BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair S 2009-2010 Regular Session B 5 SB 5 (Maldonado) As Amended April 13, 2009 Hearing date: April 21, 2009 Uncodified Law SM:mc PEACE OFFICER STATUS FOR FIRE DEPARTMENT BOMB TECHNICIANS: FEASIBILITY STUDY HISTORY Source: California Professional Firefighters Prior Legislation: None Support: Unknown Opposition:None known KEY ISSUE SHOULD $30,000 BE APPROPRIATED FROM THE GENERAL FUND FOR A FEASIBILITY STUDY BY THE COMMISSION ON PEACE OFFICER STANDARDS AND TRAINING REGARDING THE APPROPRIATENESS OF DESIGNATING AS PEACE OFFICERS, AS SPECIFIED, MEMBERS OF A FIRE DEPARTMENT BOMB SQUAD UNIT WHO ARE CERTIFIED, AS OF DECEMBER 31, 2009, BY THE FEDERAL BUREAU OF INVESTIGATION AS CERTIFIED BOMB TECHNICIANS? PURPOSE (More) SB 5 (Maldonado) PageB The purpose of this bill is to appropriate from the General Fund $30,000 for the purpose of funding a feasibility study by POST regarding the appropriateness of designating as peace officers, as specified, members of a fire department bomb squad unit who are certified, as of December 31, 2009, by the Federal Bureau of Investigation as certified bomb technicians. Existing law provides that the following persons are peace officers whose authority extends to any place in the state for the purpose of performing their primary duty, or when making an arrest pursuant to Section 836 as to any public offense with respect to which there is immediate danger to person or property, or of the escape of the perpetrator of that offense, or pursuant to Section 8597 or 8598 of the Government Code. These peace officers may carry firearms only if authorized and under terms and conditions specified by their employing agency: Members of an arson-investigating unit, regularly paid and employed in that capacity, of a fire department or fire protection agency of a county, city, city and county, district, or the state, if the primary duty of these peace officers is the detection and apprehension of persons who have violated any fire law or committed insurance fraud. Members other than members of an arson-investigating unit, regularly paid and employed in that capacity, of a fire department or fire protection agency of a county, city, city and county, district, or the state, if the primary duty of these peace officers, when acting in that capacity, is the enforcement of laws relating to fire prevention or fire suppression. Voluntary fire wardens as are designated by the Director of Forestry and Fire Protection pursuant to Section 4156 of the Public Resources Code, provided that the primary duty of these peace officers shall be the enforcement of the law as that duty is set forth in Section 4156 of the Public Resources Code. (More) SB 5 (Maldonado) PageC Firefighter/security guards by the Military Department, if the primary duty of the peace officer is the enforcement of the law in or about properties owned, operated, or administered by the employing agency or when performing necessary duties with respect to patrons, employees, and properties of the employing agency. (Penal Code 830.37.) Existing law requires every peace officer to complete an introductory course of training prescribed by the Commission on Peace Officer Standards and Training and that persons described as peace officers who have not satisfactorily completed the prescribed training course shall not have the powers of a peace officer until they satisfactorily complete the course. (Penal Code 832.) Existing law sets qualifications for "holding office as a peace officer" including that applicants be found to be free from any physical, emotional, or mental condition which might adversely affect the exercise of the powers of a peace officer. (Government Code 1029 and 1031.) Existing law requires that any person or persons desiring peace officer status under Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 who, on January 1, 1990, were not entitled to be designated as peace officers under that chapter shall request the Commission on Peace Officer Standards and Training to undertake a feasibility study regarding designating that person or persons as peace officers. The request and study shall be undertaken in accordance with regulations adopted by the commission. The commission may charge any person requesting a study, a fee, not to exceed the actual cost of undertaking the study. Nothing in this article shall apply to or otherwise affect the authority of the Department of Corrections and Rehabilitation, as specified, to designate peace officers as provided for in Section 830.5. (Penal Code 13540(a).) Existing law requires that any person or persons who are designated as peace officers under Chapter 4.5, (commencing with Section 830) of Title 3 of Part 2, and who desire a change in (More) SB 5 (Maldonado) PageD peace officer designation or