BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 1067 ( La Malfa) 7
As Amended April 11, 2012
Hearing date: April 24, 2012
Penal Code
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PEACE OFFICERS:
INTERSTATE MUTUAL AID AGREEMENTS
HISTORY
AS PROPOSED TO BE AMENDED
Source: Tulelake Police Department
Prior Legislation: SB 1366 (Leslie) - Chap. 131, Statutes of
1992
SB 1578 (Doolittle) - Chap. 594, Statutes of 1989
Support: Modoc County Sheriff; Regional Council of Rural
Counties; San Bernardino County Sheriff; League of
California Cities; California Police Chiefs
Association; California State Sheriff's Association
Opposition:None known
KEY ISSUES
SHOULD PEACE OFFICER STATUS BE GRANTED IN CALIFORNIA TO PEACE
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OFFICERS FROM OREGON, NEVADA AND ARIZONA, UNDER SPECIFIED
CIRCUMSTANCES OR PURSUANT TO SPECIFIED RECIPROCAL OPERATIONAL
AGREEMENTS?
SHOULD THE SWORN HEAD OF ANY CALIFORNIA LAW ENFORCEMENT AGENCY, AS
DEFINED, BE AUTHORIZED TO ENTER INTO SUCH AGREEMENTS?
PURPOSE
The purpose of this bill is to (a) grant peace officer status in
California to peace officers from Oregon, Nevada and Arizona,
under certain circumstances or pursuant to reciprocal
operational agreements, as specified; (b) authorize the sworn
head of any California law enforcement agency, as defined, to
enter into such agreements; and (3) specify that a peace officer
from an adjoining state who exercises authority pursuant to
these provisions is subject to the supervisory control of and
limitations imposed by his or her employing agency unless
supervisory control is temporarily delegated to a California
peace officer, as defined.
Current law provides that any regularly employed law enforcement
officer of the Oregon State Police, the Nevada Department of
Motor Vehicles and Public Safety, or the Arizona Department of
Public Safety is a peace officer in this state if all of the
following conditions are met:
The officer is providing, or attempting to provide, law
enforcement services within this state on the state or
county highways and areas immediately adjacent thereto,
within a distance of up to 50 statute miles of the
contiguous border of this state and the state employing the
officer.
The officer is providing, or attempting to provide, law
enforcement services pursuant to either of the following:
o In response to a request for services
initiated by a member of the California Highway
Patrol.
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o In response to a reasonable belief that
emergency law enforcement services are necessary for
the preservation of life, and a request for services
by a member of the Department of the California
Highway Patrol is impractical to obtain under the
circumstances. In those situations, the officer shall
obtain authorization as soon as practical.
The officer is providing, or attempting to provide, law
enforcement services for the purpose of assisting a member
of the California Highway Patrol to provide emergency
service in response to misdemeanor or felony criminal
activity, pursuant to the authority of a peace officer as
provided in subdivision (a) of Section 830.2, or, in the
event of highway-related traffic accidents, emergency
incidents or other similar public safety problems, whether
or not a member of the California Highway Patrol is present
at the scene of the event. Nothing in this section shall be
construed to confer upon the officer the authority to
enforce traffic or motor vehicle infractions.
An agreement pursuant to Section 2403.5 of the Vehicle
Code is in effect between the Department of the California
Highway Patrol and the agency of the adjoining state
employing the officer, the officer acts in accordance with
that agreement, and the agreement specifies that the
officer and employing agency of the adjoining state shall
be subject to the same civil immunities and liabilities as
a peace officer and his or her employing agency in this
state.
The officer receives no separate compensation from this
state for providing law enforcement services within this
state.
The adjoining state employing the officer confers
similar rights and authority upon a member of the
California Highway Patrol who renders assistance within
that state.
(Penal Code § 830.39(a).)
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Current law provides that whenever, pursuant to Nevada law, a
Nevada correctional officer is working or supervising Nevada
inmates who are performing conservation-related projects or fire
suppression duties within California, the correctional officer
may maintain custody of the inmates in California, and retake
any inmate who should escape in California, to the same extent
as if the correctional officer were a peace officer in this
state and the inmate had been committed to his or her custody in
proceedings under California law. (Penal Code § 830.39(b).)
Current law provides notwithstanding any other provision of law,
any person who is acting as a peace officer in this state in the
manner described in this section shall be deemed to have met the
requirements of Section 1031 of the Government Code and the
selection and training standards of the Commission on Peace
Officer Standards and Training if the officer has completed the
basic training required for peace officers in his or her state.
(Penal Code § 830.39(c).)
Current law provides that in no case shall a peace officer of an
adjoining state be authorized to provide services within a
California jurisdiction during any period in which the regular
law enforcement agency of the jurisdiction is involved in a
labor dispute. (Penal Code § 830.39(d).)
Current law provides that the California Highway Patrol
commissioner, or a designated representative, may enter into
reciprocal operational agreements with authorized
representatives of the Oregon State Police, the Nevada
Department of Motor Vehicles and Public Safety, and the Arizona
Department of Public Safety to promote expeditious and effective
law enforcement service to the public, and assistance between
the members of the California Highway Patrol and those agencies,
in areas adjacent to the borders of this state and each of the
adjoining states pursuant to Section 830.32 of the Penal Code.
