Fremont City Council Meeting: 04/19/22 07:00 PM
3300 Capitol Avenue Div/Dept: Police Department
Fremont, CA 94538 Category: Code Adoptions & Amendments
SCHEDULED
Sponsors:
STAFF REPORT (ID # 4587) DOC ID: 4587
Updated: 4/15/2022 11:57 AM by Alberto Quintanilla Page 1 MILITARY EQUIPMENT USE POLICY - Introduce and Waive First Reading of an Ordinance Adopting Chapter 8.80 Military Equipment Use and Approving a Military Equipment Use Policy
Contact Persons:
Name: Sean Washington Matthew Snelson
Title: Police Chief Police Captain
Div/Dept: Police Department Police Department
Phone: 510-790-6969 510-790-6874
E-Mail: [email protected] [email protected]
Executive Summary: Assembly Bill (AB) 481 requires the Fremont Police Department (FPD) to seek City Council approval by ordinance prior to funding, acquiring, or using equipment defined by the law as “military equipment.” This report outlines staff’s work in complying with the new law and recommends the introduction of an ordinance endorsing FPD’s continuing utilization of this equipment and a policy authorizing the FPD to continue to use certain equipment.
BACKGROUND: On September 30, 2021, Governor Gavin Newsom signed into law AB 481, relating to the use of military equipment by law enforcement agencies, codified in California Government Code sections 7070 through 7075. The law now requires law enforcement agencies to obtain approval of the applicable governing body (City Council) for funding, acquiring, or using military equipment by an ordinance adopting a “military equipment” use policy. The item must be heard during a regular meeting held pursuant to open meeting laws prior to taking certain actions relating to the funding, acquisition, or use of military equipment. AB 481 allows the governing body of a city to approve the funding, acquisition, or use of military equipment within its jurisdiction only if it makes specified determinations.
Government Code section 7070 defines the term “military equipment” to not necessarily indicate equipment that has been used by the military or purchased from the federal government. Rather, the definition includes, but is not limited to, unmanned aerial or ground vehicles, armored vehicles, command and control vehicles, pepper balls, less lethal shotguns, less lethal 40mm projectile launchers, long range acoustic devices, and flashbangs. AB 481 allows the governing body of a city to approve the funding, acquisition, or use of military equipment within its jurisdiction only if it makes specified determinations.
DISCUSSION/ANALYSIS: The City of Fremont Police Department (FPD) does not currently receive or utilize surplus military equipment, does not possess any equipment that it has obtained from the military, nor does it possess any equipment that was designed for military use. The Fremont Police Department does not participate in the Law Enforcement Support Officer (LESO) 10-33 program. However, due to the broad definition of “military equipment” in AB 481, the Police Department is in possession of equipment that qualifies.
Therefore, in order for the Police Department to continue to use the equipment, the City Council must adopt an ordinance to authorize the military equipment use policy and approve the policy. The proposed ordinance and draft Military Equipment Policy including Exhibit 1 Staff Report (ID # 4587) Meeting of April 19, 2022
Updated: 4/15/2022 11:57 AM by Alberto Quintanilla Page 2 document the required review and approval guidelines and specifically describe each piece of department equipment as required by law.
Proposed Military Equipment Use Ordinance
To comply with AB 481, staff has developed an ordinance that would add Chapter 8.80 - Military Equipment Use to Fremont Municipal Code (FMC),. The new FMC chapter establishes the requirement that the Police Department obtain City Council approval of a Military Equipment Use Policy, prior to engaging in certain activities pertaining to Military Equipment. The proposed ordinance relies on the state law definition of Military Equipment.
The proposed ordinance also includes a section establishing the parameters for use of Military Equipment that is not included in the approved Military Equipment Use Policy in exigent circumstances. Given the inherently unpredictable nature of providing for public safety, it is critically important that FPD maintain the ability to acquire and utilize equipment that could prove essential to emergency operations, even if that equipment has not previously been included in the approved Military Equipment Use Policy. In exigent circumstances, it is not feasible to convene City Council meetings to seek advance approval for the use of equipment that is needed to carry out critical operations. Therefore, the proposed ordinance provides an exception for these emergency situations.
In addition, the proposed ordinance establishes the requirement that the Police Department provide the City Council with an Annual Military Equipment Report, and that this report be made publicly available on the Police Department’s public website. This provision also stipulates what information must be included in the Annual Military Equipment Report and establishes the requirement that the Police Department hold at least one well-publicized community engagement meeting to provide the public with the opportunity to discuss its contents. All of this is required pursuant to California Government Code Section 7072. The proposed ordinance meets all of the requirements of AB 481.