status, shall request the Commission on Peace Officer Standards and Training to undertake a study to assess the need for a change in designation or status. The request and study shall be undertaken in accordance with regulations adopted by the commission. The commission may charge any person, agency, or organization requesting a study, a fee, not to exceed the actual cost of undertaking the study. (Penal Code 13540(b).) This bill appropriates from the General Fund $30,000 for the purpose of funding a feasibility study by POST regarding the appropriateness of designating as peace officers, as specified, members of a fire department bomb squad unit who are certified, as of December 31, 2009, by the Federal Bureau of Investigation as certified bomb technicians. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION California continues to face a severe prison overcrowding crisis. The Department of Corrections and Rehabilitation (CDCR) currently has about 170,000 inmates under its jurisdiction. Due to a lack of traditional housing space available, the department houses roughly 15,000 inmates in gyms and dayrooms. California's prison population has increased by 125% (an average of 4% annually) over the past 20 years, growing from 76,000 inmates to 171,000 inmates, far outpacing the state's population growth rate for the age cohort with the highest risk of incarceration.<1> In December of 2006 plaintiffs in two federal lawsuits against CDCR sought a court-ordered limit on the prison population pursuant to the federal Prison Litigation Reform Act. On --------------------------- <1> "Between 1987 and 2007, California's population of ages 15 through 44 - the age cohort with the highest risk for incarceration - grew by an average of less than 1% annually, which is a pace much slower than the growth in prison admissions." (2009-2010 Budget Analysis Series, Judicial and Criminal Justice, Legislative Analyst's Office (January 30, 2009).) (More) SB 5 (Maldonado) PageE February 9, 2009, the three-judge federal court panel issued a tentative ruling that included the following conclusions with respect to overcrowding: No party contests that California's prisons are overcrowded, however measured, and whether considered in comparison to prisons in other states or jails within this state. There are simply too many prisoners for the existing capacity. The Governor, the principal defendant, declared a state of emergency in 2006 because of the "severe overcrowding" in California's prisons, which has caused "substantial risk to the health and safety of the men and women who work inside these prisons and the inmates housed in them." . . . A state appellate court upheld the Governor's proclamation, holding that the evidence supported the existence of conditions of "extreme peril to the safety of persons and property." (citation omitted) The Governor's declaration of the state of emergency remains in effect to this day. . . . the evidence is compelling that there is no relief other than a prisoner release order that will remedy the unconstitutional prison conditions. . . . Although the evidence may be less than perfectly clear, it appears to the Court that in order to alleviate the constitutional violations California's inmate population must be reduced to at most 120% to 145% of design capacity, with some institutions or clinical programs at or below 100%. We caution the parties, however, that these are not firm figures and that the Court reserves the right - until its final ruling - to determine that a higher or lower figure is appropriate in general or in particular types of facilities. . . . (More) SB 5 (Maldonado) PageF Under the PLRA, any prisoner release order that we issue will be narrowly drawn, extend no further than necessary to correct the violation of constitutional rights, and be the least intrusive means necessary to correct the violation of those rights. For this reason, it is our present intention to adopt an order requiring the State to develop a plan to reduce the prison population to 120% or 145% of the prison's design capacity (or somewhere in between) within a period of two or three years.