BILL ANALYSIS Ó
AB 36
Page 1
ASSEMBLY THIRD READING
AB
36 (Campos)
As Amended April 27, 2015
Majority vote
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|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 | |
| | | | |
| | | | |
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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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