LBPD Military Equipment Policy Flawed

Assembly Bill 481 approved by the governor and signed into law on Sept. 30, 2021 restricts law enforcement purchases and use of military equipment.

The intent of the law is to increase transparency, accountability and oversight surrounding the acquisition and use of military equipment by state and local law enforcement, to make public policy for use of the equipment and to obtain approval from the agency‘s governing body for its use.

The legislation required the LBPD – no later than May 1, 2022 – to 1) Commence a governing body approval process within 180 days of submission of its proposed military equipment use policy and 2) Make the documents available on the LBPD website at least 30 days prior to any public hearing concerning the military equipment and the department’s policies for its use.

On May 5 the AB 481 LBPD webpage was published.

The announcement included the following statement: “Following a 30-day public review period, the department’s proposed military equipment use policy will be sent for City Council’s review and placed on the agenda for open session and public comment.

“Members of the public can also register a question or concern regarding military use equipment by contacting the LBPD via email at AB481@longbeach.gov.”

On May 11 the Beachcomber published an article entitled LBPD Equipped for War – Harnessed by Law in which this newspaper reported on a number of questions registered at the website.

This writer has since received responses to the questions registered with the LBPD, followed up with additional questions to the answers provided and reviewed the full package sent by Chief Hebeish though the City Manager asking for council approval of the “proposed policy in its meeting scheduled for July 5.”

On July 4 – after consulting with several experts on the subject of military equipment and weapons used in the civilian settings as well as the proposed LBPD policy – this writer filed a letter though the City Clerk that outlines a number of issues that the City Council should consider prior to approving the LBPD policy statement.

The content of the letter follows:

To: Honorable Mayor and City Council

Subject: Agenda Item 22-0753 – LBPD Military Equipment Use Policy – July 5.

Recommended Reading

It is recommended that prior to evaluating the 22-page proposed policy designed to accommodate the requirements of AB 481 that Council Members read the five point finding and declaration by the California Legislature in order to fully appreciate the import and purpose of the legislation.

Letter of Transmittal Misleading

In his July 5 letter of transmittal under the heading TIMING CONSIDERATIONS the City Manager states: “City Council action is requested on July 5, 2022 to comply with the requirements set forth by Assembly Bill AB 481.”

Correction: The requirements set forth in AB 481 allows the Council a full 180 days from the date the proposed policy is submitted to council to approve or disapprove the proposed policy statements.

The council has until Jan. 13, 2023 to study, receive public input from their constituents, ask questions of the City Manager and the LBPD and direct that additions, deletions and clarifications be made to the proposed policy.

Additions and Revisions Required and Recommended

The proposed Military Weapons policy was published and posted on the LBPD website on May 6, a violation of the AB 481 requirement to publish and post no later than May 1.

The requirements of AB 481 are not met in several areas of the proposed policy.

The council should direct the City Manager to require the LBPD to revise and resubmit for council approval.

The most outstanding failure is the omission of mechanisms designed 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.

Questions Posed to LBPD

Questions were submitted to the advertised LBPD email address on May 11 following the May 6 public announcement, as follows:

Question: Why is the “Strongwatch Freedom-on-the-Move” camera vehicle - a technology used by the military in combat zones to facilitate operational control and direction of units – once seen deployed by the LBPD during the BLM Peacewalk – not included on the list under the category of Command-and-Control Vehicles built or modified to facilitate the operational control and direction of public safety units?

LBPD RESPONSE: The “Strongwatch Freedom-on-the-Move” camera vehicle will be included in the AB 481 equipment list, and we are in the process of amending the special order.

COMMENT: The special order was amended and posted on the LBPD website on June 29 and this council agenda item was revised and updated on July 1 to include the surveillance vehicle and its camera equipment.

However, when the LBPD acknowledged its use we found that the description of the full camera and software capabilities advertised by the vendor were not included in the policy description.

A subsequent request for clarification was not answered.

REQUEST TO COUNCIL: It is requested that council obtain clarification in order to determine if the Strongwatch equipment includes the capability to 1) engage facial recognition software, 2) engage license plate scan software 3) human sensing and trailing software and 4(other undisclosed capabilities.

It is requested that the council determine whether policy statements should be added that prohibit civil liberty violations – as may have occurred when the surveillance platform was deployed during the BLM Peace March and that the LBPD include in the policy statement the retention period of all video and still frame photography captured by the surveillance platform and enumerate the reasons for such retention.

QUESTION: Why was the MobileEye vehicle – especially if modified – not included in the list along with a policy approval level for its use?

