Business Agenda Item 5a
STAFF REPORT
City Council Business Agenda Item
DATE: May 2, 2022
TO: Honorable Mayor and Council Members
FROM: Casey Day, Chief of Police; and Ryan Plotz, City Attorney THROUGH: Merritt Perry, City Manager
SUBJECT: Military Equipment Use Policy
STAFF RECOMMENDATION:
Staff recommends that the Council hold a public hearing and conduct a second reading and adopt Ordinance No. 2022-753.
EXECUTIVE SUMMARY:
On September 30, 2021, Governor Newsom signed into law Assembly Bill 481 (“AB 481”), which among other things, adds Chapter 12.8 to Division 7 of Title 1 to the California Government Code providing certain requirements for the funding, acquisition, and use of military equipment, as that term is defined in AB 481, by the Fortuna Police Department.
Principally, AB 481 requires the City to adopt a written policy governing the use and acquisition of military equipment (defined below). The policy must address each of the following items:
(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 law enforcement agency or the state agency 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 law enforcement agency or the state agency is allowed to use each specific type of military equipment to ensure the full protection of the public's welfare, safety, civil rights, and civil liberties and full adherence to the military equipment use policy.
Business Agenda Item 5a
(6) The mechanisms to ensure compliance with the military equipment use policy, including which independent persons or entities have oversight authority, and, if applicable, what legally enforceable sanctions are put in place 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 law enforcement agency will ensure that each complaint, concern, or question receives a response in a timely manner.
AB 481 outlines a multi-step process for the Council to formally adopt a military equipment use policy. The principle steps (and anticipated completion dates) are as follows:
(1) Submit a proposed Military Equipment Use Policy to the City Council – March 7, 2022, Regular Meeting.
a. COMPLETED on March 7, 2022, via Resolution No. 2022-07. (2) Following submission of Policy to the City Council, the proposed Policy must be made publicly available on the City’s website for a 30-day period – March 8, 2022, to April 15, 2022.
a. COMPLETED
(3) Introduction and first reading of Ordinance approving Policy at a public hearing/regular meeting – April 18, 2022.
(4) Second reading and adoption of Ordinance approving Policy at continued public hearing/regular – May 2, 2022.
The purpose of this Agenda Item is to complete step “3”, above. Notice of this public hearing was published in the manner required by law.
DISCUSSION:
Assembly Bill 481 requires local law enforcement agencies to obtain approval of their respective governing body (here, the City Council), by adoption of a military equipment use policy, as specified, by ordinance at a regular meeting held pursuant to the Ralph M. Brown Act, prior to taking certain actions relating to the funding, acquisition, or use of military equipment. “Military equipment” is defined to mean:
(1) Unmanned, remotely piloted, powered aerial or ground vehicles. (2) Mine-resistant ambush-protected (MRAP) vehicles or armored personnel carriers.
However, police versions of standard consumer vehicles are specifically excluded from this subdivision.
(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 Business Agenda Item 5a
have a breaching or entry apparatus attached. However, unarmored all-terrain vehicles (ATVs) and motorized dirt bikes are specifically excluded from this subdivision.
(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.
However, 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 subdivision.
(8) Firearms of .50 caliber or greater. However, standard issue shotguns are specifically excluded from this subdivision.
(9) Ammunition of .50 caliber or greater. However, standard issue shotgun ammunition is specifically excluded from this subdivision.
(10) Specialized firearms and ammunition of less than .50 caliber, including assault weapons as defined in Sections 30510 and 30515 of the Penal Code, with the exception of standard issue service weapons and ammunition of less than .50 caliber that are issued to officers, agents, or employees of a law enforcement agency or a state agency.
(11) Any firearm or firearm accessory that is 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 the Long Range Acoustic Device (LRAD).
(14) The following 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.
In order for the Fortuna Police Department to continue the use of any military equipment that was acquired prior to January 1, 2022, the City Council must begin the approval process (explained above) no later than May 1, 2022. Thereafter, the required policy must be adopted and in place prior to engaging in the following activities:
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(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 governing body. (5) Using any new or existing military equipment for a purpose, in a manner, or by a person not previously approved by the governing body.
(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 provided by AB 481.
The military equipment use policy must be a publicly released, written document governing the use of military equipment by the Police Department that addresses, at a at a minimum the items described in the Executive Summary, above. The proposed Policy addresses each of the requirements.
The City Council must make certain determinations before it approves a military equipment use policy per Government Code 7071(d)(1). Those findings are as follows: (i) the military equipment is necessary because there is no reasonable alternative that can achieve the same objective of officer and civilian safety; (ii) the proposed military equipment use policy will safeguard the public's welfare, safety, civil rights, and civil liberties; (iii) 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; (iv) prior military equipment use complied with the military equipment use policy that was in effect at the time, or if prior uses did not comply with the accompanying military equipment use policy, corrective action has been taken to remedy nonconforming uses and ensure future compliance.
Staff recommends that Council find that each of the above determinations are met with respect to the military equipment use policy.
Following adoption of the initial Policy, the Council will annually review a report submitted by the Police Chief that contains:
(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.
Business Agenda Item 5a
(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 law enforcement agency intends to acquire additional military equipment in the next year, the quantity sought for each type of military equipment.
Additionally, Fortuna Police Department must also, within 30 days of submitting and publicly releasing an annual military equipment report, 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 Police Department’s funding, acquisition, or use of military equipment.
FINANCIAL IMPACT:
No fiscal impact.
RECOMMENDED COUNCIL ACTION:
1. Open the Public Hearing
2. Receive staff presentation and review Council questions with staff
3. Open Public Comment
4. Close Public Comment
5. Motion to conduct second reading and adopt Ordinance 2022-753, by title only. Roll Call vote.
ATTACHMENTS:
Ordinance No. 2022-753, An Ordinance Of The City Council Of The City Of Fortuna, California Amending Title 2 – Administration And Personnel Of The Fortuna Municipal Code By Adding Section 2.10.150 – Military Equipment, Approving A Military Use Policy, And Determining The Ordinance To Be Exempt From CEQA