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




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                                                           SB 5 (Maldonado)
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          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.




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                                                           SB 5 (Maldonado)
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                 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  




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                                                           SB 5 (Maldonado)
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          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).)



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          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.

               . . .




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                                                           SB 5 (Maldonado)
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               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).


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               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.  


















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          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




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                                                           SB 5 (Maldonado)
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           . . . 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?


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