Military Equipment Use Policy
“Military equipment” is defined in California Government Code section 7070 and includes items used as a component of overall best practices for law enforcement agencies throughout the country. These tools have been tested in the field and are used by law enforcement agencies to enhance citizen safety and officer safety. Loss of these items would jeopardize the welfare of the community and police officers.
AB 481 requires any proposed or final Military Equipment Use Policy to be made publicly available on the internet website of the Police Department for as long as the Military Equipment is available for use. On March 18, 2022, FPD posted the draft Military Equipment Policy (708) prominently on the department’s public website, including “Exhibit 1,” which lists qualifying equipment owned/utilized by FPD. 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.
In order to approve the policy, the ordinance and AB 481 require the City Council to find that the military equipment listed in the policy is necessary because there is no reasonable alternative that can achieve the same objective of community and officer safety and that the proposed military equipment use policy will safeguard the public’s welfare, safety, civil Staff Report (ID # 4587) Meeting of April 19, 2022
Updated: 4/15/2022 11:57 AM by Alberto Quintanilla Page 3 rights, and civil liberties. All of the equipment listed in the proposed policy was designed to enhance law enforcement’s ability to ensure public safety and welfare and was not obtained from the military or designed for military use. The equipment has been in use by FPD prior to the enactment of AB 481. The proposed policy ensures that there are safeguards, including transparency, oversight, and accountability measures in place for the use of the listed equipment. Members of the public are provided direction per the policy on how to register complaints for violations. All items which result in a use of force will be investigated, as is already required by existing FPD policy.
Based on ongoing equipment evaluation and deployment history, Fremont Police Department has not discovered alternative items that can achieve the same objectives of community and officer safety. Below is information pertaining to items Fremont Police has acquired, utilized and assessed as being necessary to achieve and support public safety objectives.
Government Code § 7070(c)(1)- Unmanned remotely piloted powered aerial or ground vehicles:
Unmanned aerial systems (UAS) are necessary as they provide visibility to high-risk locations. Without the use of a UAS, police officers would have limited overhead observation of high-risk areas, decreased effectiveness of detecting missing persons, reduced visual assistance during rescue operations and be unable to assess suspicious / dangerous objects from a safe distance. In addition to crime and rescue operations, UAS equipment is utilized to memorialize and document crimes scenes and locations of traffic accidents. The UAS system can enter small spaces, such as enclosed structures, as well as provide overhead observations of high-risk situations within business districts, residential sections, open land/wooded areas and other crowded spaces. Without this equipment safety risks to the public and law enforcement personnel would increase in the circumstances described. Therefore, we have found no reasonable alternatives which would allow the police department to achieve public safety objectives.
Unmanned remotely controlled ground vehicle (robots) are used to gather images and/or video during high-risk operations and critical incidents. The equipment provides visibility in areas where it would be unsafe to send a police officer. This system can also be used to observe potentially hazardous items, such as explosive devices or suspicious chemicals. Not having access to this item would require the use of police officers or other emergency responders to engage in high-risk tasks and would potentially lengthen the mitigation process during dangerous operations. There is no known alternative to this system.
Government Code § 7070(c)(2) and (3) – Armored personnel carriers:
The FPD utilizes two armored vehicles. The armored vehicles are built on commercial truck chassis and have an armored body/shell. Our armored vehicles are equipped with an attachment which allows breaching of structures to conduct rescue operations or apprehend persons who are violent and pose a significant risk to the community and officers. Armored vehicles are used to provide ballistic protection to officers and members of our community during rescue operations, critical incidents and other hazardous situations. These vehicles allow officers closer access to high-risk situations (gun violence, dangerous objects, etc.) while substantially reducing the physical risk to community members and officers. As such, there are no reasonable alternatives to providing the same level of ballistic protection to community members or police officers during incidents involving gun violence.
Staff Report (ID # 4587) Meeting of April 19, 2022
Updated: 4/15/2022 11:57 AM by Alberto Quintanilla Page 4
Government Code § 7070(c)(5) – Command and control vehicles:
The Mobile Command Vehicle (MCV) is a vehicle similar to a commercial recreational vehicle (RV). It is equipped with emergency dispatching communication, monitors and command systems to assist in command and control of a critical incident. This vehicle allows for mobile incident command and use of the Incident Command Systems facilitating the best possible on scene decision-making by key leaders. It provides operational, administrative and logistical support as well as restroom facilities and mobile generated power. A critical function of the MCV is to serve as an emergency backup dispatching system in case there is a failure in our main system within the police building. As a result, to the criticality of continuity of emergency calls for service, there is no known alternative for the MCV as this vehicle directly supports public safety efforts during critical incidents.
The Hostage Negotiations Team Van (HNT Van) is a standard Ford Transit (350) van equipped with audio/visual devices intended to communicate with violent and dangerous persons who are not complying with a lawful order to surrender to arrest. The vehicle is utilized to aid the command and control element in facilitating the safe surrender of subjects who refuse to submit to arrest. This vehicle’s link to the MCV makes it necessary for public safety objectives and no known alternative has been identified.
