BILL ANALYSIS                                                                                                                                                                                                    Ó



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          ASSEMBLY THIRD READING


          AB  
          36 (Campos)


          As Amended  April 27, 2015


          Majority vote


           ------------------------------------------------------------------ 
          |Committee       |Votes |Ayes                 |Noes                |
          |                |      |                     |                    |
          |                |      |                     |                    |
          |----------------+------+---------------------+--------------------|
          |Local           |9-0   |Maienschein,         |                    |
          |Government      |      |Gonzalez, Alejo,     |                    |
          |                |      |Chiu, Cooley,        |                    |
          |                |      |Gordon, Holden,      |                    |
          |                |      |Linder, Waldron      |                    |
          |                |      |                     |                    |
          |----------------+------+---------------------+--------------------|
          |Appropriations  |16-1  |Gomez, Bigelow,      |Gallagher           |
          |                |      |Bloom, Bonta,        |                    |
          |                |      |Calderon, Chang,     |                    |
          |                |      |Daly, Eggman,        |                    |
          |                |      |Eduardo Garcia,      |                    |
          |                |      |Holden, Jones,       |                    |
          |                |      |Quirk, Rendon,       |                    |
          |                |      |Wagner, Weber, Wood  |                    |
          |                |      |                     |                    |
          |                |      |                     |                    |
           ------------------------------------------------------------------ 


          SUMMARY:  Prohibits local agencies from receiving surplus military  








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          equipment from the federal government, unless the acquisition is  
          approved at a regular meeting held pursuant to the Ralph M. Brown  
          Act (Brown Act).  Specifically, this bill:  


          1)Expands California's Federal Surplus Property Acquisition Law of  
            1945 (Federal Surplus Property Law) by prohibiting a local  
            agency from receiving surplus military equipment pursuant to  
            United States Code Title 10, Section 2576a (1033 Program),  
            unless the legislative body of the local agency approves the  
            acquisition at a regular meeting held pursuant to the Brown Act.


          2)Expands the definition of "local agency" in the Federal Surplus  
            Property Law to include county, city, whether general law or  
            chartered, city and county, town, school district, municipal  
            corporation, district, political subdivision, or any board,  
            commission, or agency thereof, or other local public agency.


          3)Adds a definition of "legislative body" to the Federal Surplus  
            Property Law and defines it to have the same meaning as the term  
            is defined in the Brown Act.


          4)Finds and declares that this bill constitutes a matter of  
            statewide concern, that it shall apply to charter cities and  
            charter counties, and that its provisions shall supersede any  
            inconsistent provisions in the charter of any city, county, or  
            city and county.


          5)Finds and declares that this bill furthers, within the meaning  
            of California Constitution Article 1, Section 3(b), paragraph  
            (7), the purposes of that constitutional section as it relates  
            to the right of public access to the meetings of local public  
            bodies or the writings of local public officials and local  
            agencies, and declares, pursuant to California Constitution  
            Article 1, Section 3(b), paragraph (7), that the Legislature  








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            makes the following findings:


               Requiring local agencies to hold public meetings prior  
               to the acquisition of federal surplus military equipment  
               further exposes that activity to public scrutiny and  
               enhances public access to information concerning the  
               conduct of the people's business.


          6)Provides that no reimbursement is required by this bill because  
            the only costs that may be incurred by a local agency or school  
            district under this bill would result from a legislative mandate  
            that is within the scope of California Constitution Article 1,  
            Section 3(b), paragraph (7).


          EXISTING LAW:  


          1)Requires, pursuant to the Brown Act, that all meetings of a  
            legislative body, as defined, of a local agency be open and  
            public and all persons permitted to attend, unless a closed  
            session is authorized.


