BILL ANALYSIS Ó SENATE COMMITTEE ON GOVERNANCE AND FINANCE Senator Robert M. Hertzberg, Chair 2015 - 2016 Regular ------------------------------------------------------------------ |Bill No: |AB 36 |Hearing | 7/1/15 | | | |Date: | | |----------+---------------------------------+-----------+---------| |Author: |Campos |Tax Levy: |No | |----------+---------------------------------+-----------+---------| |Version: |6/24/15 |Fiscal: |Yes | ------------------------------------------------------------------ ----------------------------------------------------------------- |Consultant|Favorini-Csorba | |: | | ----------------------------------------------------------------- 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 AB 36 (Campos) 6/24/15 Page 2 of ? 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 AB 36 (Campos) 6/24/15 Page 3 of ? 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 | | | | AB 36 (Campos) 6/24/15 Page 4 of ? ----------------------------------------------------------------- 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. AB 36 (Campos) 6/24/15 Page 5 of ? 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 AB 36 (Campos) 6/24/15 Page 6 of ? 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: AB 36 (Campos) 6/24/15 Page 7 of ? 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. AB 36 (Campos) 6/24/15 Page 8 of ? -- END --