BILL NUMBER: AB 351 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 24, 2013
AMENDED IN ASSEMBLY APRIL 4, 2013
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 bill would enact the California Liberty Preservation
Act. The act 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, from
knowingly 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 , 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
aid . The bill would also prohibit the use of
local entities from knowingly using state funds
and funds allocated by the state to those local entities
on and after January 1, 2013, to engage in any activity that aids
in implementing the NDAA 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 state , as specified.
The bill would also include specified findings and declarations.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
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 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, by using the words
"in pursuance thereof," 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
federal law known as the Authorization for 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 (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.
(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:
(A) The California Constitution.
(B) The limits of federal power delegated to the federal
government in 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 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.
(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.
(c)
145.5. (a) (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 knowingly 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,
National Defense Authorization Act for Fiscal Year 2012 (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 , if the state agency, political
subdivision, employee, or member of the California National Guard
woul d violat e the United States Constitution, the
California Constitution, or any law of this state by providing that
aid .
(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 (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
, 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 aid .
(d)
(b) 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 any federal law that purports to
authorize indefinite detention of a person within California.
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
knowingly 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
Sections 1021 and 1022 of the NDAA or the federal law known as
the Authorization for Use of Military Force (Public Law 107-40),
enacted in 200 1, if that activity would violate the United States
Constitution, the California Constitution, or any law of this state
.