The reciprocal operational agreement shall be in writing and may
cover the reciprocal exchange of law enforcement services,
resources, facilities and any other necessary and proper matters
between the Department of the California Highway Patrol and the
respective agency. Any agreement shall specify the involved
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departments, divisions, or units of the agencies, the duration
and purpose of the agreement, the responsibility for damages,
the method of financing any joint or cooperative undertaking,
and the methods to be employed to terminate an agreement. The
commissioner may establish operational procedures in
implementation of any reciprocal operational agreement that are
necessary to achieve the purposes of the agreement. (Vehicle
Code § 2403.5.)
This bill would expand the above provisions to declare that
specified peace officers in the states of Oregon, Nevada or
Arizona, will be deemed peace officers in California where all
the following conditions are met:
The officer is providing, or attempting to provide, law
enforcement services within this state on the state or
county highways and areas immediately adjacent thereto,
within a distance of up to 50 statute miles of the
contiguous border of this state and the state employing the
officer.
The officer is providing, or attempting to provide, law
enforcement services pursuant to either of the following:
o In response to a request for services
initiated by any California peace officer, as defined.
o In response to a reasonable belief that
emergency law enforcement services are necessary for
the preservation of life, and a request for services
by any California peace officer, as defined, is
impractical to obtain under the circumstances. In
those situations, the officer shall obtain
authorization as soon as practical.
The officer is providing, or attempting to provide, law
enforcement services for the purpose of assisting any
California peace officer, as defined, to provide emergency
service in response to misdemeanor or felony criminal
activity, pursuant to the authority of a peace officer as
specified, or, in the event of highway-related traffic
accidents, emergency incidents or other similar public
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safety problems, whether or not a California peace officer
is present at the scene of the event. This shall not be
construed to confer upon the officer the authority to
enforce traffic or motor vehicle infractions.
An agreement pursuant to Section 2403.5 of the Vehicle
Code is in effect between any California law enforcement
agency, as defined, and the agency of the adjoining state
employing the officer, the officer acts in accordance with
that agreement, and the agreement specifies that the
officer and employing agency of the adjoining state shall
be subject to the same civil immunities and liabilities as
a peace officer and his or her employing agency in this
state.
The officer receives no separate compensation from this
state for providing law enforcement services within this
state.
The adjoining state employing the officer confers
similar rights and authority upon any California peace
officer, as defined, who renders assistance within that
state.
This bill would amend the current Vehicle Code section which
authorizes the Commissioner of the Highway Patrol to enter into
reciprocal operational agreements with law enforcement agencies
in neighboring states to instead permit such agreements to be
entered into by the sworn head of any authorized California law
enforcement agency with any law enforcement agency in Oregon,
Nevada or Arizona.
This bill provides that a peace officer from an adjoining state
who exercises authority pursuant to these provisions is subject
to the supervisory control of and limitations imposed by his or
her employing agency unless supervisory control is temporarily
delegated to a California peace officer, as defined.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
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Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). 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 January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
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On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
According to the author:
Many rural areas along our borders in the State of
California operate with very limited law enforcement
resources, with in-state assistance unable to respond
in a reasonable amount of time. Out-of-state
assistance is often only minutes away. Without the
ability to directly call for assistance to these
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out-of-state resources, precious time can be wasted in
situations where every second counts.
The passage of SB 1067 would place the ability to call
for assistance in the hands of the local officials who
are in the best position to make these decisions.
Requests for assistance from nearby law enforcement
agencies will no longer have to be routed through
state government, enabling prompt and effective
response.
2. Proposed Author's Amendment
The author has informed the Committee staff that he intends to
amend the bill in committee to delete the language on page 5,
lines 5-9, that would require the Commission on Peace Officer
Standards and Training to review and approve all such mutual aid
agreements. This analysis reflects that amendment.
3. The Tulelake Police Department
The sponsor of this bill is the Tulelake Police Department. The
Chief of that Department states:
This issue has been raised in connection with our
ongoing Hispanic gang problems that we have been
dealing with for the last 15 years. Our local gang
population is very mobile in their activities, freely
crossing state and county lines.
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The problem has become more significant over the last
several years due to budget issues that have severely
hampered each agency's ability to address the growing
problem. We are dependent on our allied agencies to
provide the cover to handle these calls. As in most
jurisdictions, our gang calls involve multiple people
and increasing levels of violence. Even with our
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current situation, we are lucky to have three officers
present on calls involving up to twenty opposing gang
members. The ability to have a cover officer on these
calls cannot be overstated. Due to the decreased
staffing levels of both Modoc and Siskiyou County
Sheriff's offices, our small agency has had to rely on
the neighboring police department in Merrill and Malin
Oregon for cover so that these calls can be handled a
safely as possible.
4. Law Enforcement Mutual Aid Agreements and the Effect of This
Bill
Mutual aid agreements between law enforcement agencies, even
within California, involve a number of practical issues. Issues
that could arise in any mutual aid situation include command and
control, and who would be in command of the assisting officers.
