Resolution No. 23-9231 — City Council and Authorities Concurrent, May 23, 2023

Resolution/Annual Approval of Military Equipment Ordinance Rev: 11/22/17

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RESOLUTION NO. 23-9231

A RESOLUTION OF THE CITY OF SANTA CLARA, CALIFORNIA ,

APPROVING THE ANNUAL MILITARY EQUIPMENT REPORT

AND APPROVING RENEWAL OF SANTA CLARA CITY CODE
SECTION 2.80.080 [“MILITARY EQUIPMENT POLICY”]
PURSUANT TO AB 481

BE IT RESOLVED BY THE CITY OF SANTA CLARA AS FOLLOWS:

WHEREAS, Santa Clara City Code Section 2.80.080 (“Military equipment policy”) was adopted in March 2022, approving the Military Equipment Policy, with the requisite findings and process, in accordance with AB 481;
WHEREAS, AB 481 requires the City Council to review its adopted military equipment ordinance annually and to vote on whether to renew the ordinance; WHEREAS, AB 481 requires, further, that in order to renew the Ordinance, the City Council must make a finding that, based on the information contained in the annual military equipment report (attached), each type of military equipment identified in that report has complied with specific standards for approval; and,
WHEREAS, the City Council of the City of Santa Clara, having received the information required by AB 481, deems it to be in the best interest of the City to approve the annual military equipment report and to renew the military equipment policy ordinance SCCC 2.80.080, as set forth below.

NOW THEREFORE, BE IT FURTHER RESOLVED BY THE CITY OF SANTA CLARA AS FOLLOWS:

1. That the City Council hereby finds that the above Recitals are true and correct and by this reference makes them a part hereof.

2. That the annual military equipment report submitted to the City Council by the Santa Clara Police Department contains all information required by AB 481 and is hereby approved. //
//
Resolution/Annual Approval of Military Equipment Ordinance Rev: 11/22/17

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3. That, based on the annual military equipment report submitted by the Santa Clara Police Department, each type of military equipment identified in that report has complied with the following standards for approval:

a. The military equipment is necessary because there is no reasonable alternative that can achieve the same objective of officer and civilian safety. b. The military equipment use policy will safeguard the public’s welfare, safety, civil rights, and civil liberties.
c. The equipment is reasonably cost effective compared to available alternatives that can achieve the same objective of officer and civilian safety. d. 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.

4. That the procedural requirements of AB 481 have been satisfied.

5. That Santa Clara City Code Section 2.80.080 is hereby renewed.

6. Effective date. This resolution shall become effective immediately .

I HEREBY CERTIFY THE FOREGOING TO BE A TRUE COPY OF A RESOLUTION PASSED

AND ADOPTED BY THE CITY OF SANTA CLARA , CALIFORNIA , AT A REGULAR MEETING THEREOF HELD ON THE 23Ro DAY OF MAY, 2023 , BY THE FOLLOWING VOTE:

AYES : COUNCILORS :

NOES : COUNCILORS:

ABSENT : COUNCILORS:

ABSTAINED : COUNCILORS :

Attachments incorporated by reference :

1. Annual Military Equipment Report - RTC #23-249
Hardy, Jain, and Watanabe , and Mayor Gillmor
Becker, Chahal, and Park
None
None
ATTEST ~

NORA PIMENTEL , MMC

ASSISTANT CITY CLERK

CITY OF SANTA CLARA
Resolution/Annual Approval of Military Equipment Ordinance Rev : 11 /22/17

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City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
23-249 Agenda Date: 5/23/2023

REPORT TO COUNCIL

SUBJECT
Approve the Annual Military Equipment Report, and Adopt a Resolution Making Required Findings and Renewing Santa Clara City Code Section 2.80.080, Allowing for the Continued Use of the Military Equipment Funding, Acquisition and Use Policy Pursuant to Assembly Bill 481

COUNCIL PILLAR
Enhance Community Engagement and Transparency

BACKGROUND
On September 30, 2021, Governor Newsom signed a series of policing reform bills aimed at increasing transparency of peace officer misconduct records, improving policing responsibility and accountability guidelines, raising eligibility standards, banning harmful restraint techniques, and creating a public forum for the approval of the purchase of military equipment. Assembly Bill (AB) 481 (Assembly Member David Chiu, Democrat, San Francisco) (Attachment 1) codified law enforcement’s acquisition, use, and funding of military equipment.

