Ordinance No. XX- 2022 Page 1 of 7
DRAFT
ORDINANCE NO. XX-2022
AN ORDINANCE OF THE CITY OF FREMONT ADDING FREMONT
MUNICIPAL CODE TITLE 8 HEALTH AND SAFETY, CHAPTER 8.80
MILITARY EQUIPMENT USE
WHEREAS, on September 30, 2021, Governor Gavin Newsom signed into law Assembly Bill (AB) 481, relating to the use of military equipment by law enforcement agencies; and
WHEREAS, AB 481, codified at California Government Code sections 7070 through 7075, requires law enforcement agencies to obtain approval of the applicable governing body, by an ordinance adopting a “military equipment” use policy, at a regular meeting held pursuant to open meeting laws, prior to taking certain actions relating to the funding, acquisition, or use of military equipment; and
WHEREAS, the term “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; and
WHEREAS, these tools have been tested in the field and are used by law enforcement agencies to enhance citizen safety, officer safety. Loss of these items would jeopardize the welfare of citizens and peace officers within the Fremont Police Department; and WHEREAS, the term “military equipment”, as used in Government Code section 7070, does not necessarily indicate equipment that has been used by the military and 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; and
WHEREAS, 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; and
WHEREAS, the City of Fremont Police Department is in possession of equipment that qualifies as “military equipment” under AB 481, but does not currently receive or utilize surplus military equipment, does not possess any equipment that it has obtained from the military, does not possess any equipment that was designed for military use, nor does it participate in the Law Enforcement Support Officer (LESO) 10-33 program; and
WHEREAS, the City Council of the City of Fremont, having received the information required under AB 481 regarding the Fremont Police Department’s use of military equipment as defined in said law, deems it to be in the best interest of the City to approve a Military Equipment Use Policy.
Ordinance No. XX- 2022 Page 2 of 7
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FREMONT DOES ORDAIN AS FOLLOWS:
SECTION 1. FMC CHAPTER 8.80 ADDED
Chapter 8.80 (Military Equipment Use) of Fremont Municipal Code Title 8 (Health and Safety), is added to read as follows:
Section 8.80.010 Title.
This Ordinance shall be known as the Military Equipment Use Ordinance.
Section 8.80.020 Definitions
(a) "Exigent Circumstances" means the good faith belief of the Police Chief or their designee 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.
(b) “Police Department” means any division, section, bureau, employee, volunteer and/or contractor of the Fremont Police Department.
(c) “Military Equipment” as defined by Gov. Code §7070.
(d) “Military Equipment Use Policy” means a publicly released, 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 Police 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 Police Department 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.
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(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 Police Department will ensure that each complaint, concern, or question receives a response in a timely manner.
(e) "Type" means each item that shares the same manufacturer model number.
Section 8.80.030 Military Equipment Use Policy Requirement (a) The Fremont Police Department shall obtain City Council approval of a Military Equipment Use Policy in accordance with Government Code Section 7071 at a regular meeting of the City 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 of Fremont. (5) Using any new or existing Military Equipment for a purpose, in a manner, or by a person not previously approved by the City of Fremont City 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 provided by this section.
(b) In seeking the approval of City Council, the Fremont Police Department shall submit a proposed Military Equipment Use Policy to the City Council and make those documents available on the Police Department’s internet website at least 30 days prior to any public hearing concerning the Military Equipment at issue.
(c) The City Council shall only approve a Military Equipment Use Policy pursuant to this chapter 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.
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(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.
(d) In order to facilitate public participation, any proposed or final Military Equipment Use Policy shall be made publicly available on the internet website of the Police Department for as long as the Military Equipment is available for use.
(e) The City Council shall review this ordinance at least annually and vote on whether to renew it at a regular meeting held pursuant to the Ralph M. Brown Act, Government Code Section 54950 et. seq.
Section 8.80.040 Use in Exigent Circumstances
(a) Notwithstanding the provisions of this Chapter, the Police Department may acquire, borrow and/or use Military Equipment in Exigent Circumstances without following the requirements of this chapter.
(b) If the Police Department acquires, borrows, and/or uses Military Equipment in Exigent Circumstances that has not been approved in the Military Equipment policy as authorized in accordance with this section, it must take all of the following actions:
(1) Provide written notice of that acquisition or use to the City Council within 30 days following the commencement of such Exigent Circumstance, unless such information is confidential or privileged under local, state or federal law. (2) If it is anticipated that the use will continue beyond the Exigent Circumstance, submit a proposed amended Military Equipment Use Policy to the City Council within 90 days following the borrowing, acquisition and/or use, and receive approval, as applicable, from the City Council.
(3) Include the Military Equipment in the Police Department’s next annual Military Equipment Report.
Section 8.80.050 Reports on the Use of Military Equipment. (a) The Police Department shall submit to City Council an annual Military Equipment Report for each type of Military Equipment approved by the City Council annually for as long as the Military Equipment is available for use.
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(b) The Police Department shall also make each annual Military Equipment Report required by this section publicly available on its internet 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 Police 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 pursuant to this section, the Police 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 Police Department’s funding, acquisition, or use of Military Equipment.
(e) The City Council shall determine, based on the annual Military Equipment Report submitted pursuant to this section, whether each type of Military Equipment identified in that report has complied with the standards for approval set forth in this Chapter and the Military Equipment Use Policy. If the City Council determines that a type of Military Equipment identified in that annual Military Equipment Report has not complied with the standards for approval, the City 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.
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SECTION 2. MILITARY EQUIPMENT USE POLICY
The City Council of the City of Fremont, having received the information required under AB 481 regarding the Fremont Police Department’s use of military equipment as defined in said law, deems it to be in the best interest of the City to, and does hereby, approve the Military Equipment Use Policy attached to the Fremont staff report dated April 19, 2022 and incorporated herein by this reference. The City Council finds that the Military Equipment identified in the policy is necessary because there is no reasonable alternative that can achieve the same objective of officer and civilian safety, and the policy will safeguard the public's welfare, safety, civil rights, and civil liberties.
SECTION 3. CEQA
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. The Council therefore directs that a Notice of Exemption be filed with the Alameda County Clerk in accordance with the CEQA guidelines.
SECTION 4. SEVERABILITY
If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held by a court of competent jurisdiction to be invalid, such a decision shall not affect the validity of the remaining portions of this Ordinance. The City Council of the City of Fremont hereby declares that it would have passed this Ordinance and each section or subsection, sentence, clause and phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid.
SECTION 5. EFFECTIVE DATE
This Ordinance shall take effect and will be enforced thirty (30) days after its adoption.
SECTION 6. PUBLICATION AND POSTING
The City Clerk has prepared and published at least five days before the date of adoption a summary of this ordinance once in a newspaper of general circulation printed and published in Alameda County and circulated in the City of Fremont. A certified copy of the full text of the ordinance was posted in the office of the City Clerk since at least five days before this date of adoption. Within 15 days after adoption of this ordinance, the City Clerk shall cause the summary to be published again with the names of those City Council members voting for and against the ordinance and shall post in the office of the City Clerk a certified copy of the full text of this adopted ordinance with the names of those City Council members voting for and against the ordinance.
Ordinance No. XX- 2022 Page 7 of 7
The foregoing ordinance was introduced before the City Council of the City of Fremont at the regular meeting of the City Council, held on the ___ day of __________, 2022, and finally adopted at a regular meeting of the city council held on the ___ day of__________, 2022, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
_________________________________
Mayor
ATTEST:
__________________________________
City Clerk
APPROVED AS TO FORM:
_________________________________
City Attorney