ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF MERCED, CALIFORNIA,
ADOPTING A MILITARY EQUIPMENT USE
POLICY, OTHERWISE REFERRED TO HEREIN
AS A SPECIALIZED POLICE EQUIPMENT USE
POLICY, PURSUANT TO ASSEMBLY BILL 481
AND GOVERNMENT CODE SECTIONS 7070, ET
SEQ.
WHEREAS, on September 30, 2021, Governor Newsom signed
Assembly Bill 481 ("AB 481") into law which requires law enforcement agencies to adopt a military equipment use policy ("Policy") prior to taking certain actions relating to the funding, acquisition, or use of military equipment as defined by the law; and
WHEREAS, AB 481 requires adoption of the Policy by City Council before the law enforcement agency can take action to request military equipment as defined by the statute; seek funds (such as grants or in-kind donations) for acquiring military equipment; actually acquire military equipment, either permanently or temporarily by owning, borrowing, or leasing; collaborate with other law enforcement agencies to deploy or use military equipment in the agency's territorial jurisdiction; use new or existing military equipment in a manner not previously subject to AB 481's scope; solicit or respond to a proposal for, or enter into an agreement with, any person or entity to seek funds for, apply for, acquire, use, or collaborate in using military equipment; or to acquire military equipment through any other means not specifically detailed in the statute; and
WHEREAS, in accordance with AB 481, the proposed Policy was made adopt the Policy; and
WHEREAS, once adopted, the Policy will be made publicly available on the Police Department's website for as long as the covered military equipment is available for use; and
X:\Ordinances\2024\PolicelAdopting Military Equipment Use Policy.docx 1 WHEREAS, in accordance with AB 481, the Policy is being agendized as an open session item at a regular meeting of the City Council, and public comment on the item will be allowed in accordance with the Brown Act; and WHEREAS, this Ordinance shall be reviewed by the City Council at least determine whether each type of military equipment identified in the report has complied with the standards for continued approval.
THE CITY COUNCIL OF THE CITY OF MERCED DOES ORDAIN
AN HOLLOWS:
SECTION 1. AMENDMENT TO CODE. Chapter 9.80, "Military
Equipment Use" is hereby added to the Merced Municipal Code to read as follows:
"CHAPTER 9.80
MILITARY EQUIPMENT USE
9.80.010 Name of Ordinance.
This Ordinance shall be known as the Military
Equipment Use Ordinance.
9.80.020 Definitions.
A. 'Military Equipment' includes all of the following
(Per Cal. Gov. Code, § 7070):
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.
High mobility multipurpose wheeled
vehicles (HMMWV), commonly referred to as
Humvees, two and one-half-ton trucks, five-ton
X:\Ordinances|2024\PolicelAdopting Military Equipment Use Policy.docx
2. 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.
Command and control vehicles that are
either built or modified to facilitate the operational
control and direction of public safety units.
Weaponized aircraft, vessels, or vehicles of
any kind.
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.
Firearms of .50 caliber or greater. However,
standard issue shotguns are specifically excluded
from this subdivision.
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.
X: Ordinances|2024 PolicelAdopting Military Equipment Use Policy docx 3 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.
Any other equipment as determined by a
governing body or a state agency to require
additional oversight.
16. Notwithstanding paragraphs (1) through
1J), Military Equipmen
Ineral entary lent on designated as prohibited o
controlled by the federal Defense Logistics
Agency.
B. 'City' means any department, agency, bureau,
and/or subordinate division of the City of Merced.
C. "Police Department' means any division, section,
bureau, employee, volunteer and/or contractor of the
Merced Police Department.
D. 'City Council' means the governing body that is
the Merced City Council.
E. 'Military Equipment Use Policy' means a publicly
released, written document that includes, at a minimum, all of the following:
X: lOrdinances\2024\Police\Adopting Military Equipment Use Policy docx 4 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
maintaining the equipment.
4. The legal and procedural rules that govern
each authorized use.