LBPD RESPONSE: Upon consulting with the City Attorney’s Office, it has been determined that the MobileEye vehicle does not fall within the definition of ‘military equipment’ as outlined in Government Code Section 7070(c)(1-5), as the vehicle is used as a deterrent rather than to direct public safety units.  

REQUEST TO COUNCIL: The city attorney’s opinion did not recognize that AB 481 provides - in Chapter 12.8, Section (15) – that “Any other equipment as determined by a governing body or a state agency to require additional oversight” may be included in the policy.

The MobileEye vehicle capabilities have never been fully described to the public.

Public trust in its use would be enhanced if LBPD policy and procedure of such use, deployment and retention periods applied to the video and still photography was included in the policy statement.

BOILERPLATE NOT ACCEPTABLE IN POLICY STATEMENTS

It is not enough for the individual statements of policy related to military equipment use to make boilerplate statements that “all laws will be followed.”

The LBPD military equipment use policies should state exactly how it would apply for each piece of military equipment without referencing law and policy buried in other documents that the reader is required to chase down.

Additionally, the policy statements exhibit no understanding that the appearance of weapons and equipment – as described in the following paragraphs - can escalate fear and conflict, especially if there are cognitive barriers such as a mental health crises or non-English speakers with English-only speaking officers.

The following military equipment policies suffer from the use of boilerplate and in several categories do not comply with other legal requirements:

CHEMICAL AGENTS: The policy for chemical agents, including teargas, and impact projectiles (#1, #5, #6 in the LBPD inventory; #4 for the port inventory), fails to comply with AB 48, the other new state law governing use of those weapons.

AB 48 prohibits use of chemical agents and impact projectiles for crowd control unless there is a clear threat to life or of serious bodily injury, and only after specific measures have been taken.

These measures include de-escalation techniques, clear announcements that the weapons will be deployed, and opportunity for people to leave the scene.

AB 48 (Penal Code § 13652) also prohibits use of these weapons only to enforce a curfew, respond to a verbal threat, or enforce a law enforcement directive (which could be as simple as a verbal command to do something).

RIFLES: The same applies to rifles. The policy says who can use them. It does not state under what circumstances they can be used. For example, should the deployment of a rifle be prohibited in a crowded indoor environment like a department store?

BEARCAT: The policy language addresses who can use the Bearcat, but there is no statement that addresses authorization without consideration of alternatives.

FLASH BANGS: Authorized for “high risk warrant services” but the policy does not state they should not be authorized without consideration of alternatives.

DRONES: The proposed policy states who can use Drones, but there is no limit on their use. For example, if a drone is to be used in a criminal investigation under what circumstances should a warrant be required.

An excellent example of an outstanding drone policy is that developed by the City of Oakland.

40 MM LAUNCHERS are described as "intended for use in situations where standoff distance is desired” but there is no prohibition or limitation on their use at close or medium range.

“The LBPD policy manual does say officers should consider “distance and angle to the target” before discharging these munitions but doesn’t actually say close distance firing should be avoided, as in situations like that which occurred in the May 31 demonstrations in which KPCC reporter Adolfo Guzman was struck in the neck with a foam round.

Conclusion

The council should ask: Was the proposed policy vetted by the Office of Constitutional Policing? Was it exposed to and discussed with the communities most affected by the police use of military equipment as stated in the preamble to AB 481?

We look forward to the council’s deliberations and contribution toward a second draft policy statement aimed at satisfying the community-centric requirements of AB 481.

Council Meeting July 5

When the agenda item was called on July 5,  City Attorney Charles Parkin asked that it be withdrawn.

He said, “it is our understanding the intent of assembly bill 481 is to have the list available for inspection by the public for 30 days prior to the council's discussion and it's come to our attention that the list was amended on Friday to add one additional piece of equipment. We ask that this item be continued to allow the revised list to be made public for the entire 30 day comment period, and then be brought back to the council at that time.”

A motion to withdraw was approved by the full council.

Stephen Downing is a resident of Long Beach and a retired LAPD deputy chief of police. Stephen.Beachcomber@gmail.com

[Editors Note: This story, originally published on July 4 was updated on July 6. The Beachcomber will report on the outcome of the policy issues as discussed by council when the issue is either returned to council or when the LBPD publishes a revised proposed policy.]

Those contributing to the analysis, comments and recommendations made in the letter to the mayor and council include:

Greg Buhl, attorney and head researcher at CheckLBPD.

John Lindsay-Poland, co-director, California Healing Justice program

Jennifer Tu, American Friends Service Committee