Amended in Assembly April 4, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 351

Introduced by Assembly Member Donnelly

February 13, 2013

An act to add Section 145.5 to the Penal Code, relating to civil liberties begin delete , and declaring the urgency thereof, to take effect immediately end 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 would begin 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 fine end delete begin 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 specified end 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 delete ²⁄₃ end delete begin insert majority end insert . Appropriation: no. Fiscal committee: yes. State-mandated local program:  begin delete yes end delete begin insert no end insert .

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 begin delete Section 8 of Article
I of end delete 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 begin insert , by using the words
“in pursuance thereof,” end insert 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
begin insert federal law known as the end insert Authorization for begin delete the end delete 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.

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(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:

end delete begin insert

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

end insert begin insert

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

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(A) The California Constitution.

(B) The limits of federal power begin delete authorized by Section 8 of
Article I of end delete begin insert delegated to the federal government in end insert 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.

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(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.

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(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.

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

end insert begin insert

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

end insert begin insert

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

end insert begin insert

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

end insert begin delete

(c)

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begin insert (d) end insert  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 begin delete Sections 1021 and 1022 of the National Defense
Authorization Act for Fiscal Year 2012 (Public Law 112-81). end delete begin insert any
federal law that purports to authorize indefinite detention of a
person within California end insert begin insert . Notwithstanding any other law, no local
law enforcement agency or local or municipal government, or the
employee of that agency or government acting in his or her official
capacity, shall use state funds or funds allocated by the state to
local entities on or after January 1, 2013, in whole or in part, to
engage in any activity that aids an agency of the Armed Forces of
the United States in the investigation, arrest, or detention of any
person within California or any act that may lead to the indefinite
detention of any person within California for purposes of
implementing the NDAA. end insert

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(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.

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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.

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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.

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