Amended  IN  Assembly  March 22, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 3131

Introduced by Assembly Members Gloria and Chiu

February 16, 2018

An act relating to public safety. to add Chapter 12.8 (commencing with Section 7070) to Division 7 of Title 1 of the Government Code, relating to military equipment.


LEGISLATIVE COUNSEL'S DIGEST


AB 3131, as amended, Gloria. Public safety: equipment funding. Law enforcement agencies: military equipment: funding, acquisition, and use.
Existing law designates the Department of General Services as the agency for the State of California responsible for distribution of federal surplus personal property, excepting food commodities, and requires the department to, among other things, do all things necessary to the execution of its powers and duties as the state agency for the distribution of federal personal surplus property, excepting food commodities, in accordance with specified federal law. Existing law, the Federal Surplus Property Acquisition Law of 1945, authorizes a local agency, as defined, to acquire surplus federal property without regard to any law which requires posting of notices or advertising for bids, inviting or receiving bids, or delivery of purchases before payment, or which prevents the local agency from bidding on federal surplus property. Existing federal law authorizes the Department of Defense 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 bill would require a law enforcement agency, defined to include specified state and local entities, to obtain approval of the applicable governing body, by adoption of a military equipment impact statement and a military equipment use policy, as specified, by ordinance at a regular meeting held pursuant to specified open meeting laws, prior to taking certain actions relating to the funding, acquisition, or use of military equipment, as defined. The bill would also require similar approval for the continued use of military equipment acquired prior to January 1, 2019. The bill would allow the governing body to approve the funding, acquisition, or use of military equipment within its jurisdiction only if it determines that the military equipment meets specified standards. The bill would require the governing body to annually review the ordinance, and to either disapprove a renewal of the authorization for a piece of military equipment or amend the military equipment use policy if it determines, based on an annual military equipment report prepared by the law enforcement agency, as provided, that the military equipment does not comply with the above-described standards for approval.
The bill would require the Attorney General to develop by January 31, 2019, and annually update a list of military equipment, as specified, and post the list on its Internet Web site. The bill would authorize any person to bring a civil action to enforce its provisions. The bill would also include findings that the changes proposed by this bill address a matter of statewide concern rather than a municipal affair and, therefore, apply to all cities, including charter cities.
By adding to the duties of local officials with respect to the funding, acquisition, and use of military equipment, this bill would impose a state-mandated local program.
The California Constitution requires local agencies, for the purpose of ensuring public access to the meetings of public bodies and the writings of public officials and agencies, to comply with a statutory enactment that amends or enacts laws relating to public records or open meetings and contains findings demonstrating that the enactment furthers the constitutional requirements relating to this purpose.
This bill would make legislative findings to that effect.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law generally governs the investigation and control of crimes and criminals, and directs the Attorney General to arrange peace officer training regarding the use of approved crime investigation equipment. Existing law requires the governing board of a school district to prohibit its school police department from receiving surplus military equipment, unless specified conditions are satisfied.

This bill would state the intent of the Legislature to enact legislation to promote transparency and public welfare in decisions regarding the funding, acquisition, and deployment of military equipment by police and sheriffs’ departments.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NOYES  

The people of the State of California do enact as follows:


SECTION 1.

 Chapter 12.8 (commencing with Section 7070) is added to Division 7 of Title 1 of the Government Code, to read:
CHAPTER  12.8. Funding, Acquisition, and Use of Military Equipment

7070.
 The Legislature finds and declares all of the following:
(a) The acquisition of military equipment and its deployment in our communities can adversely impact the public’s safety and welfare, including significant risks to civil rights, civil liberties, and physical and psychological well-being, and incur significant financial costs.
(b) The public has a right to know about any funding, acquisition, or use of military equipment by state or local government officials, as well as a right to participate in any government agency’s decision to fund, acquire, or use such equipment.
(c) Decisions regarding whether and how military equipment is funded, acquired, or used should give strong consideration to the public’s welfare, safety, civil rights, and civil liberties, and should be based on meaningful public input.
(d) Legally enforceable safeguards, including transparency, oversight, and accountability measures, must be in place to protect the public’s welfare, safety, civil rights, and civil liberties before military equipment is funded, acquired, or used.
(e) The lack of a public forum to discuss the acquisition of military equipment jeopardizes the relationship police have with the community, which can be undermined when law enforcement is seen as an occupying force rather than a public safety service.

