Ordinance

Below is the draft of our Constitution Protection Zone ordinance. We are working to put procedures in place for local officials and law enforcement to protect the right to due process for our citizens.

SANTA CRUZ COUNTY BOARD OF SUPERVISORS

ANTI-NATIONAL DEFENSE AUTHORIZATION ACT PROPOSED ORDINANCE 2015

WHEREAS: On April 14, 2011, the National Defense Authorization Act for 2012 was introduced into the U.S. House of Representatives as House Resolution 1540; was passed by the House on May 26, 2011 with 227 Republican yea votes and 95 Democratic yea votes (for a majority of 322 votes out of 435), with 90 Democratic Congresspersons voting no; was passed by the U.S. Senate on December 15, 2011 with 45 Democratic yea votes and 40 Republican yea votes (for a majority 85 votes out of 100), with only 6 Democratic Senators and one Independent voting no (these being: Tom Harkin of Iowa, Dick Durbin of Illinois, Al Frankin of Minnesota, Ron Weyden & Jeff Merkley of Oregon, Ben Cardin of Maryland and Bernie Sanders of Vermont) and was signed into law by President Barack Obama, at his Kailua, Hawaii rented vacation residence, at 5:30 PM Hawaii time  (11:30 PM Eastern Standard time) on New Year’s Eve, December 31st of 2011—which federal statute contained the two following sections:

SECTION 1021: (a) Affirming the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) including the authority for the Armed Forces of the United States to detain covered persons (as defined in sub-section (b) pending disposition under the law of war.

(b) COVERED PERSONS

A covered person under this section is any person

(1) who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks and

(2) A person who…substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces (emphasis on vague or overbroad language.)

SECTION 1022: MILITARY CUSTODY PENDING DISPOSITION UNDER LAW OF WAR:

(1) the Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107–40) in military custody pending disposition under the law of war.

(2) COVERED PERSONS: The requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1021.

(b) APPLICABILITY TO UNITED STATES CITIZENS AND LAWFUL RESIDENT ALIENS

The requirement to detain a person in military custody under this section does not extend to citizens of the United States [BUT this provision does authorize it, even though its is not “required” – as is the case with all other persons.]

WHEREAS: Santa Cruz has shown itself nationally to be a shining example of civic courage and constitutional awareness. In 1998, the Santa Cruz community declared itself a nuclear-free zone; in 2002, the City Council of Santa Cruz issued a proclamation opposing the USA PATRIOT Act; and in 2003, the Santa Cruz City Council became the first City Council in the U.S. to denounce the Iraq War.

But our work – your work – continues, for today we are called on to reject the monstrous illegal breach of our constitutional guarantees of due process: the National Defense Authorization Act of 2012 (NDAA).

This law is brazenly and dangerously unconstitutional, a treasonous assault on our Republic and Democracy, and a peril to each of us and our children. It overturns over 200 years of law, which has kept the military out of domestic policing (the Posse Comitatus Act) and opens the floodgates to a Nazi-style police state. This extremely frightening step toward tyranny for our Republic and the impending destruction of Democracy must be uncompromisingly rejected by our community.

WHEREAS: The City Council of The City of Santa Cruz, in response to the enactment of Section 1021 & 1022 of The National Defense Authorization Act of 2012 by Congress, on April 10, 2012 unanimously passed A RESOLUTION TO RESTORE DUE PROCESS & THE RIGHT TO TRIAL introduced by Santa Cruz City Council Member Don Lane and Co-Sponsored by Santa Cruz City Council Members Ryan Coonerty and Katherine Beiers stating merely that it is the judgment of The City of Santa Cruz, California that Sections 1021 & 1022 of the National Defense Authorization Act of 2012 are unconstitutional and calling for the repeal of Sections 1021 & 1022 and affirming the principle of providing to all persons within the jurisdiction of The City of Santa Cruz all of the Constitutionally-recognized Due Process Rights and other Fundamental Rights guaranteed to them by our United States Constitution and/or by our California State Constitution;

WHEREAS: On February 13, 2013, the California State Assembly passed Assembly Bill 351 by a vote of 71 to 1 that provided that:

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 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 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:    

(A) The California Constitution.    

