8 6
9 DATE: April 21, 2025
TO: Mayor and Members of the City Council
VIA: Stefan Chatwin, City Manager
FROM: Cory Call, Police Chief
DEPARTMENT: Police
SUBJECT: AB 481 MILITARY EQUIPMENT USE ANNUAL REPORT FOR 2024
RECOMMENDATION
It is recommended that the City Council receive and review the Foster City Police Department's 2024 Military Equipment Use Annual Report (Attachment 2) and adopt a resolution renewing Ordinance No. 647 regarding Police Department acquisition and use of military equipment pursuant to Assembly Bill 481 and Government Code Section 7070 et seq. and approving the Military Equipment Use Policy ("Policy 709").
EXECUTIVE SUMMARY
California Assembly Bill 481 (AB 481) and the California Government Code requires a law enforcement agency that receives approval for a military equipment use policy pursuant to Gov. Code Section 7071 to submit to the governing body an annual military equipment report for each type of military equipment approved by the governing body within one year of approval, and annually thereafter for as long as the military equipment is available for use.
In addition, Gov. Code Section 7071(e)(1) requires that the legislative body review the ordinance that adopted Policy 709 and vote on whether to renew it annually.
BACKGROUND
8 6
9 On September 30, 2021, AB 481 was signed into law. Subsequently, Cal. Gov. Code Sections 7070, 7071, and 7072 were adopted to codify the requirements set forth in AB 481.
The text of AB 481 and the above-mentioned Cal. Gov. Codes are attached to this Staff Report for reference.
AB 481 requires a law enforcement agency to obtain the approval of its governing body, through the adoption of a Military Equipment Use Policy, by ordinance at a regular meeting held pursuant to specified open meeting laws, prior to taking certain actions relating to the funding, acquisition, or use of military equipment, as defined. The bill allows the governing body to approve the funding, acquisition, or use of military equipment within its jurisdiction only if it determines that the military equipment meets specified standards. On April 18, 2022, the City Council reviewed and voted to approve Policy 709 by Ordinance. A second reading was held on May 2, 2022, and Ordinance No. 647 was adopted. AB 481 also requires the governing body to annually review the ordinance and to either approve or disapprove a renewal of the authorization for a type of military equipment or amend the military equipment use policy if it determines, based on a Military Equipment Annual Report prepared by the law enforcement agency, that the military equipment does not comply with the above-described standards for approval.
Cal. Gov. Code Section 7070 provides a list of types of equipment that are to be considered "Military Equipment" for purposes of compliance with AB 481 and the Government Code.
While the Foster City Police Department does not possess any tactical equipment that it has obtained from the military, nor does it possess any equipment that was designed for military use, it does possess some types of equipment that are listed in Gov. Code Section 7070.
Additionally, the Foster City Police Department participates in a regional Special Weapons and Tactics (SWAT) team, which possesses and utilizes additional types of equipment that qualify as "Military Equipment" according to the Government Code.
ANALYSIS
Cal. Gov. Code Section 7070(d) defines a Military Equipment Use Policy as:
‘Military equipment use policy' means a publicly released, written document governing the use of military equipment by a law enforcement agency or a state agency that addresses, 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 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 8 6
9 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.
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. For a law enforcement agency, 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.
Cal. Gov. Code Section 7071(b) requires that the Police Department post to its website the Military Equipment Use Policy that it plans to propose to the City Council at least 30 days prior to any public hearing concerning the policy. The Police Department complied with this requirement by posting the policy being proposed tonight, to its public website, on March 14, 2025.
Cal. Gov. Code Section 7071(d) stipulates that the City Council shall only approve the 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 military equipment use 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 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.
Cal. Gov. Code Section 7070(e) establishes that the Police Department is responsible for delivering to the City Council an Annual Military Equipment Report, which the City Council can utilize to confirm compliance with the Policy 709 and the accompanying Military Equipment Use Ordinance.
The Foster City Police Department has not obtained any equipment from military 8 6
9 surplus programs, known as 1033 Programs, it does not possess any tactical equipment that it has obtained from the military, and it does not possess any equipment that was designed for military use.
That said, Cal. Gov. Code Section 7070 provides a list of sixteen (16) types of equipment that are to be considered "Military Equipment" for the purpose of compliance with AB 481 and the associated Government Codes, and the Police Department does possess and use some of these listed types of equipment. Of the sixteen (16) types of equipment specified, the Police Department possesses only three (3) types. The list of the sixteen (16) types of Military Equipment per Cal. Gov.
Code Section 7070 is included below. Equipment types that the Police Department possesses are noted in bold type.
1. Unmanned, remotely piloted, powered aerial or ground vehicles. a. UAS/Drones may be utilized to enhance the Department's mission of protecting lives and property when other means and resources are not available or are less effective. Uses may include but are not limited to:
search and rescue; suspect apprehension; crime scene documentation; tactical operations; scene security; hazard monitoring, identification and mitigation; response to emergency calls; crisis communications; legally authorized surveillance. This equipment is necessary because there is no reasonable alternative that can achieve the same objective of officer and civilian safety.
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 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. a. The Police Department possesses a Mobile Command Vehicle (MCV).
This vehicle is not armored or weaponized in any way and is used to facilitate unified command during critical and planned incidents. This equipment is necessary because there is no reasonable alternative that can achieve the same objective of officer and civilian safety.
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 8 6
9 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. a.The Police Department possesses 18 semi-automatic rifles. 14 of these rifles are standard-issue duty weapons that are for all Peace Officers, which actually exempts them from this policy per Cal.
