Militarizing Public Safety Responses Is a Strategic and Legal Misstep

Introduction

President Donald J. Trump deployed the National Guard to Washington, D.C. in August in response to what some feel is a dire crime problem in the nation’s urban areas. He continues to propose sending troops to a growing list of cities including Chicago, Baltimore, Memphis, Portland, and New Orleans— sometimes at the request of state governors, other times in opposition to local resistance. While preserving public safety is a core function of government (and as some cities experiencing persistent violence or disorder face pressure to act), many have criticized the Trump administration’s approach as illegal and wasteful. This unprecedented approach prompts serious questions about the role and legality of military force in patrolling American communities and is an ineffective tool for creating lasting solutions that address the root causes of crime and public disorder.

Legal Analysis

Born from colonial-era state militias, the National Guard has become a reserve force for the U.S. Army and Air Force. Although the Guard is a military force, their historical connection to the states creates a dual chain of command whereby governors can call up the Guard for “State Active Duty”—perhaps to respond to an emergency or disaster—while the president can invoke statutory authority to deploy the Guard for national security purposes.

The president’s statutory authority falls within two categories. Under Title 10 of the U.S. Code, the president can federalize the Guard for a variety of purposes: to fight in a war, address a declared national emergency, respond to a terrorist attack, or support a governor’s request for emergency assistance. Once federalized, the Guard operates under federal control as part of the U.S. armed forces. In this status, however, the Posse Comitatus Act prohibits them from engaging in civilian law enforcement activities unless a specific legal exception applies. One exception is the Insurrection Act, which authorizes the president to use the Guard to assist law enforcement to repel an insurrection, enforce federal law, or protect civil rights if a state refuses to act. Under this limited authority, the president may deploy troops into a state without the governor’s consent.

Title 32 is the other authority allowing the president to deploy the Guard, but in this circumstance, the troops remain under the governor’s command but can be sent on federal missions. The Posse Comitatus Act does not apply under this federally funded status, meaning the Guard can be used for law enforcement purposes. The Guard is typically deployed under Title 32 in areas that require law enforcement authority (e.g., border security); however, it has recently been used to deploy troops to “support public safety and law enforcement operations” in Memphis.

Constitutionally, the use of the National Guard for local issues over a governor’s objection raises federalism concerns under the Tenth Amendment. Historically, these deployments have been rare and controversial, reflecting ongoing tension between federal supremacy and state sovereignty. While some characterize the legality of such actions as uncertain, the Supreme Court has affirmed that the judiciary retains authority to assess the legality of military involvement in domestic affairs and has consistently recognized that matters like policing, prosecution, and general local crime control fall within the states’ reserved powers.

The courts will offer more clarification of the unprecedented use of the National Guard by the current administration. In June, the Trump administration deployed the National Guard (along with the U.S. Marines) to Los Angeles over Gov. Gavin Newsom’s objections. A federal district court judge later ruled that the move violated the Posse Comitatus Act, finding “there was no rebellion, nor was civilian law enforcement unable to respond to the protest.” Ultimately, the judge prohibited the use of the Guard for civilian law enforcement actions. Meanwhile, a federal court in Oregon recently blocked the Trump administration’s attempt to federalize and deploy Guard troops from California and Texas to Portland. In Illinois, a federal appellate court allowed the federalization of the Guard troops but barred their deployment to Chicago. The higher courts must further define the parameters of presidential and gubernatorial authority over the Guard.

Regardless of whether the administration can legally send troops into U.S. cities, it is increasingly evident that it should not do so. While it is reasonable for the government to turn additional resources toward reducing crime and preserving public safety, sending troops is simply not the most effective or lasting solution.

Crime Data

The recent deployment of the National Guard in U.S. cities is unique in that administrative rhetoric has focused on local crime and the perception that our communities are unsafe. Thus, understanding the role of the Guard in these unique circumstances requires understanding the situation on the ground.

Following the nationwide spike in homicides and motor vehicle thefts in the wake of the COVID-19 pandemic, crime rates in the United States have declined, with many cities recording historic lows. Violent crime in D.C. is at a 30-year low, gun violence in Chicago is even lower than pre-COVID-19 levels, and Memphis—considered America’s deadliest city—has reduced crime rates in all major categories.

While these trends are encouraging, the statistics need qualification and offer only a narrow snapshot of public safety. Federally collected data only reflects crimes known to law enforcement. A substantial share of crimes go unreported. According to the Bureau of Justice Statistics, approximately 50 percent of violent crimes and 70 percent of property crimes are never reported to police. There are also concerns about the integrity of the data itself. Investigations in cities like Washington, D.C. have found instances of law enforcement recoding offenses to improve public safety optics.

Complicating this picture is the requirement that local agencies record and report crime data through the National Incident-Based Reporting System (NIBRS). Unlike older systems that only reported the most serious offense, NIBRS (which agencies started using in 2021) records every offense tied to a criminal incident. While this can offer richer data, it can overstate crime volume because a single robbery could count as three separate offenses: robbery, theft, and assault. Almost 10 percent of incidents reported through NIBRS involve multiple offenses. Definitions of crimes also vary by state—for example, one may limit domestic violence to intimate partners only while another includes any cohabitant. These inconsistencies make universal crime categorization and cross-state comparison difficult.

