City of Gonzales
CITY ATTORNEY
STAFF REPORT
TO: Honorable Mayor Rios and City Council
DATE: June 20, 2022
FROM: Michael Rodriquez, City Attorney
THROUGH: Mark Hartunian, Assistant City Manager
SUBJECT: Ordinance No. 2022-131, an Ordinance of the City Council of the City of Gonzales Approving Gonzales Police Department Policy Manual Policy 709- Military Equipment- Introduction, Waiver of Reading and First Reading by Title Only
RECOMMENDATION
• Receive staff report and presentation.
• Questions to staff.
• Open public hearing, receive comments/questions from the public, close hearing. • Consider adoption, waive reading and read by title only Ordinance No. 2022-131, An Ordinance of the City Council of the City of Gonzales Approving Gonzales Police Department Policy Manual Policy 709-Military Equipment.
BACKGROUND
On September 30, 2021, Governor Gavin Newsom signed California Assembly Bill 481 (AB 481) into law. AB 481 adds new Sections 7070 et seq. to the Government Code requiring a law enforcement agency to obtain the approval of its governing body, through the adoption by ordinance of a Military Equipment Use Policy, prior to taking certain actions relating to the funding, acquisition, or use of military equipment. The new provisions allow 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. AB 481 requires the governing body to annually review the policy by ordinance and to either disapprove a renewal of the authorization for a type of military equipment or amend the military equipment use policy if it determines, based on an Annual Military Equipment Report prepared by the law enforcement agency, that the military equipment does not comply with established standards for approval.
AGENDA
ITEM
15 California Government Code Section 7070 provides a list the of types of equipment that are to be considered “Military Equipment” for purposes of compliance with AB 481. While the Gonzales 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 Section 7070. Additionally, the Gonzales Police Department participates in regional law enforcement activities, which result in cooperative efforts with other Departments that possess and utilize additional types of equipment that qualify as “Military Equipment” according to the Government Code.
REVIEW AND ANALYSIS
As noted above, AB 481 requires law enforcement agencies to obtain the approval of their governing bodies, by adoption by ordinance of a “Military Equipment Use Policy,” prior to taking certain actions relating to the funding, acquisition, or use of military equipment. AB 481 also requires approval for the continued use of military equipment acquired prior to January 1, 2020. At a minimum, the policy must address the following:
1. A description of each type of military equipment, the quantity sought, its capabilities, expected lifespan, and product descriptions;
2. The purpose and authorized uses for which the law enforcement agency proposes to use each type of military equipment;
3. The fiscal impact of each type of military equipment, including initial acquisition and maintenance costs;
4. The legal and procedural rules that govern each authorized use;
5. The training that must be completed before each type of military equipment can be used in order to ensure the full protection of the public’s welfare, safety, civil rights, and civil liberties;
6. The means to ensure compliance with the military equipment use policy; and
7. The procedures by which members of the public may register complaints or concerns or submit questions about the use of specific types of military equipment, and how such complaints and questions will be responded to and/or answered.
Like many other police departments in the State of California and throughout the United States, the Gonzales Police Department utilizes the services of Lexipol LLC for the preparation of its policy manuals, training bulletins and consulting services. Such services are provided on a subscription basis.
Lexipol has provided its member entities with a “Policy-Military Equipment” that is in compliance with the provisions of AB 481. The Department has reviewed the Policy and believes it should be accepted and approved, with some minor variations to reflect local facts and circumstances. (These changes will not affect compliance with the new law.) Staff is now recommending that the City Council review and consider adoption of an ordinance approving Gonzales Police Department Policy Manual Policy 709- Military Equipment. Use of an ordinance for policy adoption, as opposed to a resolution, is mandated by AB 481 as a means of creating a better public forum to discuss the acquisition and use of military equipment.
California Government Code Section 7071(b) requires that the Police Department post its proposed Military Equipment Use Policy to its website at least 30 days prior to any public hearing before the City Council concerning the policy. The Gonzales Police Department does not maintain its own website, but the policy was posted on the City’s website on April 19, 2022, and has been maintained on the site continuously through today’s date. Such action meets all legal posting requirements.
California Government 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.
Once the Policy has been adopted, California Government 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 use to confirm compliance with the Military Equipment Use Policy.
As noted earlier, the Gonzales Police Department has not obtained any equipment from military surplus programs, known as 1033 Programs; does not possess any tactical equipment that it has obtained from the military; and it does not possess any equipment that was designed specifically for military use.
That being said, California Government 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 California Government Codes (incorporated into Policy Section 709.1.1), and the Police Department does possess and use some of these listed types of equipment.
Equipment types that the Police Department 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 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 9 semi-automatic rifles. All of these rifles are standard-issue duty weapons for all Peace Officers, which actually exempts them from this policy per California Government Code Section 7070(c)(10). We have nonetheless included them in this policy in the interests of full transparency. 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 three (3) 38mm Less Lethal Projectile Launchers. The 38mm 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.
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 Gonzales Police Department receives mutual aid from the Salinas Police Department and the Monterey County Sheriff’s Department. Military equipment used by these Departments in providing mutual aid to the City shall comply with their respective military equipment use policies. The City will provide cross-references to the Military Equipment Use Policies of such jurisdictions on the City webpage.
Pursuant to California Government Code Section 7070(d)(7), the proposed Military Equipment Use Policy also provides the avenues through which members of the public may register complaints or concerns or submit questions about the use of each specific type of Military Equipment in the policy.
These means include:
1. Via email to: [email protected]
2. Via phone call to: Captain Mendoza 831-675-5010
3. Via mail sent to: Gonzales Police Department
Attn: Military Equipment Use Coordinator
109 4th Street
Gonzales, CA 93926
Based on the foregoing, staff believes that the Proposed Military Equipment Use Policy and the accompanying approving ordinance meet all legal requirements established by AB 481. As such, Staff is recommending that the City Council adopt Ordinance No. 2022-131. Staff notes for the record that as of the date of this report, the City has not received any comment or questions in any format regarding the proposed Policy from members of the public.
ALTERNATIVES
Request additional information before introducing the Ordinance and/or adopting the Policy. This option is not recommended as Staff believes that the Council has all materials necessary to make a determination concerning the Policy. Moreover, adoption of the Military Equipment Policy is time-sensitive.
BUDGET IMPACT
None.
PUBLIC NOTICE REQUIREMENTS
A public hearing was noticed in accordance with applicable law for the second reading and proposed adoption of the ordinance.
CONCLUSION
Staff recommends that City Council waive reading, adopt Ordinance No. 2022-131 regarding adoption of Gonzales Police Department Policy Manual Policy 709- Military Equipment, and read by title only.
Attachments:
1. Ordinance No. 2022-131
2. Proof of Publication - Ordinance 2022-131