BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON GOVERNANCE AND FINANCE
                         Senator Robert M. Hertzberg, Chair
                                2015 - 2016  Regular 

                              
          
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          |Bill No:  |AB 36                            |Hearing    | 7/1/15  |
          |          |                                 |Date:      |         |
          |----------+---------------------------------+-----------+---------|
          |Author:   |Campos                           |Tax Levy:  |No       |
          |----------+---------------------------------+-----------+---------|
          |Version:  |6/24/15                          |Fiscal:    |Yes      |
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          |Consultant|Favorini-Csorba                                       |
          |:         |                                                      |
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                      LOCAL GOVERNMENT: FEDERAL SURPLUS PROPERTY



          Prohibits a local agency from applying for certain types of  
          federal surplus property technology without prior approval by  
          its legislative body.


           Background and Existing Law

           The Ralph M. Brown Act (Brown Act) requires the meetings of  
          local governments' legislative bodies to be "open and public,"  
          thereby ensuring people's access to information so that they may  
          retain control over the public agencies that serve them.  The  
          Brown Act includes many requirements that legislative bodies  
          must meet, such as noticing hearings and posting agendas prior  
          to meetings.

          State and Federal Surplus Property Laws. The California Federal  
          Surplus Property Law of 1945 allows a local agency, defined as  
          any county, city, municipal corporation, or public district, to  
          acquire surplus federal property without having to comply with  
          state laws that require certain actions to be taken when  
          procuring equipment, such as bidding or contracting processes. 

          Section 2576a of Title 10 the United States Code allows the  
          Department of Defense (DoD) to transfer surplus military  
          equipment, including arms, ammunition, and armored vehicles, to  
          federal, state, and local agencies for use in law enforcement  







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          activities, particularly for counter-drug and counter-terrorism  
          activities.  This program is commonly referred to as the 1033  
          Program.  The Defense Logistics Agency (DLA) administers the  
          1033 Program and develops rules and policies for the use of the  
          property. Under the program, the local agencies only pay the  
          cost of transporting the equipment to their jurisdiction.

          Acquiring Surplus Military Equipment. In order for states to  
          participate in the program, a 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 coordinator signs a memorandum of agreement (MOA) with the  
          DLA that lays out the terms of the property transfers as well as  
          requirements that the state coordinators and local law  
          enforcement agencies that receive the equipment must meet.  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 to DLA.   
          Law enforcement agencies that misuse property or otherwise abuse  
          the program are suspended from applying for equipment.  In  
          California, the Office of Emergency Services acts as the state  
          coordinator.

          Under the 1033 program, a local agency must wait for the  
          equipment to become available through the DoD's process for  
          disposing of equipment.  This process first involves offering  
          surplus military equipment to other branches of the military or  
          other federal agencies.  If a piece of equipment goes unclaimed  
          by those agencies, local law enforcement agencies have 6 to 12  
          days to claim it.  Once that period elapses, local agencies can  
          no longer claim it.  This process is repeated for each  
          individual piece of surplus military equipment, meaning that  
          there is a rotating inventory of new equipment that becomes  
          available to local agencies-and a limited time period for them  
          to claim it.

          Types of Surplus Military Equipment. The DLA maintains a list of  
          surplus military equipment that is considered "controlled  
          equipment."  All equipment transferred to local agencies through  
          the 1033 program is considered controlled equipment for the  
          first year of use.  After the first year, equipment that is not  
          exclusively military in nature, such as office equipment,  
          clothing, fire protection equipment and medical equipment, is  
          removed from the controlled equipment list and becomes the  








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          property of a local law enforcement agency.  Equipment with a  
          uniquely military purpose is permanently listed as controlled  
          and remains the property of the US military, on loan to the  
          local agency.  This equipment includes weapons, ammunition,  
          night vision equipment, vehicles, watercraft, and aircraft.

          Based on DLA data, California law enforcement agencies received  
          a total of $152 million in controlled equipment through the 1033  
          program between 2006 and April 2014.  This amount includes $92  
          million for equipment with an exclusively military purpose,  
          including 32 combat vehicles, and $60 million for equipment with  
          non-military applications. 

