BILL ANALYSIS Ó
AB 36
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB
36 (Campos)
As Amended September 4, 2015
Majority vote
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|ASSEMBLY: |56-12 |(May 18, 2015) |SENATE: |33-3 |(September 9, |
| | | | | |2015) |
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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
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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.
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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.
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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.
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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
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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
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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,
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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