7071.
 For purposes of this chapter, the following definitions shall apply:
(a) “Governing body” means the elected body that oversees a law enforcement agency or, if there is no elected body that directly oversees the law enforcement agency, the appointed body that oversees a law enforcement agency. In the case of a law enforcement agency of a county, including a sheriff’s department or a district attorney’s office, “governing body” means the board of supervisors of the county.
(b) “Law enforcement agency” means any of the following:
(1) A police department, including the police department of a transit agency, school district, or any campus of the University of California, the California State University, or California Community Colleges.
(2) A sheriff’s department.
(3) A district attorney’s office.
(4) A county probation department.
(5) The Department of the California Highway Patrol.
(6) The Department of Justice.
(7) Any other state or local agency authorized to conduct criminal investigations or prosecutions.
(c) “Military equipment” means equipment that is militaristic in nature and includes, but is not limited to, all of the following:
(1) Powered aircraft with a crew aboard, such as an airplane, that use a fixed wing for lift.
(2) Powered aircraft with a crew aboard that use a rotary wing for lift, such as a helicopter.
(3) Unmanned, remotely piloted, powered aerial vehicles.
(4) Wheeled armored vehicles that are either built or modified to provide ballistic protection to their occupants, including a mine-resistant ambush protected (MRAP) vehicle or an armored personnel carrier.
(5) Wheeled tactical vehicles that are either built to operate both onroad and offroad in supporting military operations, such as a high mobility multipurpose wheeled vehicle (HMMWV), commonly referred to as a Humvee, a two and one-half-ton truck, a five-ton truck, or have a breaching or entry apparatus attached.
(6) Tracked armored vehicles that provide ballistic protection to their occupants and utilize a tracked system instead of wheels for forward motion.
(7) Command and control vehicles that are either built or modified to facilitate the operational control and direction of public safety units.
(8) Weaponized aircraft, vessels, or vehicles of any kind.
(9) Breaching apparatus designed to provide rapid entry into a building or through a secured doorway, including equipment that is mechanical, such as a battering ram, ballistic, such as a slug, or explosive in nature.
(10) Firearms of .50 caliber or greater.
(11) Ammunition of .50 caliber or greater.
(12) Specialized firearms and ammunition of less than .50 caliber, other than service weapons and ammunition of less than .50 caliber that are issued to officers, agents, or employees of a law enforcement agency.
(13) Any firearm or firearm accessory that is designed to launch small, explosive projectiles.
(14) Any large knife designed to be attached to the muzzle of a rifle, shotgun, or long gun for purposes of hand-to-hand combat.
(15) Explosives and pyrotechnics, including grenades referred to as flashbang grenades and explosive breaching tools.
(16) Riot batons, riot helmets, and riot shields, but excluding service-issued telescopic or fixed-length straight batons.
(17) Long-range acoustic devices.
(18) Camouflage uniforms, other than uniforms with woodland or desert patterns or solid color uniforms.
(19) Any other equipment as determined by the Attorney General pursuant to Section 7074.
(d) “Military equipment impact statement” means a publicly released, legally enforceable written document that includes, at a minimum, all of the following:
(1) A description of each piece of military equipment, the quantity sought, its capabilities, expected lifespan, intended uses and effects, and how it works, including product descriptions from the manufacturer of the military equipment.
(2) The purposes and reasons for which the law enforcement agency proposes to use each piece of military equipment.
(3) The fiscal impact of each piece of military equipment, including the initial costs of obtaining the equipment, the costs of each proposed use, the costs of potential adverse impacts, and the annual, ongoing costs of the equipment, including operating, training, transportation, storage, maintenance, and upgrade costs.
(4) An assessment specifically identifying any potential impacts that the use of military equipment might have on the welfare, safety, civil rights, and civil liberties of the public, and what specific affirmative measures will be implemented to safeguard the public from potential adverse impacts.
(5) Alternative method or methods by which the law enforcement agency can accomplish the purposes for which the military equipment is proposed to be used, the annual costs of alternative method or methods, and the potential impacts of alternative method or methods on the welfare, safety, civil rights, and civil liberties of the public.
(e) “Military equipment use policy” means a publicly released, legally enforceable written document governing the use of military equipment by a law enforcement agency that addresses, at a minimum, all of the following:
(1) The specific purpose or purposes that each piece of military equipment is intended to achieve.
(2) The specific capabilities and authorized uses of military equipment, the legal and procedural rules that govern each authorized use, and the potential uses of the military equipment that are prohibited.
(3) The course of training that must be completed before any officer, agent, or employee of the law enforcement agency is allowed to use each specific type of military equipment to ensure the full protection of the public’s welfare, safety, civil rights, and civil liberties and full adherence to the military equipment use policy.
(4) The mechanisms to ensure compliance with the military equipment use policy, including which independent persons or entities have oversight authority, and what legally enforceable sanctions are put in place for violations of the policy.
(5) The procedures by which members of the public may register complaints or concerns or submit questions about the use of each specific type of military equipment, and how the law enforcement agency will ensure that each complaint, concern, or question receives a response in a timely manner.