(B) The limits of federal power authorized by Section 8 of Article I of 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.

(c) 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).

(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.

WHEREAS: On September 7, 2013, the California State Senate passed, by a vote of 37-to-0, The California Liberties Preservation Act (Assembly Bill 351) which the State Assembly then approved and California State Governor Brown then signed into law on October 1, 2013 establishing California State Penal Code Section 145.5 providing that:

 Section 145.5 is added to the California State Penal Code, to read:

(a) …not withstanding 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 knowingly 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 National Defense Authorization Act for Fiscal Year 2012 (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…

(b) 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 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 knowingly 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 detention of any person within California for purposes of implementing Sections 1021 and 1022 of the NDAA or the federal law known as the Authorization for Use of Military Force (Public Law 107-40), enacted in 2001…

WHEREAS: The enactment of California State Penal Statute 145.5 has imposed a statutory obligation upon us as members of the Santa Cruz County, California Board of Supervisors to see to it that no law enforcement officer or other employee of The County of Santa Cruz, California participates in, or cooperates in any way, in the enforcement, within the boundaries of Santa Cruz County California, by Federal agents or by any persons functioning as agents or associates of the Federal Government of Sections 1021 or 1022 of the National Defense Authorization Act of 2012 that purports to authorize the arrest and the indefinite military detention, without trial, without the Right to Counsel and without resort to the Right of Habeas Corpus, by United States Military personnel, of any person—including United States citizens—who has been merely administratively-determined, by an Executive Branch official of our Federal Government, of beinga person who has substantially supported al-Qaeda, the Taliban or any associated forces that are engaged in hostilities against the United States or its coalition partners…including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces”;

WHEREAS: In the Federal Case of Hedges v. Obama, United States District Court for the Southern District of New York, Docket No. 12-00331 (Jan. 13, 2012), United States District Court Judge Katherine Forrest provided the U.S. government “with prompt notice in the form of declarations and depositions of the … conduct in which plaintiffs are involved and which they claim places them in fear of military detention, but in response to this notice no witnesses were called nor any documentary evidence submitted nor any declarations filed by the U.S. government even though it would have been a simple matter for the government to have stated that, as to these plaintiffs and the conduct as to which they would testify, Section 1021 or 1022 did not and would not apply,” Judge Forrest ruled that the plaintiffs demonstrated “a more-than-plausible claim that the statute inappropriately encroaches on their rights under the 1st Amendment.” Judge Forrest observed and concluded: “This court therefore must credit the chilling impact on 1st Amendment rights as reasonable—and real” and, on September 12, 2012, she declared Sections 1021 and 1022 of the National Defense Authorization Act of 2012 to be unconstitutional and issued a federal court injunction against any future enforcement of those sections;

WHEREAS: The Second Circuit Court of Appeals, on July 17, 2013 reversed Judge Forrest and contravened Judge Forrest’s authority to declare Sections 1021 & 1022 to be unconstitutional on the strictly procedural ground that the specific plaintiffs in that New York action had not, in the judgment of the Second Circuit Court of Appeals, adequately demonstrated that they had a good faith basis on which to believe that they were personally in realistic “clear and present danger” of being arrested and indefinitely detained under the authority of the National Defense Authorization Act of 2012;

WHEREAS: On April 28th of 2014, the United States Supreme Court refused to review or reverse the July 17, 2013 Order of the Second Circuit Court of Appeals, thereby leaving Sections 1021 & 1022 of the National Defense Authorization Act of 2012 in full effect throughout the United States even though they have been determined by the California State Legislature and the Santa Cruz City Counsel to be entirely unconstitutional—sections 1021 and 1022 pose a “clear and present danger” that there may well be an effort to enforce these clearly unconstitutional federal statutes here in the City of Santa Cruz and in the County of Santa Cruz;

