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Assembly Bill No. 481
CHAPTER406
An act to add Chapter 12.8 (commencing with Section 7070) to Division 7 of Title 1 of the Government Code, relating to military equipment. [Approved by Governor September 30, 2021. Filed with
Secretary of State September 30, 2021.]
LEGISLATIVE COUNSEL'S DIGEST
AB 481, Chiu. Law enforcement and state agencies: military equipment:
funding, acquisition, and use.
Existing law designates the Department of General Services as the agency for the State of California responsible for distribution of federal surplus personal property, excepting food commodities, and requires the department to, among other things, do all things necessaiy to the execution of its powers and duties as the state agency for the distribution offederal personal surplus property, excepting food commodities, in accordance with specified federal law. Existing law, the Federal Surplus Property Acquisition Law of 1945, authorizes a local agency, as defined, to acquire surplus federal property without regard to any law which requires posting of notices or advertising for bids, inviting or receiving bids, or delive1y of purchases before payment, or which prevents the local agency from bidding on federal surplus property.
Existing federal law authorizes the Department of Defense to transfer surplus personal property, including arms and ammunition, to federal or state agencies for use in law enforcement activities, subject to specified conditions, at no cost to the acquiring agency.
This bill would require a law enforcement agency, defined to include specified entities, to obtain approval of the applicable governing body, by adoption of a military equipment use policy, as specified, 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 would also require similar approval for the continued use of military equipment acquired prior to January 1, 2022. The bill would allow the governing body to approve the funding, acquisition, or use of military equipment within its jurisdiction only if it determines that the militaiy equipment meets specified standards. The bill would require the governing body to annually review the ordinance and to either disapprove a renewal of the authorization for a type, as defined, 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, as provided, that the militaiy equipment does not comply with the above-described standards for approval. The bill would specify these provisions do not preclude a county or local municipality from implementing 92 Ch. 406 -2-
additional requirements and standards related to the purchase, use, and reporting of military equipment by local law enforcement agencies.
This bill would also require a state agency, as defined, to create a military equipment use policy before engaging in certain activities, publish the policy on the agency's internet website, and provide a copy of the policy to the Governor or the Governor's designee, as specified. The bill would also require a state agency that seeks to continue use of military equipment acquired prior to J anuaiy 1, 2022, to create a military equipment use policy.
This bill would also include findings that the changes proposed by this bill address a matter of statewide concern rather than a municipal affair and, therefore, apply to all cities, including charter cities.
By adding to the duties of local officials with respect to the funding, acquisition, and use of military equipment, this bill would impose a state-mandated local program.
The California Constitution requires local agencies , for the purpose of ensuring public access to the meetings of public bodies and the writings of public officials and agencies, to comply with a statutory enactment that amends or enacts laws relating to public records or open meetings and contains findings demonstrating that the enactment furthers the constitutional requirements relating to this purpose .
This bill would make legislative findings to that effect.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutmy provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason .
The peopl e of the State of California do enact as follows :
SECTION 1. The Legislature finds and declares all of the following :
(a) The acquisition of military equipment and its deployment in our communities adversely impacts the public's safety and welfare, including increased risk of civilian deaths, significant risks to civil rights, civil liberties, and physical and psychological well-being, and incunnent of significant financial costs. Military equipment is more frequently deployed in low-income Black and Brown communities, meaning the risks and impacts of police militarization are experienced most acutely in marginalized communities.
(b) The public has a right to know about any funding , acquisition , or use of military equipment by state or local government officials, as well as a right to participate in any government agency's decision to fund, acquire, or use such equipment.
( c) Decisions regarding whether and how military equipment is funded, acquired, or used should give strong consideration to the public's welfare, safety, civil rights, and civil liberties, and should be based on meaningful public input.
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( d) Legally enforceable safeguards, including transparency, oversight, and accountability measures , must be in place to protect the public's welfare, safety, civil rights, and civil liberties before rnilitaiy equipment is funded, acquired, or used.
(e) The lack of a public forum to discuss the acquisition of militaiy equipment jeopardi zes the relationship police have with the community, which can be undermined when law enforcement is seen as an occupying force rather than a public safety service.
