BILL ANALYSIS Ó
AB 36
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB
36 (Campos)
As Amended August 24, 2015
Majority vote
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|ASSEMBLY: | |(May 18, 2015) |SENATE: |32-4 |(September 2, |
| |56-12 | | | |2015) |
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Original Committee Reference: L. GOV.
SUMMARY: Generally prohibits local agencies, except local law
enforcement agencies that are directly under the control of an
elected officer, from applying to receive specified surplus
military equipment from the federal government, unless the
legislative body of the local agency approves the acquisition at
a regular meeting held pursuant to the Ralph M. Brown Act (Brown
Act).
The Senate amendments:
1)Exempt a local law enforcement agency that is directly under
the control of an elected officer from this bill's provisions.
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2)Specify that a local agency, except a local law enforcement
agency that is directly under the control of an elected
officer, shall not apply to receive tactical surplus military
equipment unless the legislative body of the local agency
approves the acquisition of tactical surplus military
equipment by ordinance or resolution, pursuant to 3) below, at
a regular meeting held pursuant to the Brown Act.
3)Allow the legislative body of a local agency to adopt an
ordinance or resolution authorizing the local law enforcement
agency in that jurisdiction to apply for tactical surplus
military equipment, and require the ordinance or resolution to
comply with both of the following requirements:
a) The ordinance shall include a list of the types of
tactical surplus military equipment that the legislative
body authorizes the local law enforcement agency to
acquire, unless the legislative body considers the
ordinance or resolution at a closed session pursuant to 9)
and 10) below, in which case the ordinance or resolution
shall instead state that the local law enforcement agency
is authorized to acquire tactical surplus military
equipment; and,
b) The legislative body shall review the ordinance or
resolution at least annually. During the review, the
legislative body shall vote on whether to renew the
ordinance or resolution authorizing the acquisition of
tactical surplus military equipment. If the legislative
body does not approve a renewal pursuant to this bill, the
authorization shall expire.
4)Provide that this bill shall not be construed to require the
legislative body of a local agency to approve the acquisition
of each individual item of tactical surplus military
equipment, unless specified by the ordinance or resolution
adopted pursuant to this bill.
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5)Require the state coordinator, by January 31, 2016, to develop
a list of tactical surplus military equipment. The list shall
identify surplus military equipment that warrants public input
pursuant to this bill. The state coordinator shall post this
list on its Internet Web site and update it at least annually.
6)Require the state coordinator, in developing the list required
by this bill, to consider the current list of controlled
property designated by the federal Defense Logistics Agency
(DLA), as well as any other state or federal regulations or
policies governing the use of surplus military equipment.
7)Require the list required by this bill to include, at minimum,
the following types of equipment: weapons; armored vehicles;
watercraft; aircraft; and, other tactical equipment as
determined by the state coordinator.
8)Provide that, notwithstanding any other law, a local agency
shall not apply to receive the following types of surplus
military equipment: tracked armored vehicles; weaponized
vehicles; firearms of 0.50 caliber or greater; ammunition of
0.50 caliber or greater; grenade launchers; bayonets; and,
camouflage uniforms.
9)Allow a legislative body of a local agency to hold a closed
session for the purpose of considering an ordinance or
resolution authorizing the acquisition of tactical surplus
military equipment, as specified, if the following conditions
are met:
a) The ordinance or resolution is listed on the agenda of a
regular meeting, pursuant to provisions of the Brown Act
governing the posting of agendas, as specified;
b) A member of the legislative body, during an open session
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of the regular meeting, makes a motion to consider the
ordinance or resolution at a closed session;
c) Two-thirds of the members of the legislative body concur
in the motion; and,
d) The closed session complies with the applicable
requirements of the Brown Act.
10)Prohibit the types of tactical surplus military equipment
that the legislative body authorizes at a closed session held
pursuant to this bill from being disclosed during an open
session.
11)Provide the following definitions:
a) "Surplus military equipment" means equipment made
available to a local agency pursuant to United States Code
Title 10, Section 2576a;
b) "Tactical surplus military equipment" means surplus
military equipment identified on the list developed and
maintained by the state coordinator pursuant to 5) and 6)
above; and,
c) "State coordinator" means the state agency that has
signed a current memorandum of agreement with the federal
DLA for the purpose of administering a state program for
acquiring surplus military equipment.
