An ordinance proposed by Berkeley City Council Member Kate Harrison and approved in April 2021 will provide oversight and transparency to the equipment that the Berkeley Police Department acquires and uses in SWAT operations, protests, and other actions. The ordinance will apply to militarized gear such as assault rifles, armored vehicles, chemical agents, "less lethal" launchers and projectiles, battering rams, and long riot batons, and requires policies for use, approval of those policies by the City Council, and public reporting on how these weapons are used.
The ordinance is modeled after Berkeley's surveillance equipment ordinance, enacted in 2018, which has the same provisions for use policies, Council approval and reporting.
Frequently Asked Questions
Why is this ordinance needed?
Like other police departments, BPD has obtained more militarized equipment in the last two decades that is used during protests and in SWAT operations that are deployed disproportionately against Black people. But militarized equipment lacks transparency and civilian-directed decisions on acquisition and use policies. This ordinance creates a process for oversight and transparency about the acquisition and use of militarized gear.
Who is impacted by militarized police gear?
Berkeley PD stops Black people more than white people in Berkeley, according to Stops data. This puts Black people at greater risk of being subjected to militarized equipment than white people - another reason why BPD should have clear and reasonable use policies for equipment and transparent reporting on its use.
What equipment does the ordinance cover and how was this list of equipment created?
The types of weapons and equipment covered by the proposed ordinance originated in President Obama's Executive Order 13688 in 2015, which controlled some weapons and banned others for distribution from the Pentagon 1033 program to police departments. Trump rescinded EO 13688 in 2017. In 2018, AB 3131 would have created a process for community oversight of militarized equipment across California, from the Pentagon as well as from other sources. AB 3131 passed the legislature but was vetoed by then-Governor Brown. This ordinance is modeled on Berkeley's and Oakland's existing surveillance ordinances. The Oakland ordinance was introduced in late 2019 and approved unanimously by Oakland's Police Commission in June 2020. It was approved 4-0 by the Oakland City Council Public Safety Committee on June 8, 2021.
What is the status of the proposed ordinance?
A Police Review Commission subcommittee edited the ordinance over the course of several meetings, and the full Commission approved the ordinance on Wed. October 28. The City Council Public Safety Committee had initial discussions of the ordinance in November, December, and March 1. At its meeting on March 29, the Committee forwarded the ordinance to full City Council, which will consider it on April 27 (Item 32). The Public Safety Committee recommended removing LRADs from the ordinance and reconsideration of assault rifles, 40 mm 'less lethal' launchers and long batons, based on the erroneous claim that Berkeley's use of force policy requires duplicate reporting on those weapons. The Police Review Commission considered this baseless claim of duplicative reporting in January and dismissed it in a unanimous recommendation.
This is the current proposed ordinance under consideration.
What transparency does the ordinance create that doesn't exist now?
BPD currently is not required to disclose what or how much equipment it currently has, the financial costs, adverse impacts, alternatives to the equipment, locations of use, whether use was connected to a warrant, whether equipment involves third parties, or number of times the equipment was deployed (unless it was a use of force). BPD never responded to a Public Records Act request for information on the SWAT equipment it already possesses.
Berkeley's Use of Force policy requires public quarterly reports on uses of force, which include uses of firearms, chemical agents and blunt weapons such as batons. BPD deployments of armored vehicles, LRADs, battering rams, and assault rifles are not part of any public report. Reports to California Department of Justice on lethal use of force by police do not report by type of equipment.
What equipment covered by the ordinance does Berkeley PD already have?
BPD has assault rifles; an armored vehicle; battering rams and firearm rounds used to break locks; pepper spray; launchers and projectiles for "less lethal" weapons; long batons used in crowd control; riot shields that can be used defensively or offensively; Long Range Acoustic Devices (LRADs), sometimes called "sound cannons". [Note: the PRC subcommittee removed LRADs from the list of equipment covered by ordinance.]
Why regulate LRADs?
LRADs can emit extremely loud sounds and voice commands, which is useful to effectively communicate over distances, but can also be used in a crowd to forcibly disperse people, much as firehoses have been used. Oakland and New York PD have used LRADs in this manner, and a federal court ruled against its use as “excessive force” in crowd control in 2018. BPD's Policy 707 describes LRADs that BPD owns, their purpose, uses, and approval process for use. One of approved uses is to “disperse crowds,” but policy also states that the Department “shall not use either LRAD system as a weapon.”
How does the ordinance relate to the ban on tear gas approved in June 2020?
BPD use of tear gas was banned by City Council action in June 2020. The ordinance does not change the ban. If BPD ever wants to alter the ban (such as for use in SWAT operations), it would need to submit a new use policy, approval by the City Council, and make public reports on its use.
