BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Gloria Romero, Chair A
2007-2008 Regular Session B
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AB 2131 (Niello) 1
As Amended May 28, 2008
Hearing date: June 10, 2008
Civil Code
SM:br
PEACE OFFICER DOGS: DISCRIMINATION IN ACCOMMODATIONS AND
TRANSPORTATION
HISTORY
Source: Sacramento County Sheriff's Association
Prior Legislation: None
Support: California Peace Officers' Association; California
Police Chiefs Association; California Narcotic Officers
Association; Los Angeles County District Attorney's
Office; Los Angeles Police Protective League; Riverside
Sheriffs' Association; Sacramento County Sheriff's
Department; San Bernardino County Sheriff; Association
for Los Angeles Deputy Sheriffs; Los Angeles County
Sheriff's Department; PetPAC
Opposition:None
Assembly Floor Vote: Ayes 75 - Noes 0
KEY ISSUE
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SHOULD IT BE A MISDEMEANOR, PUNISHABLE BY A FINE OF UP TO $1000,
TO DISCRIMINATE AGAINST POLICE OFFICERS AND POLICE DOGS, AS
SPECIFIED, BY CHARGING HIGHER RATES THAN TO OTHER CUSTOMERS, IN
HOTELS, LODGING ESTABLISHMENTS, EATING ESTABLISHMENTS OR PUBLIC
TRANSPORTATION, WHEN THOSE OFFICERS AND THEIR DOGS ARE ASSIGNED
DUTY AWAY FROM THEIR HOME JURISDICTION BECAUSE OF A DECLARED
EMERGENCY?
PURPOSE
The purpose of this bill is to make it a crime to discriminate
against police officers and police dogs, as specified, by
charging higher rates than to other customers, in hotels,
lodging establishments, eating establishments or public
transportation, when those officers and their dogs are assigned
duty away from their home jurisdiction because of a declared
emergency. This offense would be a misdemeanor, punishable by a
fine of up to $1000.
Existing law provides that individuals with disabilities shall
be entitled to full and equal access, as other members of the
general public, to accommodations, advantages, facilities,
medical facilities, including hospitals, clinics, and
physicians' offices, and privileges of all common carriers,
airplanes, motor vehicles, railroad trains, motorbuses,
streetcars, boats, or any other public conveyances or modes of
transportation (whether private, public, franchised, licensed,
contracted, or otherwise provided), telephone facilities,
adoption agencies, private schools, hotels, lodging places,
places of public accommodation, amusement, or resort, and other
places to which the general public is invited, subject only to
the conditions and limitations established by law, or state or
federal regulation, and applicable alike to all persons. (Civil
Code 54.1.)
Existing law provides that every individual with a disability
has the right to be accompanied by a guide dog, signal dog, or
service dog, especially trained for the purpose, in any of the
places specified in Section 54.1 without being required to pay
an extra charge or security deposit for the guide dog, signal
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dog, or service dog. However, the individual shall be liable
for any damage done to the premises or facilities by his or her
dog. (Civil Code 54.2.)
Existing law provides that any blind person, deaf person, or
disabled person, who is a passenger on any common carrier,
airplane, motor vehicle, railway train, motorbus, streetcar,
boat, or any other public conveyance or mode of transportation
operating within this state, shall be entitled to have with him
or her a specially trained guide dog, signal dog, or service
dog. Furthermore:
No blind person, deaf person, or disabled person
and his or her specially trained guide dog, signal
dog, or service dog shall be denied admittance to
accommodations, advantages, facilities, medical
facilities, including hospitals, clinics, and
physicians' offices, telephone facilities, adoption
agencies, private schools, hotels, lodging places,
places of public accommodation, amusement, or resort,
and other places to which the general public is
invited within this state because of that guide dog,
signal dog, or service dog.
Any person, firm, association, or corporation, or
the agent of any person, firm, association, or
corporation, who prevents a disabled person from
exercising, or interferes with a disabled person in
the exercise of, the rights specified in this section
is guilty of a misdemeanor, punishable by a fine not
exceeding two thousand five hundred dollars ($2500).
