STAFF REPORT TO THE CITY COUNCIL
DATE: Regular Meeting of April 26, 2022
TO: Members of the City Council
VIA: Dante Hall, City Manager
SUBMITTED BY: William Imboden; Chief of Police
SUBJECT: Military Equipment Funding, Acquisition, and Use Policy RECOMMENDED ACTION:
Approve a resolution commencing the governing body approval process pertaining to funding, acquisition, and use of military equipment by law enforcement agencies in accordance with AB 481 requirements, and direct staff to schedule a public hearing before the City Council for consideration and approval of Hercules Police Department policy section 709; Military Equipment Funding Acquisition and Use.
FISCAL IMPACT OF RECOMMENDATION:
There is no anticipated fiscal impact in approving this resolution. The resolution formally commences the AB 481 governing body approval process. There will be some administrative and staff costs associated with the military report compliance requirements, which require that a report be prepared and submitted to the governing authority annually.
EXECUTIVE SUMMARY:
AB 481, Military Equipment Funding, Acquisition, and Use was authored by Assemblymember David Chiu (D-San Francisco), and signed into law by Governor Newsom on September 30, 2021. AB 481 imposes requirements on local agencies such as Hercules to disclose the extent to which military equipment is used by local law enforcement and requires a governing body (the city council) to review and approve additions to law enforcement policy manuals that address the funding, acquisition, and use of military equipment by local law enforcement.
DISCUSSION:
On September 30, 2021, Governor Newsom signed a series of policing reform legislation aimed at increasing transparency of peace officer misconduct records, creating a system to decertify peace officers for serious misconduct, improving policing responsibility and accountability guidelines, raising eligibility standards, banning harmful restraint techniques, and creating a public forum for approval of the funding, acquisition and use of military equipment by local law enforcement. AB 481, part of this package of reform legislation signed into law, is discussed below.
AB 481 Definition of Military Equipment
The Assembly Bill has designated the following categories of items as military equipment. The Hercules Police Department (“HPD”) has equipment that meets the criteria for 7 of the 15 categories (1,5,9,10,11,12,14):
Unmanned, remotely piloted, powered aerial or ground vehicles (Equipment Category 1) Mine-resistant ambush-protected vehicles or armored personnel carriers (Equipment Category 2) High mobility multipurpose wheeled vehicles (HMMWV), two-and-one-half-ton trucks, five-ton trucks, or wheeled vehicles that have a breaching or entry apparatus attached (Equipment Category 3) Tracked armored vehicles that provide ballistic protection to their occupants (Equipment Category 4) Command and control vehicles that are either built or modified to facilitate the operational control and direction of public safety units (Equipment Category 5) Weaponized aircraft, vessels, or vehicles of any kind (Equipment Category 6) Battering rams, slugs, and breaching apparatuses that are explosive in nature (Equipment Category 7) Firearms and ammunition of .50 caliber or greater, excluding standard-issue shotguns and standard-issue shotgun ammunition (Equipment Category 8) Specialized firearms and ammunition of less than .50 caliber, including firearms and accessories identified as assault weapons in Penal Code § 30510 and Penal Code §30515, with the exception of standard-issue handguns (Equipment Category 9) Any firearm or firearm accessory that is designed to launch explosive projectiles (Equipment Category 10) Noise-flash diversionary devices and explosive breaching tools (Equipment Category 11) Munitions containing tear gas or OC, excluding standard, service-issued handheld pepper spray (Equipment Category 12) TASER® Shockwave, microwave weapons, water cannons, and long-range acoustic devices (Equipment Category 13) Kinetic energy weapons and munitions (Equipment Category 14) Any other equipment as determined by a governing body or a state agency to require additional oversight (Equipment Category 15) Requirements of AB 481
AB 481 requires each law enforcement agency's governing body (the City Council) to commence the process of adopting a written military equipment use policy by May 1, 2022, in order to continue the use of previously acquired military equipment. To help guide this process, Staff has attached a summary of AB 481, and a draft Policy Section to this report. Additionally, the Police Department posted the draft version of the policy on the City’s website on March 24, 2022 at least 30 days in advance of the City Council meeting where the item would be discussed, in compliance with the requirements of AB 481.
An itemized list of qualifying military equipment currently in HPD’s possession is included in this report as well as in the draft policy. Each item’s purpose and authorized use is described in specific detail in the attachment to the draft policy section to be included in the Hercules Police Department policy manual. The following are qualifying items currently in the Hercules Police Department equipment inventory:
Unmanned, remotely piloted, powered aerial devices (2 drones) Command and control vehicles that are either built or modified to facilitate the operational control and direction of public safety units (1 Special Response Team van) Specialized firearms and ammunition of less than .50 caliber, including firearms and accessories identified as assault weapons in Penal Code § 30510 and Penal Code §30515, with the exception of standard-issue handguns (28 - .223 caliber patrol rifles capable of firing 5.56mm ammunition) Noise-flash diversionary devices and explosive breaching tools (24 Noise Flash Diversionary Devices) Any firearm or firearm accessory that is designed to launch explosive projectiles (1 – S&W Mod. 226 37mm launcher) Munitions containing tear gas or OC, excluding standard, service-issued handheld pepper spray (10 - 12 ga. “penetrator” rounds capable of delivering powdered OC through thin walls or windows. Officers assigned to the County-wide Mobile Field Force are issued Def-Tech CS gas canisters while in that position) Kinetic energy weapons and munitions (5 Kinetic Energy shotguns) AB 481 states each agency is required to establish the procedure for a person to register a complaint or concern regarding the possession or use of military equipment, and how that person may submit a question about the use of a type of military equipment, and how the Department will respond in a timely manner. The City and the Police Department already have several avenues in place for filing a complaint with or about the Police Department; the Department will establish a procedure for responding to questions in a timely manner.
The attached Resolution if approved by Council will commence the governing body approval process in accordance with AB 481 requirements and will direct staff to schedule a public hearing where an ordinance will be presented for Council consideration and discussion, public comment, and Council approval. Included with the ordinance and staff report will be Policy Section 709; Military Equipment Funding, Acquisition, and Use, a draft of which is provided as an attachment to this Report.
Additionally, AB 481 requires that each agency must prepare an Annual Report to include the use of military equipment, any complaints received, any internal audits or other information about violations of this Policy, the cost of such use, and other similar information. This report must be presented to the Governing Body (the City Council) as well as in a separate public forum. The City’s webpage will be utilized for distribution of any updates to the above materials as well as for public notification of the upcoming Annual Reports. The first Annual Report will be distributed on or about the one-year date after the final passage of the ordinance adopting all applicable AB 481 requirements.
ATTACHMENTS:
Policy Section 709; Military Equipment Funding, Acquisition, and Use Military Equipment Description, Purpose, Use, Cost policy insert AB 481 Resolution
Equipment List
Military Equipment Funding Policy
Military Equipment PPT