SEC . 2. Chapter 12.8 (commencing with Section 7070) is added to Division 7 of Title l of the Government Code, to read:
CHAPTER 12.8. FUNDING, ACQUISITION, AND UsE OF MILITARY
EQUIPMENT
7070. For purposes of this chapter, the following definitions shall apply :
(a) "Governing body" means the elected body that oversees a law enforcement agency or, if there is no elected body that directly oversees the law enforcement agency, the appointed body that oversees a law enforcement agency. In the case of a law enforcement agency of a county, including a sheriff's department or a district attorney's office , "governing body" means the board of supervisors of the county.
(b) "Law enforcement agency" means any of the following:
(1) A police department, including the police department of a h·ansit agency, school district, or any campus of the University of California, the California State University, or California Community Colleges. (2) A sheriff's department.
(3) A district attorney's office .
(4) A county probation department.
(c) "Militaiy equipment" means the following :
(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 from this subdivision.
(3) High mobility multipurpose wheeled vehicles (HMMWV), commonly refe1Ted to as Humvees, two and one-half-ton trucks, five-ton trucks, or wheeled vehicles that have a breaching or entry apparahls attached. However, unarmored all-te1Tain 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 h·acked system instead of wheels for fo1ward 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 apparahlses that are explosive in nahlre. However, items designed to remove a lock, such as bolt cutters, 92 Ch. 406 -4-
or a handheld ram designed to be operated by one person, are specifically excluded from this subdivision.
(8) Fireaims 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 fireaims 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 accessmy 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 platfmms 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.
(16) Notwithstanding paragraphs (1) through (15), "militaiy equipment" does not include general equipment not designated as prohibited or controlled by the federal Defense Logistics Agency.
(d) "Militaiy equipment use policy" means a publicly released, written document governing the use of rnilitaiy equipment by a law enforcement agency or a state agency that addresses, at a minimum, all of the following:
(1) A description of each type of rnilitaiy 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 militaiy equipment use policy, including which independent persons or entities have oversight 92 -5- Ch. 406
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.
(e) "State agency" means the law enforcement division of eve1y 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. (f) "Type" means each item that shares the same manufacturer model number.
7071. (a) (1) A law enforcement agency shall obtain approval of the governing body, by an ordinance adopting a militaiy equipment use policy at a regular meeting of the governing body 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:
(A) Requesting military equipment made available pursuant to Section 2576a of Title 10 of the United States Code.
(B) Seeking funds for militaiy 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. (C) Acquiring militaiy equipment either permanently or temporarily, including by bmrnwing or leasing.
(D) Collaborating with another law enforcement agency in the deployment or other use of milita1y equipment within the territorial jurisdiction of the governing body .
(E) 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.
(F) 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. (G) Acquiring militaiy equipment through any means not provided by this paragraph.
(2) No later than May 1, 2022, a law enforcement agency seeking to continue the use of any militaiy equipment that was acquired prior to Januaiy 1, 2022, shall commence a governing body approval process in accordance with this section . If the governing body does not approve the continuing use of milita1y equipment, including by adoption pursuant to this subdivision of a military equipment use policy submitted pursuant to subdivision (b ), within 180 days of submission of the proposed militaiy equipment use policy to the governing body, the law enforcement agency shall cease its use of 92 Ch. 406 -6-
the militaiy equipment until it receives the approval of the governing body in accordance with this section.
(b) In seeking the approval of the governing body pursuant to subdivision (a), a law enforcement agency shall submit a proposed militaiy equipment use policy to the governing body and make those documents available on the law enforcement agency's internet website at least 30 days prior to any public hearing concerning the militaiy equipment at issue. (c) 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.
( d) (1) The governing body shall only approve a militaiy equipment use policy pursuant to this chapter if it determines all of the following:
(A) The militaiy equipment is necessary because there is no reasonable alternative that can achieve the same objective of officer and civilian safety. (B) The proposed militaty equipment use policy will safeguard the public's welfare, safety, civil rights, and civil liberties. (C) 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.
(D) Prior militaty equipment use complied with the militaiy equipment use policy that was in effect at the time, or if prior uses did not comply with the accompanying military equipment use policy, cotTective action has been taken to remedy nonconforming uses and ensure future compliance. (2) In order to facilitate public patticipation, any proposed or final military equipment use policy shall be made publicly available on the internet website of the relevant law enforcement agency for as long as the military equipment is available for use .
( e) (1) The governing body shall review any ordinance that it has adopted pursuant to this section approving the funding, acquisition, or use of military equipment at least annually and, subject to paragraph (2), 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 Patt 1 of Division 3 of Title 2) or the Ralph M .
