ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF EAST PALO ALTO
ADDING A NEW CHAPTER 9.25 TO THE EAST PALO ALTO MUNICIPAL
CODE REGARDING POLICE ACQUISITION AND USE OF
MILITARY EQUIPMENT
THE CITY COUNCIL OF THE CITY OF EAST PALO ALTO DOES ORDAIN AS FOLLOWS:
SECTION 1. CHAPTER 9.25 ADDED.
A new chapter, Chapter 9.25, is added to the East Palo Alto Municipal Code to read as follows:
Chapter 9.25
MILITARY EQUIPMENT USE
Sections:
9.25.010 Title
9.25.020 Definitions
9.25.030 Required Military Equipment Use Policy
9.25.040 Use In Exigent Circumstances
9.25.050 Reports on the Use of Controlled Equipment
9.25.010 Title
This Ordinance may be known as the Military Equipment Use Ordinance.
9.25.020 Definitions
“Department” means the East Palo Alto Police Department and any division, section, bureau, employee, volunteer and/or contractor.
"Exigent Circumstances" means a law enforcement agency's good faith belief that an emergency involving the danger of, or imminent threat of death or serious physical injury to any person is occurring, has occurred, or is about to occur. “Military Equipment” includes all of the following, as set forth in California Government Code Section 7070:
1. Unmanned, remotely piloted, powered aerial or ground vehicles.
2. Mine-resistant ambush-protected (MRAP) vehicles or armored personnel carriers, but does not include police versions of standard consumer vehicles.
3. High mobility multipurpose wheeled vehicles (HMMWV), commonly referred to as Humvees, two and one-half-ton trucks, five-ton trucks, or wheeled vehicles that have a breaching or entry apparatus attached; however, unarmored all-terrain vehicles (ATVs) and motorized dirt bikes are specifically excluded from this definition.
4. Tracked armored vehicles that provide ballistic protection to their occupants and utilize a tracked system instead of wheels for forward motion.
5. Command and control vehicles that are either built or modified to facilitate the operational control and direction of public safety units.
6. Weaponized aircraft, vessels, or vehicles of any kind.
7. Battering rams, slugs, and breaching apparatuses that are explosive in nature.
Items designed to remove a lock, such as bolt cutters, or a handheld ram designed to be operated by one person, are specifically excluded from this definition.
8. Firearms of .50 caliber or greater. Standard issue shotguns are specifically excluded from this definition.
9. Ammunition of .50 caliber or greater. Standard issue shotgun ammunition is specifically excluded from this definition.
10. Specialized firearms and ammunition of less than .50 caliber, including assault weapons as defined in Sections 30510 and 30515 of the California Penal Code, with the exception of standard issue service weapons and ammunition of less than .50 caliber issued to officers, agents, or employees of a law enforcement agency or a state agency.
11. Any firearm or firearm accessory designed to launch explosive projectiles.
12. Flashbang grenades and explosive breaching tools, tear gas, and pepper balls, excluding standard, service-issued handheld pepper spray.
13. Taser Shockwave, microwave weapons, water cannons, and Long Range Acoustic Devices (LRAD).
14. Projectile launch platforms and their associated munitions: 40mm projectile launchers, bean bag, rubber bullet, and specialty impact munition (SIM) weapons.
15. Any other equipment as determined by a governing body or a state agency to require additional oversight.
16. Notwithstanding subsections (1) through (15), "Military Equipment" does not include general equipment not designated as prohibited or controlled by the federal Defense Logistics Agency.
“Military Equipment Use Policy” means a public written document that includes, at a minimum, all of the following:
1. A description of each type of Military Equipment, the quantity sought, its capabilities, expected lifespan, and product descriptions from the manufacturer of the Military Equipment.
2. The purposes and authorized uses for which the Department proposes to use each type of Military Equipment.
3. The fiscal impact of each type of Military Equipment, including the initial costs of obtaining the equipment and estimated annual costs of maintaining the equipment.
4. The legal and procedural rules that govern each authorized use.
5. The training, including any course required by the Commission on Peace Officer Standards and Training, that must be completed before any officer, agent, or employee of the Department is allowed to use each specific type of Military Equipment to ensure the full protection of the public welfare, safety, civil rights, and civil liberties and full adherence to the use policy.
6. The mechanisms to ensure compliance with the Military Equipment use policy, including which independent persons or entities have oversight authority, and any legally enforceable sanctions for violations of the policy.
7. The procedures by which members of the public may register complaints or concerns or submit questions about the use of each specific type of Military Equipment, and how the Department will ensure that each complaint, concern, or question receives a response in a timely manner.
"Type" means each item that shares the same manufacturer model number.
9.25.030 Required Military Equipment Use Policy
A. The Department shall obtain approval from Council, by resolution, of a Military Equipment Use Policy (MEUP) at a regular meeting of the Council held pursuant to the Ralph M. Brown Act (Government Code Section 54950 et seq.) prior to engaging in any of the following:
1. Requesting Military Equipment made available pursuant to Section 2576a of Title 10 of the United States Code.
2. Seeking funds for Military Equipment, including, but not limited to, applying for a grant, soliciting or accepting private, local, state, or federal funds, in-kind donations, or other donations or transfers.
3. Acquiring Military Equipment either permanently or temporarily, including by borrowing or leasing.
4. Collaborating with another law enforcement agency in the deployment or other use of Military Equipment within the territorial jurisdiction of the City.