7072.
 (a) (1) A law enforcement agency shall obtain approval of the governing body, by an ordinance adopting a military equipment impact statement and a military equipment use policy at a regular meeting of the governing body held pursuant to the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2) or the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5), as applicable, prior to engaging in any of the following:
(A) Requesting military equipment made available pursuant to Section 2576a of Title 10 of the United States Code.
(B) Seeking funds for military equipment, including, but not limited to, applying for a grant, soliciting or accepting private, local, state, or federal funds, in-kind donations, or other donations or transfers.
(C) Acquiring military equipment either permanently or temporarily, including by borrowing or leasing.
(D) Collaborating with another law enforcement agency in the deployment or other use of military equipment within the territorial jurisdiction of the governing body.
(E) Using any new or existing military equipment for a purpose, in a manner, or by a person not previously approved by the governing body pursuant to this chapter.
(F) Soliciting or responding to a proposal for, or entering into an agreement with, any other person or entity to seek funds for, apply to receive, acquire, use, or collaborate in the use of, military equipment.
(2) No later than May 1, 2019, a law enforcement agency seeking to continue the use of any military equipment that was acquired prior to January 1, 2019, shall commence a governing body approval process in accordance with this section. If the governing body does not approve the continuing use of military equipment, including by adoption pursuant to this subdivision of a military equipment impact statement and military equipment use policy submitted pursuant to subdivision (b), within 180 days of submission of the proposed military equipment impact statement and military equipment use policy to the governing body, the law enforcement agency shall cease its use of the military equipment until it receives the approval of the governing body in accordance with this section.
(b) In seeking the approval of the governing body pursuant to subdivision (a), a law enforcement agency shall submit a proposed military equipment impact statement and military equipment use policy to the governing body and make those documents available on the law enforcement agency’s Internet Web site at least 30 days prior to any public hearing concerning the military equipment at issue.
(c) The governing body shall consider a proposed military equipment impact statement as an agenda item for an open session of a regular meeting and provide for public comment in accordance with, the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2) or the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5), as applicable.
(d) (1) The governing body shall only approve a request to fund, acquire, or use military equipment pursuant to this chapter if it determines all of the following:
(A) The military equipment is needed despite available alternatives.
(B) The proposed military equipment impact statement and military equipment use policy will safeguard the public’s welfare, safety, civil rights, and civil liberties.
(C) The use of military equipment will not be used based on race, national origin, religion, sexual orientation, gender, gender identity, political viewpoint, or disability, or disproportionately impact any community or group.
(D) The use of military equipment is the most cost-effective option among all available alternatives.
(2) In order to facilitate public participation, any proposed or final military equipment impact statement and military equipment use policy shall be made publicly available on the Internet Web site of the relevant law enforcement agency for as long as the military equipment is available for use.
(3) If the military equipment impact statement identifies a risk of potential adverse impacts on the public’s welfare, safety, civil rights, or civil liberties, the approval for the funding, acquisition, or use of military equipment by the governing body pursuant to this section shall not be deemed an acquiescence to those impacts, but instead an acknowledgment of the risk of those impacts and the need to avoid them proactively.
(4) The funding, acquisition, or use of military equipment by a law enforcement agency shall not be permitted without the express approval of the governing body, including adoption of a military equipment impact statement and military equipment use policy submitted pursuant to subdivision (b).
(e) (1) The governing body shall review any ordinance that it has adopted pursuant to this section approving the funding, acquisition, or use of military equipment at least annually and, subject to paragraph (2), vote on whether to renew the ordinance at a regular meeting held pursuant to the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2) or the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5), as applicable.
(2) The governing body shall determine, based on the annual military equipment report submitted pursuant to Section 7073, whether each piece of military equipment identified in that report has complied with the standards for approval set forth in subdivision (d). If the governing body determines that a piece of military equipment identified in that annual military equipment report has not complied with the standards for approval set forth in subdivision (d), the governing body shall either disapprove a renewal of the authorization for that piece of military equipment or require modifications to the military equipment use policy in a manner that will resolve the lack of compliance.

