CITY OF PACIFICA
COUNCIL AGENDA SUMMARY REPORT
4/11/2022
1 SUBJECT:
Introduction of an Ordinance Adding Chapter 19, “Acquisition and Use of Military Equipment” of Title 4 “Public Safety” of the Pacifica Municipal Code
RECOMMENDED ACTION:
Move to Waive the First Reading of and Introduce by Title an Ordinance of the City Council of the City Of Pacifica Adding Chapter 19, “Acquisition and Use of Military Equipment” of Title 4 “Public Safety” of the Pacifica Municipal Code, Approving the Pacifica Police Department Military Equipment Policy; and finding the introduction of the Ordinance exempt under the California Environmental Quality Act (CEQA).
STAFF CONTACT:
Daniel Steidle, Chief of Police
650-738-7314
[email protected]
BACKGROUND/DISCUSSION:
On September 30, 2021, California Assembly Bill 481 (AB 481) was signed into law.
Subsequently, California Government Code Sections 7070, 7071, and 7072 were adopted to codify the requirements set forth in AB 481.
AB 481 requires a law enforcement agency to obtain the approval of its governing body, through the adoption of a Military Equipment Use Policy, by ordinance at a regular meeting held pursuant to specified open meeting laws, prior to taking certain actions relating to the funding, acquisition, or use of military equipment, as defined. The bill allows 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 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 the above-described standards for approval.
California Government Code Section 7070 provides a list of types of equipment that are to be considered “Military Equipment” for purposes of compliance with AB 481 and the Government Code. It is important to understand that what is defined as “Military Equipment” by the California State Legislature is not related to whether the equipment was acquired through military sources.
The Pacifica Police Department does not possess any equipment specifically designed for military use nor has the department acquired any equipment through a military surplus program, commonly known as the “1033 Program” (10 USC 2576a). While the Pacifica Police Department does not possess any equipment that it has obtained from the military, nor does it possess any equipment that was designed specifically for military use, it does possess equipment that is listed in Section 7070 and defined as “Military Equipment.” Pacifica City Council 2
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Military Equipment Policy Requirements
California Government Code Section 7070(d) defines a Military Equipment Use Policy as:
“Military equipment use policy means a publicly released, written document governing the use of military equipment by a law enforcement agency or a state agency that addresses, at a minimum, all 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 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.
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 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.
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.
7. For a law enforcement agency, 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 law enforcement agency will ensure that each complaint, concern, or question receives a response in a timely manner.
California Government Code Section 7071(b) requires that the Police Department post to its website the Military Equipment Use Policy that it plans to propose to the City Council at least 30 days prior to any public hearing concerning the policy. The Police Department complied with this requirement by posting the draft policy being proposed, to its public website, on March 4, 2022.
California Government Code Section 7071(d) states that the City Council shall only approve the Military Equipment Use Policy if it determines all 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, Pacifica City Council 3
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corrective action has been taken to remedy nonconforming uses and ensure future compliance.
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 utilize to confirm compliance with the Military Equipment Use Policy and the accompanying Military Equipment Use Ordinance.
California Government Code Section 7070 provides a list of (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, and the Police Department does possess and use some of these listed types of equipment. Of the (16) types of equipment specified, the Police Department possesses only (4) types. These types of equipment will be discussed further in the below proposed Military Equipment Policy section.
Proposed Military Equipment Policy
Staff, in collaboration with the City Attorney’s Office, has authored Pacifica Police Department Policy #705, Military Equipment (Attachment A). The policy contains the following to comply with AB481:
• Designation of a military equipment coordinator, primarily responsible for tracking inventory, collaborating with any agency that may use military equipment within our jurisdiction, coordination of community engagement meeting prior to release of annual Military Equipment Report, ensuring completion of the annual Military Equipment Report and receiving community questions or complaints regarding the use of military equipment.
• Requires the Chief of Police or the authorized designee to obtain approval from the governing body by way of an ordinance adopting the Military Equipment Policy. As part of the approval process, the Chief of Police or the authorized designee shall ensure the proposed military equipment policy is submitted to the governing body and is available on the department website at least 30 days prior to any public hearing concerning the military equipment at issue.