EXISTING LAW:
1)Requires, pursuant to the Brown Act, all meetings of a
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legislative body of a local agency to be open and public and
all persons permitted to attend, as specified, unless a closed
session is authorized.
2)Authorizes closed sessions under the Brown Act for limited
purposes, including the discussion of litigation, real estate
negotiations, personnel matters, some aspects of labor
negotiations, matters posing a threat to public security, and
other specified items.
3)Authorizes the Department of Defense (DOD), pursuant to United
States Code Title 10, Section 2576a, to transfer surplus
personal property, including arms and ammunition, to federal
or state agencies for use in law enforcement activities,
subject to specified conditions, at no cost to the acquiring
agency. This program is commonly referred to as the 1033
Program.
4)Allows, pursuant to California's Federal Surplus Property Law,
a local agency, as defined, to acquire surplus federal
property without regard to any law that requires posting of
notices or advertising for bids, inviting or receiving bids,
delivery of purchases before payment, or that prevents the
local agency from bidding on federal surplus property.
5)Defines "local agency" as used in California's Federal Surplus
Property Law to mean county, city, municipal corporation, or
public district.
AS PASSED BY THE ASSEMBLY, this bill:
1)Expanded California's Federal Surplus Property Acquisition Law
of 1945 (Federal Surplus Property Law) by prohibiting a local
agency from receiving surplus military equipment pursuant to
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United States Code Title 10, Section 2576a (1033 Program),
unless the legislative body of the local agency approves the
acquisition at a regular meeting held pursuant to the Brown
Act.
2)Expanded the definition of "local agency" in the Federal
Surplus Property Law to include county, city, whether general
law or chartered, city and county, town, school district,
municipal corporation, district, political subdivision, or any
board, commission, or agency thereof, or other local public
agency.
3)Added a definition of "legislative body" to the Federal
Surplus Property Law and defines it to have the same meaning
as the term is defined in the Brown Act.
4)Found and declared that this bill constitutes a matter of
statewide concern, that it shall apply to charter cities and
charter counties, and that its provisions shall supersede any
inconsistent provisions in the charter of any city, county, or
city and county.
5)Found and declared that this bill furthers, within the meaning
of California Constitution Article 1, Section 3(b), paragraph
(7), the purposes of that constitutional section as it relates
to the right of public access to the meetings of local public
bodies or the writings of local public officials and local
agencies, and declares, pursuant to California Constitution
Article 1, Section 3(b), paragraph (7), that the Legislature
makes the following findings:
Requiring local agencies to hold public meetings prior
to the acquisition of federal surplus military
equipment further exposes that activity to public
scrutiny and enhances public access to information
concerning the conduct of the people's business.
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6)Provided that no reimbursement is required by this bill
because the only costs that may be incurred by a local agency
or school district under this bill would result from a
legislative mandate that is within the scope of California
Constitution Article 1, Section 3(b), paragraph (7).
FISCAL EFFECT: According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS:
1)Bill Summary. This bill makes a number of changes to
California's Federal Surplus Property Law, which governs the
receipt of surplus military equipment under the federal 1033
Program. Among its many provisions, this bill prohibits local
agencies, except local law enforcement agencies that are
directly under the control of an elected officer, from
applying to receive tactical surplus military equipment from
the 1033 Program, unless the acquisition is approved by
ordinance or resolution at a regular meeting held pursuant to
the Brown Act.
However, a local agency's legislative body may hold a closed
session for the purpose of considering an ordinance or
resolution authorizing the acquisition of tactical surplus
military equipment if the following conditions are met:
a) The ordinance or resolution is listed on the agenda of a
regular meeting, pursuant to provisions of the Brown Act
governing the posting of agendas, as specified;
b) A member of the legislative body, during an open session
of the regular meeting, makes a motion to consider the
ordinance or resolution at a closed session;
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c) Two-thirds of the members of the legislative body concur
in the motion; and,
d) The closed session complies with the applicable
requirements of the Brown Act.
This bill prohibits the types of tactical surplus military
equipment that the legislative body authorizes at a closed
session from being disclosed during an open session.
