Bill Text: CA AB351 | 2013-2014 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Civil liberties: suspension of habeas corpus for

Spectrum: Partisan Bill (Republican 1-0)

Status: (Passed) 2013-10-01 - Chaptered by Secretary of State - Chapter 450, Statutes of 2013. [AB351 Detail]

Download: California-2013-AB351-Amended.html

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BILL NUMBER: AB 351	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 4, 2013

INTRODUCED BY   Assembly Member Donnelly

                        FEBRUARY 13, 2013

   An act to add Section 145.5 to the Penal Code, relating to civil
liberties , and declaring the urgency thereof, to take effect
immediately  .



	LEGISLATIVE COUNSEL'S DIGEST


   AB 351, as amended, Donnelly. Civil liberties: suspension of
habeas corpus for American citizens.
   The United States Constitution and the California Constitution
provide for various civil liberties and other individual rights for a
citizen of the United States and the State of California, including
the right of habeas corpus, the right to due process, the right to a
speedy and public trial, and the right to be informed of criminal
charges brought against him or her.
   Certain provisions of federal law affirm the authority of the
President of the United States to use all necessary and appropriate
force to detain specified persons who engaged in terrorist
activities.
   This bill would enact the California Liberty Preservation Act. The
act would  provide that an officer, agent, or employee of
the United States, or an employee of a corporation providing services
to the United States, who enforces or attempts to enforce the
provisions of federal law described above would be guilty of a
misdemeanor and subject to imprisonment in a county jail for up to
one year, or a fine of not more than $10,000, or both imprisonment
and the fine   prohibit an agency in the State of
California, a political subdivision of this state, an employee of an
agency or a political subdivision of this state, as specified, or a
member of the California National Guard, on official state duty, from
aiding an agency of the Armed Forces of the United States in any
investigation, prosecution, or detention of a person within
California pursuant to (1) Sections 1021 and 1022 of the National
Defense Authorization Act for Fiscal Year 2012 (NDAA), (2) the
federal law known as the Authorization for Use of Military Force,
enacted in 2001, or (3) any other federal law that could lead to the
indefinite detention of a person within California, except as
specified  .  The bill would also prohibit the use of state
funds and funds allocated b   y the state to local entities
on and after January 1, 2013, to engage in any activity that aids in
implementing the NDAA, as specified.  
   In addition, the bill would provide that a public officer or
employee of the state who enforces or attempts to enforce those
provisions of federal law would also be guilty of a misdemeanor, but
would be subject to imprisonment of up to 6 months, or a fine of up
to $5,000, or both imprisonment and the fine. By creating new crimes,
the bill would impose a state-mandated local program. 

   The bill would require the Attorney General to report to the
Governor and the Legislature any attempt by the federal government to
implement these provisions, as specified. 
   The bill would also include specified findings and declarations.

   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.  
   This bill would declare that it is to take effect immediately as
an urgency statute. 
   Vote:  2/3   majority  . Appropriation:
no. Fiscal committee: yes. State-mandated local program:  yes
  no  .


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 145.5 is added to the Penal Code, to read:
   145.5.  (a) This act shall be known as the California Liberty
Preservation Act.
   (b) The Legislature finds and declares all of the following:
   (1) The Tenth Amendment to the United States Constitution
authorizes the United States federal government to exercise only
those powers specifically delegated to it under  Section 8 of
Article I of  the United States Constitution.
   (2) The guarantee of the constitutional limitations on federal
power is a matter of contract between the several states, including
the State of California, and the federal government at the time the
United States Constitution was ratified and subsequently amended by
the Bill of Rights.
   (3) Article VI of United States Constitution  , by using the
words "in pursuance thereof,"  provides that the laws of the
United States federal government are the supreme law of the land only
if those laws are adopted in accordance with the powers delegated to
the federal government in the United States Constitution.
   (4) The President of the United States has asserted that the 
federal law known as the  Authorization for  the
 Use of Military Force (Public Law 107-40), enacted in 2001,
authorizes the President to indefinitely detain, without charge, any
person, including a citizen of the United States or a lawful
resident alien, regardless of whether the person is apprehended
inside or outside the borders of the United States. 
   (5) Sections 1021 and 1022 of the National Defense Authorization
Act for Fiscal Year 2012 (Public Law 112-81) authorize all of the
following:  
   (A) Indefinite detention of persons apprehended within the United
States without charge or trial.  
   (B) Prosecution by military tribunals under the law of war for
persons apprehended within the United States.  
   (C) Transfer of persons apprehended within the United States to
foreign jurisdictions.  
   (6) In authorizing the actions described in paragraph (5) of this
subdivision, Sections 1021 and 1022 of the National Defense
Authorization Act for Fiscal Year 2012 (Public Law 112-81) are
inimical to the liberty, security, and well-being of the citizens of
the State of California by violating all of the following: 