As used in this section, "guide dog" means any
guide dog or Seeing Eye dog that was trained by a
person licensed under Chapter 9.5 (commencing with
Section 7200) of Division 3 of the Business and
Professions Code or that meets the definitional
criteria under federal regulations adopted to
implement Title III of the Americans with Disabilities
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Act of 1990 (Public Law 101-336).
As used in this section, "signal dog" means any dog
trained to alert a deaf person, or a person whose
hearing is impaired, to intruders or sounds.
As used in this section, "service dog" means any
dog individually trained to do work or perform tasks
for the benefit of an individual with a disability,
including, but not limited to, minimal protection
work, rescue work, pulling a wheelchair, or fetching
dropped items.
This section is intended to provide equal
accessibility for all owners or trainers of animals
that are trained as guide dogs, signal dogs, or service
dogs in a manner that is no less than that provided by
the Americans with Disabilities Act of 1990 (Public Law
101-336) and the Air Carrier Access Act of 1986 (Public
Law 99-435).
The exercise of rights specified in subdivisions (a)
and (b) by any person may not be conditioned upon
payment of any extra charge, provided that the person
shall be liable for any provable damage done to the
premises or facilities by his or her dog.
Any trainer or individual with a disability may
take dogs in any of the places specified in
subdivisions (a) and (b) for the purpose of training
the dogs as guide dogs, signal dogs, or service dogs.
The person shall ensure that the dog is on a leash
and tagged as a guide dog, signal dog, or service dog
by an identification tag issued by the county clerk
or animal control department as authorized by Chapter
3.5 (commencing with Section 30850) of Division 14 of
the Food and Agricultural Code. In addition, the
person shall be liable for any provable damage done
to the premises or facilities by his or her dog.
(Penal Code 365.5.)
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This bill provides that a peace officer or firefighter assigned
to a canine unit assigned to duty away from his or her home
jurisdiction because of a declared federal, state, or local
emergency, and in the course and scope of his or her duties
shall not be discriminated against in hotels, lodging
establishments, eating establishments, or public transportation
by being required to pay an extra charge or security deposit for
the peace officer's or firefighter's dog. Anyone violating this
provision would be guilty of a misdemeanor, punishable by a fine
of up to $1000.
This bill provides that the peace officer's law enforcement
agency or the firefighter's fire agency will nevertheless be
liable for any damages to the premises or facilities caused by
the peace officer's or firefighter's dog.
This bill defines a "peace officer's or firefighter's dog" as a
dog owned by a public law enforcement agency or fire department
and under the control of a peace officer or firefighter assigned
to a canine unit that has been trained in matters including, but
not limited to, discovering controlled substances, explosives,
cadavers, victims in collapsed structures, and peace officer
on-command searches for suspects and victims at crime scenes.
This bill defines a "declared emergency" as any emergency
declared by the President of the United States, the Governor of
a state, or local authorities.
This bill states that it is not intended to affect any civil
remedies available for a violation of this new crime.
This bill states that it is intended to provide accessibility
without discrimination to a peace officer or firefighter with a
trained, public-owned dog in hotels, lodging places, eating
establishments, and public transportation during declared
emergencies.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
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California continues to face an extraordinary and severe prison
and jail overcrowding crisis. California's prison capacity
remains nearly exhausted as prisons today continue to be
operated with a significant level of overcrowding.<1> A year
ago, the Legislative Analyst's office summarized the trajectory
of California's inmate population over the last two decades:
During the past 20 years, jail and prison
populations have increased significantly. County
jail populations have increased by about 66
percent over that period, an amount that has been
limited by court-ordered population caps. The
prison population has grown even more dramatically
during that period, tripling since the
mid-1980s.<2>
The level of overcrowding, and the impact of the population
crisis on the day-to-day prison operations, is staggering:
As of December 31, 2006, the California Department
of Corrections and Rehabilitation (CDCR) was
estimated to have 173,100 inmates in the state
prison system, based on CDCR's fall 2006
population projections. However, . . . the
department only operates or contracts for a total
of 156,500 permanent bed capacity (not including
out-of-state beds, . . . ), resulting in a
shortfall of about 16,600 prison beds relative to
the inmate population. The most significant bed
shortfalls are for Level I, II, and IV inmates, as
well as at reception centers. As a result of the
bed deficits, CDCR houses about 10 percent of the
inmate population in temporary beds, such as in
dayrooms and gyms. In addition, many inmates are
housed in facilities designed for different
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<1> Analysis of the 2007-08 Budget Bill: Judicial and Criminal
Justice, Legislative Analyst's Office (February 21, 2007); see
also, court orders, infra.
