BILL ANALYSIS Ó
AB 351
Page 1
ASSEMBLY THIRD READING
AB 351 (Donnelly)
As Amended May 24, 2013
Majority vote
PUBLIC SAFETY 6-0 APPROPRIATIONS 14-0
-----------------------------------------------------------------
|Ayes:|Ammiano, Melendez, |Ayes:|Gatto, Bocanegra, |
| |Jones-Sawyer, Mitchell, | |Bradford, |
| |Quirk, Skinner | |Ian Calderon, Campos, |
| | | |Donnelly, Eggman, Gomez, |
| | | |Hall, Ammiano, Linder, |
| | | |Pan, Quirk, Weber |
| | | | |
-----------------------------------------------------------------
SUMMARY : Prohibits state agencies, political subdivision,
employees, and members of the California National Guard
officials from knowingly aiding an agency of the Armed Forces of
the United States in enforcing specified federal laws if the
agency, political subdivision, employee, or National Guard
member would violate the United States or California
Constitutions or any state law by providing that aid.
Specifically, this bill :
1)Provides that, notwithstanding any provision of law to the
contrary, no state political subdivision, no state agency, and
no state employee 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 U.S. Armed Forces
in any investigation, prosecution, or detention of a person
within California pursuant to Sections 1021 and 1022 of the
National Defense Authorization Act for Fiscal Year (FY) 2012
(NDAA), or the 2001 Authorization for the Use of Military
Force (Public Law 107-40), or any other federal law, if the
state agency, political subdivision, employee, or National
Guard member would violate the United States Constitution, the
California Constitution, or any law of this state by providing
that aid.
2)Exempts 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 task force, partnership or cooperative
AB 351
Page 2
agreement is not for the purpose of investigating,
prosecuting, or detaining any person under Sections 1021 and
1022 of the NDAA for FY 2012, Public Law 107-40, or any other
federal law, if the state agency, political subdivision,
employee, or California National Guard member would violate
the United States Constitution, the California Constitution,
or any law of this state by providing that aid.
3)States that the policy of California is 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 any person
within California.
4)Specifies that, notwithstanding any other law, no local law
enforcement agency, local or municipal government, or its
employees acting under official capacity shall knowingly use
state funds or funds allocated by the state to local entities
on or after January 1, 2013, to engage in any activity that
aids an agency of the U.S. Armed Forces in the detention of
any person within California for purposes of implementing
Sections 1021 and 1022 of the NDAA for FY 2012, or Public Law
107-40, if that activity would violate the United States
Constitution, the California Constitution, or any law of this
state.
EXISTING LAW :
1)Affirms that the authority of the President to use all
necessary and appropriate force pursuant to the Authorization
for Use of Military Force including the authority for the U.S.
Armed Forces to detain specified persons pending disposition
under the law of war.
2)Requires indefinite military detention without charge or trial
of specified persons captured in the course of hostilities.
3)Provides that the Privilege of the Writ of Habeas Corpus shall
not be suspended, unless when in Cases of Rebellion or
Invasion the public Safety may require it.
4)Provides that laws of the United States are the supreme law of
the land provided that they are made in pursuance of the
powers delegated to the federal government in the
AB 351
Page 3
Constitution.
5)Provides that "Congress shall make no law ? abridging ? the
right of the people ? to petition the government for a redress
of grievances."
6)Protects the People from unreasonable searches and seizures.
7)Provides that the people have a right to be free from
deprivation of life, liberty, or property, without due process
of law.
8)Provides that the people have a right in criminal prosecutions
to enjoy a speedy trial by an impartial jury, as well as the
right to be informed of the nature and cause of the
accusation, to confront witnesses, and to counsel.
9)Prohibits excessive bail, fines, or cruel and unusual
punishment.
10)Provides that all "powers not delegated to the United States
by the Constitution" are reserved to the states.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, costs are likely to be minor, as prohibiting a person
or entity from knowingly aiding U.S. Armed Forces in an
unconstitutional act is likely to be a rare occurrence, and is
unlikely to present the federal government with sufficient cause
to withdraw federal funds.
COMMENTS : According to the author, "Indefinite detention, by
its very nature, discards many of the ideals that our founding
fathers enshrined in the Constitution. These include but are
not limited to: the right to a speedy trial by an impartial
jury; the right to due process; the protection against
unreasonable seizures; the protection against cruel and unusual
punishment; the privilege of writ of habeas corpus; the right to
petition the government for grievances; and the right to be
informed of the nature and cause of accusations and charges.
Clearly indefinite detention is unconstitutional and it is our
duty, as citizens of our nation, to correct this flagrant
violation of our rights and liberties. Although this horrific
abuse of liberty has occurred in our nation's history once
before in the internment of Japanese-American citizens, we must
AB 351
Page 4
take a stand now to never allow this to happen again.
"California is not the first state to look at enacting policy to
circumvent Section 1021 of H.R 1540 (2011). The Michigan State
Senate passed SB 94 on March 6th, 2013. SB 94 prohibits all
Michigan state agencies and employees, including the Michigan
National Guard, from aiding any federal agency if that aid
'would place that state agency, political subdivision, employee,
or member of the Michigan National Guard in violation of the
United States Constitution . . . .'
"In California, in addition to the cities of Berkeley, Fairfax
and Santa Cruz, the San Francisco Board of Supervisors, on
February 26, 2013, passed 'a resolution opposing the indefinite
detention provisions of the National Defense Authorization Act,
instructing public agencies to decline requests by Federal
agencies acting under detention powers, urging law enforcement
officials to allow detainees to due process . . . . ' "
Please see the policy committee analysis for a full discussion
of this bill.
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744
FN: 0000885