          Following a high-profile deployment of surplus military  
          equipment in Ferguson, MO, citizen concerns over the  
          militarization of the police department increased.  In response,  
          President Obama issued Executive Order #13688, which  
          commissioned a report to identify changes to the 1033 process in  
          order to minimize the potential negative effects of deploying  
          surplus military equipment in communities.  The report  
          recommended, among other steps, that certain equipment be either  
          prohibited from being provided to local agencies through the  
          1033 process, or subject to stricter controls, as follows:

           ----------------------------------------------------------------- 
          |      Prohibited Equipment      |      Controlled Equipment      |
          |--------------------------------+--------------------------------|
          |       Aircraft, ships, or     |       Other aircraft          |
          |     vehicles with intact       |       Other armored vehicles, |
          |     weapons                    |     including mine-resistant   |
          |       Armored vehicles with   |     ambush protected vehicles  |
          |     treads                     |       Tactical vehicles, such |
          |       Large caliber firearms  |     as Humvees                 |
          |     and ammunition             |       Command and control     |
          |       Grenade launchers       |     vehicles                   |
          |       Bayonets                |       Specialized firearms    |
          |       Camouflage uniforms     |     and ammunition             |
          |                                |       Explosives              |
          |                                |       Battering rams and      |
          |                                |     other breaching devices    |
          |                                |       Riot control equipment, |
          |                                |     including batons, helmets, |
          |                                |     and shields                |
          |                                |                                |








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          Some local officials want the public to have the opportunity to  
          provide input on whether or not their communities should be able  
          to acquire these types of surplus military equipment.

           


          Proposed Law

           AB 36 prohibits any local agency from applying for  
          "high-visibility" surplus military equipment, as defined, unless  
          the agency's legislative body adopts an ordinance or resolution  
          authorizing the acquisition of those types at a regular public  
          meeting subject to the Brown Act.  This ordinance or resolution  
          must include the types of high-visibility surplus military  
          equipment that the local agency's law enforcement agency is  
          authorized to acquire and the length of time that the  
          authorization can last, up to one year.  The bill also states  
          that it does not require local agencies to approve the  
          acquisition of each individual item unless the authorizing  
          ordinance or resolution includes this requirement.

          AB 36 also requires the state coordinator, defined as the state  
          agency that has signed a current MOA with the DLA, to develop a  
          list of high-visibility surplus military equipment that  
          includes:
                 The prohibited and controlled items included in the  
               report developed pursuant to Executive Order #13688; and
                 Consideration of the DLA's list of controlled property  
               or other state or federal regulations or policies governing  
               the use of surplus military equipment.

          AB 36 expands the definition of "local agency" in the Federal  
          Surplus Property Acquisition Law of 1945 to include any charter  
          city or county, town, school district, district, political  
          subdivision, or other local public agency, including every  
          county sheriff and city police department.

           State Revenue Impact

           No estimate.









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           Comments

           1.  Purpose of the bill  . The recent militarization of police  
          undermines relations between law enforcement and the communities  
          they serve.  Events such as the police response to protests in  
          Ferguson highlight the harm that increasing militarization can  
          cause, and in California, the public outcry that arose against  
          the San Jose Police Department's acquisition of an armored  
          vehicle indicates that there is a strong desire for additional  
          public scrutiny of the equipment that local law enforcement  
          agencies acquire.  AB 36 meets this need by improving local  
          agencies' transparency and accountability for their decisions to  
          acquire certain types of military equipment that can have a  
          negative effect on their community.  AB 36 doesn't prohibit any  
          law enforcement agency from obtaining or using weapons or  
          armored vehicles, and it is crafted to ensure that the process  
          of obtaining authorization does not hamper the ability of local  
          law enforcement to acquire the equipment if their legislative  
          body approves it.  The bill simply allows members of the public  
          to learn about the equipment being procured by the law  
          enforcement agencies that serve them and to provide an  
          opportunity for their voices to be heard.