In enacting AB 481, the Legislature stated that the public has a right to know about any funding, acquisition, or use of military equipment by State or local government officials in an effort to increase transparency, accountability and oversight. The same applies to the public’s right to participate in any government agency’s decision to fund, acquire, or use such equipment. Furthermore, the State legislature stated that local agency decisions regarding whether and how military equipment is funded, acquired, or used should give strong consideration to the public’s welfare, safety, civil rights, civil liberties, and public input.

The bill required law enforcement agencies seeking to continue use of military equipment acquired prior to January 1, 2022 to accomplish the following by May 1, 2022:
· Draft a Military Equipment Use Policy that describes each piece of military equipment and the authorized uses for each piece of equipment;
· Seek approval of the Policy from their governing body by Ordinance before acquiring new military equipment or seeking funds for equipment purchases; and, · Make publicly available on the agency’s website any proposed or final military equipment use policy for as long as the military equipment is available for use.

The Santa Clara Police Department (SCPD) fulfilled each requirement and exceeded the community engagement efforts required of AB 481 by involving advisory groups and/or the community at large.

The City Council approved the proposed policy and adopted the required ordinance (SCCC 2.80.080) on March 8, 2022.

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23-249 Agenda Date: 5/23/2023
The law also requires the SCPD provide the City Council and the public with an annual report detailing equipment inventory, uses, complaints, etc. The City Council is then required to review the annual report for approval and review the ordinance for renewal. Such renewal is required in order for the department to continue to use its existing (and to acquire new) qualifying equipment.

DISCUSSION
At least annually after the adoption of a Military Equipment Use Policy, each law enforcement agency is required to prepare a yearly military equipment report to include the following categories of information, and to submit that report to the governing body (City Council) for approval, and to publish that annual report on the City’s website:
· A summary of how the military equipment was used and the purpose of its use; · 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;
· 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;
· The quantity possessed for each type of military equipment; and · If the law enforcement agency intends to acquire additional military equipment in the next year, the quantity sought for each type of military equipment.

Within 30-days of submitting the annual military equipment report, and publicly releasing the report on the website, a law enforcement agency must hold at least one “well-publicized and conveniently located community engagement meeting,” to allow for public discussion of the report. The submission to the governing body shall be on May 23, 2023. The publication of the report on the City’s website began on April 21, 2023. It is important to ensure that the community engagement meeting receives a high degree of transparency, convenience, and publicity (and also to ensure that the meeting occurs in such a manner that the City Council can most directly benefit from community input in its decision- making). Holding the meeting concurrently with the City Council meeting would most directly fulfill this requirement. Advertising for the public meeting included messaging via GovDelivery, as well as on the Police Department’s social media platforms (e.g. Facebook, Instagram, Nextdoor and Twitter) encouraging public participation in the City Council meeting on this topic.

In addition, SCPD utilizes the Chief’s Advisory Committee as a local civilian sounding board on issues, matters and public policies which influence or impact the ongoing relationship between law enforcement and the community we serve. SCPD has also sought their feedback related with equipment purchases (e.g., unmanned aircraft systems). The Annual Report was presented to the Chief’s Advisory Committee on April 24, 2023; the CAC’s recommendation - to state more clearly that there were no unauthorized uses or complaints this year, and that the majority of the equipment had been utilized by the department for decades - has been incorporated into the Annual Report.

Summary of SCPD’s Equipment
Many of the items designated by AB 481 as military equipment have been in our Police Department’s equipment inventory for decades. Use of this equipment is built into SCPD operating procedures and provides a snapshot of their respective functionality.

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23-249 Agenda Date: 5/23/2023
A summary of the types of equipment in SCPD’s possession, examples of how this equipment has (and can) be utilized as well as the source for original funding is below. It should be noted, maintenance and/or repair costs as necessary are paid from the General Fund unless otherwise documented.

Equipment Purpose Authorized
Use
Example of
Types of Law
Enforcement
Uses
Purchase
Funding
Source
In Use by
SCPD
Since
Robot and
Unmanned
Aircraft
(Equipment
Category 1)
To be used to
remotely gain
visual/audio
data, deliver
CNT phone,
open doors,
disrupt
packages, and
clear buildings.