Government Code § 7070(c)(7) - Breaching apparatuses and slugs:
Our department utilizes breaching shotguns used to defeat locked, barricaded, or fortified locations allowing officers to conduct rescue operations or high-risk forceable entries necessary to apprehend a suspect unwilling to submit to a lawful arrest. The equipment is also used during rescue operations to defeat locked doors and swiftly render aid to those in need of immediate medical attention. These items allow police officers rapid entry into a structure when a delay in time could result in severe injury or loss of life to members of our community and/or law enforcement personnel. Examples include active shooter situations, hostage/kidnapping incidents, downed persons inside of the dwelling or high-risk arrest operations. In such situations, time is of the essence and it would not be feasible to wait for alternatives access options to become available. Handheld battering rams and lock picks can be alternatives in non-fortified, lower level, low risk situations. When rapid entry is necessary to save lives or prevent injury, the breaching shotgun is necessary. As such there is no reasonable alternative to these items.
Government Code § 7070(c)(10) – Specialized firearms and ammunition:
Patrol rifles, Special Response Team (SRT) rifles, and sniper rifles enable officers, when in compliance with the FPD’s De-escalation and Use of Force Policy, to address medium to long distance violent and dangerous threats. This may include persons who are heavily armed or are actively harming or killing others. Further, this equipment allows officers precision shot placement, minimizing the risk to members of our community and officers. There are no known alternatives to these types of weapons, which offer a similar level of effectiveness to prevent harm or loss of life.
Government Code § 7070(c)(12) – Flashbangs, tear gas, pepper balls:
Flashbangs are used as a distraction device in order to divert the suspect’s attention away from officers during high-risk arrest or rescue operations. The distraction enables officers to gain safer access and provide extra time to assess and analyze existing threats. The intent of utilizing this device is to prevent injury to community members, officers and suspects.
The intended outcome is to achieve a safe resolution and enable officers to conduct high Staff Report (ID # 4587) Meeting of April 19, 2022
Updated: 4/15/2022 11:57 AM by Alberto Quintanilla Page 5 risk and dangerous arrest operations, utilizing minimal force. FPD has utilized these devices successfully in the past and are unaware of reasonable alternative that will achieve the same objectives.
Tear gas and pepper ball are less lethal methods used to address violent or riotous crowds when there is a risk of physical safety. They are also used to safely extract a violent, dangerous or uncooperative/resisting suspect from a fixed location or safely detain a suspect who poses a risk to our community or police officers. Tear gas allows officers to deploy a chemical agent (irritant) into a structure where the use of other tools may be impractical or inappropriate. These tools afford law enforcement an added option to help avoid officers resorting to using a higher level of force to affect an arrest. Based on ongoing reevaluation of these tools and experience, we have found no reasonable alternative.
Government Code § 7070(c)(14) – 40mm projectile launchers:
The use of 40mm projectile launches is necessary to offer another alternative to lethal force. The projectile, made from a material similar to foam, is less likely to result in death or serious physical injury when used on a suspect who is violently resisting or refusing to comply with a lawful order to surrender to arrest. The kinetic energy of the device is intended to be utilized in accordance with department policy and only used when no other alternative is appropriate. As another less lethal tool, this equipment is necessary, and no reasonable alternative identified based on ongoing assessment and experience.
FISCAL IMPACT: No significant fiscal impacts are anticipated other than additional staff time to prepare and present future items in compliance with AB 481.
ENVIRONMENTAL REVIEW: The Military Equipment Use Ordinance, an administrative government activity, is not subject to the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15061(b)(3) in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that the there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. The Military Equipment Use Ordinance will clearly not have a significant effect on the environment and, thus, CEQA does not apply, and no further environmental review is necessary.
ATTACHMENTS:
• FINAL DRAFT Military_Equipment
• Exhibit 1 for AB481 Policy
• Ordinance re Military Equipment Use Policy
RECOMMENDATION:
1. Waive full reading and introduce an ordinance adding Chapter 8.80 (Military Equipment Use) to the Fremont Municipal Code (Title 8 - Health and Safety) as attached;
2. Find that the equipment listed in the attached the Military Equipment Use Policy and Exhibit 1 is necessary because there are no reasonable alternatives that can achieve the same objective of officer and civilian safety and that the attached Military Equipment Use Policy will safeguard the public's welfare, safety, civil rights, and civil liberties; and Staff Report (ID # 4587) Meeting of April 19, 2022
Updated: 4/15/2022 11:57 AM by Alberto Quintanilla Page 6
3. Approve the attached Military Equipment Use Policy, including Exhibit 1.