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)
6/24/15 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 a local agency from applying for certain types of
federal surplus property without prior approval by its legislative body.
ANALYSIS:
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.
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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
California, the Office of Emergency Services acts as the state coordinator.
This bill:
1) Prohibits any local agency from applying for “high-visibility” surplus military
equipment, as defined, unless the agency’s legislative body adopts an ordinance
or resolution authorizing the acquisition of those types at a regular public
meeting subject to the Brown Act. This ordinance or resolution must include
the types of high-visibility surplus military equipment that the local agency’s
law enforcement agency is authorized to acquire and the length of time that the
authorization can last, up to one year.
2) 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.
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3)
4)
Requires the state coordinator, defined as the state agency that has
signed a current MOA with the DLA, to develop a list of high-visibility surplus
military equipment that includes:
a)
The prohibited and controlled items included in the report
developed pursuant to Executive Order #13688; 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.
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,
including every county sheriff and city police department.
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
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military purpose, including 32 combat vehicles, and $60 million for equipment
with non-military applications.
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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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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

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
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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
1) Purpose of the 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
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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 enforcement agencies that serve them and to provide an
opportunity for their voices to be heard.
2) Home rule. Local law enforcement officials are in the best position to make
judgments about the need for surplus military equipment and to what extent
public safety considerations must be weighed against the desire for public input.
This is especially true for county sheriffs, who are elected officials. Because
they are directly accountable to the public, they should be allowed to make
independent decisions about procuring and deploying law enforcement
equipment to reflect local needs and priorities. State-imposed restrictions on
certain types of equipment undermine a sheriff’s ability to use his or her
discretion to enforce the law and maintain public safety. In addition, police
chiefs are responsible to city councils, mayors, and city managers who are
empowered to require public hearings on this equipment if they think it is
necessary. In fact, some cities have already voluntarily decided to require a
vote of the city council to acquire this equipment. In other cases, local
governments have chosen to discuss these issues in closed session to avoid any
potential security concerns. Thus, decisions about whether to acquire this
equipment and the level of public input in that decision may be more
appropriately left up to local officials.
3) Of barn doors. While requiring approval of this equipment at a public meeting
improves transparency to some degree, many California communities have
already received this equipment. AB 36’s requirements are not retroactive.
Further, it doesn’t require any additional public information on the policies that
will determine how the equipment is used. Yet, it is the high-profile manner in
which some of these items have been used that has driven consideration of what
surplus military equipment local law enforcement is authorized to acquire.
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
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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 in the Assembly Local Government
Committee.
SB 242 (Monning) 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. SB 242 has been enrolled
and is pending the Governor’s signature.
FISCAL EFFECT: Appropriation: No
Fiscal Com.:
Yes
Local: Yes
SUPPORT: (Verified 7/14/15)
California State Conference of the National Association for the Advancement of
Colored People
PICO California
PolicyLink
OPPOSITION: (Verified 7/14/15)
California Police Chief’s Association
California State Sherriff’s Association
City of Visalia
League of California Cities
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
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7/15/15 15:02:44
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