Amended in Assembly May 24, 2013

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 liberties.

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 billbegin delete would enact the California Liberty Preservation Act. The actend delete would 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, frombegin insert knowinglyend insert 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 lawbegin delete that could lead to the indefinite detention of a person within Californiaend delete, except as specifiedbegin insert, if the state agency, political subdivision, employee, or member of the California National Guard would violate the United States Constitution, the California Constitution, or any law of this state by providing that aidend insert. The bill would also prohibitbegin delete the use ofend deletebegin insert local entities from knowingly usingend insert state funds and funds allocated by the state tobegin insert thoseend insert local entities on and after January 1, 2013, to engage in any activity that aidsbegin delete in implementing the NDAAend deletebegin insert an agency of the Armed Forces of the United States in the detention of any person within California for purposes of implementing Sections 1021 and 1022 of the NDAA or the federal law known as the Authorization for Use of Military Force , if that activity would violate the United States Constitution, the California Constitution, or any law of this stateend insert, as specified.

begin delete

The bill would also include specified findings and declarations.

end delete

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

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:

begin delete
2

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
7those powers specifically delegated to it under the United States
8Constitution.

9(2) The guarantee of the constitutional limitations on federal
10power is a matter of contract between the several states, including
11the State of California, and the federal government at the time the
12United States Constitution was ratified and subsequently amended
13 by the Bill of Rights.

14(3) Article VI of United States Constitution, by using the words
15“in pursuance thereof,” provides that the laws of the United States
16federal government are the supreme law of the land only if those
P3    1laws are adopted in accordance with the powers delegated to the
2federal government in the United States Constitution.

3(4) The President of the United States has asserted that the
4federal law known as the Authorization for Use of Military Force
5(Public Law 107-40), enacted in 2001, authorizes the President to
6indefinitely detain, without charge, any person, including a citizen
7of the United States or a lawful resident alien, regardless of whether
8the person is apprehended inside or outside the borders of the
9United States.

10(5) Sections 1021 and 1022 of the National Defense
11Authorization Act for Fiscal Year 2012 (NDAA) codifies indefinite
12military detention without charge or trial of civilians captured far
13from any battlefield, violating the United States Constitution and
14corroding our nation’s commitment to the rule of law, which
15generations have fought to preserve.

16(6) Indefinite detention without trial is inimical to the liberty,
17security, and well-being of the people of the State of California
18by violating all of the following:

19(A) The California Constitution.

20(B) The limits of federal power delegated to the federal
21government in the United States Constitution.

22(C) The legal doctrine of posse comitatus under Section 1385
23of Title 18 of the United States Code by authorizing the Armed
24Forces of the United States to police the United States.

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

26(i) Clause 2 of Section 9 of Article I, ensuring the right to seek
27habeas corpus.

28(ii) The First Amendment, ensuring the right to petition the
29federal government for the redress of grievances.

30(iii) The Fourth Amendment, ensuring the right to be free from
31unreasonable search and seizure.

32(iv) The Fifth Amendment, requiring capital or infamous crimes
33to be brought before a grand jury before charging the defendant
34and prohibiting deprivation of life, liberty, or property without due
35process of law.

36(v) The Sixth Amendment, ensuring the right to a speedy trial
37by an impartial jury in the state or district where the offense was
38alleged to have been committed, the right to be informed of the
39nature and cause of accusations and charges levied, the right to
40retain legal counsel, and the right to confront witnesses.

P4    1(vi) The Eighth Amendment, prohibiting excessive bail and
2fines and prohibiting cruel and unusual punishment.

3(vii) The Fourteenth Amendment, prohibiting deprivation of
4life, liberty, or property without due process of law.

5(7) The families of Fred Korematsu, Minoru Yasui, and Gordon
6Hirabayashi, Japanese Americans incarcerated by the federal
7government in World War II, filed an amicus brief with the United
8States Court of Appeals for the Second Circuit in Hedges v.
9Obama, a lawsuit that challenges the constitutionality of the
10detention provisions of the NDAA arguing that, under the pretense
11of national security, the NDAA rests on and broadens the legal
12doctrines on which the United States Supreme Court based the
13incarceration of Japanese Americans during World War II on the
14legal cases of Korematsu, Yasui, and Harabayashi, and allows the
15government to imprison people without any due process rights for
16an indefinite time.

17(8) The State of California is committed to avoiding a repeat of
18the tragedies and mistakes of history, including the incarceration
19and indefinite detention of Japanese Americans by the federal
20government during World War II.

21(c)

end delete
22begin insert

begin insert145.5.end insert  

end insert

begin insert(a)end insert (1) Subject to paragraph (2), notwithstanding any
23law to the contrary, no agency of the State of California, no
24political subdivision of this state, no employee of an agency, or a
25political subdivision, of this state acting in his or her official
26capacity, and no member of the California National Guard on
27official state duty shallbegin insert knowinglyend insert aid an agency of the Armed
28Forces of the United States in any investigation, prosecution, or
29detention of a person within California pursuant to (A) Sections
301021 and 1022 of thebegin delete NDAA,end deletebegin insert National Defense Authorization Act
31for Fiscal Year 2012 (NDAA),end insert
(B) the federal law known as the
32Authorization for Use of Military Force (Public Law 107-40),
33enacted in 2001, or (C) any other federal lawbegin delete that could lead to the
34indefinite detention of a person within Californiaend delete
begin insert, if the state
35agency, political subdivision, employee, or member of the
36California National Guard would violat e the United States
37Constitution, the California Constitution, or any law of this state
38by providing that aidend insert
.

39(2) Paragraph (1) does not apply to participation by state or
40local law enforcement or the California National Guard in a joint
P5    1task force, partnership, or other similar cooperative agreement
2with federal law enforcement if that joint task force, partnership,
3or similar cooperative agreement is not for the purpose of
4investigating, prosecuting, or detaining any person pursuant to (A)
5Sections 1021 and 1022 of the NDAA, (B) the federal law known
6as the Authorization for Use of Military Forcebegin insert (Public Law
7107-40), enacted in 2001end insert
, or (C) any other federal lawbegin delete that could
8lead to the indefinite detention of a person within Californiaend delete
begin insert, if the
9state agency, political subdivision, employee, or member of the
10California National Guard would violate the United States
11Constitution, the California Constitution, or any law of this state
12by providing that aidend insert
.

begin delete

13(d)

end delete

14begin insert(b)end insert It is the policy of this state to refuse to provide material
15support for or to participate in any way with the implementation
16within this state of any federal law that purports to authorize
17indefinite detention of a person within California. Notwithstanding
18any other law, no local law enforcement agency or local or
19municipal government, or the employee of that agency or
20government acting in his or her official capacity, shallbegin insert knowinglyend insert
21 use state funds or funds allocated by the state to local entities on
22or after January 1, 2013, in whole or in part, to engage in any
23activity that aids an agency of the Armed Forces of the United
24States in thebegin delete investigation, arrest, orend delete detention of any person within
25Californiabegin delete or any act that may lead to the indefinite detention of
26any person within Californiaend delete
for purposes of implementingbegin delete the
27NDAAend delete
begin insert Sections 1021 and 1022 of the NDAA or the federal law
28known as the Authorization for Use of Military Force (Public Law
29107-40), enacted in 200 1, if that activity would violate the United
30States Constitution, the California Constitution, or any law of this
31stateend insert
.



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