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HomeMy WebLinkAbout4/19/2022 Item 6e, Scott - Staff Agenda Correspondence Council Agenda Correspondence City of San Luis Obispo, Council Memorandum DATE: April 19, 2022 TO: Mayor and Council FROM: Rick Scott, Police Chief VIA: Derek Johnson, City Manager SUBJECT: Item # 6e. - Council Correspondence regarding the Ordinance approving the Military Use policy in accordance with AB 481 This correspondence is regarding the item at the April 18, 2022, City Council meeting related to the new legislation governing the use of military equipment by the Police Department titled AB 481. To date no public questions have been received for follow up. The information and materials were circulated with both the Police Advisory Committee (formerly PACT) and the Police Roundtable. A few questions for clarification on the department’s (AB 481) policy. Below is a summary of the questions posed to the department and our response to date which are indicated in italics. There will be a few minor changes to our proposed policy based on good feedback received thus far. 1. Q: Who (which position in the department, not necessarily a named individual) will be deemed the Equipment Coordinator? a. The “Police Administrative Captain” will be the Chief’s designee and named in the proposed policy. 2. Q: What will the process be for acquisition and funding of each piece of equipment? a. Acquisition: See next question referencing approval below. b. Funding: There is no change for funding. All equipment we currently have is essentially funded until replacement is needed. We work through our existing budgetary process for this and request funding when items are expended or worn and become non-serviceable. 3. Q: What will be the approval process for new equipment? a. Yes, any NEW (not previously approved) equipment must go back to Council for approval via the ordinance process. We cannot buy anything Council has not reviewed and approved via this process. Ideally, this would happen once a year along with the annual military equipment report. If the need should arise for additional equipment, we did not previously seek approval for, then we will come back to Council. City of San Luis Obispo Item 6e – Staff Agenda Correspondence Page 2 4. Q: What will the public process be for filing a complaint and what will be the documentation and follow-up processes for those complaints? Who will manage that process? a. A specific section will be added to the proposed policy covering the process outlining and referring community members to our existing and robust complaint process which meets the elements of the law. Ideally it is not good practice to restate an existing policy within a policy as this will create opportunities for inconsistencies and significant version control issues and confusion for the public and staff. 5. Q: AFSC California Healing Justice reviewed policies from other cities. Could you please let us know if any of the concerns below are applicable to our policy? a. The San Luis Obispo Police Department and its policies are in alignment with AB 481. We reviewed numerous model policies including Sacramento PD. The AFSC document mostly parallels AB 481, but we are strictly following the mandates in the law which is best practice and required. b. The first line of AFSC letter states, “Policies complying with AB 481 should describe uses that are not authorized.” This is not a direct quote from the law and to better address the question is to have the actual verbiage from AB 481. AB 481 in Chapter 12.8 7070 (d)(2) states “Military equipment use policy means a publicly released, written document governing the use of military equipment by a law enforcement agency or a state agency that addresses, at minimum, all of the following. (2) The purposes and authorized uses for which the law enforcement agency or the state agency proposes to use each type of military equipment.” Attachment A of SLOPD’s Policy 709 does this as it lists the proposed and authorized use for each item of equipment. c. The next section highlighted is from the AFSC document and not AB 481, “Policies should clearly state to whom deployments will be reported and how records will be kept.” AB 481 Chapter 12.8 7072 specifically outlines what is required by law. …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. Item 6e – Staff Agenda Correspondence Page 3 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. 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. 7. SLOPD Policy 709.8 closely follows AB 481 Chapter 12.8 7072 processes for reporting the use of this equipment as required by this law providing this information to Council annually. d. The last highlighted section from AFSC’s letter states, “Adequate enforcement of military equipment policies requires ordinances with a private right of action.” SLOPD Policy 709.3 (e) and 709.9 both outline our policy which ensures community engagement. Additionally, Policy 709.3 (g) ensures that the community can register a complaint or question regarding the use of military equipment. A complaint would follow our established complaint process Policy 1019. This will be better specified in our proposed policy for tomorrow. 