          2)Defines "legislative body" to mean:


             a)   The governing body of a local agency or any other local  
               body created by state or federal statute;


             b)   A commission, committee, board, or other body of a local  
               agency, whether permanent or temporary, decision-making or  
               advisory, created by charter, ordinance, resolution, or  
               formal action of a legislative body.  However, advisory  
               committees, composed solely of the members of the legislative  
               body that are less than a quorum of the legislative body are  








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               not legislative bodies, except that standing committees of a  
               legislative body, irrespective of their composition, which  
               have a continuing subject matter jurisdiction, or a meeting  
               schedule fixed by charter, ordinance, resolution, or formal  
               action of a legislative body are legislative bodies for  
               purposes of the Brown Act;


             c)   A board, commission, committee, or other multimember body  
               that governs a private corporation, limited liability  
               company, or other entity that either:


               i)     Is created by the elected legislative body in order to  
                 exercise authority that may lawfully be delegated by the  
                 elected governing body to a private corporation, limited  
                 liability company, or other entity; or,


               ii)    Receives funds from a local agency and the membership  
                 of whose governing body includes a member of the  
                 legislative body of the local agency appointed to that  
                 governing body as a full voting member by the legislative  
                 body of the local agency.


          3)Authorizes the Department of Defense (DOD), pursuant to United  
            States Code Title 10, Section 2576a, to transfer surplus  
            personal property, including arms and ammunition, to federal or  
            state agencies for use in law enforcement activities, subject to  
            specified conditions, at no cost to the acquiring agency.  This  
            program is commonly referred to as the 1033 Program.


          4)Allows, pursuant to California's Federal Surplus Property Law, a  
            local agency, as defined, to acquire surplus federal property  
            without regard to any law that requires posting of notices or  
            advertising for bids, inviting or receiving bids, delivery of  
            purchases before payment, or that prevents the local agency from  








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            bidding on federal surplus property. 


          5)Defines "local agency" as used in California's Federal Surplus  
            Property Law to mean county, city, municipal corporation, or  
            public district.


          FISCAL EFFECT:  According to the Assembly Appropriations  
          Committee, there is a negligible state fiscal impact.  Local  
          mandate costs would fall under Proposition 42 [2014] and, thus,  
          are not reimbursable.


          COMMENTS:  


          1)Bill Summary.  This bill updates California's Federal Surplus  
            Property Law, which was enacted in 1945, by prohibiting local  
            agencies from receiving surplus military equipment from the 1033  
            Program, unless the acquisition is approved at a regular meeting  
            held pursuant to the Brown Act.  


            This bill updates the Federal Surplus Property Law's definition  
            of "local agency" to include a county, city, whether general law  
            or chartered, city and county, town, school district, municipal  
            corporation, district, political subdivision, or any board,  
            commission, or agency thereof, or other local public agency.   
            All of these entities would be subject to the law with passage  
            of this bill.  


            This bill also declares that it constitutes a matter of  
            statewide concern, that it shall apply to charter cities and  
            charter counties, and that its provisions shall supersede any  
            inconsistent provisions in the charter of any city, county, or  
            city and county.  This bill is sponsored by the author.









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          2)Author's Statement.  According to the author, "Due to recent  
            events of police brutality, distrust between law enforcement and  
            many of our communities remains at an all-time high.  Further  
            exacerbating the issue is the recent militarization of law  
            enforcement agencies and a movement away from community policing  
            across the nation.


            "Amid a national debate over the militarization of police, the  
            San Jose Police Department acquired a 15-ton armored vehicle  
            earlier this year from the military surplus program.  After  
            receiving community input that the armored vehicle was damaging  
            the trust that a decade of community policing had created, the  
            San Jose Police Department decided to return the vehicle.  In a  
            separate case, in Ferguson, Missouri, the mine-resistant,  
            ambush-protected troop transport, or Mine-Resistant Ambush  
            Protected Vehicle (MRAP), became a focus for debate after this  
            military surplus vehicle and other military equipment were used  
            by local law enforcement to respond to civil unrest over the  
            police killing of unarmed teenager Michael Brown.


            "These are only a few cases where the public felt threatened by  
            military equipment in their communities.  In both cases, the  
            communities involved did not have the opportunity to weigh in  
            before the military equipment was acquired.  These situations  
            hurt our most underserved communities by exacerbating their  
            relationship with the police and government.  


