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: 9/4/15 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 some local agencies from applying
for certain types of federal surplus property without prior
approval by its legislative body.
Senate Floor Amendments of 9/4/15 delete provisions that allow
tactical equipment approval to be considered in closed session
and prohibit disclosure of the types of surplus military
equipment authorized at a closed session.
Senate Floor Amendments of 8/24/15 exempt sheriff's departments
from this bill's requirements, allow the equipment approval to
be considered in closed session, prohibit disclosure of the
types of surplus military equipment authorized at a closed
session, and prohibit acquisition of some types of surplus
military equipment.
ANALYSIS:
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Existing law:
1)Establishes the Ralph M. Brown Act (Brown Act), which:
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.
c) Allows legislative bodies to meet in closed session for
certain specified purposes, such as to discuss real estate
negotiations.
d) Requires the votes on actions taken in closed session to
be made public.
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
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
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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
(CalOES) acts as the state coordinator.
4)Regulates, as specified in a report issued pursuant to
Executive Order #13688, the equipment that local law
enforcement agencies may acquire through the 1033 program,
including by establishing requirements for the acquisition of
"controlled" equipment and disallowing the acquisition of
"prohibited" equipment.
This bill:
1)Prohibits a local agency, other than a sheriff's department or
other agency directly headed by an elected official, from
applying for "tactical" surplus military equipment, as
defined, unless the agency's legislative body adopts an
ordinance or resolution that lists the types of equipment that
the agency may acquire.
2)Requires the ordinance or resolution to be adopted at a
regular public meeting subject to the Brown Act.
3)Requires the ordinance or resolution to be reviewed annually.
At that time, the legislative body must decide whether to
renew the ordinance, or resolution. If it does not renew the
resolution, the authorization to acquire tactical equipment
expires.
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4)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.
5)Requires the state coordinator, defined as the state agency
that has signed a current MOA with the DLA, to develop a list
of tactical surplus military equipment that includes:
a) Controlled equipment; 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.
6)Disallows all local agencies from acquiring prohibited
equipment.
7)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.
8)States that no reimbursement is required for a state mandate,
because its provisions fall under an exemption relating to the
Brown Act.
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
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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
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. Two thirds of controlled equipment
(calculated by the value of the equipment) tracked by CalOES has
gone to sheriff's departments, while the remainder has gone to
police departments.
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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AB 36
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| Prohibited Equipment | Controlled Equipment |
|--------------------------------+--------------------------------|
| Aircraft, ships, or vehicles | Other aircraft |
| with intact weapons | Other armored vehicles, |
| Armored vehicles with treads | including mine-resistant |
| Large caliber firearms and | ambush protected vehicles |
| ammunition | Tactical vehicles, such as |
| Grenade launchers | Humvees |
| Bayonets | Command and control vehicles |
| Camouflage uniforms | Specialized firearms 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.
Comments
Purpose of this 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
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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.
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 on the Assembly
Floor.
SB 242 (Monning, Chapter 79, Statutes of 2015) 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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
SUPPORT: (Verified9/4/15)
California Broadcasters Association
California Newspaper Publishers Association
California State Conference of the National Association for the
Advancement of Colored People
PICO California
PolicyLink
OPPOSITION: (Verified9/4/15)
American Civil Liberties Association of California
AB 36
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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
9/8/15 14:38:28
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