<2> California's Criminal Justice System: A Primer.
Legislative Analyst's Office (January 2007).
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security levels. For example, there are currently
about 6,000 high security (Level IV) inmates
housed in beds designed for Level III inmates.
. . . (S)ignificant overcrowding has both
operational and fiscal consequences. Overcrowding
and the use of temporary beds create security
concerns, particularly for medium- and
high-security inmates. Gyms and dayrooms are not
designed to provide security coverage as well as
in permanent housing units, and overcrowding can
contribute to inmate unrest, disturbances, and
assaults. This can result in additional state
costs for medical treatment, workers'
compensation, and staff overtime. In addition,
overcrowding can limit the ability of prisons to
provide rehabilitative, health care, and other
types of programs because prisons were not
designed with sufficient space to provide these
services to the increased population. The
difficulty in providing inmate programs and
services is exacerbated by the use of program
space to house inmates. Also, to the extent that
inmate unrest is caused by overcrowding,
rehabilitation programs and other services can be
disrupted by the resulting lockdowns.<3>
As a result of numerous lawsuits, the state has entered into
several consent decrees agreeing to improve conditions in the
state's prisons. As these cases have continued over the past
several years, prison conditions nonetheless have failed to
improve and, over the last year, the scrutiny of the federal
courts over California's prisons has intensified.
The federal court has appointed a receiver to take over the
direct management and operation of the prison medical health
care delivery system from the state. The crisis has continued
to escalate and, in July of last year, the federal court
established a three-judge panel to consider placing a cap on the
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<3> Analysis 2007-08 Budget Bill, supra, fn. 1.
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number of prisoners allowable in California prisons. It is
anticipated that the court will reach its decision this year.
In his order establishing the judicial panel, Judge Thelton
Henderson stated in part:
It is clear to the Court that the crowded conditions
of California's prisons, which are now packed well
beyond their intended capacity, are having - and in
the absence of any intervening remedial action, will
continue to have - a serious impact on the Receiver's
ability to complete the job for which he was
appointed: namely, to eliminate the unconstitutional
conditions surrounding delivery of inmate medical
health care.
. . . (T)his case is also somewhat unique in that even
Defendants acknowledge the seriousness of the
overcrowding problem, which led the Governor to declare
a state of emergency in California's prisons in October
2006. While there remains dispute over whether crowded
conditions are the primary cause of the constitutional
problems with the medical health care system in
California prisons, or whether any relief other than a
prisoner release order will remedy the constitutional
deprivations in this case, there can be no dispute that
overcrowding is at least part of the problem. . . .
The record is equally clear that the Receiver will be
unable to eliminate the constitutional deficiencies at
issue in this case in a reasonable amount of time
unless something is done to address the crowded
conditions in California's prisons. This Court
therefore believes that a three-judge court should
consider whether a prisoner release order is warranted
. . . . (Hon. Thelton Henderson, Order dated July 23,
2007 in Plata v. Schwarzenegger (N.D. Cal) No. C01-1351
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TEH (citations omitted).)
Similarly, Judge Lawrence Karlton stated:
There is no dispute that prisons in California are
seriously and dangerously overcrowded. () The
record suggests there will be no appreciable change
in the prison population in the next two years.
(Hon. Lawrence K. Karlton, Senior Judge, United
States District Court, Order dated July 23, 2007 in
Coleman v. Schwarzenegger (E.D. Cal.) No. S90-0520
LKK JFM P (citations omitted).)
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
Current law does not protect peace officer canine
units against discrimination in accessing public
transportation/accommodations when traveling outside
of their jurisdiction. AB 2131 will protect K-9
units from being discriminated against in hotels,
lodging establishments, eating establishments and or
public transportation by requiring them to pay an
extra charge or security deposit for their dog. By
eliminating any discrimination, these canine units
can travel with their officers to assist in disasters
like the recent fires in southern California.