6. Q: On page 1 of the policy, the listing of “military equipment” seems to include all items listed in AB 481. Are there specific items which we would not want for our City and should exclude within the policy? Perhaps specific assault weapons or LRAD’s? a. Yes, all items listed in the law that are not being requested are by default not authorized already. Page 1 of our policy does list all items from AB 481. The reason is Policy 709.1.1 is the “Definitions” section of the policy and we are adhering to the law outlined in AB 481. Our policy recognizes and adopts AB 481 in its entirety. b. The Department thoughtfully determined what minimum equipment is necessary to carry out our duties and responsibilities as a department. The Department have been discerning in determining what equipment is needed and are not requesting at this time any new equipment that the department does not already possess and for which the department has governing policies. c. The use of equipment and tools outlined in this report is very rare. In these rare and extreme circumstances, it would only be used to protect the welfare of community members and peace officers. For example, we do not have an LRAD and this is something that we found is not appropriate for our community along with many other items we are not requesting. If we continue with the policy as written, an LRAD and many other pieces of military equipment (not requested) will not be allowed for use by the department as intended. Item 6e – Staff Agenda Correspondence Page 4 7. Our comprehensive Use of Force policies were developed over years of robust research and input and most recently in partnership with a nationally well know Jewish activism group Bend the Arc and model policies from the ALCU to ensure we are not using force or any weapons disproportionately against any members of our community to include black, brown, or any marginalized members. The equipment in this law (481) and others are merely tools only, their use is governed exclusively in our stringent and Use of Force policy. 8. The following is an excerpt from the Council Agenda Report that addresses the statement from AB 481: “It is important to note that the use of equipment and tools as outlined in this report is very rare. The Police Department has policies in place to deescalate situations and only uses force as needed to protect public safety. Nevertheless, many of these tools have been tested in the field and are used in very rare and life-threatening situations to protect public health and safety by LEAs to enhance resident and officer safety. The ability to use these items during rare and extreme circumstances are to protect the welfare of residents and peace officers within the City of San Luis Obispo.” Attachment A - Military Equipment Policy 04/18/2022 San Luis Obispo Police Department San Luis Obispo PD CA Policy Manual Copyright Lexipol, LLC 2022/01/03, All Rights Reserved. Military Equipment - 1 Published with permission by San Luis Obispo Police Department Policy 709 Military Equipment 709.1 PURPOSE AND SCOPE The purpose of this policy is to provide guidelines for the approval, acquisition, funding, and reporting requirements regarding military equipment as defined in Government Code § 7070 (Government Code § 7070; Government Code § 7071; Government Code § 7072). 709.1.1 DEFINITIONS Definitions related to this policy include (Government Code § 7070): Governing body – The San Luis Obispo City Council (“City Council”). Military equipment – Includes, but is not limited to, the following as defined in Government Code § 7070(c): • Unmanned, remotely piloted, powered aerial or ground vehicles. • Mine-resistant ambush-protected (MRAP) vehicles or armored personnel carriers. • High mobility multipurpose wheeled vehicles (HMMWV), two -and-one-half-ton trucks, five-ton trucks, or wheeled vehicles that have a breaching or entry apparatus attached. • Tracked armored vehicles that provide ballistic protection to their occupants. • Command and control vehicles that are either built or modified to facilitate the operational control and direction of public safety units. • Weaponized aircraft, vessels, or vehicles of any kind. • Battering rams, slugs, and breaching apparatuses that are explosive in nature. This does not include a handheld, one-person ram. • Firearms and ammunition of_.50 caliber or greater, excluding standard -issue shotguns and standard-issue shotgun ammunition. • Specialized firearms and ammunitio n of less than_.50 caliber, including firearms and accessories identified as assault weapons in Penal Code § 30510 and Penal Code § 30515, with the exception of standard -issue handguns. • Any firearm or firearm accessory that is designed to launch explosive projectiles. • Noise-flash diversionary devices and explosive breaching tools. • Munitions containing tear gas or OC, excluding standard, service -issued handheld pepper spray. • TASER® Shockwave, microwave weapons, water