BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Gloria Romero, Chair A 2007-2008 Regular Session B 2 1 3 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 (More) AB 2131 (Niello) PageB 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 (More) AB 2131 (Niello) PageC 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 (More) AB 2131 (Niello) PageD 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.) (More) AB 2131 (Niello) PageE 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 (More) AB 2131 (Niello) PageF 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 -------------------- <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). (More) AB 2131 (Niello) PageG 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 --------------------------- <3> Analysis 2007-08 Budget Bill, supra, fn. 1. (More) AB 2131 (Niello) PageH 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 (More) AB 2131 (Niello) PageI 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 (More) AB 2131 (Niello) PageJ 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. (More) 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 (More) AB 2131 (Niello) PageL 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, AB 2131 (Niello) PageM 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. ***************