2. Protection against Discrimination Does Not Mean Access on
Demand
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This bill prohibits discrimination in the form of charging "an
extra charge or security deposit" against a police officer
accompanied by his or her canine companion when the officer is
assigned away from home due to a declared emergency. This bill
is not intended to grant police accompanied by canines any
greater access to any place than that to which they would
otherwise be entitled under the Fourth Amendment or other
applicable provisions of law.
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SHOULD IT BE A CRIME TO CHARGE A POLICE OFFICER ACCOMPANIED BY A
CANINE EXTRA FOR LODGING, TRANSPORTATION OR FOOD WHEN THEY ARE
ASSIGNED AWAY FROM HOME DURING AN EMERGENCY?
Police Dogs and the Fourth Amendment
The Fourth Amendment of the U.S. Constitution guarantees the
right to be free from unreasonable searches and seizures. "A
'search' occurs when an expectation of privacy that society is
prepared to consider reasonable is infringed." (B.C. by &
Through Powers v. Plumas Unified Sch. Dist., 192 F.3d 1260, 1266
(9th Cir. 1999), citation omitted.) In the Plumas Unified
School District case, the Ninth Circuit Court of Appeal ruled
that a police dog sniffing a person constitutes a search. "We
agree with the Fifth Circuit that 'close proximity sniffing of
the person is offensive whether the sniffer be canine or
human.'" (B.C. by & Through Powers v. Plumas Unified Sch.
Dist., supra, at 1266.) In an earlier decision, the Court of
Appeal stated, "the very act of being subjected to a body sniff
by a German Shepherd may be offensive at best or harrowing at
worst to the innocent sniffee." (United States v. Beale, 736
F.2d 1289, 1292 (9th Cir. Cal. 1984).)
An earlier version of the bill appeared to require police with
canines to be granted access to specified business
establishments and public transportation with no search warrant
or showing of probable cause. Were this bill to require police
and their canines be granted greater access to the places
specified in the bill than they are otherwise entitled under
law, this could have subjected other patrons to illegal searches
by the canines in violate the Fourth Amendment. The bill has
been amended to clarify that it prohibits only discrimination in
the form of charging higher rates to these officers for their
patronage in times of emergency.
3. Civil, Not Criminal Remedies are Traditionally Available for
Discrimination
This bill would amend the Civil Code to grant protection against
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discrimination by various service providers against police
officers as patrons in specified circumstances. The Civil Code
protects persons in a variety of situations from being
discriminated against by service providers but violation of
these provisions are not crimes. (See e.g., Civil Code Section
54.1, et seq.) The remedies are traditionally civil damages or
an injunction to end the discriminatory conduct. (Ibid.) AB
2131 would make the form of discrimination it addresses a crime,
specifically a misdemeanor punishable by a fine of up to $1000.
Members may wish to consider whether this form of discrimination
should be made a crime or whether traditional civil remedies
should apply.
SHOULD THIS FORM OF DISCRIMINATION BE A CRIME OR SHOULD CIVIL
REMEDIES APPLY?
4. Is This Bill Necessary
The sponsor of this bill, the Sacramento Sheriff's Department,
has informed Committee staff that they are unaware of any
instance in which a police officer and his or her dog were
turned away from a hotel or public transportation when assigned
away from their home jurisdiction. The sponsor has described
the need for the bill as "preemptive planning" due to the
increasing role police dogs are involved in law enforcement and
fire department activities.
IS THERE A DEMONSTRATED NEED FOR THIS BILL?
5. Argument in Support
The Riverside Sheriffs' Association states:
AB 2131 recognizes there are times when canine
officers and their dogs are sought, due to
emergencies (such as 9-11 or the Southern
California wildfires) to leave their own
jurisdictions to perform their services under new
and stressful special circumstances. Unlike other
highly-trained canines such as "seeing-eye" dogs,
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these law enforcement canines have not been
accorded similar privileges of transportation,
hotel accommodations, etc. Law enforcement dogs
keep long hours in travel and service in stressful
new environments. They merit proper food, rest,
exercise, grooming, and housing. The dogs do not
deserve to be separated from their canine peace
officers when off-duty.
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