Chapter 14 — MILITARY EQUIPMENT USE

Section

10-14-1 Findings

10-14-2 Determinations

10-14-3 Short title

10-14-4 Definitions

10-14-5 Military equipment use policy requirement

10-14-6 Use in exigent circumstances

10-14-7 Reports on the use of controlled equipment

10-14-8 Enforcement

10-14-9 Effective date

(A) On September 30, 2021, Assembly Bill 481 was signed into law, relating to the use of military equipment by law enforcement agencies.

(B) Assembly Bill 481, codified at Cal. Gov’t Code §§ 7070 through 7075, requires law enforcement agencies to obtain approval of the applicable governing body by an ordinance adopting a military equipment use policy at a regular meeting held pursuant to open meeting laws, prior to taking certain actions relating to the funding, acquisition or use of military equipment. The term MILITARY EQUIPMENT is defined in Cal. Gov’t Code § 7070.

(C) 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.

(D) The proposed military use policy is found within the city’s Police Department policy and procedural manual.

(E) The Police Department policy was published on the Police Department’s internet website on www.cityoflivingston.org/police. In addition, the Police Department’s military equipment use policy was presented to City Council on March 15, 2022.

(F) The Police Department’s military equipment use policy meets the requirements of Cal. Gov’t Code § 7070, Subdivision (d).

(Ord. 647, passed 4-5-2022)

Based on the findings in § 10-14-1, in addition to the information provided to the City Council at the public meeting, the City Council determines as follows.

(A) The military equipment identified in the Police Department’s military equipment use policy is necessary, as there are no reasonable alternatives that can achieve the same objectives of officer and civilian safety.

(B) The Police Department’s military equipment use policy will safeguard the public’s welfare, safety, civil rights and civil liberties.

(C) The military equipment identified in the Police Department’s military equipment use policy is reasonably cost-effective compared to available alternatives that can achieve the same objective of officer and civilian safety.

(D) The Police Department’s military equipment use policy was approved and adopted April 5, 2022.

(Ord. 647, passed 4-5-2022)

This chapter shall be known as the “Military Equipment Use Ordinance”.

(Ord. 647, passed 4-5-2022)

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

CITY. Any department, agency, bureau and/or subordinate division of the city.

CITY COUNCIL. The governing body that is the Livingston City Council.

EXIGENT CIRCUMSTANCES. 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.

MILITARY EQUIPMENT. Includes all of the following (per Cal. Gov’t Code § 7070):

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 definition;

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 from this definition;

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 definition;

8. Firearms of 0.50 caliber or greater. However, standard issue shotguns are specifically excluded from this subdivision;

9. Ammunition of 0.50 caliber or greater. However, standard issue shotgun ammunition is specifically excluded from this

division.

10. Specialized firearms and ammunition of less than 0.50 caliber, including assault weapons as defined in Cal. Penal

Code §§ 30510 and 30515, with the exception of standard issue service weapons and ammunition of less than 0.50 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 devices (LRADS);

14. The following projectile launch platforms and their associated munitions: 40-millimeter projectile launchers; “bean

bags”; rubber bullets; and specialty impact munition (SIM) weapons;

15. Any other equipment as determined by a governing body or a state agency to require additional oversight; and

16. Notwithstanding divisions 1. through 15. above, MILITARY EQUIPMENT does not include general equipment not designated as prohibited or controlled by the federal Defense Logistics Agency.

MILITARY EQUIPMENT USE POLICY. A publicly released, written document that includes, at a minimum, all of 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; and

   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.

POLICE DEPARTMENT. Any division, section, bureau, employee, volunteer and/or contractor of the Police Department.

STATE AGENCY. 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 § 20 thereof) or Article VI of the California Constitution.

TYPE. Each item that shares the same manufacturer model number.

(Ord. 647, passed 4-5-2022)

(A) The Livingston 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 § 11120) of Chapter 1 of Part 1 of Division 3 of Title 2) or the Ralph M. Brown Act (Chapter 9 (commencing with § 54950) of Part 1 of Division 2 of Title 5), as applicable, prior to engaging in any of the following:

1. Requesting military equipment made available pursuant to of United States Code Title 10, § 2576a;

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 City of San Bruno;

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; and

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 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 Police Department shall cease its use of the military equipment until it receives the approval of City Council in accordance with this chapter.

(C) In seeking the approval of City Council, the 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 § 11120) of Chapter 1 of Part 1 of Division 3 of Title 2) or the Ralph M. Brown Act (Chapter 9 (commencing with § 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 objective of officer and civilian safety; and

   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.

(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 has adopted pursuant to this chapter approving the funding,

acquisition or use of military equipment at 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 § 11120) of Chapter 1 of Part 1 of Division 3 of Title 2) or the Ralph M. Brown Act (Chapter 9 (commencing with § 54950) of Part 1 of Division 2 of Title 5), as applicable.

(Ord. 647, passed 4-5-2022)

(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 chapter.

(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 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, from the City Council.

3. Include the military equipment in the Police Department’s next annual military equipment report.

(Ord. 647, passed 4-5-2022)

(A) The Police Department shall submit to City Council an annual military equipment report for each type 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;

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; and

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.

(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 may discuss and ask questions regarding the annual military 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.

(Ord. 647, passed 4-5-2022)

(A) 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.

(B) 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.

(C) 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.

(D) 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 official 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.

(Ord. 647, passed 4-5-2022)

This chapter became effective 30 days after its final passage and adoption.

(Ord. 647, passed 4-5-2022)