          2.   Home rule  .  Local law enforcement officials are in the best  
          position to make judgments about the need for surplus military  
          equipment and to what extent public safety considerations must  
          be weighed against the desire for public input.  This is  
          especially true for county sheriffs, who are elected officials.   
          Because they are directly accountable to the public, they should  
          be allowed to make independent decisions about procuring and  
          deploying law enforcement equipment to reflect local needs and  
          priorities.  State-imposed restrictions on certain types of  
          equipment undermine a sheriff's ability to use his or her  
          discretion to enforce the law and maintain public safety.  In  
          addition, police chiefs are responsible to city councils,  
          mayors, and city managers who are empowered to require public  
          hearings on this equipment if they think it is necessary.  In  
          fact, some cities have already voluntarily decided to require a  
          vote of the city council to acquire this equipment.  In other  
          cases, local governments have chosen to discuss these issues in  
          closed session to avoid any potential security concerns.  Thus,  
          decisions about whether to acquire this equipment and the level  
          of public input in that decision may be more appropriately left  








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          up to local officials.

          3.  Of barn doors  . While requiring approval of this equipment at  
          a public meeting improves transparency to some degree, many CA  
          communities have already received this equipment.  AB 36's  
          requirements are not retroactive.  Further, it does it provide  
          any additional public information on the policies that will  
          determine how the equipment is used.  Yet, it is the  
          high-profile manner in which some of these items have been used  
          that has driven consideration of what surplus military equipment  
          local law enforcement is authorized to acquire.  The Committee  
          may wish to consider whether additional steps should be taken to  
          publicly air the policies that govern local law enforcement  
          agencies' use of this equipment.

          4.  Charter cities  .  The California Constitution allows cities  
          that adopt charters to control their own "municipal affairs."   
          In all other matters, charter cities must follow the general,  
          statewide laws.  Because the Constitution doesn't define  
          "municipal affairs," the courts determine whether a topic is a  
          municipal affair or whether it's an issue of statewide concern.   
          AB 36 includes a legislative finding and declaration that the  
          bill's provisions are a matter of statewide concern, so its  
          requirements apply to all cities and counties in California,  
          including charter cities and counties.  However, the bill does  
          not provide a rationale for why its provisions are a statewide  
          concern.  

          5.  Mandate  . The California Constitution generally requires the  
          state to reimburse local agencies for their costs when the state  
          imposes new programs or additional duties on them.  According to  
          the Legislative Counsel's Office, AB 36 creates a new  
          state-mandated local program because it increases the duties of  
          local officials.  AB 36 disclaims this liability by stating that  
          no reimbursement is required under the Constitution because the  
          bill:
                 Creates a new crime or infraction, eliminates a crime or  
               infraction, or changes the penalty or definition associated  
               with a crime; and
                 Furthers public scrutiny and enhances public access to  
               information regarding the conduct of the people's business.

          6.  Related Legislation  . There are several bills related to AB  
          36, including:








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                 SB 741 (Hill), which prohibits a local agency from  
               acquiring or using cellular communications interception  
               technology unless the agency's legislative body adopts an  
               authorizing resolution or ordinance.  The resolution or  
               ordinance must set a policy for when the technology can be  
               used, how the data will be used, and what provisions will  
               be made to prevent unauthorized disclosure of the  
               information.  The Committee heard SB 741 on April 15, 2015.  
                It passed the Committee on a vote of 7-0 and is currently  
               pending in the Assembly Local Government Committee.

                 SB 242 (Monning), which prohibits a school district that  
               establishes a school police department from permitting the  
               school police department to receive federal surplus  
               military equipment unless the governing board votes to  
               approve the acquisition at a public meeting and sets forth  
               other specified policies.  SB 252 passed the Senate Floor  
               on a vote of 31-5 and is currently on Third Reading in the  
               Assembly.


           


          Assembly Actions

           Assembly Local Government Committee:              9-0
          Assembly Appropriations Committee:                16-1
          Assembly Floor:                                   56-12

           Support and  
          Opposition   (6/25/15)


           Support  :  PICO California; PolicyLink; California State  
          Conference of the National Association for the Advancement of  
          Colored People.


           Opposition  :  League of California Cities; California Police  
          Chief's Association; California State Sherriff's Association;  
          Central Valley Flood Control Association; City of Visalia.










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