SENATE RULES COMMITTEE
Office of Senate Floor Analyses
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AB 36
THIRD READING
Bill No:
Author:
Amended:
Vote:
AB 36
Campos (D)
9/4/15 in Senate
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:
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.
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 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
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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.
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.
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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 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
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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
Aircraft, ships, or vehicles with intact
weapons
Armored vehicles with treads
Large caliber firearms and
ammunition
Grenade launchers
Bayonets
Camouflage uniforms
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Controlled Equipment
Other aircraft
Other armored vehicles, including
mine-resistant ambush protected
vehicles
Tactical vehicles, such as Humvees
Command and control vehicles
Specialized firearms and ammunition
Explosives
Battering rams and other breaching
devices
Riot control equipment, including
batons, helmets, and shields
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 body approves it. This bill simply allows
members of the public, to learn about the equipment being procured by the law
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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.:
Yes
Local: Yes
SUPPORT: (Verified 9/4/15)
California Broadcasters Association
California Newspaper Publishers Association
California State Conference of the National Association for the Advancement of
Colored People
PICO California
PolicyLink
OPPOSITION: (Verified 9/4/15)
American Civil Liberties Association of California
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
AB 36
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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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