Does the ordinance ban any equipment used by Berkeley PD?
No. The ordinance creates a process for civilian oversight and transparency. Oversight can include recommendations from the PRC and decisions by City Council to exclude the use of specified weapons in Berkeley. Currently, Berkeley does not allow the use of tracked tanks, bayonets,
Does the ordinance apply to other police forces that come into Berkeley for "mutual aid"?
The original proposal by Council Member Harrison made Berkeley policies apply to mutual aid agencies, but the PRC decided to omit this provision and defer to other Berkeley policies on mutual aid.
It is critical that Berkeley not allow outside agencies invited into Berkeley to use equipment - or to use it in a manner - that is not allowed under Berkeley policy. After Berkeley PD and “mutual aid” police agencies used violence against nonviolent Black Lives Matter protesters in December 2014, those who were beaten and harmed by police actions successfully litigated against Berkeley. Berkeley has the authority to tell outside agencies coming into the City for mutual aid what equipment uses are permitted and what is prohibited. Oakland’s mutual aid policy, for example, in force since 2014, requires that “Prior to deployment, outside law enforcement units shall respond to a designated staging area where… their less-lethal weapons and munitions will be inventoried and they will be told which weapons and munitions are prohibited according to Departmental Policy.” The OPD mutual aid policy also states that visiting officers deployed for mutual aid “shall comply with all applicable Departmental policy including but not limited to: Use of force; Report writing; Crowd control and management; Taking complaints.”
Does the ordinance duplicate Berkeley's Use of Force policy or other existing policies?
No. The Use of Force policy approved in July 2020 creates rules for how force may be used, but not for how weapons named in the equipment ordinance may be used. The proposed ordinance seeks to make transparent the use of equipment that has a strong psychological impact on the community, however and whenever it is used. According to the ACLU report War Comes Home, such equipment nationally is used in SWAT deployments disproportionately in African American and Latin. neighborhoods and households.
That is why reporting on its deployment is important - not only in acts defined as uses of force that can do physical harm to people’s bodies. For example, the deployment of a SWAT team armed with assault rifles to a home to serve a search warrant, even if the rifles are not pointed directly at people, can be traumatic to those present and permanently damage relations with law enforcement. The Use of Force policy, Policy 300, as adopted by the City Council in July, requires reporting when BPD officers use force, including when they use firearms, batons, or ‘less lethal’ launchers and projectiles. The reports are presented in a quarterly analysis to the PRC. However, the analysis required by the use of force policy does not require information on equipment that was used or present in the uses of force. Nor does it require information on the number of deployments of any type of equipment in the controlled equipment ordinance, except for uses that could have physically harmed someone. For analysis for uses of force with firearms, which include pointing the weapon at a person, there is no distinction for assault rifles which when brandished have a strong psychological impact, as noted above. Moreover, the provision for analysis of uses of force makes no reference at all to the armored vehicle, battering rams, firearm rounds used to breach entrances, or LRADs used at protests.
BPD has use policies for a few of the items covered by the proposed ordinance, including ‘less lethal’ projectiles and their launchers, tear gas (now prohibited), LRADs, and batons. Some of the policies, such as the assault rifle policy, say almost nothing about when equipment should - and should not - be deployed. But the existing equipment policies provide a starting point for use policies required by the proposed ordinance.
What are the "uses" of equipment that require reporting under the ordinance?
The ordinance before the City Council states that, for purposes of reporting deployments of equpiment, "'deployment' means to utilize or employ Controlled Equipment for a deliberate purpose in the presence of members of the public during management or control of crowds, or to affect some response from members of the public during any operation or critical response. 'Deployed' shall not mean an officer merely wearing a piece of Controlled Equipment on their belt or elsewhere on their person."
What is the process for approval of the ordinance?
Berkeley City Council referred the ordinance for review the Police Review Commission (PRC) and the Council's Public Safety Committee, which was to report back to the City Council by December 2020. The PRC appointed a subcommittee, made up of Nathan Mizell (chair), Elisa Mikiten, and Juliet Leftwich, which reported to the full PRC in September. The PRC voted in October to recommend to the Public Safety Committee. The Public Safety Committee had two cancelled meetings, followed by consideration at meetings on March 1 and March 29. It was approved unanimously by the City Council on April 27, 2021.
Who supports this ordinance?
Reforms to demilitarize police are advancing all over the country. A similar ordinance in Oakland is supported by 40 community organizations. The Alameda County Labor Council issued a resolution in July in favor of this ordinance.