cannons, and long -range acoustic devices (LRADs). • Kinetic energy weapons and munitions. • Any other equipment as determined by City Council to require additional oversight. Pursuant to Government Code § 7070(c), the following are not military equipment: • Police versions of standard consumer vehicle s • Unarmored all-terrain vehicles (ATVs) and motorized dirt bikes • Items designed to remove a lock, such as bolt cutters, or a handheld ram designed to be operated by one person San Luis Obispo Police Department San Luis Obispo PD CA Policy Manual Military Equipment Copyright Lexipol, LLC 2022/01/03, All Rights Reserved. Military Equipment - 2 Published with permission by San Luis Obispo Police Department • Standard issue shotguns • Standard issue shotgun ammunition • Standard issue service weapons and ammunition of less than .50 caliber • Standard service-issued handheld pepper spray • General equipment not designated as prohibited or controlled by the federal Defense Logistics Agency 709.2 POLICY It is the policy of the San Luis Obispo Police Department that members of this department comply with the provisions of Government Code sections 7070 through 7075 with respect to the approval for, acquisition, funding, and use of, and reporting regarding military equipment. 709.3 MILITARY EQUIPMENT COORDINATOR The Police Administrative Captain is designated as the Military Equipment Coordinator by the Chief of Police and shall have all duties and responsibilities herein to include, but are not limited to: (a) Acting as liaison to City Council for matters related to the requirements of this policy. (b) Identifying department equipment that qualifies as military equipment in the current possession of the department, or the equipment the department intends to acquire that requires approval by City Council. (c) Conducting an inventory of all department military equipment at least annually. (d) Collaborating with any allied agency that may use military equipment within the jurisdiction of San Luis Obispo Police Department (Government Code § 7071). (e) Preparing for, scheduling, and coordinating the annual community engagement meeting, as outlined in section 709.8 of this policy, to include: 1. Publicizing the details of the meeting. 2. Preparing for public questions regarding the departmen t’s funding, acquisition, and use of military equipment. (f) Preparing the annual military equipment report for submission to the Chief of Police and ensuring that the report is made available on the department website (Government Code § 7072). (g) Establishing the procedure for a person to register a complaint or concern, or how that person may submit a question about the use of a type of military equipment by the department, and how the department will respond in a timely manner. 709.4 MILITARY EQUIPMENT INVENTORY The qualifying equipment for the department is listed in Attachment A to this policy. San Luis Obispo Police Department San Luis Obispo PD CA Policy Manual Military Equipment Copyright Lexipol, LLC 2022/01/03, All Rights Reserved. Military Equipment - 3 Published with permission by San Luis Obispo Police Department 709.5 APPROVAL The Chief of Police or the authorized designee shall obtain approval from the City Council by way of an ordinance adopting the military equipment policy. As part of the approval process, the Chief of Police or the authorized designee shall ensure the propo sed military equipment policy is submitted to City Council and is available on the department website at least 30 days prior to any public hearing concerning the military equipment at issue (Government Code § 7071). The military equipment policy must be approved by City Council prior to engaging in any of the following (Government Code § 7071): (a) Requesting military equipment made available pursuant to 10 USC § 2576a. (b) 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. (c) Acquiring military equipment either permanently or temporarily, including by borrowing or leasing. (d) Collaborating with another law enforcement agency in the deployment or other use of military equipment within the jurisdiction of this department. (e) Using any new or existing military equipment for a purpose, in a manner, or by a person not previously approved by City Council. (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 military equipment through any means not provided above. 