the community, initiate compliance reviews, and request
relevant data. FCS also will work with agency OCRs on coordinating compliance reviews to avoid
duplicating efforts and ensuring that a large representative sample of LEAs are reviewed.
* * * * *
18
Report, p. 34.
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File Type | application/pdf |
File Title | Microsoft Word - LEEWG Implementation Plan DRAFT v5 |
Author | chunge |
File Modified | 2015-10-01 |
File Created | 2015-10-01 |