Sebastopol Municipal Code Ch. 8.70 Governing Body Specific Equipment Approval Ordinance

This chapter shall be known as the “Governing Body Specific Equipment Approval Ordinance.” (Ord. 1139 § 3, 2022)

On January 1, 2022, Assembly Bill 481, as passed by the California State Legislature and signed by the Governor, went into law. The bill added Chapter 12.8 (Commencing with Section 7070) to Division 7 of Title 1 of the Government Code, relating to specifically defined “military” equipment.

The bill requires the creation of a specific equipment approved use policy by law enforcement agencies, as well as the publishing of the policy on the Police Department website and imposes a State-mandated local program. It also requires law enforcement agencies to provide a means to gather public feedback to any complaints or concerns regarding the use of defined “military” equipment which shall be documented in an annual report. The report shall also contain how the equipment was used, the results of any internal audits regarding misuse, the total annual cost for the equipment, maintenance, and cost of training for the use of the equipment, as well as the quantity of any type of specific equipment in the agency’s possession.

The bill requires law enforcement agencies to obtain both the initial approval of the applicable governing body (in this instance the Sebastopol City Council) by adoption of the Governing Body Specific Equipment Approval 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 requires similar approval for the continued use of defined “military” equipment acquired prior to January 1, 2022. The bill allows the governing body to approve the funding, acquisition, or use of defined “military” equipment within its jurisdiction only if it determines that the defined “military” equipment meets specified standards. The bill requires the governing body to annually review the ordinance and to either approve or disapprove a renewal of the authorization for a type, as defined, of “military” equipment or amend the Governing Body Specific Equipment Approval Policy if it determines, based on an annual Governing Body Specific Equipment Approval Policy report prepared by the law enforcement agency, as provided, that the defined “military” equipment does not comply with the above-described standards for approval.

The California State Legislature found and declared and the Sebastopol City Council do also find and declare the following:

The public has a right to know about any funding, acquisition, or use of defined “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.

Decisions regarding whether and how defined “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 upon meaningful public input.

The Sebastopol City Council also finds that based upon the definitions contained in the newly implemented California Government Code, Chapter 12.8, Section 7070, that the Sebastopol Police Department has had in its possession for many years, previously purchased “specific equipment” which has now been redefined per California Government Code Section 7070 as “military equipment,” though said equipment was not previously acquired or purchased through any form of procurement program from the United States Government, or any branches of the armed services nor was it acquired utilizing any provisions of the Federal Surplus Property Acquisition Law of 1945. This “specific equipment” is now included in AB 481 as requiring the adoption of a specific use and approval policy for continued use, which is addressed by this chapter. The “specific equipment” in question has been in use by the Sebastopol Police Department for more than a decade. Its availability and proper usage have been deemed as a best practice by law enforcement groups and experts nationwide and is classified as a “less lethal” option to specifically deescalate situations and avoid the use of deadly force. This tool enhances the safety of our community members and our police officers. (Ord. 1139 § 3, 2022)

The following words and phrases, whenever used in this chapter, shall be construed as defined in this section, unless it is apparent from the context that they have a different meaning:

“City” means any department, agency, bureau, and/or subordinate division of the City of Sebastopol.

“City Council” means the governing body that is the Sebastopol City Council.

“Exigent circumstances” means 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.

“Governing Body Specific Equipment Approval Policy” means a publicly released, written document that includes, at a minimum, all of the following:

1. A description of each type of defined “military” equipment, the quantity sought, its capabilities, expected lifespan, and product descriptions from the manufacturer of the defined “military” equipment.

2. The purposes and authorized uses for which the law enforcement agency or the state agency proposes to use each type of defined “military” equipment.

3. The fiscal impact of each type of defined “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 defined “military” equipment to ensure the full protection of the public’s welfare, safety, civil rights, and civil liberties and full adherence to the Governing Body Specific Approval Policy.

6. The mechanisms to ensure compliance with the Governing Body Specific Equipment Approval 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 defined “military” equipment, and how the law enforcement agency will ensure that each complaint, concern, or question receives a response in a timely manner.

“Military equipment” includes all of the following (per California Government Code Section 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 subsection.

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 subsection.

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 subsection.

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

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

10. Specialized firearms and ammunition of less than 0.50 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 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 device (LRAD).

14. The following projectile launch platforms and their associated munitions: 40 mm 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 subsections (1) through (15) of this definition, “military equipment” does not include general equipment not designated as prohibited or controlled by the Federal Defense Logistics Agency.

“Police Department” means any division, section, bureau, employee, volunteer and/or contractor of the Sebastopol Police Department.

“State agency” means 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 Section 20 thereof) or Article VI of the California Constitution.