5. Using any new or existing Military Equipment for a purpose, in a manner, or by a person not previously approved by the Council pursuant to this chapter.
6. Soliciting or responding to a proposal for, or entering into an agreement with, any other person or entity to seek funds for, apply to receive, acquire, use, or collaborate in the use of, Military Equipment.
7. Acquiring Military Equipment through any means not covered by this section.
B. The City Council shall only approve a Military Equipment Use Policy if it determines all of the following:
1. The Military Equipment is necessary because there is no reasonable alternative that can achieve the same objective of officer and civilian safety.
2. The proposed policy will safeguard the public's welfare, safety, civil rights, and civil liberties.
3. If purchasing the equipment, the equipment is reasonably cost effective compared to available alternatives that can achieve the same objective of officer and civilian safety.
4. Prior Military Equipment use complied with the Military Equipment Use Policy in effect at the time, or if prior uses did not comply with the relevant policy, corrective action has been taken to remedy nonconforming uses and ensure future compliance.
C. Any Military Equipment Use Policy shall be publicly available on the website of the Department for as long as the Military Equipment is available for use.
D. The City Council shall review this chapter at least annually at a regular meeting.
9.25.040 Use in Exigent Circumstances
A. Notwithstanding the provisions of this Chapter, the Department may acquire, borrow and/or use Military Equipment in Exigent Circumstances without following the requirements of this chapter.
B. If the Department acquires, borrows, and/or uses Military Equipment in Exigent Circumstances, in accordance with this section, it must take all of the following actions:
1. Provide written notice of acquisition or use to the Council within 30 days following the commencement of the Exigent Circumstance, unless such information is confidential or privileged under local, state or federal law.
2. If it is anticipated use will continue beyond the Exigent Circumstance, submit a proposed amended Military Equipment Use Policy to the Council within 90 days following the borrowing, acquisition and/or use, and receive Council approval.
3. Include the Military Equipment in the Department’s next annual Military Equipment Report.
9.25.050 Reports on the Use of Military Equipment.
A. The Department shall submit to Council an annual Military Equipment Report for each approved type of Military Equipment within one year of approval, and annually thereafter for as long as the Military Equipment is available for use.
B. The Department shall make each annual Military Equipment Report publicly available on its website for as long as the Military Equipment is available for use.
C. The annual Military Equipment Report shall, at a minimum, include the following information for the immediately preceding calendar year for each type of Military Equipment:
1. A summary of how the Military Equipment was used and the purpose of its use.
2. A summary of any complaints or concerns received concerning the Military Equipment.
3. The results of any internal audits, any information about violations of the Military Equipment Use Policy, and any actions taken in response.
4. The total annual cost for each type of Military Equipment, including acquisition, personnel, training, transportation, maintenance, storage, upgrade, and other ongoing costs, and from what source funds will be provided for the Military Equipment in the calendar year following submission of the annual Military Equipment Report.
5. The quantity possessed for each type of Military Equipment.
6. If the Department intends to acquire additional Military Equipment in the next year, the quantity sought for each type of Military Equipment.
D. Within 30 days of submitting and publicly releasing an annual Military Equipment Report, the Department shall hold at least one well-publicized and conveniently located community engagement meeting, at which the general public may discuss and ask questions regarding the annual Military Equipment report and the Department's funding, acquisition, or use of Military Equipment.
E. The City Council shall determine, based on the annual Military Equipment Report, whether each type of Military Equipment identified in the report has complied with the standards for approval set forth in this chapter and the Military Equipment Use Policy. If the Council determines a type of Military Equipment identified in the annual Military Equipment Report has not complied with the standards for approval, the Council shall either disapprove a renewal of the authorization for that type of Military Equipment or require modifications to the Military Equipment Use Policy in a manner that will resolve the lack of compliance.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT
This Ordinance is not subject to CEQA because it is not a “project” which would have a direct physical change or a reasonably foreseeable indirect physical change on the environment pursuant to California Environmental Quality Act ("CEQA") Guidelines section 15378. Even if it were a project subject to CEQA review, this project would be exempt from CEQA Guideline Section 15378 (regulatory actions), Section 15061(b)(3) (no significant environmental impact), and Section 15183 (actions consistent with the general plan and zoning). The Council therefore directs that the Planning Division may file a Notice of Exemption with the San Mateo County Clerk.
SECTION 3. SEVERABILITY.
If any section, subsection, sentence, clause, phrase, or word of this Ordinance is for any reason held to be invalid by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed and adopted this Ordinance, and each and all provisions hereof, irrespective of the fact that one or more provisions may be declared invalid.
SECTION 4. EFFECTIVE DATE.
This Ordinance shall take effect and be in full force and effect thirty (30) days from and after the date of its adoption.
SECTION 5. PUBLICATION.
The City Clerk is hereby directed to cause publication of this Ordinance as required by Government Code Section 36933.
This Ordinance was introduced at the______________ meeting of the City Council of the City of East Palo Alto.
PASSED AND ADOPTED this _____ day of ______________, 2022 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
______________________________
Ruben Abrica, Mayor
ATTEST: APPROVED AS TO FORM:
___________________________ _______________________________ James Colin, Acting City Clerk Valerie J. Armento, Interim City Attorney