Gov. Code Section 7070{c){10). We have nonetheless included them in this policy in the interests of full transparency. The remaining bolt action rifle was issued to our SWAT Sniper. Officers may deploy the patrol rifle in any circumstance where the officer can articulate a reasonable expectation that the rifle may be needed. Examples of some general guidelines for deploying the patrol rifle may include but are not limited to: Situations where the officer reasonably anticipates an armed encounter; When an officer is faced with a situation that may require accurate and effective fire at long range; Situations where an officer reasonably expects the need to meet or exceed a suspect's firepower; When an officer reasonably believes that there may be a need to fire on a barricaded person or a person with a hostage; When an officer reasonably believes that a suspect may be wearing body armor; When authorized or requested by a supervisor. This equipment is necessary because there is no reasonable alternative that can achieve the same objective of officer and civilian safety.
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.
a.The Police Department possesses twelve (12) 40mm less lethal projectile launchers. The 40mm Less Lethal Launchers and Kinetic Energy Munitions are intended for use as a less lethal use of force option. This equipment is necessary because there is no reasonable alternative that can achieve the same objective of officer and civilian safety.
15. Any other equipment as determined by a governing body or a state agency to require additional oversight.
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9 16. Notwithstanding paragraphs (1) through (15), "Military Equipment" does not include general equipment not designated as prohibited or controlled by the federal Defense Logistics Agency.
Additionally, the Foster City Police Department participates in a regional SWAT team (NCR SWAT), which possesses and utilizes additional types of equipment that qualify as "Military Equipment" according to Cal. Gov. Code Section 7070. While the equipment possessed by NCR SWAT is not purchased, owned, or maintained by the Police Department, it could be used in the City of Foster City if NCR SWAT is deployed, and is therefore included in the proposed Military Equipment Use Policy. It is important to note that NCR SWAT is generally only deployed in extreme circumstances such as active shooter incidents, hostage situations, and the execution of high-risk search and arrest warrants. The equipment NCR SWAT possesses is rarely deployed but could prove essential to emergency operations when needed.
The list of the sixteen (16) types of Military Equipment per Cal. Gov. Code Section 7070 is included below. Equipment types that the NCR SWAT Team possesses are noted in bold type.
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 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 8 6
9 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.
16. Notwithstanding paragraphs (1) through (15), "Military Equipment" does not include general equipment not designated as prohibited or controlled by the federal Defense Logistics Agency.
The Military Equipment Use Annual Report being presented by staff includes detailed information for each type of Military Equipment listed, as required by Cal. Gov. Code Section 7070. This information includes the equipment's capabilities, its purpose/authorized uses, the legal/procedural rules governing its use, and the training required of staff prior to its use.
During the 2024 calendar year, no complaints related to military equipment were received by the Police Department. There were no violations of department policy related to the deployment of military equipment by department personnel. In the current 2025 calendar year, the Police Department intends to replace all 12 of its 40mm less lethal launchers including necessary munitions with similar updated versions. Currently, the Police Department's less lethal launchers are over 24 years old and have been fully funded through the Equipment Replacement Fund since Fiscal Year 2023. Upon receipt of the new less lethal launchers, the Military Equipment Use Policy will be updated to reflect those items in the inventory. The less lethal launchers being replaced will be disposed of upon receipt of the new equipment.
Staff have drafted the attached 2024 Military Equipment Use Annual Report, as required by state law, for City Council's review and acceptance. In addition, pursuant to Government Code section 7072(b), the Department has made the 2024 Military Equipment Use Annual Report publicly available by posting it on its website.
As noted previously, Gov. Code Section 7071(e)(1) requires that the City Council shall review any ordinance that it adopted approving the funding, acquisition, or use of military equipment at least annually, and vote on whether to renew the ordinance at a 8 6
9 regular meeting. In considering whether to renew the Ordinance, the City Council shall determine based on the annual military equipment report submitted pursuant to Section 7072, whether each type of military equipment identified in that report has complied with the standards for approval. If the governing body determines that a type of military equipment identified in that annual military equipment report has not complied with the standards for approval, the governing body 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.
As detailed in the annual report, and above, the Police Department met the standards for use of the military equipment established in Policy 709. Although the Police Department did not deploy any such equipment, nor did NCR SWAT, continuing to have access to such equipment is vital to the Department in the event exigent circumstances occur. In such situations, there is sometimes a need to deploy military equipment to promote the safety and security of the community. The Department has exhibited its ability to judiciously utilize such equipment. As such, staff is recommending that the City Council vote to renew Ordinance No. 647.
California Environmental Quality Act
This item is not subject to review under the California Environmental Quality Act (CEQA) pursuant to Public Resources Code Section 21000, et seq. and the CEQA Guidelines (14 Cal. Code Regs. §§ 15000 et. seq.), including without limitation, Public Resources Code section 21065 and California Code of Regulations 15378 as this is not a "project" that may cause a direct, or reasonably foreseeable indirect, physical change in the environment.
FISCAL IMPACT
There is no fiscal impact associated with this item.
CITY COUNCIL VISION, MISSION, AND VALUE/PRIORITY AREA
Public Safety and Social Equity
ATTACHMENTS:
Attachment 1 – Resolution
Attachment 2 – Military Equipment Use Annual Report Attachment 3 – Ordinance No. 647
Attachment 4 – Foster City Police Department Policy 709 Attachment 5 – Foster City Police Department Equipment List