709.6 COORDINATION WITH OTHER JURISDICTIONS Military equipment in the possession of the department shall not be used by any other law enforcement agency or member in this jurisdiction unless the military equipment is approved for use in accordance with this policy. This policy recognizes the need for agencies to provide assistance to each other, whether in ongoing, combined, or regional operations, occasional planned operations, or in exigent circumstances. Where applicable to the provisions of Government Code § 7070 through § 7075, such assisting agencies shall comply with their respective military equipment use policies whe n rendering assistance and with any directions for use of department military equipment given by department command. San Luis Obispo Police Department San Luis Obispo PD CA Policy Manual Military Equipment Copyright Lexipol, LLC 2022/01/03, All Rights Reserved. Military Equipment - 4 Published with permission by San Luis Obispo Police Department 709.7 EXTRAORDINARY CIRCUMSTANCES This policy also recognizes that there may be very limited or extreme instances where incidents of extraordinary nature could demand the need for incident commanders to authorize Department personnel to use equipment not specified in this policy. This decision must be made depending on the totality of the circumstances, including due regard for the public ’s safety, officer safety, respecting civil rights, the seriousness of the situation, and other information available at that time. Should such extreme instances occur that call for members of this Department to use equipment not specified in this policy, the incident commander shall, if practical, notify the Chief of Police via the chain of command prior to deploying such equipment and the use of such equipment shall be documented in an appropriate report. Should such circumstances occur, the Chief of Po lice, or his/her designee, shall notify the City Council as soon as practical, and document any such uses in the required annual report. 709.8 ANNUAL REPORT Upon approval of a military equipment policy, the Chief of Police or the authorized designee shall submit a military equipment report to City Council for each type of military equipment approved within one year of approval, and annually thereafter for as long as the military equipment is available for use (Government Code § 7072). The Chief of Police or the authorized designee shall also make each annual military equipment report publicly available on the department website for as long as the military equipment is available for use. The report shall include all information required by Government Code § 7072 for the preceding calendar year for each type of military equipment in department inventory. 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: (a) A summary of how the military equipment was used and the purpose of its use. (b) A summary of any complaints or concerns received concerning the military equipment. (c) The results of any internal audits, any infor mation about violations of the military equipment use policy, and any actions taken in response. (d) The total annual cost for each type of military equipment, including acquisition, personnel, training, transportation, maintenance, storage, upgrade, and o ther 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. (e) The quantity possessed for each type of military equipment. (f) If the department intends to acquire additional military equipment in the next year, the quantity sought for each type of military equipment. San Luis Obispo Police Department San Luis Obispo PD CA Policy Manual Military Equipment Copyright Lexipol, LLC 2022/01/03, All Rights Reserved. Military Equipment - 5 Published with permission by San Luis Obispo Police Department 709.9 COMMUNITY ENGAGEMENT Within 30 days of submitting and publicly releasing the annual report, the 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 ann ual military equipment report and the Department’s funding, acquisition, or use of military equipment. At the meeting, the Department shall discuss the report and respond to questions regarding the Department’s funding, acquisition, or use of military equipment (Government Code §7072). 709.10 MILITARY EQUIPMENT COMPLAINT PROCESS Trust and transparency to the community we serve is paramount to our community -oriented policing philosophy. Maintaining an active exchange of ideas and feedback is integral to the harmonization of this collaborative initiative. The most effective way to partner with our community on these important topics is to provide a safe and transparent means by which we listen to feedback and engage concerns on the necessary tools we are entru sted with to serve our community. Building and maintaining trust is predicated on first listening to concerns, giving a voice through dialogue, and swiftly acting on areas where we can improve. Pursuant to 709.3 (g) of this policy, all formal complaints, q uestions, or inquiries received by the department, regardless of manner, pertaining to the use or misuse, possession, or acquisition of any item defined by this policy and/or AB 481 as Military Equipment shall be referred to Lexipol policy 1019 Personnel Complaints. Any complaint related to the misuse of Military Equipment is deemed serious in nature and will be investigated thoroughly and as expeditiously as possible and in accordance with the stringent procedures and processes as directed by Lexipol polic y 1019. Complaints received under 709.10 will be thoroughly documented and dispositions recorded per Lexipol policy 1019. All complaints, regardless of findings and/or disposition, shall be aggregated annually and reported to the Chief of Police for inclus ion into the department’s annual Military Equipment Report presented to Council.