Could be
utilized in major
collision
investigations,
search for
missing
persons,
natural disaster
management,
crime scene
photography,
SWAT, tactical
or other public
safety and life
preservation
missions, in
response to
specific
requests from
local, state or
federal fire
authorities for
fire response
and/or
prevention
Only assigned
operators who
have
completed the
required
training shall be
permitted to
operate either
piece of
equipment. Use
is established
by the Incident
Commander
Robot • Highly
mobile way to
conduct
sophisticated,
live audio and
video
surveillance to
prevent,
investigate or
fight crime •
Deliver item(s)
to a suspect
Unmanned
Aircraft •
Disaster
response and
damage
assessment •
Locate missing
persons and
rescue events •
Identify, locate
and apprehend
non-compliant,
threatening or
combative
persons who
pose a threat of
injury or death
to themselves,
others or
officers •
Suspected
explosive
device •
Dangers that
would benefit
from situational
intelligence
exposed from
an aerial
perspective •
Video /
photographic
documentation
of crime
Robot Grant
Unmanned
Aircraft Grant *
2005
Armored
Rescue
Vehicle
(Equipment
Category 2)
To be used in
response to
critical
incidents to
enhance officer
and community
safety, improve
scene
containment
and
stabilization,
and assist in
resolving
critical
incidents
The use of
armored
vehicles shall
only be
authorized by a
watch
commander or
SWAT
commander,
based on the
specific
circumstances
of a given
critical incident.

Armored
vehicles shall
be used only by
officers trained
in their
deployment
and in a
manner
consistent with
Department
policy and
training
• Evacuation of
innocent
individual(s) •
Functions as a
rolling shield to
allow law
enforcement
personnel to
safely get
closer to a
location and/or
gain access to
a location •
Send message
or warning tone
over significant
distance • Hail
a suspect from
being
barricaded
Grant ** 2010
Command
and Control
Vehicles
(Equipment
Category 5)
To be utilized
for critical
incident
callouts
The CNT
vehicle used by
officers and
staff who have
been properly
trained in the
safe handling
of the vehicle.

The driver of
the vehicle
shall have a
valid California
driver license
• Serve as a
safe, secure
workspace for
staff on scene
of a crime
scene or critical
incident • Tool
to carry
equipment
associated with
work
Grant, General
Fund and City’s
disposal/reuse
program
2002
Breaching
equipment
(Equipment
Category 7)
To safely gain
entry into a
structure
Explosive
breaching may
only occur after
authorization
by the Incident
Commander or
SWAT
Commander in
the field, and
during training
exercises
• Force open
closed and/or
locked doors •
Diversionary
tactic when
trying to take a
dangerous
suspect into
custody
Grant, General
Fund and Asset
Forfeiture
Program
2007
Specialized
Firearms and
Ammunition
(Equipment
Category 10,
12 and 14)
To be used as
precision
weapons to
address a
threat with
more precision
and/or greater
distances than
a handgun, if
present and
feasible
Only members
that are POST
certified are
authorized to
use a rifle
• Non-lethal tool
to stop an
armed subject
at various
distances •
Device to
create a
temporary
diversionary
tactic when
trying to take a
dangerous
suspect into
custody
Grant, General
Fund and Asset
Forfeiture
Program
1975 -
2000
depending
on the item
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Equipment Purpose Authorized
Use
Example of
Types of Law
Enforcement
Uses
Purchase
Funding
Source
In Use by
SCPD
Since
Robot and
Unmanned
Aircraft
(Equipment
Category 1)
To be used to
remotely gain
visual/audio
data, deliver
CNT phone,
open doors,
disrupt
packages, and
clear buildings.