<2> The final outcome of the panel's tentative decision, as well as any appeal that may be in response to the panel's final decision, is unknown at the time of this writing. This bill does not appear to aggravate the prison overcrowding crisis outlined above. COMMENTS 1. Need for This Bill According to the author: Unlike their law enforcement counterparts, as well as fire department-based bomb squad technicians in other states, in California, fire department-based bomb technicians are not classified as "peace officers." As a result, these technicians are often placed at a critical disadvantage when they are required to testify in court regarding an emergency incident they may have diffused and their credentials are questioned ---------------------- <2> Three Judge Court Tentative Ruling, Coleman v. Schwarzenegger, Plata v. Schwarzenegger, in the United States District Courts for the Eastern District of California and the Northern District of California United States District Court composed of three judges pursuant to Section 2284, Title 28 United States Code (Feb. 9, 2009). (More) SB 5 (Maldonado) PageG simply because of a lack of "peace officer" classification. Also unlike their law enforcement counterparts and fire department-based technicians in other states, California's fire department-based bomb squad technicians do not carry firearms because of the aforementioned classification oversight. This can pose a significant safety threat to squad members when they are called on to respond to a high risk incident that may involve individual perpetrators who specifically are looking to do these public safety personnel harm. This bill would direct the Legislature to appropriate $30,000 for The Commission on Peace Officer Standards and Training to conduct, in accordance with Section 13540 of the Penal Code, a feasibility study regarding designating, as peace officers subject to the same powers as those granted pursuant to section 830.37 of the Penal Code, members of a bomb squad unit who are certified by the Federal Bureau of Investigation as certified bomb technicians by December 31, 2009.
(More)2. Background According to background provided by the author: The great majority -- approximately 90% -- of the roughly 450 bomb squads in the nation are police/sheriff department-based. However, the remaining 10% of these squads are a part of a fire department. A certified bomb technician is an individual who has attended the Federal Bureau of Investigations (FBI) Hazardous Devices School in Huntsville, Alabama, and is currently serving in the capacity of a bomb technician for a recognized bomb squad. Once a technician completes the FBI course, he or she is certified by the FBI regardless of the agency to which they are affiliated and is issued an official bomb technician credential. More than 200 firefighters nationwide have been certified by the FBI and trained to deal with explosive devices, as well as utilize and employ various types of related equipment. Ultimately, firefighters play an important and useful role in bomb-related activities. In California, four fire agencies have certified bomb technicians performing in that capacity: CAL FIRE, Imperial County, Ontario City and San Diego City. The City of San Diego's bomb squad, for example, is more than 30 years old and one of the busiest in the nation. The City's 10 fire department bomb technicians are charged with responding to all incidents involving explosive materials, incendiary devices, improvised explosive devices, military or commercially manufactured ordinances, accidental explosions, bombings and other related matters. 3. Requirement of a Feasibility Study Since 1989, California law has required that "any person or persons desiring peace officer status (More) SB 5 (Maldonado) PageI . . . request the Commission on Peace Officer Standards and Training to undertake a feasibility study regarding designating that person or persons as peace officers." (Penal Code 13540.) Peace officer status is a highly coveted designation for any public employee. Persons designated as peace officers enjoy enhanced retirement benefits, the protections of the Peace Officers' Bill of Rights (Government Code 3300, et seq.), powers of arrest and authority to carry concealed firearms, as specified, as well as various other legal distinctions. Because of the desirability of peace officer status, and the proliferation of legislative proposals to grant that status to various constituent groups, the Legislature established the feasibility study requirement of Penal Code section 13540 as a vetting process for such requests. The Commission on Peace Officer Standards and Training was considered the most qualified agency to determine whether the job duties of the requesting person or persons justify their being granted the powers and privileges of peace officers. The sponsor of this bill, the California Professional Firefighters, is seeking peace officer status under section 830.37 of the Penal Code for their members who are Bomb Squad technicians employed by fire departments. Under the existing law described above, such a grant of peace officer status first requires a feasibility study by POST, as described above. (Penal Code section 13540.) POST is authorized to charge any person or persons requesting the study a fee, not to exceed the actual cost of the study. SHOULD $30,000 BE APPROPRIATED FROM THE GENERAL FUND TO FUND A FEASIBILITY STUDY BY POST OF THIS REQUEST FOR PEACE OFFICER STATUS? ***************