   (5) Sections 1021 and 1022 of the National Defense Authorization
Act for Fiscal Year 2012 (NDAA) codifies indefinite military
detention without charge or trial of civilians captured far from any
battlefield, violating the United States Constitution and corroding
our nation's commitment to the rule of law, which generations have
fought to preserve.  
   (6) Indefinite detention without trial is inimical to the liberty,
security, and well-being of the people of the State of California by
violating all of the following: 
   (A) The California Constitution.
   (B) The limits of federal power  authorized by Section 8
of Article I of   delegated to the federal government in
 the United States Constitution.
   (C) The legal doctrine of posse comitatus under Section 1385 of
Title 18 of the United States Code by authorizing the Armed Forces of
the United States to police the United States.
   (D) The following provisions of the United States Constitution:
   (i) Clause 2 of Section 9 of Article I, ensuring the right to seek
habeas corpus.
   (ii) The First Amendment, ensuring the right to petition the
federal government for the redress of grievances.
   (iii) The Fourth Amendment, ensuring the right to be free from
unreasonable search and seizure.
   (iv) The Fifth Amendment, requiring capital or infamous crimes to
be brought before a grand jury before charging the defendant and
prohibiting deprivation of life, liberty, or property without due
process of law.
   (v) The Sixth Amendment, ensuring the right to a speedy trial by
an impartial jury in the state or district where the offense was
alleged to have been committed, the right to be informed of the
nature and cause of accusations and charges levied, the right to
retain legal counsel, and the right to confront witnesses.
   (vi) The Eighth Amendment, prohibiting excessive bail and fines
and prohibiting cruel and unusual punishment.
   (vii) The Fourteenth Amendment, prohibiting deprivation of life,
liberty, or property without due process of law. 
   (7) The actions described in paragraph (5) of this subdivision as
authorized by Sections 1021 and 1022 of the National Defense
Authorization Act for Fiscal Year 2012 (Public Law 112-81), and the
enforcement of those actions, are illegal within this state.
 
   (8) Sections 1021 and 1022 of the National Defense Authorization
Act for Fiscal Year 2012 (Public Law 112-81) violate portions of
federal law, the United States Constitution, and the California
Constitution and are invalid and illegal in this state. 

   (7) The families of Fred Korematsu, Minoru Yasui, and Gordon
Hirabayashi, Japanese Americans incarcerated by the federal
government in World War II, filed an amicus brief with the United
States Court of Appeals for the Second Circuit in Hedges v. Obama, a
lawsuit that challenges the constitutionality of the detention
provisions of the NDAA arguing that, under the pretense of national
security, the NDAA rests on and broadens the legal doctrines on which
the United States Supreme Court based the incarceration of Japanese
Americans during World War II on the legal cases of Korematsu, Yasui,
and Harabayashi, and allows the government to imprison people
without any due process rights for an indefinite time.  
   (8) The State of California is committed to avoiding a repeat of
the tragedies and mistakes of history, including the incarceration
and indefinite detention of Japanese Americans by the federal
government during World War II.  
   (c) (1) Subject to paragraph (2), notwithstanding any law to the
contrary, no agency of the State of California, no political
subdivision of this state, no employee of an agency, or a political
subdivision, of this state acting in his or her official capacity,
and no member of the California National Guard on official state duty
shall aid an agency of the Armed Forces of the United States in any
investigation, prosecution, or detention of a person within
California pursuant to (A) Sections 1021 and 1022 of the NDAA, (B)
the federal law known as the Authorization for Use of Military Force
(Public Law 107-40), enacted in 2001, or (C) any other federal law
that could lead to the indefinite detention of a person within
California.  
   (2) Paragraph (1) does not apply to participation by state or
local law enforcement or the California National Guard in a joint
task force, partnership, or other similar cooperative agreement with
federal law enforcement if that joint task force, partnership, or
similar cooperative agreement is not for the purpose of
investigating, prosecuting, or detaining any person pursuant to (A)
Sections 1021 and 1022 of the NDAA, (B) the federal law known as the
Authorization for Use of Military Force, or (C) any other federal law
that could lead to the indefinite detention of a person within
California.  
   (c) 
    (d)  It is the policy of this state to refuse to provide
material support for or to participate in any way with the
implementation within this state of  Sections 1021 and 1022
of the National Defense Authorization Act for Fiscal Year 2012
(Public Law 112-81).   any federal law that purports to
authorize indefinite detention of a person within California 
 . Notwithstanding any other law, no local law enforcement agency
or local or municipal government, or the employee of that agency or
government acting in his or her official capacity, shall use state
funds or funds allocated by the state to local entities on or after
January 1, 2013, in whole or in part, to engage in any activity that
aids an agency of the Armed Forces of the United States in the
investigation, arrest, or detention of any person within California
or any act that may lead to the indefinite detention of any person
within California for purposes of implementing the NDAA. 

   (d) (1) An officer, agent, or employee of the United States or an
employee of a corporation providing services to the United States who
enforces or attempts to enforce Section 1021 or 1022 of the National
Defense Authorization Act for Fiscal Year 2012 (Public Law 112-81)
is guilty of a misdemeanor and subject to imprisonment in a county
jail for up to one year, a fine of not more than ten thousand dollars
($10,000), or both imprisonment and the fine.  
   (2) A public officer or employee of this state who enforces or
attempts to enforce Section 1021 or 1022 of the National Defense
Authorization Act for Fiscal Year 2012 (Public Law 112-81) is guilty
of a misdemeanor and subject to imprisonment in a county jail for up
to 6 months, a fine of not more than five thousand dollars ($5,000),
or both imprisonment and the fine.  
   (e) The Attorney General shall report to the Governor and the
Legislature any attempt by the federal government to implement
Section 1021 or 1022 of the National Defense Authorization Act for
Fiscal Year 2012 (Public Law 112-81) through the Attorney General or
another state agency.  
  SEC. 2.    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 will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.  
  SEC. 3.   This act is an urgency statute necessary
for the immediate preservation of the public peace, health, or
safety within the meaning of Article IV of the Constitution and shall
go into immediate effect. The facts constituting the necessity are:
   In order to ensure that the constitutional rights of the citizens
of the United States are protected as soon as possible, it is
necessary that this act take effect immediately.