BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                         AB 36|
          |Office of Senate Floor Analyses   |                              |
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                                   THIRD READING 


          Bill No:  AB 36
          Author:   Campos (D)
          Amended:  6/24/15 in Senate
          Vote:     21  

           SENATE GOVERNANCE & FIN. COMMITTEE:  6-0, 7/1/15
           AYES:  Hertzberg, Nguyen, Beall, Hernandez, Lara, Moorlach
           NO VOTE RECORDED:  Pavley

          SENATE APPROPRIATIONS COMMITTEE:  Senate Rule 28.8

           ASSEMBLY FLOOR:  56-12, 5/18/15 - See last page for vote

           SUBJECT:   Local government:  federal surplus property


          SOURCE:    Author


          DIGEST:  This bill prohibits a local agency from applying for  
          certain types of federal surplus property without prior approval  
          by its legislative body.


          ANALYSIS:   


          Existing law:




          1)Establishes the Ralph M. Brown Act (Brown Act), which:








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             a)   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.  





             b)   Includes numerous requirements that legislative bodies  
               must meet, such as noticing hearings and posting agendas  
               prior to meetings.


          2)Provides procedures under the Federal Surplus Property  
            Acquisition Law of 1945 for 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.




          3)Establishes the "1033 Program," which:









             a)   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 activities, particularly for  
               counter-drug and counter-terrorism activities.  The Defense  







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               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.


             b)   Requires states that participate in the program 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.




          This bill:


          1)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.  

          2)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.


          3)Requires the state coordinator, defined as the state agency  







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            that has signed a current MOA with the DLA, to develop a list  
            of high-visibility surplus military equipment that includes:




             a)   The prohibited and controlled items included in the  
               report developed pursuant to Executive Order #13688; and




             b)   Consideration of the DLA's list of controlled property  
               or other state or federal regulations or policies governing  
               the use of surplus military equipment.




          4)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.




          Background


          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.








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          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  
          property of a local law enforcement agency.  Equipment with a  
          uniquely military purpose is permanently listed as controlled  
          and remains the property of the U.S. 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, Missouri, 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 and  |







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          |      Camouflage uniforms      |    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.


          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.   
            This 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  







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            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 up to local officials.

          3)Of barn doors. While requiring approval of this equipment at a  
            public meeting improves transparency to some degree, many  
            California communities have already received this equipment.   
            AB 36's requirements are not retroactive.  Further, it doesn't  
            require 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.


          Related Legislation


          SB 741 (Hill) 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.  SB 741 is currently pending in the Assembly  
          Local Government Committee.

          SB 242 (Monning) prohibits a school district that establishes a  
          school police department from permitting the school police  







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          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 242 has  
          been enrolled and is pending the Governor's signature.

          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   Yes


          SUPPORT:   (Verified7/14/15)


          California State Conference of the National Association for the  
          Advancement of Colored People
          PICO California
          PolicyLink


          OPPOSITION:   (Verified7/14/15)


          California Police Chief's Association
          California State Sherriff's Association
          City of Visalia
          League of California Cities

          ASSEMBLY FLOOR:  56-12, 5/18/15
          AYES:  Alejo, Bloom, Bonta, Brown, Burke, Calderon, Campos,  
            Chang, Chau, Chávez, Chiu, Chu, Cooley, Dababneh, Daly, Dodd,  
            Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gatto,  
            Gipson, Gomez, Gonzalez, Gordon, Hadley, Harper, Roger  
            Hernández, Holden, Jones-Sawyer, Lackey, Levine, Linder,  
            Lopez, Low, Maienschein, Mayes, McCarty, Medina, Nazarian,  
            Obernolte, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez,  
            Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting,  
            Waldron, Weber, Wood, Atkins
          NOES:  Travis Allen, Baker, Brough, Cooper, Dahle, Gallagher,  
            Gray, Irwin, Olsen, Patterson, Wagner, Wilk
          NO VOTE RECORDED:  Achadjian, Bigelow, Bonilla, Beth Gaines,  
            Grove, Jones, Kim, Mathis, Melendez, Mullin, O'Donnell,  
            Williams

          Prepared by:Anton Favorini-Csorba / GOV. & F. / (916) 651-4119
          7/15/15 15:02:44







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