This bill requires the state coordinator, as defined, to
develop a list of tactical surplus military equipment, which
must include specified types of equipment and be posted on the
state coordinator's Web site, as specified.
This bill updates the Federal Surplus Property Law's
definition of "local agency" to include a county, city,
whether general law or chartered, city and county, town,
school district, municipal corporation, district, political
subdivision, or any board, commission, or agency thereof, or
other local public agency. All of these entities (except for
sheriff's departments) would be subject to these provisions of
this bill.
This bill also prohibits any local agency from applying to
receive the following types of surplus military equipment:
tracked armored vehicles; weaponized vehicles; firearms of
0.50 caliber or greater; ammunition of 0.50 caliber or
greater; grenade launchers; bayonets; and, camouflage
uniforms.
This bill declares that it constitutes a matter of statewide
concern, that it shall apply to charter cities and charter
counties, and that its provisions shall supersede any
inconsistent provisions in the charter of any city, county, or
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city and county. This bill is sponsored by the author.
2)Author's Statement. According to the author, "Due to recent
events of police brutality, distrust between law enforcement
and many of our communities remains at an all-time high.
Further exacerbating the issue is the recent militarization of
law enforcement agencies and a movement away from community
policing across the nation.
"Amid a national debate over the militarization of police, the
San Jose Police Department acquired a 15-ton armored vehicle
earlier this year from the military surplus program. After
receiving community input that the armored vehicle was
damaging the trust that a decade of community policing had
created, the San Jose Police Department decided to return the
vehicle. In a separate case, in Ferguson, Missouri, the
mine-resistant, ambush-protected troop transport, or
Mine-Resistant Ambush Protected Vehicle (MRAP), became a focus
for debate after this military surplus vehicle and other
military equipment were used by local law enforcement to
respond to civil unrest over the police killing of unarmed
teenager Michael Brown.
"These are only a few cases where the public felt threatened
by military equipment in their communities. In both cases,
the communities involved did not have the opportunity to weigh
in before the military equipment was acquired. These
situations hurt our most underserved communities by
exacerbating their relationship with the police and
government.
"Unilateral decisions by law enforcement agencies to acquire
military equipment provide little or no opportunity for
community input. Most law enforcement agencies are not
required to engage in a public process that involves public
debate about equipment purchases. This results in an
inherently skewed decision-making process about what someone's
community will look like. AB 36 helps address this issue by
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prohibiting a public safety agency from receiving and buying
surplus military equipment unless the legislative body of the
local agency votes to approve the purchase at a public
meeting."
3)Background. While the militarization of local police
departments has been in news headlines for many months,
starting with the unrest in Ferguson, Missouri, it is not new.
It has been researched and written about for at least the
past two decades, having its roots in the law enforcement
response to the social unrest of the 1960s, and the
development of Special Weapons and Tactics (SWAT) units.
There has been a dramatic expansion in the use of SWAT teams
since then, with a significant increase in their use for drug
raids, as noted in an article released by the United States
Department of Justice in December 2013 entitled, "Will the
Growing Militarization of Our Police Doom Community Policing?"
The article also cites the use of battle dress uniforms and
stress training as contributors to the increased
militarization of local police practices.
The American Civil Liberties Union released a comprehensive
report in June entitled, "War Comes Home: The Excessive
Militarization of American Policing," which recommends that
state legislatures and municipalities "impose meaningful
restraints on the use of SWAT" and notes that there needs to
be greater documentation, transparency, and accountability on
how the police are spending tax dollars. The report also
includes a laundry list of recommendations for local agencies,
primarily directed at best practices in the use of SWAT teams.
4)1033 Program. The DOD 1033 Program allows surplus United
States military equipment to be transferred to municipal
police departments free of charge. The 1033 Program is named
for the section of the National Defense Authorization Act of
1997 that granted permanent authority to the Secretary of
Defense to transfer defense material to federal and state
agencies for use in law enforcement, particularly those
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associated with counter-drug and counter-terrorism activities.
The 1033 Program is reported to have transferred $5 billion in
military equipment to police departments across the country.
According to the Congressional Research Service, 1,000 law
enforcement agencies are registered nationwide and 8,000 are
currently using property provided through the program,
including a number of California cities. News reports state
the Cities of Davis and San Jose have recently decided to
return armored vehicles they received from the federal
government, and other cities have been reported to have such
equipment at their disposal.
