April 26, 2022
Police Department
DATE: April 26, 2022
TO: Mayor Butt and Members of the City Council
FROM:
Dave Aleshire, Interim City Attorney
Louie Tirona, Acting Police Chief
Subject:
Ordinance to Approve a Military Equipment Funding
Acquisition and Use Policy.
FINANCIAL IMPACT: The cost of the current equipment is presently funded and included in the Fiscal Year budget for 2023. No new equipment that is applicable to Assembly Bill 481 is
slated for purchase during the listed timeframe.
PREVIOUS COUNCIL
ACTION:
None.
STATEMENT OF THE
ISSUE:
Governor Gavin Newsom signed Assembly Bill 481 into
law on September 30, 2021, to take effect on January 1, 2022. AB 481 requires law enforcement agencies to
obtain City Council approval of a military equipment use policy by Ordinance prior to taking certain actions relating to the funding, acquisition, or use of military equipment.
RECOMMENDED ACTION:
INTRODUCE an ordinance (first reading) pursuant to
state law (Assembly Bill 481), to approve a Military
Equipment Funding, Acquisition, and Use Policy - City
Attorney’s Office/Police Department (Dave Aleshire 510- 620-6509/Louie Tirona 510-620-6655). This item was
continued from the April 19, 2022, meeting.
AGENDA
REPORT
April 26, 2022
DISCUSSION:
Assembly Bill 481 (Government Code Sections 7070 through 7075) requires law enforcement agencies to obtain City Council approval by ordinance adopting a military equipment use policy. This new state law requires that the approval process commence no later than May 1, 2022. The legislation also provides that a law enforcement agency shall make the policy and inventory available on the law enforcement agency’s website at least 30 days prior to any public hearing. [Gov’t Code § 7071(b)] The policy was posted on March 31 and the inventory was posted April 11 on the Police Department’s website. Since we needed to start the approval process before May 1, we chose to place this on the agenda. However, since the item has not been posted for 30 days, we are asking Council to consider the item by providing questions/comments. We needed to start this process before May 1 and then the Council has 180 days to approve the policy/inventory.
The new statute requires law enforcement agencies to seek approval of its governing body by an ordinance adopting a military equipment use policy prior to engaging in any of the following activities:
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 governing body.
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.
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 paragraph.
The Military Equipment Use Policy has been posted to the Richmond Police Department’s ("RPD”) website, available online at:
https://www.ci.richmond.ca.us/82/Police-Department.
Pursuant to the new law, once the City Council approves the Military Equipment Use Policy, the City Council shall receive an annual military equipment report for each type of military equipment approved by the City Council within one year of approval. Within thirty (30) days of releasing the report, the Police Department will hold a community engagement meeting to discuss the policy and the inventory of military equipment.
April 26, 2022
Military Equipment is defined as follows:
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.
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.
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.
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.
15. Any other equipment as determined by a governing body or a state agency to require additional oversight.
Note: Military Equipment does not include general equipment not designated as prohibited or controlled by the federal Defense Logistics Agency.
A Military Equipment Use Policy requires the following:
Description of military equipment, quantity sought (if applicable), capabilities, expected lifespan, and manufacturer’s product descriptions.
April 26, 2022
Purpose(s) and authorized use(s) for each type of military equipment as the agency.
Fiscal impact of military equipment, including initial costs to obtain and estimated annual costs of maintaining same.
Legal and procedural rules governing authorized uses of military equipment. Training, including Commission on Peace Officer Standards and Training (“POST”), to be completed and by whom, prior to military equipment use 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. Mechanisms ensuring military equipment use policy compliance, including individuals or entities with oversight authority; consequences for violations. Procedures through which the public may register complaints, concerns or questions about the military equipment, and the agency’s plan for responding to same.
In approving the proposed Military Equipment Use Policy, the City Council must determine that the following four factors are present, pursuant to Gov. Code Section 7071(d):
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.
Further, any proposed or final Military Equipment Use Policy shall be made publicly available on the law enforcement agency’s website for as long as the military equipment is available for use.
DOCUMENTS ATTACHED:
Attachment 1 – Proposed Ordinance
Attachment 2 – Draft Military Equipment Use Policy
Attachment 3 – AB 481 Equipment List - DRAFT