7073.
 (a) A law enforcement agency that receives approval for the funding, acquisition, or use of military equipment pursuant to Section 7072 shall submit to the governing body an annual military equipment report for each piece of military equipment approved by the governing body within one year of approval, and annually thereafter for as long as the military equipment is available for use. The law enforcement agency shall also make each annual military equipment report required by this section publicly available on its Internet Web site for as long as the military equipment is available for use. The annual military equipment report shall, at a minimum, include the following information for the immediately preceding calendar year for each piece of military equipment:
(1) A summary of how the military equipment was used.
(2) If applicable, a breakdown of where the military equipment was used geographically by individual census tract, as defined in the relevant year by the United States Census Bureau. For each census tract, the law enforcement agency shall report the number of days the military equipment was used and what percentage of those daily reported uses were authorized by warrant and by nonwarrant forms of court authorization.
(3) A summary of any complaints or concerns received concerning the military equipment.
(4) The results of any internal audits, any information about violations of the military equipment use policy, and any actions taken in response.
(5) An analysis of any discriminatory, disparate, any other adverse impacts that the use of military equipment may have had on the public’s safety, welfare, civil rights, and civil liberties and on any community or group, including, but not limited to, those protected by the First, Fourth, and Fourteenth Amendments to the United States Constitution.
(6) The total annual cost for each piece of military equipment, including acquisition, personnel, training, transportation, maintenance, storage, upgrade, and other ongoing costs, and from what source funds will be provided for the military equipment in the calendar year following submission of the annual military equipment report.
(b) Within 30 days of submitting and publicly releasing an annual military equipment report pursuant to this section, the law enforcement agency shall hold at least one well-publicized and conveniently located community engagement meeting, at which the general public may discuss and ask questions regarding the annual military equipment report and the law enforcement agency’s funding, acquisition, or use of military equipment.

7074.
 (a) The Attorney General, by January 31, 2019, shall develop a list of military equipment that warrants public input pursuant to this chapter. The Attorney General shall post this list on his or her Internet Web site and update it at least annually.
(b) The list required by this section shall include, at a minimum, the military equipment expressly listed in paragraphs (1) to (18), inclusive, of subdivision (c) of Section 7071.
(c) The Attorney General shall make available on his or her Internet Web site a form by which members of the public may submit suggestions for equipment to be included as military equipment on the list required by this section.

7075.
 (a) Notwithstanding any other law, any person may enforce this article by bringing a civil action seeking injunctive relief, declaratory relief, a writ of mandate, or other relief in a court of competent jurisdiction.
(b) In any action brought to enforce this article pursuant to this section, the court shall award costs and reasonable attorneys’ fees to a prevailing plaintiff.

7076.
 The Legislature finds and declares that this chapter addresses a matter of statewide concern rather than a municipal affair as that term is used in Section 5 of Article XI of the California Constitution. Therefore, this chapter applies to all cities, including charter cities and shall supersede any inconsistent provisions in the charter of any city, county, or city and county.

SEC. 2.

 The Legislature finds and declares that Section 1 of this act, which adds Chapter 12.8 (commencing with Section 7070) to Division 7 of Title 1 of the Government Code, furthers, within the meaning of paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, 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. Pursuant to paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the Legislature makes the following findings:
Requiring local agencies to hold public meetings prior to the acquisition of military equipment further exposes that activity to public scrutiny and enhances public access to information concerning the conduct of the people’s business.

SEC. 3.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district under this act would result from a legislative mandate that is within the scope of paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution.
SECTION 1.

It is the intent of the Legislature to enact legislation to promote transparency and public welfare in decisions regarding the funding, acquisition, and deployment of military equipment by police and sheriffs’ departments.