WHEREAS: it is the judgment of our Santa Cruz County Board of Supervisors that prior to any decision being made on the part of any agent of the Federal Government or on the part of any agent of any private corporation or other State or any person who is operating in cooperation or conjunction with any agent of the Federal Government to take any step to enforce any aspect of Section 1021 or 1022 of the National Defense Authorization Act of 2012 within Santa Cruz County, one or more agents, employees or representatives of the United States Government, of that private corporation or of that other State will undertake some form of communication with one or more law enforcement agents, officials or other employees of the County of Santa Cruz;

THEREFORE, a Santa Cruz County Ordinance shall be ENACTED by the Santa Cruz County Board of Supervisors providing that:

(1) The Santa Cruz County Board of Supervisors hereby declares Santa Cruz County, California to be a CONSTITUTIONAL PROTECTION ZONE;

(2) Each and every law enforcement officer, official, agent or other employee of Santa Cruz County, California is hereby officially ordered by The Santa Cruz County Board of Supervisors—as a condition of his or her continued future employment as an employee of Santa Cruz County, California THAT:   

Upon the receipt of ANY communication of any nature whatsoever from ANY official, agent, employee, operative or formal or informal contract operative of ANY agency or department of the United States Government –or any state government, which communication so much as touches upon the subject of the potential undertaking, by any Federal Agent, employee, de facto operative of the United States Government or any agent of any other State, of any effort OR DECISION to seek to enforce Section 1021 or 1022 of The National Defense Authorization Act of 2012 in Santa Cruz County, California; said law enforcement officer, official, agent or other employee of The City of Santa Cruz, California SHALL:

(i) secure and then

(ii) IMMEDIATELY communicate, in writing, TO EVERY INDIVIDUAL MEMBER OF THE SANTA CRUZ COUNTY BOARD OF SUPERVISORS, by personal courier:

a.) the name, title and position of the law enforcement officer, official, agent or other employee or agent of SANTA CRUZ COUNTY who received the communication at issue;

b.) the exact time and date of that contact or communication;

c.) the means or medium of that communication;

d.) the name, title and position (and any federal identification or state identification or badge number) of the person who initiated that communication;

e.) the official and/or unofficial telephone number and all other means by which to contact that person;

(iii) THE FULL SUBSTANTIVE CONTENT OF THAT COMMUNICATION, in full and complete detail;

(iv) the FULL NAME; ADDRESS & INDENTIFICATION DATA pertaining to any intended “target” of the contemplated “enforcement action” (if any);

(v) the DATE & TIME of any contemplated “enforcement action”;

(vi) the specifics of any such contemplated “enforcement action”;

(vii) the NAME; ADDRESS & INDENTIFICATION DATA pertaining to any Federal or State official or agent who AUTHORIZED SUCH AN “ENFORCEMENT ACTION”;

(viii) the NAME; ADDRESS & INDENTIFICATION DATA pertaining to any Federal or State agent or official who IS PROPOSED TO PARTICIPATE IN SUCH AN “ENFORCEMENT ACTION” and

(ix) the NAME; ADDRESS & INDENTIFICATION DATA pertaining to any Federal or State agent who KNOWS ANYTHING WHATSOEVER ABOUT any such contemplated “enforcement action” pursuant to Section 1021 or 1022 of The National Defense Authorization Act of 2012; and

(3)  IMMEDIATELY upon receipt of this information by courier or any other medium, each member of The Santa Cruz County Board of Supervisors SHALL proceed to The Office of The Santa Cruz County Board of Supervisors. And, upon the arrival of the number of Supervisors that constitute a “legal quorum” constitutionally authorized to conduct the business of Santa Cruz County, said Supervisors SHALL take any and all steps that are lawfully available to us that are necessary to ABSOLUTELY GUARANTEE that:

