Amended in Assembly April 4, 2013

California Legislature—2013–14 Regular Session

Assembly BillNo. 351


Introduced by Assembly Member Donnelly

February 13, 2013


An act to add Section 145.5 to the Penal Code, relating to civil libertiesbegin delete, and declaring the urgency thereof, to take effect immediatelyend delete.

LEGISLATIVE COUNSEL’S DIGEST

AB 351, as amended, 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 wouldbegin delete 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 fineend deletebegin insert prohibit an agency in the State of California, a political subdivision of this state, an employee of an agency or a political subdivision of this state, as specified, or a member of the California National Guard, on official state duty, from aiding an agency of the Armed Forces of the United States in any investigation, prosecution, or detention of a person within California pursuant to (1) Sections 1021 and 1022 of the National Defense Authorization Act for Fiscal Year 2012 (NDAA), (2) the federal law known as the Authorization for Use of Military Force, enacted in 2001, or (3) any other federal law that could lead to the indefinite detention of a person within California, except as specifiedend insert.begin insert The bill would also prohibit the use of state funds and funds allocated by the state to local entities on and after January 1, 2013, to engage in any activity that aids in implementing the NDAA, as specified.end insert

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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.

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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.

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The bill would also include specified findings and declarations.

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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.

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This bill would provide that no reimbursement is required by this act for a specified reason.

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This bill would declare that it is to take effect immediately as an urgency statute.

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Vote: begin delete23 end deletebegin insertmajorityend insert. Appropriation: no. Fiscal committee: yes. State-mandated local program: begin deleteyes end deletebegin insertnoend insert.

The people of the State of California do enact as follows:

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SECTION 1.  

Section 145.5 is added to the Penal Code, to read:

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145.5.  

(a) This act shall be known as the California Liberty
3Preservation Act.

4(b) The Legislature finds and declares all of the following:

5(1) The Tenth Amendment to the United States Constitution
6authorizes the United States federal government to exercise only
P3    1those powers specifically delegated to it underbegin delete Section 8 of Article
2I ofend delete
the United States Constitution.

3(2) The guarantee of the constitutional limitations on federal
4power is a matter of contract between the several states, including
5the State of California, and the federal government at the time the
6United States Constitution was ratified and subsequently amended
7 by the Bill of Rights.

8(3) Article VI of United States Constitutionbegin insert, by using the words
9“in pursuance thereof,”end insert
provides that the laws of the United States
10federal government are the supreme law of the land only if those
11laws are adopted in accordance with the powers delegated to the
12federal government in the United States Constitution.

13(4) The President of the United States has asserted that the
14begin insert federal law known as the end insert Authorization forbegin delete theend delete Use of Military
15Force (Public Law 107-40), enacted in 2001, authorizes the
16President to indefinitely detain, without charge, any person,
17including a citizen of the United States or a lawful resident alien,
18regardless of whether the person is apprehended inside or outside
19the borders of the United States.

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20(5) Sections 1021 and 1022 of the National Defense
21Authorization Act for Fiscal Year 2012 (Public Law 112-81)
22authorize all of the following:

23(A) Indefinite detention of persons apprehended within the
24United States without charge or trial.

25(B) Prosecution by military tribunals under the law of war for
26persons apprehended within the United States.

27(C) Transfer of persons apprehended within the United States
28to foreign jurisdictions.

29(6) In authorizing the actions described in paragraph (5) of this
30subdivision, Sections 1021 and 1022 of the National Defense
31Authorization Act for Fiscal Year 2012 (Public Law 112-81) are
32inimical to the liberty, security, and well-being of the citizens of
33the State of California by violating all of the following:

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34(5) Sections 1021 and 1022 of the National Defense
35Authorization Act for Fiscal Year 2012 (NDAA) codifies indefinite
36military detention without charge or trial of civilians captured far
37from any battlefield, violating the United States Constitution and
38corroding our nation’s commitment to the rule of law, which
39generations have fought to preserve.

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P4    1(6) Indefinite detention without trial is inimical to the liberty,
2security, and well-being of the people of the State of California by
3violating all of the following:

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4(A) The California Constitution.

5(B) The limits of federal powerbegin delete authorized by Section 8 of
6Article I ofend delete
begin insert delegated to the federal government inend insert the United
7States Constitution.

8(C) The legal doctrine of posse comitatus under Section 1385
9of Title 18 of the United States Code by authorizing the Armed
10Forces of the United States to police the United States.

11(D) The following provisions of the United States Constitution:

12(i) Clause 2 of Section 9 of Article I, ensuring the right to seek
13habeas corpus.

14(ii) The First Amendment, ensuring the right to petition the
15federal government for the redress of grievances.

16(iii) The Fourth Amendment, ensuring the right to be free from
17unreasonable search and seizure.

18(iv) The Fifth Amendment, requiring capital or infamous crimes
19to be brought before a grand jury before charging the defendant
20and prohibiting deprivation of life, liberty, or property without due
21process of law.

22(v) The Sixth Amendment, ensuring the right to a speedy trial
23by an impartial jury in the state or district where the offense was
24alleged to have been committed, the right to be informed of the
25nature and cause of accusations and charges levied, the right to
26retain legal counsel, and the right to confront witnesses.

27(vi) The Eighth Amendment, prohibiting excessive bail and
28fines and prohibiting cruel and unusual punishment.

