SUMMARY: Prohibits local agencies from receiving surplus military equipment from the federal government, unless the acquisition is approved at a regular meeting held pursuant to the Ralph M. Brown Act (Brown Act). Specifically, this bill:
Expands California's Federal Surplus Property Acquisition Law of 1945 (Federal Surplus Property Law) by prohibiting a local agency from receiving surplus military equipment pursuant to United States Code Title 10, Section 2576a (1033 Program), unless the legislative body of the local agency approves the acquisition at a regular meeting held pursuant to the Brown Act.
Expands the definition of "local agency" in the Federal Surplus Property Law to include 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.
Adds a definition of "legislative body" to the Federal Surplus Property Law and defines it to have the same meaning as the term is defined in the Brown Act.
Finds and declares that this bill constitutes a matter of statewide concern, that it shall apply to charter cities and charter counties, and that its provisions shall supersede any inconsistent provisions in the charter of any city, county, or city and county.
Finds and declares that this bill furthers, within the meaning of California Constitution Article 1, Section 3(b), paragraph (7), the purposes of that constitutional section as it relates to the right of public access to the meetings of local public bodies or the writings of local public officials and local agencies, and declares, pursuant to California Constitution Article 1, Section 3(b), paragraph (7), that the Legislature makes the following findings:
Requiring local agencies to hold public meetings prior to the acquisition of federal surplus military equipment further exposes that activity to public scrutiny and enhances public access to information concerning the conduct of the people’s business.
Provides that no reimbursement is required by this bill because the only costs that may be incurred by a local agency or school district under this bill would result from a legislative mandate that is within the scope of California Constitution Article 1, Section 3(b), paragraph (7).
Requires, pursuant to the Brown Act, that all meetings of a legislative body, as defined, of a local agency be open and public and all persons permitted to attend, unless a closed session is authorized.
Defines "legislative body" to mean:
The governing body of a local agency or any other local body created by state or federal statute;
A commission, committee, board, or other body of a local agency, whether permanent or temporary, decision-making or advisory, created by charter, ordinance, resolution, or formal action of a legislative body. However, advisory committees, composed solely of the members of the legislative body that are less than a quorum of the legislative body are not legislative bodies, except that standing committees of a legislative body, irrespective of their composition, which have a continuing subject matter jurisdiction, or a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body are legislative bodies for purposes of the Brown Act;
A board, commission, committee, or other multimember body that governs a private corporation, limited liability company, or other entity that either:
Is created by the elected legislative body in order to exercise authority that may lawfully be delegated by the elected governing body to a private corporation, limited liability company, or other entity; or,
Receives funds from a local agency and the membership of whose governing body includes a member of the legislative body of the local agency appointed to that governing body as a full voting member by the legislative body of the local agency.
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.
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.
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 Assembly Appropriations Committee, there is a negligible state fiscal impact. Local mandate costs would fall under Proposition 42  and, thus, are not reimbursable.
Bill Summary. This bill updates California's Federal Surplus Property Law, which was enacted in 1945, by prohibiting local agencies from receiving surplus military equipment from the 1033 Program, unless the acquisition is approved at a regular meeting held pursuant to the Brown Act.
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 would be subject to the law with passage of this bill.
This bill also 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 inconsistent provisions in the charter of any city, county, or city and county. This bill is sponsored by the author.
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 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."
Background. While the militarization of local police departments has been in news headlines for many months, starting with the unrest in Ferguson, Missouri, it is not new. It has been researched and written about for at least the past two decades, having its roots in the law enforcement response to the social unrest of the 1960s, and the development of Special Weapons and Tactics (SWAT) units. There has been a dramatic expansion in the use of SWAT teams since then, with a significant increase in their use for drug raids, as noted in an article released by the United States Department of Justice in December 2013 entitled, "Will the Growing Militarization of Our Police Doom Community Policing?" The article also cites the use of battle dress uniforms and stress training as contributors to the increased militarization of local police practices.
The American Civil Liberties Union released a comprehensive report in June entitled, "War Comes Home: The Excessive Militarization of American Policing," which recommends that state legislatures and municipalities "impose meaningful restraints on the use of SWAT" and notes that there needs to be greater documentation, transparency, and accountability on how the police are spending tax dollars. The report also includes a laundry list of recommendations for local agencies, primarily directed at best practices in the use of SWAT teams.
1033 Program. The DOD 1033 Program allows surplus United States military equipment to be transferred to municipal police departments free of charge. The 1033 Program is named for the section of the National Defense Authorization Act of 1997 that granted permanent authority to the Secretary of Defense to transfer defense material to federal and state agencies for use in law enforcement, particularly those associated with counter-drug and counter-terrorism activities.