            "Unilateral decisions by law enforcement agencies to acquire  
            military equipment provide little or no opportunity for  
            community input.  Most law enforcement agencies are not required  
            to engage in a public process that involves public debate about  
            equipment purchases.  This results in an inherently skewed  
            decision-making process about what someone's community will look  
            like.  AB 36 helps address this issue by prohibiting a public  
            safety agency from receiving and buying surplus military  








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            equipment unless the legislative body of the local agency votes  
            to approve the purchase at a public meeting."


          3)Background.  While the militarization of local police  
            departments has been in news headlines for many months, starting  
            with the unrest in Ferguson, Missouri, it is not new.  It has  
            been researched and written about for at least the past two  
            decades, having its roots in the law enforcement response to the  
            social unrest of the 1960s, and the development of Special  
            Weapons and Tactics (SWAT) units.  There has been a dramatic  
            expansion in the use of SWAT teams since then, with a  
            significant increase in their use for drug raids, as noted in an  
            article released by the United States Department of Justice in  
            December 2013 entitled, "Will the Growing Militarization of Our  
            Police Doom Community Policing?"  The article also cites the use  
            of battle dress uniforms and stress training as contributors to  
            the increased militarization of local police practices.  


            The American Civil Liberties Union released a comprehensive  
            report in June entitled, "War Comes Home:  The Excessive  
            Militarization of American Policing," which recommends that  
            state legislatures and municipalities "impose meaningful  
            restraints on the use of SWAT" and notes that there needs to be  
            greater documentation, transparency, and accountability on how  
            the police are spending tax dollars.  The report also includes a  
            laundry list of recommendations for local agencies, primarily  
            directed at best practices in the use of SWAT teams. 


          4)1033 Program.  The DOD 1033 Program allows surplus United States  
            military equipment to be transferred to municipal police  
            departments free of charge.  The 1033 Program is named for the  
            section of the National Defense Authorization Act of 1997 that  
            granted permanent authority to the Secretary of Defense to  
            transfer defense material to federal and state agencies for use  
            in law enforcement, particularly those associated with  
            counter-drug and counter-terrorism activities.








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            The 1033 Program is reported to have transferred $5 billion in  
            military equipment to police departments across the country.   
            According to the Congressional Research Service, 1,000 law  
            enforcement agencies are registered nationwide and 8,000 are  
            currently using property provided through the program, including  
            a number of California cities.  News reports state the Cities of  
            Davis and San Jose have recently decided to return armored  
            vehicles they received from the federal government, and other  
            cities have been reported to have such equipment at their  
            disposal.


            According to the Defense Logistics Agency (DLA), which  
            administers the 1033 Program, "For states to participate in the  
            program, they must each set up a business relationship with DLA  
            through a Memorandum of Agreement (MOA).  Each participating  
            state's governor is required to appoint a State Coordinator to  
            ensure the program is used correctly by the participating law  
            enforcement agencies.  The State Coordinators are expected to  
            maintain property accountability records and to investigate any  
            alleged misuse of property, and in certain cases, to report  
            violations of the Memorandum of Agreement to DLA.  State  
            Coordinators are aggressive in suspending law enforcement  
            agencies who abuse the program.


            "Additionally, DLA has a compliance review program.  The  
            program's objective is to have (DLA's) Law Enforcement Support  
            Office staff visit each state coordinator and assist him or her  
            in ensuring that property accountability records are properly  
            maintained, minimizing the potential for fraud, waste and  
            abuse."


          5)Office of Emergency Services.  The Governor's Office of  
            Emergency Services (OES) administers the 1033 Program for the  
            state.  According to the OES Web site, "California law  








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            enforcement agencies (LEAs) that wish to acquire and/or retain  
            1033 Program excess property must be certified and currently  
            authorized to use the 1033 Program.  Certification paperwork is  
            required annually and whenever a participating agency's Chief  
            Executive Official Changes.  Authorization to use the 1033  
            Excess Property Program is valid for one year unless the Chief  
            Executive Officer of the LEA changes.


