REPORT TO COUNCIL
SUBJECT
Title
Public Safety Military Equipment Use Annual Report Pursuant to California Assembly Bill No. 481
Report
BACKGROUND
On September 30, 2021, Governor Gavin Newsom signed into law California Assembly Bill No. 481 (AB 481), relating to the acquisition and use of military equipment by law enforcement agencies. AB 481 requires law enforcement agencies to obtain approval from the agency’s governing body, in the form of an ordinance adopting a publicly released policy, prior to funding, acquiring or using any military equipment. The term “military equipment” is broadly defined in the law (California Government Code section 7070) and includes various pieces of equipment that were already used by the Department of Public Safety (DPS) staff such as drones, the command vehicle, battering rams, tear gas, pepper balls, armored personnel carrier, and flash bangs. DPS does not possess any equipment acquired from military surplus programs (known as 1033 Programs) designed for military use.
AB 481 required all law enforcement agencies to develop a military use policy approved by its governing body by ordinance by May 1, 2022. At minimum, AB 481 required that the approved policy address the type, quantity, capabilities, purposes, and authorized uses of each type of military equipment; the cost associated with its acquisition and continued use; the legal limitations and procedural rules that govern its use; the training required; the mechanisms in place to ensure policy compliance; and the procedures by which members of the public may file complaints. The City Council was also required to make findings that the equipment was necessary, will safeguard the public’s safety, is reasonably cost effective, and that prior uses complied with policy.
In compliance with AB 481, DPS staff brought its proposed policy to Council on April 5, 2022 (RTC No. 22-0354). Ordinance No. 3191-22 was adopted approving the policy and took effect on May 26, 2022. On May 2, 2023, DPS staff brought its annual report to City Council for a presentation to review and renew the policy, which was adopted by resolution (RTC No. 23-0438).
Pursuant to California Government Code Section 7071 (e)(1) and 7071 (e)(2), DPS must now submit annually for City Council consideration its military use policy and report to consider renewing the ordinance and analyzing whether each type of military equipment identified in that report has complied with the standards set forth in Government Code Section 7071(d), to be heard at a regular meeting held pursuant to the Ralph M. Brown Act.
DPS now seeks Council to review and renew the Ordinance, receive the required Annual Report, re-authorize previously approved equipment, and authorize the purchase of replacement items from the existing list of previously authorized military equipment.
In compliance with Government Code Section 7072(b), DPS is required to hold at least one well-publicized community meeting each year within 30 days of submitting and releasing the annual report. The community meeting has been scheduled for May 23rd, 2024, at 06:00 P.M.
EXISTING POLICY
General Plan Goal SN-3: Ensure a safe and secure environment for people and property in the community by providing effective public safety response and prevention and education services.
General Plan Police SN-3.2: Control conduct recognized as threatening to life and property.
ENVIRONMENTAL REVIEW
The action being considered does not require review under the California Environmental Quality Act (CEQA) because it can be seen with certainty that there is no possibility that it may have an impact on the environment. (CEQA Guidelines Section 15061(b)(3)).
DISCUSSION
Report
DPS has attached its annual military equipment report to the Report to Council (Attachment 1). The report contains all required information as provided in Government Code Section 7072(a), including 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 regarding the equipment; 3. The results of any internal audits, violations of the policy, and actions taken in response; 4. The total annual cost for each type of military equipment, including acquisition, personnel, training, transportation, maintenance, storage, upgrade, ongoing costs, and the funding source; 5. Quantities; and 6. Requests for additional equipment. There were no complaints received by DPS this calendar year involving its military equipment, and no findings of any use contrary to policy.
Policy
DPS seeks the City Council’s review of Lexipol Policy 705, Military Equipment, which was adopted by Ordinance No. 3191-22. The Policy was originally posted on the City website on February 22, 2022. The policy addresses all the required elements as outlined in AB 481, including the type, quantity, capabilities, purposes, and authorized uses of each type of military equipment; the cost associated with its acquisition and continued use; the legal limitations and procedural rules that govern its use; the training required; the mechanisms in place to ensure policy compliance; and the procedures by which members of the public may file complaints.
Additionally, Policy 705 permits DPS to replenish its existing stock once supply levels fall below 30%. This would ensure that DPS can maintain adequate supplies without first returning to Council for authorization.
Policy 705 provides two exceptions to the approved uses of military equipment in the event of exigent circumstances for a mutual aid call. DPS works closely with local, county, state, and federal partners. In exigent circumstances and with the approval of the Chief or his designee, the policy provides that additional types or additional quantities beyond that which was approved in Policy 705 may be deployed from outside entities to promote the safety and security of community members.
Generally, a response may involve “exigent circumstances” if it involves an extraordinary and emergency situation requiring a swift response to prevent imminent danger to life, serious damage to property, imminent escape of a suspect, or destruction of evidence. If DPS acquires, borrows, or uses military equipment in exigent circumstances, it will provide written notification 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.
Request for Additional Equipment
DPS requests that Council authorize acquisition of the following equipment:
The purchase of two (2) Drone Matrice 30T to replace the damaged and outdated Matrice 210. On September 22,2023, the Matrice 210 was damaged beyond repair while searching for a missing-at-risk elderly adult in Sunnyvale. It is no longer manufactured and DPS has determined that the Matrice 30T drone is more efficient and cost effective.