The driver of
the vehicle
shall have a
valid California
driver license
• Serve as a
safe, secure
workspace for
staff on scene
of a crime
scene or critical
incident • Tool
to carry
equipment
associated with
work
Grant, General
Fund and City’s
disposal/reuse
program
2002
Breaching
equipment
(Equipment
Category 7)
To safely gain
entry into a
structure
Explosive
breaching may
only occur after
authorization
by the Incident
Commander or
SWAT
Commander in
the field, and
during training
exercises
• Force open
closed and/or
locked doors •
Diversionary
tactic when
trying to take a
dangerous
suspect into
custody
Grant, General
Fund and Asset
Forfeiture
Program
2007
Specialized
Firearms and
Ammunition
(Equipment
Category 10,
12 and 14)
To be used as
precision
weapons to
address a
threat with
more precision
and/or greater
distances than
a handgun, if
present and
feasible
Only members
that are POST
certified are
authorized to
use a rifle
• Non-lethal tool
to stop an
armed subject
at various
distances •
Device to
create a
temporary
diversionary
tactic when
trying to take a
dangerous
suspect into
custody
Grant, General
Fund and Asset
Forfeiture
Program
1975 -
2000
depending
on the item
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Equipment Purpose Authorized
Use
Example of
Types of Law
Enforcement
Uses
Purchase
Funding
Source
In Use by
SCPD
Since
Robot and
Unmanned
Aircraft
(Equipment
Category 1)
To be used to
remotely gain
visual/audio
data, deliver
CNT phone,
open doors,
disrupt
packages, and
clear buildings.

The driver of
the vehicle
shall have a
valid California
driver license
• Serve as a
safe, secure
workspace for
staff on scene
of a crime
scene or critical
incident • Tool
to carry
equipment
associated with
work
Grant, General
Fund and City’s
disposal/reuse
program
2002
Breaching
equipment
(Equipment
Category 7)
To safely gain
entry into a
structure
Explosive
breaching may
only occur after
authorization
by the Incident
Commander or
SWAT
Commander in
the field, and
during training
exercises
• Force open
closed and/or
locked doors •
Diversionary
tactic when
trying to take a
dangerous
suspect into
custody
Grant, General
Fund and Asset
Forfeiture
Program
2007
Specialized
Firearms and
Ammunition
(Equipment
Category 10,
12 and 14)
To be used as
precision
weapons to
address a
threat with
more precision
and/or greater
distances than
a handgun, if
present and
feasible
Only members
that are POST
certified are
authorized to
use a rifle
• Non-lethal tool
to stop an
armed subject
at various
distances •
Device to
create a
temporary
diversionary
tactic when
trying to take a
dangerous
suspect into
custody
Grant, General
Fund and Asset
Forfeiture
Program
1975 -
2000
depending
on the item
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Equipment Purpose Authorized
Use
Example of
Types of Law
Enforcement
Uses
Purchase
Funding
Source
In Use by
SCPD
Since
Robot and
Unmanned
Aircraft
(Equipment
Category 1)
To be used to
remotely gain
visual/audio
data, deliver
CNT phone,
open doors,
disrupt
packages, and
clear buildings.

The driver of
the vehicle
shall have a
valid California
driver license
• Serve as a
safe, secure
workspace for
staff on scene
of a crime
scene or critical
incident • Tool
to carry
equipment
associated with
work
Grant, General
Fund and City’s
disposal/reuse
program
2002
Breaching
equipment
(Equipment
Category 7)
To safely gain
entry into a
structure
Explosive
breaching may
only occur after
authorization
by the Incident
Commander or
SWAT
Commander in
the field, and
during training
exercises
• Force open
closed and/or
locked doors •
Diversionary
tactic when
trying to take a
dangerous
suspect into
custody
Grant, General
Fund and Asset
Forfeiture
Program
2007
Specialized
Firearms and
Ammunition
(Equipment
Category 10,
12 and 14)
To be used as
precision
weapons to
address a
threat with
more precision
and/or greater
distances than
a handgun, if
present and
feasible
Only members
that are POST
certified are
authorized to
use a rifle
• Non-lethal tool
to stop an
armed subject
at various
distances •
Device to
create a
temporary
diversionary
tactic when
trying to take a
dangerous
suspect into
custody
Grant, General
Fund and Asset
Forfeiture
Program
1975 -
2000
depending
on the item
*Purchase and corresponding policy approved however item not yet acquired. **This item was purchased with UASI funds and therefore is a regional law enforcement asset.

As a reminder, nothing in this bill prohibits law enforcement from obtaining any of the items deemed as military equipment, but rather AB 481 creates a public process for getting approval on the type of equipment that is authorized and the uses for that equipment. SCPD possesses equipment in 7 of the 15 established categories.