29(vii) The Fourteenth Amendment, prohibiting deprivation of
30life, liberty, or property without due process of law.

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31(7) The actions described in paragraph (5) of this subdivision
32as authorized by Sections 1021 and 1022 of the National Defense
33Authorization Act for Fiscal Year 2012 (Public Law 112-81), and
34the enforcement of those actions, are illegal within this state.

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35(8) Sections 1021 and 1022 of the National Defense
36Authorization Act for Fiscal Year 2012 (Public Law 112-81)
37violate portions of federal law, the United States Constitution, and
38the California Constitution and are invalid and illegal in this state.

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39(7) The families of Fred Korematsu, Minoru Yasui, and Gordon
40Hirabayashi, Japanese Americans incarcerated by the federal
P5    1government in World War II, filed an amicus brief with the United
2States Court of Appeals for the Second Circuit in Hedges v. Obama,
3a lawsuit that challenges the constitutionality of the detention
4provisions of the NDAA arguing that, under the pretense of
5national security, the NDAA rests on and broadens the legal
6doctrines on which the United States Supreme Court based the
7incarceration of Japanese Americans during World War II on the
8legal cases of Korematsu, Yasui, and Harabayashi, and allows
9the government to imprison people without any due process rights
10for an indefinite time.

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11(8) The State of California is committed to avoiding a repeat
12of the tragedies and mistakes of history, including the incarceration
13and indefinite detention of Japanese Americans by the federal
14government during World War II.

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15(c) (1) Subject to paragraph (2), notwithstanding any law to
16the contrary, no agency of the State of California, no political
17subdivision of this state, no employee of an agency, or a political
18subdivision, of this state acting in his or her official capacity, and
19no member of the California National Guard on official state duty
20shall aid an agency of the Armed Forces of the United States in
21any investigation, prosecution, or detention of a person within
22California pursuant to (A) Sections 1021 and 1022 of the NDAA,
23(B) the federal law known as the Authorization for Use of Military
24Force (Public Law 107-40), enacted in 2001, or (C) any other
25federal law that could lead to the indefinite detention of a person
26within California.

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27(2) Paragraph (1) does not apply to participation by state or
28local law enforcement or the California National Guard in a joint
29task force, partnership, or other similar cooperative agreement
30with federal law enforcement if that joint task force, partnership,
31or similar cooperative agreement is not for the purpose of
32investigating, prosecuting, or detaining any person pursuant to
33(A) Sections 1021 and 1022 of the NDAA, (B) the federal law
34known as the Authorization for Use of Military Force, or (C) any
35other federal law that could lead to the indefinite detention of a
36person within California.

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37(c)

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38begin insert(d)end insert It is the policy of this state to refuse to provide material
39support for or to participate in any way with the implementation
40within this state ofbegin delete Sections 1021 and 1022 of the National Defense
P6    1Authorization Act for Fiscal Year 2012 (Public Law 112-81).end delete
begin insert any
2federal law that purports to authorize indefinite detention of a
3person within Californiaend insert
begin insert. Notwithstanding any other law, no local
4law enforcement agency or local or municipal government, or the
5employee of that agency or government acting in his or her official
6capacity, shall use state funds or funds allocated by the state to
7local entities on or after January 1, 2013, in whole or in part, to
8engage in any activity that aids an agency of the Armed Forces of
9the United States in the investigation, arrest, or detention of any
10person within California or any act that may lead to the indefinite
11detention of any person within California for purposes of
12implementing the NDAA.end insert

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13(d) (1) An officer, agent, or employee of the United States or
14an employee of a corporation providing services to the United
15States who enforces or attempts to enforce Section 1021 or 1022
16of the National Defense Authorization Act for Fiscal Year 2012
17(Public Law 112-81) is guilty of a misdemeanor and subject to
18imprisonment in a county jail for up to one year, a fine of not more
19than ten thousand dollars ($10,000), or both imprisonment and the
20fine.

21(2) A public officer or employee of this state who enforces or
22attempts to enforce Section 1021 or 1022 of the National Defense
23Authorization Act for Fiscal Year 2012 (Public Law 112-81) is
24guilty of a misdemeanor and subject to imprisonment in a county
25jail for up to 6 months, a fine of not more than five thousand dollars
26($5,000), or both imprisonment and the fine.

27(e) The Attorney General shall report to the Governor and the
28Legislature any attempt by the federal government to implement
29Section 1021 or 1022 of the National Defense Authorization Act
30for Fiscal Year 2012 (Public Law 112-81) through the Attorney
31General or another state agency.

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32

SEC. 2.  

No reimbursement is required by this act pursuant to
33Section 6 of Article XIII B of the California Constitution because
34the only costs that may be incurred by a local agency or school
35district will be incurred because this act creates a new crime or
36infraction, eliminates a crime or infraction, or changes the penalty
37for a crime or infraction, within the meaning of Section 17556 of
38the Government Code, or changes the definition of a crime within
39the meaning of Section 6 of Article XIII B of the California
40Constitution.

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SEC. 3.  

This act is an urgency statute necessary for the immediate
2preservation of the public peace, health, or safety within the
3meaning of Article IV of the Constitution and shall go into
4immediate effect. The facts constituting the necessity are:

5In order to ensure that the constitutional rights of the citizens of
6the United States are protected as soon as possible, it is necessary
7that this act take effect immediately.

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