Public Perception

Considering the limitations of crime data, the public perception of safety is an important factor; however, a wide gap often exists between how safe Americans feel versus how safe their communities actually are. Today, fear of crime is up across the United States even as cities report historically low crime rates. Two significant drivers of this fear are an increase in visible homelessness and high-profile events like mass shootings, assassinations, and random acts of violence. The National Guard has played an active role in trying to address the former.

More than 770,000 people experience homelessness on any given night in the United States, roughly one-third of whom sleep in places not intended for this purpose, such as “tents, train stations, sheds, or garages unfit for habitation.” Compared to housed individuals, those experiencing homelessness are more likely to have contact with police via arrests, citations, and jail time. In turn, these contacts reduce employment and housing options, dramatically increasing the risk of experiencing homelessness and embedding people in a difficult-to-break cycle. However, while limited evidence does show a correlation between homelessness and crime rates at the neighborhood level, higher rates of homelessness in a community do not necessarily pose a threat to public safety broadly.

First, the underlying causes of homeless people’s interactions with law enforcement are complex. Many struggle with substance use disorders (SUDs), have untreated mental health issues, and lack access to private spaces. Consequently, homelessness is associated with behaviors often labeled as “civil disorder”—things like public drug use and severe mental health episodes. So-called quality-of-life or survival offenses (e.g., camping, loitering) also make up a significant proportion of these interactions. Civil disorder and survival offenses are more visible among people who lack shelter and are disproportionately charged against them, potentially skewing our understanding of the relationship between homelessness and crime.

Next, individuals experiencing homelessness are far more likely to be victims of a crime—especially a violent crime—than people who are housed. This suggests that the presence of encampments or large numbers of unsheltered people may not increase risk to the community generally even if crime rates increase due to the higher concentration of victims. This, in turn, challenges the notion that removing homeless individuals from public places helps keep the general community safer.

Recent Impact

The National Guard’s deployment to Washington, D.C. was unique because the federal government has the authority to activate the Guard without local approval. The Guard’s training focuses on combat, disaster relief, and military support—not local policing. In fact, troops generally lack statutory authority to arrest and get little training in core police functions like criminal procedure and investigation.

The Trump administration activated the Guard and placed local policing under federal control in D.C. to “rescue our nation’s capital from crime, bloodshed, bedlam and squalor, and worse.” In practice, troops initially spent much of their time clearing homeless encampments and patrolling tourist areas. Their duties later expanded to include “beautification” tasks, such as removing graffiti, mulching grounds, and collecting litter. It remains unclear how this temporary deployment will translate into sustained crime reduction or contribute to long-term public safety strategies.

Effectiveness and Problems

Short-term deployments and high visibility might reduce some specific crimes while troops are on the ground; however, data on the Guard’s ability to reduce crime in D.C. has been mixed. While the administration reported that crime was down and arrests were up, experts have called some of that into question. Regardless, the deployment came at a steep cost—conservative estimates put it at a minimum of $1 million per day.

These early findings from D.C. are consistent with research on the impact of clearing homeless encampments in other cities. First, there is robust evidence that displacing people increases their overdose death risk and reduces the likelihood they will initiate SUD treatment. Furthermore, research indicates that it has short-lived and mixed effects on neighborhood crime.

Researchers examined crime rates in the areas surrounding homeless encampments in Denver between November 2019 and July 2023. They found few changes overall when comparing rates in clearly defined areas around the encampments both before and after sweeps. The changes that did occur were moderate in scale but worth discussing. During the first seven days following displacements, overall crime fell within a half-mile radius. While these reductions decreased over time, they persisted somewhat at 14 and 21 days post-displacement within a quarter mile of cleared encampments.

However, two highly relevant findings emerged when breaking these rates down by crime type. First, roughly half of the decreases in crime resulted from reductions in just two types: auto theft and public disorder (e.g., criminal mischief, loitering, prostitution, harassment, disturbing the peace). The changes were small overall; the largest, at 9.3 percent, amounted to about one fewer crime during the period than would be expected. Second, crimes against persons (e.g., assault, murder) increased at 14 days (7.4 percent) and 21 days (6.5 percent) post-displacement in the donut-shaped area between a quarter mile and a half-mile from cleared encampments. Research reveals that involuntary displacement disrupts community ties and brings new, unknown people to the area—both factors that can increase violence between unsheltered individuals seeking access to limited resources.

If the priority is to reduce public disorder, then clearing encampments may offer a short-term solution that modestly improves perceptions of safety; however, it is not likely to improve actual safety. Furthermore, deploying the National Guard to U.S. cities comes with a range of additional problems.