            "All CA Law Enforcement Agencies that have acquired program  
            equipment must have at least one person registered and actively  
            maintaining their agency's inventory in the Federal Excess  
            Property Management Information System (LESO FEPMIS) as part of  
            their property accounting system for all program related  
            equipment."


            OES maintains an inventory list of tracked 1033 equipment for  
            California agencies and entities.  It was created by OES from  
            the (federal) Law Enforcement Support Office (LESO) database  
            dated June 25, 2014.  The list is a snapshot in time and may not  
            reflect more recent transactions within the LESO's dynamically  
            changing database.  OES auditors pull from this database to form  
            their lists for individual agency accountability checks  
            throughout the year.  The list is the only inventory OES retains  
            outside of the LESO database.  There are no historical  
            inventories retained by OES.  (Unfortunately, at the time this  
            analysis was drafted, this list was not accessible on the OES  
            Web site.)


            LEAs also purchase equipment with their own money and/or with  
            federal grants, in addition to equipment acquired through the  
            1033 Program. 


          6)Federal Legislation.  On September 16, 2014, United States  
            Representative Hank Johnson (D-GA) and Representative Raul  
            Labrador (R-ID) introduced the Stop Militarizing Law Enforcement  








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            Act of 2014 (H.R. 5478), which would have placed restrictions  
            and transparency measures on the 1033 Program.  The bill would  
            have: 


             a)   Prevented transfers of equipment inappropriate for local  
               policing, such as high-caliber weapons, long-range acoustic  
               devices, grenade launchers, armed drones, armored vehicles,  
               and grenades or similar explosives;


             b)   Ended incentives to use equipment in circumstances when  
               the use is unnecessary. Under the 1033 Program, local police  
               are required to use the equipment within a year,  
               incentivizing towns to use it in inappropriate circumstances;


             c)   Required that recipients certify that they can account for  
               all equipment.  In 2012, the weapons portion of the 1033  
               Program was temporarily suspended after DOD found that a  
               local sheriff had gifted out army-surplus Humvees and other  
               supplies.  This bill would have prohibited re-gifting and  
               required recipients to account for all equipment received  
               from DOD; and,


             d)   Added requirements to enforce tracking mechanisms that  
               keep up with and control transfers of the equipment,  
               implement policies ensuring that police agencies can't  
               surplus the equipment for resale, and define drones more  
               clearly.


          This federal measure was not enacted.


          7)Related Legislation.  SB 242 (Monning) of the current  
            legislative session, pending in the Assembly, requires a school  
            district's police department to obtain approval from its  








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            governing board prior to receiving federal surplus military  
            equipment.  


          8)Arguments in Support.  None on file.


          9)Arguments in Opposition.  The League of California Cities, in  
            opposition, states, "The League of Cities opposes this measure  
            as an unjustified incursion upon municipal sovereignty.  Under  
            current law, local agencies are fully within their  
            constitutional police power in deciding whether to acquire  
            military equipment from the Department of Defense pursuant to  
            the 1033 Program, and under what circumstances.  Some cities  
            have voluntarily made the decision to acquire equipment such as  
            an MRAP (an armored truck used by the U.S. [United States] Army)  
            via a vote of the city council.  But due to the security  
            implications, jurisdictions can and should decide for themselves  
            on the circumstances under which they make such decisions,  
            including whether to observe the Brown Act.


            "(L)ocal jurisdictions are in the best position to determine the  
            method by which surplus equipment is acquired.  In some  
            instances, Brown Act compliance may be desirable to facilitate  
            agreement by the community being served; in others, a vote in  
            closed session of the local governing body may be the most  
            prudent course; and in still other instances, an executive  
            decision by a mayor, city manager or police chief, or some  
            combination thereof, may be most appropriate.  In any case,  
            local flexibility should be preserved, and municipal sovereignty  
            should not be pre-empted."




          Analysis Prepared by:                                               
                          Angela Mapp / L. GOV. / (916) 319-3958  FN:  
          0000406








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