Local law enforcement departments that the Justice Department has censured for civil rights violations are still able to apply for and get lethal weaponry, under a Pentagon program that distributes military surplus gear.
That lack of communication between two Cabinet agencies adds to questions about a program under review in the aftermath of the militarized police response to protesters in Ferguson, Missouri.
The Pentagon, which provides the free surplus military equipment, says its consultation with the Justice Department will be looked at as the government reviews how to prevent high-powered weaponry from flowing to the untrustworthy.
The Justice Department has opened civil rights investigations into the practices of some 20 police departments in the past five years, with the Ferguson force the latest. The investigations sometimes end in negotiated settlements known as consent decrees that mandate reforms. Yet being flagged as problematic by Washington does not bar a police department from participating in the program.
"Given the fact that they're under a consent decree it would make sense that the Department of Defense and Department of Justice coordinate on any such requests, (but) that is currently not the state," said Jim Bueermann, who heads the nonprofit Police Foundation.
At a Senate hearing this month, Alan Estevez, a Defense Department official who oversees the program, acknowledged that consultation with the Justice Department was "lacking" and he said that would be reviewed. Under questioning, he acknowledged the Pentagon does not take federal civil rights investigations into account in shipping out weapons, but that could change.
"We need to do a better job there," he said.
The Los Angeles Police Department received multiple shipments, totaling some 1,680 M16 assault rifles, under the Pentagon program, even while the department was under the watch of a federal monitor and had been accused of poor practices, government records show. The LAPD entered into a court-supervised agreement with the Justice Department in 2001 after investigators accused it of a pattern of excessive force, false arrests and unreasonable searches.
In Warren, Ohio, the police department in 2012 reached a settlement with the Justice Department to resolve an investigation into a pattern of excessive force and illegal searches. The department, which expects to have nearly 70 officers soon, recently ordered 30 M16 rifles as part of the program, Police Chief Eric Merkel said.
"We don't have an issue here with brandishing firearms and shooting people. That's not the reason the Department of Justice came in here to begin with," Merkel said. "I think the public reasonably expects their police department to be armed with a level that at least matches what they might be coming up against."
A 2001 Justice Department memorandum of agreement with the Washington, D.C., police found a pattern of excessive force over the prior decade. Several years later, when the department remained under the oversight of an independent monitor, it received 500 assault rifles from the military, a spokeswoman said.
The Pentagon program was authorized by Congress in 1990 to help fight drugs, with terrorism-fighting a more recent objective.
The Defense Department views the program, which has handed out more than $5.1 billion in military property since it started, primarily as a way to get rid of equipment it no longer needs. Equipment, much of it nontactical gear such as sleeping bags and filing cabinets, is provided first-come, first-served. Law enforcement officials say the military gear can save lives and keep officers safe in dangerous situations such as standoffs with heavily armed suspects and natural disasters.
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But images of police responding to Ferguson protesters with tear gas, armored vehicles and in riot gear raised new scrutiny about who was getting the equipment and whether law enforcement agencies were receiving proper training.
The Defense Logistics Agency, a Pentagon branch that reviews the applications, looks at the department's justification for its request and ensures that administrative requirements are met, DLA spokeswoman Michelle McCaskill said. The agency has denied 26 percent of requests during the current budget year, which ends this month. The agency says state coordinators play an important role in approving police departments from within their states.
"Bottom line is they just don't say `we want it' and they get it. There is a vetting process," McCaskill said.
It's hard to determine exactly how much tactical equipment was received by a single police department because the federal government releases only aggregate totals by county.
In Los Angeles, where the consent decree formally concluded last year, Deputy Chief Michael Downing said the department's Police Commission is informed of such acquisitions and updated on operations where such tactical equipment is used. The commission is an independent civilian oversight board whose watchdog role was emphasized under the consent decree.
The M16s received by the LAPD were converted from fully automatic, three-round burst weapons to single action AR-15s and provided to patrol officers, Downing said.
Downing, who heads the department's counterterrorism and special operations bureau, said such equipment was critical given the threats faced especially in major urban areas. He said he wouldn't limit police departments under consent decrees from receiving gear.
"I'd just ask the hard questions and make sure before the equipment is even utilized that they have well thought out protocols, training and policies in place," he said.
Some also say a consent decree should have no bearing on a department's ability to receive tactical gear, especially since the problems that led to the federal review may be unrelated to weapon use. The bigger question is how the equipment's used, when and under what circumstances, said Chuck Wexler, head of the Police Executive Research Forum.
But to Peter Bibring, a staff attorney for the ACLU of Southern California, it should not get to that point.
"One arm of the federal government is restricting the departments based on a history of constitutional violations, and the other arm is feeding them heavy weapons. That's absurd," he said.