Brown Act (Chapter 9 (commencing with Section 54950) of Patt 1 of Division 2 of Title 5), as applicable.
(2) The governing body shall determine, based on the annual milita1y equipment report submitted pursuant to Section 7072, whether each type of militaty equipment identified in that report has complied with the standards for approval set forth in subdivision ( d). If the governing body determines that a type of militaiy equipment identified in that annual militaiy equipment report has not complied with the standards for approval set forth in subdivision (d), the governing body shall either disapprove a renewal of the authorization for that type of militaiy equipment or require modifications 92 -7- Ch. 406
to the milita1y equipment use policy in a manner that will resolve the lack of compliance.
(f) Notwithstanding subdivisions (a) to ( e), inclusive, if a city contracts with another entity for law enforcement services, the city shall have the authority to adopt a militaiy equipment use policy based on local community needs.
7072. ( a) A law enforcement agency that receives approval for a militaiy equipment use policy pursuant to Section 7071 shall submit to the governing body an annual military equipment report for each type of militaiy equipment approved by the governing body within one year of approval, and annually thereafter for as long as the military equipment is available for use. The law enforcement agency shall also make each annual militaiy equipment report required by this section publicly available on its internet website for as long as the militaiy equipment is available for use. 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 surnmaiy of how the militaiy equipment was used and the purpose of its use.
(2) A summary of any complaints or concerns received concerning the militaiy 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 ofmilitaiy equipment, including acquisition, personnel, training, transportation, maintenance, storage, upgrade, and other ongoing costs, and from what source funds will be provided for the militaiy equipment in the calendar year following submission of the annual militaiy equipment report.
(5) The quantity possessed for each type ofmilitaiy 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.
(b) Within 30 days of submitting and publicly releasing an annual milita1y equipment report pursuant to this section, the law enforcement agency shall hold at least one well-publicized and conveniently located community engagement meeting, at which the general public may discuss and ask questions regarding the annual militaiy equipment report and the law enforcement agency's funding, acquisition, or use ofmilitaiy equipment. 7073. (a) A state agency shall create a military equipment use policy prior to engaging in any of the following:
(1) Requesting milita1y equipment made available pursuant to Section 2576a of Title 10 of the United States Code.
(2) Seeking funds for militaiy 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 militaiy equipment either pe1manently or temporarily, including by bon-owing or leasing.
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( 4) Collaborating with a law enforcement agency or another state agency in the deployment or other use of military equipment within the teITitorial 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, or to apply to receive, acquire, use, or collaborate in the use of, military equipment. (7) Acquiring militaiy equipment through any means not provided by this subdivision.
(b) No later than May 1, 2022, a state agency seeking to continue the use of any military equipment that was acquired prior to January 1, 2022, shall create a militaiy equipment use policy .
(c) A state agency that is required to create a military equipment use policy pursuant to this section shall do both of the following within 180 days of completing the policy:
(1) Publish the militaiy equipment use policy on the agency's internet website.
(2) Provide a copy of the milita1y equipment use policy to the Governor or the Governor's designee.
7074. The Legislature finds and declares that ensuring adequate oversight of the acquisition and use of military equipment is a matter of statewide concern rather than a municipal affair as that term is used in Section 5 of Article XI of the California Constitution . Therefore, this chapter applies to all cities, including charter cities and shall supersede any inconsistent provisions in the charter of any city, county, or city and county. 7075. Nothing in this chapter shall preclude a county or local municipality from implementing additional requirements and standards related to the purchase, use, and reporting of militaiy equipment by local law enforcement agencies.
SEC. 3. The Legislature finds and declares that Section 1 of this act, which adds Chapter 12.8 ( commencing with Section 7070) to Division 7 of Title 1 of the Government Code, furthers, within the meaning of paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the purposes of that constitutional section as it relates to the right of public access to the meetings of local public bodies or the writings of local public officials and local agencies. Pursuant to paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the Legislature makes the following findings:
Requiring local agencies to hold public meetings prior to the acquisition of militaiy equipment fu1ther exposes that activity to public scrntiny and enhances public access to information concerning the conduct of the people's business .
SEC. 4. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incmred by a local agency or school district under this act would 92 -9- Ch. 406
result from a legislative mandate that is within the scope of paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution. 0 92