Would the assisting officers be required to obey the chain of
command of a California law enforcement agency? If so, which
agency? Would that apply only to the agency they have entered
an agreement with? To what extent would the assisting officers
be required to follow the policies and procedures of the
California agency with which they have a mutual aid agreement?
Would this require mutual training and how would that be carried
out? Would there be mechanisms for accountability? If an
officer from a foreign jurisdiction committed some form of
misconduct how would they be held accountable in California?<1>
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<1>
Some aspects of these agreements can be controversial. During
the "Occupy Oakland" protests that turned violent in Oakland
last October and November, numerous law enforcement agencies
provided mutual support to the Oakland Police Department.
Following those events, the City of Berkeley decided to review
and possibly amend aspects of its several mutual aid agreements.
(Berkeley Police Review Mutual Aid Policy Following Occupy
Oakland, CBS San Francisco, February 15, 2012,
http://sanfrancisco.cbslocal.com/2012/02/15/berkeley-police-revie
w-mutual-aid-policy-following-occupy-oakland/.)
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On the issue of chain of command, the bill states that a peace
officer from an adjoining state who exercises authority pursuant
to these provisions is subject to the supervisory control of and
limitations imposed by his or her employing agency unless
supervisory control is temporarily delegated to a California
peace officer. This raises issues regarding liability and
oversight. If California is to confer peace officer status on
out-of-state officers who remain under the command of their
out-of-state agency while performing their duties in California,
who would be liable for their actions? For example, if an
out-of-state officer engages in a high-speed chase and an
innocent person is injured, would California be deemed to have
assumed the responsibility for their actions by affording them
peace officer status under California law?
The bill states that any mutual aid agreement would need to
specify "that the officer and employing agency of the adjoining
state shall be subject to the same civil immunities and
liabilities as a peace officer and his or her employing agency
in this state." This appears to require that the California
agency assume liability for the out-of-state officer's actions.
Could a Sheriff or Police Chief enter into such an agreement
without fully understanding the liability they are assuming on
behalf of their county? Additionally, this bill would afford
peace officer status in California under circumstances where
there is no mutual aid agreement and, therefore, no California
law enforcement agency to assume the liability for the
out-of-state officer's actions. In those circumstances, i.e.,
in response to an emergency, who would be liable for the
out-of-state officer's actions?
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Certain immunity from liability provisions for peace officers
engaged in high speed chases in California depend on whether the
officer's employing agency has promulgated a policy and provided
specific training to its officers on high speed chases.
(Vehicle Code § 17004.7.) How would that immunity provision
apply to an out-of-state officer who is granted peace officer
status by the State of California but whose employing agency has
no policy or training regarding high speed chases? The bill
states that, with or without a mutual aid agreement, supervisory
control may be temporarily delegated to a California peace
officer. In that event, would the California peace officer who
is now in temporary command of the out-of-state officer assume
the liability for the out-of-state officer's actions by assuming
command of that officer?
WHO WOULD BE LIABLE FOR THE ACTIONS OF OUT-OF-STATE OFFICERS?
WHAT OVERSIGHT MECHANISMS WOULD THERE BE OVER THE ACTIONS OF
OUT-OF-STATE OFFICERS?
IS THERE ANY GUARANTEE THAT OUT-OF-STATE OFFICERS RECEIVE THE
SAME TRAINING AS CALIFORNIA PEACE OFFICERS?
Under current law, only one person, the Commissioner of the
California Highway Patrol, is authorized to enter into such
agreements and the scope of such agreements is limited to
assisting the Highway Patrol. This bill would give the
authority to enter such agreements to every "sworn head of an
authorized California law enforcement agency."<2> This
authority would appear to apply to police chiefs and sheriffs
regardless of whether their jurisdiction comes anywhere near a
California border. This could create a patchwork of such
agreements, which could include inconsistent or even conflicting
provisions. The bill contains no mechanism to coordinate the
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<2>
The bill's use of the term "authorized" here is ambiguous.
Does it mean authorized to be a law enforcement agency or
authorized to enter mutual aid agreements? If the latter, where
would that authorization come from apart from this statute?
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provisions of such agreements that could proliferate throughout
the myriad of California law enforcement agencies. The bill
would also appear to permit foreign-state law enforcement
agencies to enter mutual aid agreements with several California
law enforcement agencies, or to shop between California agencies
to negotiate the most advantageous terms of such an agreement.
WOULD AUTHORIZING THE SWORN HEAD OF EVERY LAW ENFORCEMENT AGENCY
IN CALIFORNIA TO ENTER INTO A MUTUAL AID AGREEMENT WITH ANY LAW
ENFORCEMENT AGENCY FROM ARIZONA, NEVADA OR OREGON HAVE THE
POTENTIAL TO CREATE AN INCONSISTENT PATCHWORK OF SUCH
AGREEMENTS?
IF THERE WERE NUMEROUS, UNCOORDINATED, MUTUAL AID AGREEMENTS
BETWEEN LAW ENFORCEMENT AGENCIES, COULD THIS CREATE CONFUSION
REGARDING LIABILITY, ACCOUNTABILITY, AND CHAIN OF COMMAND?
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