Funding and Purchases
While the department is the recipient of a variety of federal grants, the department has not applied for or received designated military equipment through the United States Department of Defense 1028 or 1033 excess equipment transfer programs.

Prior to the implementation of AB 481, decisions surrounding the acquisition of equipment were presented to the City Council at a high-level during consideration of the standard budget process or in a more detailed manner through a Report to City Council, and procurement of such equipment adheres to the City’s purchasing processes. The use of such equipment is governed by the Police Department’s Use of Force Policy #300. In addition, the California Peace Officer Standards and Training (POST) requirements for operation and deployment of this equipment is managed by SCPD’s Training Unit. In many cases, POST, vendor provided trainings or cross-training among surrounding law enforcement agencies are implemented as new legislation and tools are deployed.

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All SCPD policies and procedures that govern safe-handling, storage, and qualification on specified equipment remain in effect. This includes but is not limited to California Occupational Safety and Health Agency (OSHA) certification of energetic breaching operators, Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) oversight of energetic breaching materials, SCPD weapons storage procedures, and ATF oversight of Noise Flash Diversionary Devices.

The way in which SCPD procures equipment has not changed as a result of AB 481, nor are there any significant new purchases planned over the next reporting period. During the reporting period, the only significant equipment purchased that falls within this category are unmanned aircraft equipment (Category 1). Other qualifying equipment, such as ammunition, was also purchased, as set forth in the Annual Report.

Annual Report & Ordinance Renewal
AB 481 requires law enforcement agencies to prepare an Annual Report to include the use of military equipment, any complaints received, any internal audits or other information about violations of SCPD Lexipol Policy 706 (Attachment 3), the cost of such use, and other similar information. The 2022 Annual Report is attached (Attachment 5).

As is noted in the Executive Summary, SCPD did not have any unauthorized uses during the reporting period, nor did it receive any complaints associated with the use of AB 481 equipment.

A governing body that has adopted a Military Equipment Use Policy by ordinance pursuant to AB 481, as the City of Santa Clara has done, is required to annually review that ordinance and, based upon the information provided in the Annual Report, make the following findings to support a renewal of the ordinance:
a. The military equipment is necessary because there is no reasonable alternative that can achieve the same objective of officer and civilian safety; b. The military equipment use policy will safeguard the public’s welfare, safety, civil rights, and civil liberties;
c. The equipment is reasonably cost effective compared to available alternatives that can achieve the same objective of officer and civilian safety; and, d. 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.

The proposed Resolution (Attachment 4) incorporates the Annual Report, reflects the required findings, and approves renewal of SCCC 2.80.080 for an additional year.

ENVIRONMENTAL REVIEW
The action being considered does not constitute a “project” within the meaning of the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines section 15378(b)(5) in that it is a governmental organizational or administrative activity that will not result in direct or indirect changes in the environment.

FISCAL IMPACT
The staff time to prepare the 2022 Annual Report and corresponding Report to Council is significant.

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However, the equipment referenced in the Annual Report have already been funded.

COORDINATION
This report has been coordinated with the Finance Department, Police Department and City Attorney’s Office.

PUBLIC CONTACT
Public contact was made by posting the Council agenda on the City’s official-notice bulletin board outside City Hall Council Chambers. A complete agenda packet is available on the City’s website and in the City Clerk’s Office at least 72 hours prior to a Regular Meeting and 24 hours prior to a Special Meeting. A hard copy of any agenda report may be requested by contacting the City Clerk’s Office at (408) 615-2220, email [email protected] <mailto:[email protected]> or at the public information desk at any City of Santa Clara public library.

RECOMMENDATION
Approve the Annual Military Equipment Report, and Adopt a Resolution Making Required Findings and Renewing Santa Clara City Code Section 2.80.080, Allowing for the Continued Use of the Military Equipment Funding, Acquisition and Use Policy Pursuant to Assembly Bill 481 Reviewed by: Pat Nikolai, Chief of Police
Approved by: Jōvan D. Grogan, City Manager

ATTACHMENTS

1. Assembly Bill 481

2. RTC 22-1582

3. Draft Policy #706

4. AB 481 Annual Resolution

5. 2022 AB 481 Annual Report
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City Council and Authorities ConcurrentMay 23, 2023

City Council and Authorities Concurrent
May 23, 2023