BILL NUMBER: AB 351 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Donnelly
FEBRUARY 13, 2013
An act to add Section 145.5 to the Penal Code, relating to civil
liberties, and declaring the urgency thereof, to take effect
immediately.
LEGISLATIVE COUNSEL'S DIGEST
AB 351, as introduced, Donnelly. Civil liberties: suspension of
habeas corpus for American citizens.
The United States Constitution and the California Constitution
provide for various civil liberties and other individual rights for a
citizen of the United States and the State of California, including
the right of habeas corpus, the right to due process, the right to a
speedy and public trial, and the right to be informed of criminal
charges brought against him or her.
Certain provisions of federal law affirm the authority of the
President of the United States to use all necessary and appropriate
force to detain specified persons who engaged in terrorist
activities.
This bill would enact the California Liberty Preservation Act. The
act would provide that an officer, agent, or employee of the United
States, or an employee of a corporation providing services to the
United States, who enforces or attempts to enforce the provisions of
federal law described above would be guilty of a misdemeanor and
subject to imprisonment in a county jail for up to one year, or a
fine of not more than $10,000, or both imprisonment and the fine.
In addition, the bill would provide that a public officer or
employee of the state who enforces or attempts to enforce those
provisions of federal law would also be guilty of a misdemeanor, but
would be subject to imprisonment of up to 6 months, or a fine of up
to $5,000, or both imprisonment and the fine. By creating new crimes,
the bill would impose a state-mandated local program.
The bill would require the Attorney General to report to the
Governor and the Legislature any attempt by the federal government to
implement these provisions, as specified.
The bill would also include specified findings and declarations.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
This bill would declare that it is to take effect immediately as
an urgency statute.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 145.5 is added to the Penal Code, to read:
145.5. (a) This act shall be known as the California Liberty
Preservation Act.
(b) The Legislature finds and declares all of the following:
(1) The Tenth Amendment to the United States Constitution
authorizes the United States federal government to exercise only
those powers specifically delegated to it under Section 8 of Article
I of the United States Constitution.
(2) The guarantee of the constitutional limitations on federal
power is a matter of contract between the several states, including
the State of California, and the federal government at the time the
United States Constitution was ratified and subsequently amended by
the Bill of Rights.
(3) Article VI of United States Constitution provides that the
laws of the United States federal government are the supreme law of
the land only if those laws are adopted in accordance with the powers
delegated to the federal government in the United States
Constitution.
(4) The President of the United States has asserted that the
Authorization for the Use of Military Force (Public Law 107-40),
enacted in 2001, authorizes the President to indefinitely detain,
without charge, any person, including a citizen of the United States
or a lawful resident alien, regardless of whether the person is
apprehended inside or outside the borders of the United States.
(5) Sections 1021 and 1022 of the National Defense Authorization
Act for Fiscal Year 2012 (Public Law 112-81) authorize all of the
following:
(A) Indefinite detention of persons apprehended within the United
States without charge or trial.
(B) Prosecution by military tribunals under the law of war for
persons apprehended within the United States.
(C) Transfer of persons apprehended within the United States to
foreign jurisdictions.
(6) In authorizing the actions described in paragraph (5) of this
subdivision, Sections 1021 and 1022 of the National Defense
Authorization Act for Fiscal Year 2012 (Public Law 112-81) are
inimical to the liberty, security, and well-being of the citizens of
the State of California by violating all of the following:
(A) The California Constitution.
(B) The limits of federal power authorized by Section 8 of Article
I of the United States Constitution.
(C) The legal doctrine of posse comitatus under Section 1385 of
Title 18 of the United States Code by authorizing the Armed Forces of
the United States to police the United States.
(D) The following provisions of the United States Constitution:
(i) Clause 2 of Section 9 of Article I, ensuring the right to seek
habeas corpus.
(ii) The First Amendment, ensuring the right to petition the
federal government for the redress of grievances.
(iii) The Fourth Amendment, ensuring the right to be free from
unreasonable search and seizure.
(iv) The Fifth Amendment, requiring capital or infamous crimes to
be brought before a grand jury before charging the defendant and
prohibiting deprivation of life, liberty, or property without due
process of law.
(v) The Sixth Amendment, ensuring the right to a speedy trial by
an impartial jury in the state or district where the offense was
alleged to have been committed, the right to be informed of the
nature and cause of accusations and charges levied, the right to
retain legal counsel, and the right to confront witnesses.
(vi) The Eighth Amendment, prohibiting excessive bail and fines
and prohibiting cruel and unusual punishment.
(vii) The Fourteenth Amendment, prohibiting deprivation of life,
liberty, or property without due process of law.
(7) The actions described in paragraph (5) of this subdivision as
authorized by Sections 1021 and 1022 of the National Defense
Authorization Act for Fiscal Year 2012 (Public Law 112-81), and the
enforcement of those actions, are illegal within this state.
(8) Sections 1021 and 1022 of the National Defense Authorization
Act for Fiscal Year 2012 (Public Law 112-81) violate portions of
federal law, the United States Constitution, and the California
Constitution and are invalid and illegal in this state.
(c) It is the policy of this state to refuse to provide material
support for or to participate in any way with the implementation
within this state of Sections 1021 and 1022 of the National Defense
Authorization Act for Fiscal Year 2012 (Public Law 112-81).
(d) (1) An officer, agent, or employee of the United States or an
employee of a corporation providing services to the United States who
enforces or attempts to enforce Section 1021 or 1022 of the National
Defense Authorization Act for Fiscal Year 2012 (Public Law 112-81)
is guilty of a misdemeanor and subject to imprisonment in a county
jail for up to one year, a fine of not more than ten thousand dollars
($10,000), or both imprisonment and the fine.
(2) A public officer or employee of this state who enforces or
attempts to enforce Section 1021 or 1022 of the National Defense
Authorization Act for Fiscal Year 2012 (Public Law 112-81) is guilty
of a misdemeanor and subject to imprisonment in a county jail for up
to 6 months, a fine of not more than five thousand dollars ($5,000),
or both imprisonment and the fine.
(e) The Attorney General shall report to the Governor and the
Legislature any attempt by the federal government to implement
Section 1021 or 1022 of the National Defense Authorization Act for
Fiscal Year 2012 (Public Law 112-81) through the Attorney General or
another state agency.
SEC. 2. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
SEC. 3. This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
In order to ensure that the constitutional rights of the citizens
of the United States are protected as soon as possible, it is
necessary that this act take effect immediately.