Chapter 8.80
MILITARY EQUIPMENT USE
Sections:
8.80.030 Military equipment use policy requirement.
8.80.040 Use in exigent circumstances.
8.80.050 Reports on the use of military equipment.
8.80.010 Title.
This chapter shall be known as the military equipment use ordinance. (Ord. 04-2022 § 1, 5-3-22.)
8.80.020 Definitions.
(a) “Exigent circumstances” means the good faith belief of the police chief or their designee 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.
(b) “Police department” means any division, section, bureau, employee, volunteer and/or contractor of the Fremont police department.
(c) “Military equipment” means as defined by Cal. Gov’t Code § 7070.
(d) “Military equipment use policy” means 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 police department 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 police department 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.
(7) 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 police department will ensure that each complaint, concern, or question receives a response in a timely manner.
(e) “Type” means each item that shares the same manufacturer model number. (Ord. 04-2022 § 1, 5-3-22.)
8.80.030 Military equipment use policy requirement.
(a) The Fremont police department shall obtain city council approval of a military equipment use policy in accordance with Cal. Gov’t Code § 7071 at a regular meeting of the city council held pursuant to the Ralph M. Brown Act (Cal. Gov’t Code § 54950 et seq.) prior to engaging in any of the following:
(1) Requesting military equipment made available pursuant to 10 U.S.C. Section 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 Fremont.
(5) Using any new or existing military equipment for a purpose, in a manner, or by a person not previously approved by the city of Fremont city council 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.
(7) Acquiring military equipment through any means not provided by this section.
(b) In seeking the approval of city council, the Fremont police department shall submit a proposed military equipment use policy to the 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.
(c) The city council 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.
(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.
(d) 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.
(e) The city council shall review this chapter at least annually and vote on whether to renew it at a regular meeting held pursuant to the Ralph M. Brown Act, Cal. Gov’t Code § 54950 et seq. (Ord. 04-2022 § 1, 5-3-22.)
8.80.040 Use in exigent circumstances.
(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 that has not been approved in the military equipment policy as authorized 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. 04-2022 § 1, 5-3-22.)
8.80.050 Reports on the use of military equipment.
(a) The police department shall submit to the city council an annual military equipment report for each type of military equipment approved by the city council annually 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.
(6) If the police department 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 police department’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 chapter 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. 04-2022 § 1, 5-3-22.)