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: | |
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|Author: |Campos |Tax Levy: |No |
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|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:
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| 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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