(i) NO PERSON shall be taken into physical custody within the jurisdictional boundaries of Santa Cruz County by any agent or operative of the United States Government or any agent operating in coordination or cooperation with such any agent on any federal charge or authorization that potentially falls within the purview of either Section 1021 or 1022 of The National Defense Authorization Act of 2012 UNLESS there exists PROBABLE CAUSE to believe that that person has ALREADY committed a specific federal crime;

(ii) ANY PERSON with regard to whom there does in fact exist PROBABLE CAUSE to believe that that person has committed a specific federal crime that places that person within the potential CONSTITUTIONAL purview of Section 1021 or 1022 of The National Defense Authorization Act of 2012, SHALL BE APPREHENDED BY SANTA CRUZ COUNTY LAW ENFORCEMENT OFFICIALS AND TAKEN INTO COUNTY CUSTODY and ARRAIGNED BEFORE AN IMPARTIAL CIVILIAN SANTA CRUZ COUNTY MAGISTRATE NO LESS THAN 48 HOURS AFTER HE OR SHE HAS BEEN TAKEN INTO CUSTODY;

(iii) AT any such COUNTY Civilian Court proceeding, that person SHALL have The Right to Counsel and SHALL have The Right to Be Notified As to the SPECIFICS of the charge (or charges) against him or her and as to the specific FACTS and EVIDENCE that purportedly constitute the “Probable Cause” on the basis of which a reasonable person would conclude that it is “more probable than not” that that person HAS, in fact, committed the specific federal crime with which he or she is being charged;

(iv) AT any such COUNTY Civilian Court proceeding, IF it is found by an impartial COUNTY Magistrate that NO such “probable cause” exists on the basis of which a reasonable person would conclude that it is “more probable than not” that the person arraigned before that County Civilian Court has, in fact, committed the specific federal crime alleged – then that person SHALL be released from County custody and “STATE Witness Protection” Services SHALL BE immediately requested for that person FROM CALIFORNIA STATE GOVERNOR for as long a period as “reasonable grounds” exist to believe that that person is in “clear and present danger” of being potentially subjected to the unconstitutional procedures of Section 1021 and/or Section 1022 of The National Defense Authorization Act of 2012;

(v) AT any such COUNTY Civilian Court proceeding, IF it is found by an impartial COUNTY Magistrate that “probable cause” DOES in fact exist on the basis of which a reasonable person would conclude that it is “more probable than not” that the person arraigned before that County Court has in fact engaged in a violation (this “violation” being, having “engaged in an activity that constitutes ‘providing substantial support to’ an organization that HAS, IN FACT, UNDERTAKEN VIOLENT AND DESTRUCTIVE ACTION AGAINST THE UNITED STATES OR ANY OF ITS ALLIES) – then that person SHALL be DETAINED IN THE CUSTODY OF THE COUNTYY OF SANTA CRUZ and that person SHALL be handed over to the GOVERNOR OF CALIFORNIA and SHALL be provided a CALIFORNIA STATE criminal trial in which he or she shall be accorded the full panoply of Constitutional Rights and Safeguards that are guaranteed to criminal defendants under our United States Constitution and our California State Constitution. These procedures shall be an alternative to that person being subjected to the unconstitutional procedures of Section 1021 and/or Section 1022 of The National Defense Authorization Act of 2012; and

(vi) IF that person, in a California STATE criminal trial, is found to have knowingly and intentionally “provided substantial support to an organization that has IN FACT carried out violent physical attacks on property or persons of the United States and/or of any of our Allies, then that person shall be subjected by The County of Santa Cruz to a period of incarceration that is provided for by any applicable Constitutional criminal statute…either State or Federal. This procedure will keep that person from being subjected to an “indefinite period” of unconstitutional incarceration or detention pursuant to the procedures purported to be authorized under Section 1021 & 1022 of The National Defense Authorization Act of 2012.