“Type” means each item that shares the same manufacturer model number. (Ord. 1139 § 3, 2022)

A. The Sebastopol Police Department shall obtain approval of the City Council, by an ordinance adopting a Governing Body Specific Equipment Approval Policy at a regular meeting of the City Council 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:

1. Requesting defined “military” equipment made available pursuant to Section 2576a of Title 10 of the United States Code.

2. Seeking funds for defined “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 defined “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 defined “military” equipment within the territorial jurisdiction of the City of Sebastopol.

5. Using any new or existing defined “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 defined “military” equipment.

7. Acquiring defined “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 defined “military” equipment that was acquired prior to January 1, 2022, the Sebastopol 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 defined “military” equipment, including by adoption pursuant to a Governing Body Specific Equipment Approval Policy submitted pursuant to this code, within 180 days of submission of the proposed Governing Body Specific Approval Policy to City Council, the Sebastopol Police Department shall cease its use of the defined “military” equipment until it receives the approval of City Council in accordance with this code.

C. In seeking the approval of City Council, the Sebastopol Police Department shall submit a proposed Governing Body Specific Equipment Approval 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 defined “military” equipment at issue.

D. The governing body shall consider a proposed Governing Body Specific Equipment Approval 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.

E. The governing body shall only approve a Governing Body Specific Equipment Approval Policy pursuant to this chapter if it determines all of the following:

1. The defined “military” equipment is necessary because there is no reasonable alternative that can achieve the same objective of officer and civilian safety.

2. The proposed Governing Body Specific Equipment Approval 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 defined “military” equipment use complied with any policies that were in effect at the time, or if prior uses did not comply with the accompanying Governing Body Specific Equipment Approval 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 Governing Body Specific Equipment Approval Policy shall be made publicly available on the internet website of the Police Department for as long as the defined “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 defined “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 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. (Ord. 1139 § 3, 2022)

A. Notwithstanding the provisions of this chapter, the Police Department may acquire, borrow and/or use defined “military” equipment in exigent circumstances without following the requirements of this code.

B. If the Police Department acquires, borrows, and/or uses defined “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 Governing Body Specific Equipment Approval 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 defined “military” equipment in the Police Department’s next annual Governing Body Specific Equipment Approval Report. (Ord. 1139 § 3, 2022)

A. The Police Department shall submit to City Council an annual Governing Body Specific Equipment Approval Report for each type of defined “military” equipment approved by the City Council within one year of approval, and annually thereafter for as long as the defined “military” equipment is available for use.

B. The Police Department shall also make each annual Governing Body Specific Equipment Approval Report required by this section publicly available on its internet website for as long as the defined “military” equipment is available for use.

C. The annual Governing Body Specific Equipment Approval Report shall, at a minimum, include the following information for the immediately preceding calendar year for each type of defined “military” equipment:

1. A summary of how the defined “military” equipment was used and the purpose of its use.

2. A summary of any complaints or concerns received concerning the defined “military” equipment.

3. The results of any internal audits, any information about violations of the Governing Body Specific Equipment Approval Policy, and any actions taken in response.

4. The total annual cost for each type of defined “military” equipment, including acquisition, personnel, training, transportation, maintenance, storage, upgrade, and other ongoing costs, and from what source funds will be provided for the defined “military” equipment in the calendar year following submission of the annual Governing Body Specific Equipment Approval Report.

5. The quantity possessed for each type of defined “military” equipment.

6. If the law enforcement agency intends to acquire additional defined “military” equipment in the next year, the quantity sought for each type of defined “military” equipment.

D. Within 30 days of submitting and publicly releasing an annual Governing Body Specific Equipment Approval 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 Governing Body Specific Equipment Approval Report and the law enforcement agency’s funding, acquisition, or use of defined “military” equipment.

E. The City Council shall determine, based on the annual Governing Body Specific Equipment Approval Report submitted pursuant to this section, whether each type of defined “military” equipment identified in that report has complied with the standards for approval set forth in this code and the Governing Body Specific Equipment Approval Policy. If the City Council determines that a type of defined “military” equipment identified in that annual Governing Body Specific Equipment Approval Report has not complied with the standards for approval, the City Council shall either disapprove a renewal of the authorization for that type of defined “military” equipment or require modifications to the Governing Body Specific Equipment Approval Policy in a manner that will resolve the lack of compliance. (Ord. 1139 § 3, 2022)

A. Remedies for Violations of This Chapter.

1. 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.

2. 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.

3. 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.

4. 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. 1139 § 3, 2022)

A. If any section, subsection, sentence, clause, phrase, or word of this chapter, or any application thereof to any person or circumstance, is held to be invalid or unconstitutional by a decision of a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions or applications of this chapter.

B. The City Council hereby declares that it would have passed this chapter and each and every section, subsection, sentence, clause, phrase, and word not declared invalid or unconstitutional without regard to whether any other portion of this chapter or application thereof would be subsequently declared invalid or unconstitutional. (Ord. 1139 § 3, 2022)