According to the Defense Logistics Agency (DLA), which
administers the 1033 Program, "For states to participate in
the program, they must each set up a business relationship
with DLA through a Memorandum of Agreement (MOA). Each
participating 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
Coordinators are expected to maintain property accountability
records and to investigate any alleged misuse of property, and
in certain cases, to report violations of the Memorandum of
Agreement to DLA. State Coordinators are aggressive in
suspending law enforcement agencies who abuse the program.
"Additionally, DLA has a compliance review program. The
program's objective is to have (DLA's) Law Enforcement Support
Office staff visit each state coordinator and assist him or
her in ensuring that property accountability records are
properly maintained, minimizing the potential for fraud, waste
and abuse."
5)Office of Emergency Services. The Governor's Office of
Emergency Services (OES) administers the 1033 Program for the
state. According to the OES Web site, "California law
enforcement agencies (LEAs) that wish to acquire and/or retain
1033 Program excess property must be certified and currently
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authorized to use the 1033 Program. Certification paperwork
is required annually and whenever a participating agency's
Chief Executive Official Changes. Authorization to use the
1033 Excess Property Program is valid for one year unless the
Chief Executive Officer of the LEA changes.
"All CA Law Enforcement Agencies that have acquired program
equipment must have at least one person registered and
actively maintaining their agency's inventory in the Federal
Excess Property Management Information System (LESO FEPMIS) as
part of their property accounting system for all program
related equipment."
OES maintains an inventory list of tracked 1033 equipment for
California agencies and entities. It was created by OES from
the (federal) Law Enforcement Support Office (LESO) database
dated June 25, 2014. The list is a snapshot in time and may
not reflect more recent transactions within the LESO's
dynamically changing database. OES auditors pull from this
database to form their lists for individual agency
accountability checks throughout the year. The list is the
only inventory OES retains outside of the LESO database.
There are no historical inventories retained by OES.
(Unfortunately, at the time this analysis was drafted, this
list was not accessible on the OES Web site.)
LEAs also purchase equipment with their own money and/or with
federal grants, in addition to equipment acquired through the
1033 Program.
6)Related Legislation. SB 242 (Monning), Chapter 79, Statutes
of 2015, requires a school district's police department to
obtain approval from its governing board prior to receiving
federal surplus military equipment.
7)Arguments in Support. The California State Conference of the
National Association for the Advancement of Colored People, in
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support, states "Law enforcement agencies unilateral decisions
to acquire military grade equipment provide little or no
opportunity for community input as most law enforcement
agencies are not required to engage in a public process that
involves public debate about equipment purchases. Local
communities must be able to discuss the acquisition of
military equipment and decide whether there is a real need for
it before it becomes present in their everyday lives.
"AB 36 is good public safety policy in that it would require
local agencies to have a hearing conducted by a governing body
in the community regarding the necessity of military weapons
in their community and would require a vote for approval of
military grade weapons."
8)Arguments in Opposition. The California Newspaper Publishers
Association, in opposition, writes, "The recent amendments to
AB 36 would create a new closed session exemption to allow a
legislative body to discuss, deliberate and vote on what
tactical equipment to acquire all outside of public view.
Providing the ability of the public to comment before the
closed session does not justify the shroud of secrecy that
would prevent the public from learning the reasons why
decision makers reached consensus on the type of equipment
they chose to acquire.
"Moreover, AB 36 deviates from the time-honored requirement
that legislative bodies report to the public what happened in
the closed session?In every instance where the legislature has
created a closed session exemption, it has required the agency
meeting in closed session to report to the public what
occurred in the closed session. This process is the only
oversight the public has to monitor government agencies. AB
36 would not only exclude from this new closed session the
critical oversight component that accompanies every other
closed session exemption, but it would actually prohibit a
legislative body that goes into closed session from reporting
to the public the most crucial piece of information that was
discussed - the type of tactical military equipment that that
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the legislative body decided to acquire."
9)Senate Amendments. This bill was substantially amended in the
Senate. Some of these amendments, which are substantive, have
not been heard by any policy committee of the Legislature.
Analysis Prepared by:
Angela Mapp / L. GOV. / (916) 319-3958 FN:
0001902