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.
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.
procedures by which members of the public may
register complaints or concerns or submit
Military authent, se o foach sp lai en tyreement
X: \Ordinances\2024\PolicelAdopting Military Equipment Use Policy.docx 5 agency will ensure that each complaint, concern,
or question receives a response in a timely manner.
'Exigent Circumstances' means a law enforcement
agency's good faith belief 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.
G. 'State agency' means the law enforcement division
of every state office, officer, department, division,
bureau, board, and commission or other state body or
agency, except those agencies provided for in Article IV (except Section 20 thereof) or Article VI of the California Constitution.
H. 'Type' means each item that shares the same
manufacturer model number.
9.80.030 Military Equipment Use Policy
Requirement.
A. The Merced Police Department shall obtain
approval of the City Council, by an ordinance adopting a Military Equipment Use Policy (MEUP) at a regular
meeting of the City Council held pursuant to the Bagley- Keene Open Meeting Act (Article 9 (commencing with
Section 11120) of Chapter 1 of Part 1 of Division 3 of
Title 2) or the Ralph M. Brown Act (Chapter 9
(commencing with Section 54950) of Part 1 of Division 2 of Title 5), as applicable, prior to engaging in any of the following:
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, ol
X: Ordinances\2024 PolicelAdopting Military Equipment Use Policy:docx 6 federal funds, in-kind donations, or other donations
or transfers.
Acquiring Military Equipment either
permanently or temporarily, including by
borrowing or leasing.
Collaborating with another law enforcement
agency in the deployment or other use of Military
Equipment within the territorial jurisdiction of the
City of Merced.
5. Using any new or existing Military
Equipment for a purpose, in a manner, or by a
person not previously approved by the governing
body pursuant to this chapter.
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
7. Acquiring Military Equipment through any
means not provided by this section.
B. No later than May 1, 2022, if seeking to continue
the use of any Military Equipment that was acquired
prior to January 1, 2022, the Merced Police Department
shall commence a City Council approval process in
accordance with this section. If the City Council does not approve the continuing use of Military Equipment,
including by adoption pursuant to a Military Equipment
Use Policy submitted pursuant to this code, within 180
days of submission of the proposed Military Equipment
Use Policy to City Council, the Merced Police
Department shall cease its use of the Military Equipment until it receives the approval of City Council in
accordance with this code.
X: Ordinances \2024\PolicelAdopting Military Equipment Use Policy.docx 7 In seeking the approval of City Council, the
Merced Police Department shall submit a proposed
Military Equipment Use Policy to 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.
D. The governing body shall consider a proposed
Military Equipment Use Policy as an agenda item for an
open session of a regular meeting and provide for public comment in accordance with the Bagley-Keene Open
Meeting Act (Article 9 (commencing with Section
11120) of Chapter 1 of Part 1 of Division 3 of Title 2) or the Ralph M. Brown Act (Chapter 9 (commencing with
Section 54950) of Part 1 of Division 2 of Title 5), as
applicable.
E. The governing body 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.
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 obiective 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
X: \Ordinances|2024 PolicelAdopting Military Equipment Use Policy.docx. 8 Policy, corrective action has been taken to remedy
nonconforming uses and ensure future compliance.
F. 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.
G. The City Council shall review any ordinance that it
las adopted pursuant to this Chapter approving th
unding, acquisition, or use of Military Equipment a
least annually and vote on whether to renew the
ordinance at a regular meeting held pursuant to the
Bagley-Keene Open Meeting Act (Article 9
(commencing with Section 11120) of Chapter 1 of Part 1
of Division 3 of Title 2) or the Ralph M. Brown Act
(Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5), as applicable.
9.80.040 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 code.
B. If the Police Department acquires, borrows, and/or
uses Military Equipment in Exigent Circumstances, 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
X:Ordinances|2024 \Police\Adopting Military Equipment Use Policy. doex 9 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, trom the City Council.
Include the Military Equipment in the Police
Department's next annual Military Equipment
Report.