• Requires the Chief of Police or the authorized designee to submit a Military Equipment Report to the governing body for each type of military equipment approved within one year of approval, and annually thereafter for as long as the military equipment is available for use (Government Code § 7072). The Chief of Police or the authorized designee shall also make each annual military equipment report publicly available on the department website for as long as the military equipment is available for use. The report shall include all information required by Government Code § 7072 for the preceding calendar year for each type of military equipment in department inventory. • Requires that within 30 days of submitting and publicly releasing the annual report, the Department shall hold at least one well-publicized and conveniently located community engagement meeting, at which the Department will discuss the report and respond to public questions regarding the funding, acquisition, or use of military equipment. • Specifies the mechanisms to be used by the Department to ensure compliance with the policy. Sustained complaints regarding violations of the policy are subject to investigation and discipline in accordance with Policy 1010, and other policies of the Department related to officer discipline.
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• Establishes procedures by which members of the public may register complaints, submit questions about the use of each specific type of military equipment subject to the policy, and procedures by which the Department will respond to such matters.
This policy contains the (4) types of “Military Equipment” that the Pacifica Police Department currently possesses, along with the required information describing each item, costs, training, and use. The (4) types of equipment detailed in the policy are:
1) Less Lethal Shotgun: (11) Shotguns, placed in each marked police vehicle, specifically marked for use only with a less-lethal “Super-Sock Beanbag Round.” This item is used to limit the escalation of conflict where employment of lethal force is undesirable. 2) Pepperball Launcher: (2) Launchers, placed in marked supervisor police vehicles, that launch “pepper balls,” which contained a powdered pepper irritant. 3) Rifles: (16) Rifles, placed in marked police vehicles, used as a lethal force option that provides greater accuracy than handgun type firearms, especially at longer distances.
Government Code § 7070 states that assault weapons are military equipment, with the exception of “standard-issued firearms.” As the rifles used by the Pacifica Police department are “standard issue,” staff recognizes that these rifles are not required to be included in the Military Equipment Policy. Staff believes it is likely the public would perceive rifles to be military equipment, and as such, staff has included them in the policy in the essence of transparency.
4) Command Post Trailer: (1) marked trailer, to be used as a command post for sustained law enforcement incidents, including DUI checkpoints, major collisions scenes, major crime scenes, etc.
The policy provides the ability for allied law enforcement agencies to use military equipment in our jurisdiction if they adhere to their own approved Military Equipment Policy. Law enforcement mutual aid may be requested at a local, countywide, or regional level in the event of an incident or sustained incident that requires personnel resources beyond those available within the police department of jurisdiction. Law enforcement mutual aid more frequently occurs on a much lower scale, such as an incident where a low number of additional personnel are needed to assist, and for a relatively short period of time.
Next Steps
Approval of the Pacifica Police Department’s Military Equipment Policy by the City Council through an ordinance is required for the continued use of the listed equipment. Once approved, the Chief of Police is required to seek approval of an amended Military Equipment Use Policy before the purchase or acquisition of additional military equipment as defined by Government Code § 7070. Approval of this policy is required each year.
Each year, the Chief of Police will be required to present a Military Equipment Report to City Council. Within 30 days of submitting and publicly releasing the annual report, the Pacifica Police Department shall hold at least one well-publicized and conveniently located community engagement meeting, at which the Department should discuss the report and respond to public questions regarding the funding, acquisition, or use of military equipment. The report will also be available for viewing on the Department’s website.
The Annual Military Equipment Report will include the following information for the immediately Pacifica City Council 5
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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 law enforcement agency intends to acquire additional military equipment in the next year, the quantity sought for each type of military equipment ALTERNATIVE ACTION:
Decline to approve the Pacifica Police Department Military Equipment Policy and provide staff further direction.
RELATION TO CITY COUNCIL GOALS AND WORK PLAN:
Adoption of an Ordinance approving the Pacifica Police Department Military Equipment Policy resonates with the City Council Goal of An Engaged Community and Maintaining a Safe Community.
FISCAL IMPACT:
There is no fiscal impact to introduction of this Ordinance or approving the Pacifica Police Department Military Equipment Policy.
