BILL ANALYSIS                                                                                                                                                                                                    







                      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
          SM:dl

                                    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.
               ?



               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>

          ---------------------------
          <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 
          ---------------------------
          <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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