9.80.050 Reports on the Use of Military
Equipment.
A. The Police Department shall submit to City
Council an annual Military Equipment Report for each
ype of Military Equipment approved by the City Council
within one year of approval, and annually thereafter for as long as the Military Equipment is available for use.
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.
The results of any internal audits, any
information about violations of the Military
Equipment Use Policy, and any actions taken in
response.
X: Ordinances|2024 PolicelAdopting Military Equipment Use Policy.docx 10 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 law enforcement agency intends to
acquire additional Military Equipment in the next
year, the quantity sought for each type of Military
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 ma!
liscuss and ask questions regarding the annual Militar
Equipment report and the law enforcement agency'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 code 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.
X:\Ordinances\2024 \Police\Adopting Military Equipment Use Policy.docx 11 9.80.060 Enforcement.
A. Remedies for Violations of this Ordinance.
1. This Chapter does not provide a private right
of action upon any person or entity to seek
injunctive relief against the City or any employee
unless that person or entity has first provided
written notice to the City Manager by serving the
City Clerk, regarding the specific alleged
violations of this Chapter.
2. If a specific alleged violation is not
remedied within 90 days of that written notice, a
person or entity may seek injunctive relief in a
court of competent jurisdiction.
3. If the alleged violation is substantiated and
subsequently cured, a notice shall be posted in a
conspicuous manner on the City's website that
describes, to the extent permissible by law, the
corrective measures taken to address the violation.
If it is shown that the violation is the result
of arbitrary or capricious action by the City or an
employee or agent thereof in his or her otticial
capacity, the prevailing complainant in an action
for relief may collect from the City reasonable
attorney's fees in an amount not to exceed $15,000
if they are personally obligated to pay such fees.
9.80.070 Whistleblower Protections.
All provisions of Merced's Protection of Whistleblowers Workplace Policy, and including any updates or
replacements thereto, shall apply.
X: lOrdinances\2024\Police/Adopting Military Equipment Use Policy.docx 12 9.80.080 Severability.
A. If any section, subsection, sentence, clause, phrase, or word of this Chapter, or any application thereof to any person or circumstance, is held to be invalid or
unconstitutional by a decision of a court of competent
jurisdiction, such decision shall not affect the validity of the remaining portions or applications of this Chapter.
B. The City Council hereby declares that it would
have passed this Chapter and each and every section,
subsection, sentence, clause, phrase, and word not
declared invalid or unconstitutional without regard to
hether any other portion of this Chapter or applicatio
hereof would be subsequently declared invalid o
unconstitutional."
SECTION 2. EFFECTIVE DATE. This Ordinance shall be in full force and effect thirty (30) days after its adoption.
SECTION 3. SEVERABILITY. If any section, subsection,
subdivision, sentence, clause, phrase, or portion of this Ordinance, is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have adopted this Ordinance, and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional.
SECTION 4. PUBLICATION. The City Clerk is directed to cause a summary of this Ordinance to be published in the official newspaper at least once within fifteen (15) days after its adoption showing the vote thereon. 11 111
11/
X: \Ordinances|2024\PolicelAdopting Military Equipment Use Policy. docx 13 The foregoing Ordinance was introduced at a regular meeting of the City Council of the City of Merced on the , 2024, and was
passed and adopted at a regular meeting of said City Council held on the _ day _ 2024, by the following called vote:
AYES: Council Members:
NOES: Council Members:
ABSTAIN: Council Members:
ABSENT: Council Members:
APPROVED:
MATTHEW SERRATTO, MAYOR
Mayor
ATTEST:
D. SCOTT MCBRIDE, CITY CLERK
BY:_
Assistant/Deputy City Clerk
(SEAL)
APPROVED AS TO FORM:
CRAIG J. CORNWELL, CITY ATTORNEY
Sa onwell 4l9/2024
X: Ordinances|2024 Police\Adopting Military Equipment Use Policy.docx 14