First, relying on military force for domestic policing raises civil liberties concerns. The presence of uniformed troops blurs the line between law enforcement and military operations, a boundary the United States has long worked to preserve. Troops are trained to neutralize threats and fight the enemy, not to prevent crime and safeguard constitutional rights. Research shows that police militarization increases the use of force and erodes public trust in the institutions meant to protect them. Further, as Los Angeles Police Chief Jim McDonnell previously warned, deploying federal forces “absent clear coordination presents a significant logistical and operational challenge for those of us charged with safeguarding this city.”

Additionally, despite massive spending on National Guard deployments, the federal government stripped nearly a billion dollars from local law enforcement and crime prevention programs this year. This bolsters an unfounded, short-term strategy while undercutting the proven tools communities rely on to sustain long-term public safety.

What Might Work Better

Instead of sending federal troops to police our cities, local, state, and federal governments should pursue lasting solutions that get to the root of the issues they want to address.

In some ways, the Trump administration’s efforts are simply the government trying harder to push policies we already know are ineffective. Indeed, most federal and state efforts to reduce unsheltered homelessness and public disorder focus on short-term solutions without addressing the underlying issues. For example, while temporary shelters do serve a purpose, they are not a feasible solution for many homeless individuals. People report that shelters can feel much less safe than encampments, and they come with a range of additional barriers including strict rules, substance use triggers, and the inability to accept pets or families. Involuntary treatment for mental health and/or SUD—another preferred strategy of this administration—is inconsistently effective at best and actively harmful in too many instances.

Yet there are real solutions to the issues driving poor public perception. While mental health and SUD do not cause homelessness, they do contribute toward the tendency to cycle between shelters, jails or prisons, and the street. Additionally, associated behaviors like public drug use and severe mental health episodes are often labeled as civil or public disorder and can make community residents feel unsafe. In response, lawmakers can improve perceptions of public safety by implementing the following long-term policy solutions:

• Increase access to long-term housing. To address the United States’ long-running housing affordability crisis, policy must increase access to long-term housing, especially for very low-income individuals. Reduced zoning restrictions facilitate diverse developments, including those with more affordable homes. Housing vouchers prevent emergency housing loss and are among the most effective tools for reducing the number of homeless individuals. Housing First and other permanent supportive housing programs—which provide housing without treatment or sobriety requirements, often alongside optional on-site mental health and/or SUD treatment services—improve housing stability and reduce recidivism without sacrificing recovery outcomes.

• Expand evidence-based mental health resources. The availability of mental health treatment in the United States is currently insufficient to meet the need, putting some people at risk of a mental health crisis. Lawmakers can improve access to needed care by broadening telehealth permissions for mental health treatment, continuing to fund evidence-based treatments via Medicaid, and ensuring that licensing requirements do not prevent providers from practicing. Additionally, evidence-based mental health response efforts can connect people in crisis to care rather than criminalizing them.

• Prioritize health-oriented approaches to substance use. The U.S. overdose and SUD crisis is largely driven by a dangerous illegal drug supply and lack of access to evidence-based SUD treatment and harm reduction programs. Instead of overregulating these interventions, lawmakers should relax regulations on gold-standard medications for opioid use disorder and allow community-based harm reduction programs—which reduce overdose and infectious disease transmission, prevent syringe litter, improve relationships between police and people who use drugs, and connect people who use drugs to treatment. This would reduce illicit substance use and its associated risks.

If reducing crime is the primary goal, then policymakers should prioritize crime-control strategies that work rather than default to tactics that offer short-term optics with little long-term impact. Some proven strategies include:

• Improving Case Clearance Rates. Most crimes in the United States go unsolved, which undermines deterrence and allows guilty individuals to avoid accountability. Cities should invest in expanding investigative capacity, improving forensic turnaround time, strengthening victim and witness support services, and funding specialized law enforcement training.

• Expanding Community Violence Intervention (CVI). CVI strategies have measurably reduced shootings by focusing on high-risk individuals and mediating conflicts before they escalate. Funding should prioritize evidence-informed, locally led models.

• Coordinating Federal Support with Local Leadership. When cities reach a crisis point, any federal interventions should be executed in collaboration with local officials. Moreover, rather than defaulting to National Guard deployments, support from federal agencies with specialized investigative and intelligence capabilities—such as the Federal Bureau of Investigation; the Drug Enforcement Administration; and the Bureau of Alcohol, Tobacco, Firearms, and Explosives—can offer more targeted assistance.

Conclusion

As the Trump administration continues to explore deploying the National Guard to U.S. cities under the guise of fighting urban crime, citizens and lawmakers face two important questions. First, is this approach even legal? The answer is likely no, unless the president invokes the Insurrection Act. Even then, the action may still be unlawful and will most certainly play out on a case-by-case basis throughout our nation’s courts.

Second, is this the right tool to solve the problem? The answer to this one is clearer, as deploying the National Guard to clear homeless encampments and patrol streets is socially and economically costly. Furthermore, although it might offer some short-term reductions in public disorder, it is not a long-term solution to crime or to the challenges underpinning negative perceptions of public safety. Fortunately, a number of evidence-based tools exist to provide those long-term solutions more cost-effectively and without the ethical questions.