The 1033 Program is reported to have transferred $5 billion in military equipment to police departments across the country. According to the Congressional Research Service, 1,000 law enforcement agencies are registered nationwide and 8,000 are currently using property provided through the program, including a number of California cities. News reports state the Cities of Davis and San Jose have recently decided to return armored vehicles they received from the federal government, and other cities have been reported to have such equipment at their disposal.
According to the Defense Logistics Agency (DLA), which administers the 1033 Program, "For states to participate in the program, they must each set up a business relationship with DLA through a Memorandum of Agreement (MOA). Each participating state's governor is required to appoint a State Coordinator to ensure the program is used correctly by the participating law enforcement agencies. 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 of the Memorandum of Agreement to DLA. State Coordinators are aggressive in suspending law enforcement agencies who abuse the program.
"Additionally, DLA has a compliance review program. The program's objective is to have (DLA's) Law Enforcement Support Office staff visit each state coordinator and assist him or her in ensuring that property accountability records are properly maintained, minimizing the potential for fraud, waste and abuse."
Office of Emergency Services. The Governor's Office of Emergency Services (OES) administers the 1033 Program for the state. According to the OES Web site, "California law enforcement agencies (LEAs) that wish to acquire and/or retain 1033 Program excess property must be certified and currently authorized to use the 1033 Program. Certification paperwork is required annually and whenever a participating agency's Chief Executive Official Changes. Authorization to use the 1033 Excess Property Program is valid for one year unless the Chief Executive Officer of the LEA changes.
"All CA Law Enforcement Agencies that have acquired program equipment must have at least one person registered and actively maintaining their agency's inventory in the Federal Excess Property Management Information System (LESO FEPMIS) as part of their property accounting system for all program related equipment."
OES maintains an inventory list of tracked 1033 equipment for California agencies and entities. It was created by OES from the (federal) Law Enforcement Support Office (LESO) database dated June 25, 2014. The list is a snapshot in time and may not reflect more recent transactions within the LESO's dynamically changing database. OES auditors pull from this database to form their lists for individual agency accountability checks throughout the year. The list is the only inventory OES retains outside of the LESO database. There are no historical inventories retained by OES. (Unfortunately, at the time this analysis was drafted, this list was not accessible on the OES Web site.)
LEAs also purchase equipment with their own money and/or with federal grants, in addition to equipment acquired through the 1033 Program.
Federal Legislation. On September 16, 2014, United States Representative Hank Johnson (D-GA) and Representative Raul Labrador (R-ID) introduced the Stop Militarizing Law Enforcement Act of 2014 (H.R. 5478), which would have placed restrictions and transparency measures on the 1033 Program. The bill would have:
Prevented transfers of equipment inappropriate for local policing, such as high-caliber weapons, long-range acoustic devices, grenade launchers, armed drones, armored vehicles, and grenades or similar explosives;
Ended incentives to use equipment in circumstances when the use is unnecessary. Under the 1033 Program, local police are required to use the equipment within a year, incentivizing towns to use it in inappropriate circumstances;
Required that recipients certify that they can account for all equipment. In 2012, the weapons portion of the 1033 Program was temporarily suspended after DOD found that a local sheriff had gifted out army-surplus Humvees and other supplies. This bill would have prohibited re-gifting and required recipients to account for all equipment received from DOD; and,
Added requirements to enforce tracking mechanisms that keep up with and control transfers of the equipment, implement policies ensuring that police agencies can’t surplus the equipment for resale, and define drones more clearly.
This federal measure was not enacted.
Related Legislation. SB 242 (Monning) of the current legislative session, pending in the Assembly, requires a school district's police department to obtain approval from its governing board prior to receiving federal surplus military equipment.
Arguments in Support. None on file.
Arguments in Opposition. The League of California Cities, in opposition, states, "The League of Cities opposes this measure as an unjustified incursion upon municipal sovereignty. Under current law, local agencies are fully within their constitutional police power in deciding whether to acquire military equipment from the Department of Defense pursuant to the 1033 Program, and under what circumstances. Some cities have voluntarily made the decision to acquire equipment such as an MRAP (an armored truck used by the U.S. [United States] Army) via a vote of the city council. But due to the security implications, jurisdictions can and should decide for themselves on the circumstances under which they make such decisions, including whether to observe the Brown Act.
"(L)ocal jurisdictions are in the best position to determine the method by which surplus equipment is acquired. In some instances, Brown Act compliance may be desirable to facilitate agreement by the community being served; in others, a vote in closed session of the local governing body may be the most prudent course; and in still other instances, an executive decision by a mayor, city manager or police chief, or some combination thereof, may be most appropriate. In any case, local flexibility should be preserved, and municipal sovereignty should not be pre-empted."