BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 36|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
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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:
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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 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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