BILL ANALYSIS Ó AB 36 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 36 (Campos) As Amended September 4, 2015 Majority vote -------------------------------------------------------------------- |ASSEMBLY: |56-12 |(May 18, 2015) |SENATE: |33-3 |(September 9, | | | | | | |2015) | | | | | | | | | | | | | | | -------------------------------------------------------------------- Original Committee Reference: L. GOV. SUMMARY: 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. 2)Specify that a local agency, except a local law enforcement AB 36 Page 2 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; 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. 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. AB 36 Page 3 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)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. AB 36 Page 4 EXISTING LAW: 1)Requires, pursuant to the Brown Act, all meetings of a 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. FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs. AB 36 Page 5 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. 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 .50 caliber or greater; ammunition of .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 AB 36 Page 6 inconsistent provisions in the charter of any city, county, or 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 AB 36 Page 7 community will look like. AB 36 helps address this issue by 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)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. 4)Arguments in Support. The California State Conference of the National Association for the Advancement of Colored People, in 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." 5)Arguments in Opposition. The League of California Cities, California Police Chiefs Association, California Colleges and University Police Chiefs Association, California Narcotics Officers Association, and California Association of Code Enforcement Officers, in opposition, write, "In a free society, keeping local police agencies accountable is critical. Transparency in connection with their acquisition of military equipment is equally critical. But transparency must be tempered by the security considerations associated with equipment designed to counter well-armed criminal acts, AB 36 Page 8 or to enhance local first response capability in the event of a terrorist attack. Making decisions about such equipment in an open meeting should be at the discretion of the local governing body. This was the sole motivation for the closed session amendment (in the prior version of the bill). "As amended, AB 36 represents an irresponsible approach to a vitally important matter which stands to adversely affect the safety of all of the heavily populated communities in California." Analysis Prepared by: Angela Mapp / L. GOV. / (916) 319-3958 FN: 0002256