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.



                                   ***************