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