The purchase of ten (10) Noise Flash Diversionary Devices (NFDD) for use by personnel in the Investigations Bureau assigned to the Community Crime Unit (CCU). These devices may be used during high-risk operations where the subject poses a significant threat to the officers or the public. NFDDs produce a loud sound and bright light causing a diversion which may lead to a safer resolution when attempting to take a subject into custody.
The purchase of 36 less-lethal launchers to be deployed to Patrol Units and the SWAT Team. The less-lethal launchers expand the department’s capability in responding to situations where subjects are not complying with orders or directions.
Findings
Government Code Section 7071(e) requires that the City Council annually review its policy adopted by ordinance and vote whether to renew the ordinance at an open and public meeting. The Council must make a finding that the Department has used each type of military equipment identified in the report in compliance with the standards set forth in the policy. If Council finds any military equipment use was not in conformance with the previously approved standards, it shall either disapprove the authorization for that equipment, or require new standards in the policy in order to resolve the lack of compliance. Based on the attached report, the Department believes this finding can be made as there are no documented instances of equipment use that were not within policy.
FISCAL IMPACT
The current inventory of military equipment has been acquired using appropriated operating budget funds and leveraging grant funds whenever possible. Non-consumable items are included in the Department’s equipment replacement schedule. Other stock items are part of the calculated equipment and supplies funded in the existing operating budget.
The fiscal impact of planned additions to equipment detailed in this report are as follows:
• The drone that was previously purchased with Asset Forfeiture Funds was damaged and taken out of service in 2023. The drone was insured for its full value. DPS will utilize the $25,000 in insurance coverage to replace the drone with two smaller drones in 2024. The estimated cost is approximately $10,587 per drone.
• DPS will seek grant funding sources for the purchase of less-lethal launchers. Ongoing costs for replacement will be evaluated as part of the department’s Equipment Replacement Project (P20901) at time of grant acceptance by Council. The estimated one-time cost is $80,000 with a 10-year useful life. The estimated 20-year cost is $164,000, offset by any initial grant funding obtained.
• Purchases of additional Noise Flash Diversionary Devices (NFDD) are funded in the existing operating budget in Program 12700, the estimated cost is $500.
PUBLIC CONTACT
Public contact was made by posting the Council meeting agenda on the City's official-notice bulletin board at City Hall, at the Sunnyvale Public Library and in the Department of Public Safety Lobby. In addition, the agenda and this report are available at the NOVA Workforce Services reception desk on the first floor of City Hall at 456 W. Olive Avenue (during normal business hours), and on the City's website.
ALTERNATIVES
1. Adopt a Resolution Regarding the Presentation of the Annual Public Safety Military Equipment Use Report and Renewing the Military Equipment Use Policy Pursuant to California Assembly Bill No. 481 and Finding the Uses Conformed to Policy, and Finding that the Action is exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15061(b)(3).
2. Adopt a Resolution Regarding the Presentation of the Annual Public Safety Military Equipment Use Report and Renewing the Military Equipment Use Policy Pursuant to California Assembly Bill No. 481 with Modifications and Finding the Uses Conformed to Policy and Find that the Action is exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15061(b)(3).
3. Do not Adopt the Resolution and Provide Alternative Direction to Staff.
RECOMMENDATION
Recommendation
Alternative 1: Adopt a Resolution Regarding the Presentation of the Annual Public Safety Military Equipment Use Report and Renewing the Military Equipment Use Policy Pursuant to California Assembly Bill No. 481 and Finding the Uses Conformed to Policy, Authorizing Staff to Seek Grant Funding for Equipment, and Finding that the Action is exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15061(b)(3).
Levine Act
LEVINE ACT
The Levine Act (Gov. Code Section 84308) prohibits city officials from participating in certain decisions regarding licenses, permits, and other entitlements for use if the official has received a campaign contribution of more than $250 from a party, participant, or agent of a party or participant in the previous 12 months. The Levine Act is intended to prevent financial influence on decisions that affect specific, identifiable persons or participants. For more information see the Fair Political Practices Commission website. A link to the Fair Political Practices Commission website is attached to this Report as Attachment 5.
A check or “Y” in the checklist below indicates that the action being considered falls under a Levine Act category or exemption:
SUBJECT TO THE LEVINE ACT
___ Land development entitlements
___ Other permit, license, or entitlement for use
___ Contract or franchise
EXEMPT FROM THE LEVINE ACT
___ Competitively bid contract
___ Labor or personal employment contract
_Y_ General policy and legislative actions
Staff
Prepared by: Fabian Monge, Captain
Reviewed by: Phan Ngo, Director, Public Safety
Reviewed by: Sarah Johnson-Rios, Assistant City Manager
Approved by: Kent Steffens, City Manager
ATTACHMENTS
1. DPS Annual Military Equipment Report
2. Lexipol Policy 705, Military Equipment
3. Ordinance No. 3191-22
4. Resolution
5. Fair Political Practices Commission Website Link