CEQA:
The Ordinance and Policy are exempt from the provisions of the California Environmental Quality Act (“CEQA”) because they will not result in a direct or reasonably foreseeable indirect physical change in the environment and is not a “project,” as defined in Section 15378 of the CEQA Guidelines.
ORIGINATED BY:
Police
ATTACHMENT LIST:
Attachment A - Military Equipment Policy #705 (PDF)
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ORDINANCE NO. (ID # 4929)
ORDINANCE NO. ______
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PACIFICA ADDING CHAPTER 19, “AQCUISITION AND USE OF MILITARY EQUIPMENT” OF TITLE 4 “PUBLIC SAFETY” OF THE PACIFICA MUNICIPAL CODE
WHEREAS, on September 30, 2021, Governor Gavin Newsom signed into law Assembly Bill 481, relating to the use of military equipment by law enforcement agencies; and
WHEREAS, Assembly Bill 481, codified at California Government Code sections 7070 through 7075, requires law enforcement agencies to obtain approval of the applicable governing body prior to taking certain actions relating to the funding, acquisition, solicitation, or use of military equipment; and
WHEREAS, Assembly Bill 481, requires that the approval by the governing body be by an ordinance adopting a military equipment use policy, at a regular meeting held pursuant to open meeting laws; and
WHEREAS, Assembly Bill 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 with respect to a military equipment use policy; and WHEREAS, a draft of the Pacifica Police Department Policy 705 “Military Equipment” was published on the Department’s internet website, and provided to the City Council at least 30 days prior to public hearing in accordance with requirements of Government Code section 7071; and
WHEREAS, the Pacifica Police Department’s Lexipol Policy 705 “Military Equipment” meets the requirements of California Government Code section 7070, subdivision (d); and
WHEREAS, the military equipment identified in Policy 705 “Military Equipment” is necessary, because there are no reasonable alternatives that can achieve the same objectives of officer and civilian safety; and
WHEREAS, Policy 705 “Military Equipment” will safeguard the public’s welfare, safety, civil rights, and civil liberties; and
WHEREAS, the military equipment identified in Policy 705 “Military Equipment” is reasonably cost effective compared to available alternatives that can achieve the same objective of officer and civilian safety; and
WHEREAS, no prior military use policy has existed in the City of Pacifica that was applicable to the use of military equipment, and the adoption of such policy shall serve to secure future compliance;
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NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF PACIFICA DOES ORDAIN AS FOLLOWS:
Section 1. Recitals. The City Council of the City of Pacifica does hereby find the above referenced recitals are true and correct and material to the adoption of this Ordinance.
Section 2. Policy Approved and Adopted. Pacifica Police Department’s Lexipol Policy 705 “Military Equipment” is hereby approved and adopted as set forth in Exhibit A attached hereto.
Section 4. The City Council finds that this ordinance and the City of Pacifica Police Department’s Lexipol Policy 705 are exempt from the provisions of the California Environmental Quality Act (“CEQA”) because they will not result in a direct or reasonably foreseeable indirect physical change in the environment and is not a “project,” as defined in Section 15378 of the CEQA Guidelines.
Section 5. Severability. If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it should have adopted the Ordinance and each section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentence, clauses or phrases be declared unconstitutional.
Section 6. Publication. The City Clerk is hereby ordered and directed to certify to the passage of this Ordinance by the City Council od the City of Pacifica, California, and cause the same to be published in accordance with State Law.
Section 7. Effective Date. This Ordinance shall be in full force and effect thirty (30) days after its adoption and shall be published and posted as required by law.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Pacifica, California, held on the ______ day of _______ 20_____, by the following vote:
AYES, Councilmembers:
NOES, Councilmembers:
ABSENT, Councilmembers:
ABSTAIN, Councilmembers:
__________________________
Mary Bier, Mayor
ATTEST: APPROVED AS TO FORM:
________________________________ ___________________________ Sarah Coffey, City Clerk Michelle Kenyon, City Attorney Pacifica City Council 8
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* * * * *
(ID # 4929) at 4/11/2022 7:00 PM City Council Regular Meeting