BILL ANALYSIS Ó AB 1040 Page 1 Date of Hearing: April 23, 2013 Chief Counsel: Gregory Pagan ASSEMBLY COMMITTEE ON PUBLIC SAFETY Tom Ammiano, Chair AB 1040 (Wieckowski) - As Introduced: February 22, 2013 SUMMARY : Requires the chief probation officer of each county to train and arm those probation officers and deputy probation officers who are assigned supervision duties over persons who are on probation or post-release community supervision who are deemed "high risk". EXISTING LAW : 1) Provides that in order to change peace officer designation or status, the Commission on Peace Officers Standards and Training (POST) must be requested to undertake a study to assess the need for such a change. Requires POST to undertake the study in accordance with its regulations. [Penal Code Section 13540(b).] 2)Specifies that the following persons are peace officers whose authority extends to any place in the state while engaged in the performance of the duties of their respective employment and for the purpose of carrying out the primary function of their employment. Except as specified in this section, these peace officers may carry firearms only if authorized and under those terms and conditions specified by their employing agency: a) A parole officer of the California Department of Corrections and Rehabilitation (CDCR), or Department of Corrections and Rehabilitation, Division of Juvenile Parole Operations, probation officer, deputy probation officer, or a board coordinating parole agent employed by the Juvenile Parole Board. Except as otherwise provided in this subdivision, the authority of these parole or probation officers shall extend only as follows: i) To conditions of parole, probation, or post-release community supervision by any person in this state on AB 1040 Page 2 parole, probation, or post-release community supervision. ii) To the escape of any inmate or ward from a state or local institution. iii) To the transportation of persons on parole, probation, or post-release community supervision. iv) To violations of any penal provisions of the law which are discovered while performing the usual or authorized duties of his or her employment. v) To the rendering of mutual aid to any other law enforcement agency. b) A correctional officer employed by the CDCR, or of the CDCR, Division of Juvenile Justice, having custody of wards or any employee of the Department of Corrections and Rehabilitation designated by the secretary or any correctional counselor series employee of the CDCR or any medical technical assistant series employee designated by the secretary or designated by the secretary and employed by the State Department of Mental Health or any employee of the Board of Parole Hearings designated by the secretary or employee of the CDCR, Division of Juvenile Justice, designated by the secretary or any superintendent, supervisor, or employee having custodial responsibilities in an institution operated by a probation department, or any transportation officer of a probation department. c) The following persons may carry a firearm while not on duty: a parole officer of the CDCR, or the CDCR, Division of Juvenile Justice, a correctional officer or correctional counselor employed by the CDCR, or an employee of the CDCR, Division of Juvenile Justice, having custody of wards or any employee of the CDCR designated by the secretary. A parole officer of the Juvenile Parole Board may carry a firearm while not on duty only when so authorized by the chairperson of the board and only under the terms and conditions specified by the chairperson. Nothing in this section shall be interpreted to require licensure pursuant to Section 25400. The director or chairperson may deny, suspend, or revoke for good cause a person's right to carry a firearm under this subdivision. That person shall, upon request, receive a hearing, as provided for in the AB 1040 Page 3 negotiated grievance procedure between the exclusive employee representative and the CDCR, Division of Juvenile Justice, or the Juvenile Parole Board, to review the director's or the chairperson's decision. (Penal Code Section 830.5) 3)Provides that persons permitted to carry firearms pursuant to this section, either on or off duty, shall meet specified training requirements and shall qualify with the firearm at least quarterly. It is the responsibility of the individual officer or designee to maintain his or her eligibility to carry concealable firearms off duty. Failure to maintain quarterly qualifications by an officer or designee with any concealable firearms carried off duty shall constitute good cause to suspend or revoke that person's right to carry firearms off duty. [Penal Code Section 830.5(d).] 4)States that the CDCR shall allow reasonable access to its ranges for officers and designees of either department to qualify to carry concealable firearms off duty. The time spent on the range for purposes of meeting the qualification requirements shall be the person's own time during the person's off-duty hours. [Penal Code Section 830.5(e).] 5)Provides that "high-risk transportation details" and "high-risk escape details" shall be determined by the secretary, or his or her designee. The secretary, or his or her designee, shall consider at least the following in determining "high-risk transportation details" and "high-risk escape details": protection of the public, protection of officers, flight risk, and violence potential of the wards. [Penal Code Section 830.5(f).] 6)Specifies that "transportation detail" as used in this section shall include transportation of wards outside the facility, including, but not limited to, court appearances, medical trips, and interfacility transfers. [Penal Code Section 830.5(h).] FISCAL EFFECT : Unknown COMMENTS : 1) Author's Statement : According to the author, "Law enforcement organizations, from across the state, including AB 1040 Page 4 those representing probation officers, support AB 1040. Rank and file probation officers are tasked with an enhanced public safety role as a result of the significant public safety policy shift in AB 109. This shift has resulted in increased caseloads for probation officers and deputy probation officers who are now supervising a high risk population that used to be supervised by armed parole agents. "The safety of our probation officers should be our top priority. They are frequently meeting with offenders. On occasion they must rely on other officers from other law enforcement agencies because the probation officers are not armed. This draws down resources from adjacent law enforcement agencies. Nevertheless, the California Police Chiefs have stated they believe the safety risk is so serious they will provide officers to accompany an unarmed probation officer even though it depletes already strained municipal police department budgets." 2)A POST Feasibility Study Should Be Undertaken prior to Change in Status : In order to change peace officer designation or status, POST must be requested to undertake a study to assess the need for such a change. Requires POST to undertake the study in accordance with its regulations. [Penal Code Section 13540(b).] In this case, deputy probation officers' status would change from being authorized to carry firearms if authorized and under those terms and conditions specified by their employing agency to be authorized to carry a firearm while on duty and would provide that this authorization may only be revoked by the chief probation officer for good cause. POST is the organization authorized by the State of California to look into these issues and as of the time of the writing of this analysis, no indication has been given that POST has conducted the required feasibility study. 3)Removes Discretion of Chief Probation Officers to Determine Whether Deputies May Carry Firearms : Under current law, deputy probation officers are peace officers whose authority extends to any place in California while engaged in the performance of their duties in their respective employment and for the purpose of carrying out the primary function of their employment. Deputy probation officers may carry firearms only if authorized and under those terms and conditions specified by their employing agency: [Penal Code Section 830.5(a).] This bill changes the designation of deputy probation officers AB 1040 Page 5 by requiring a probation officer or a deputy probation officer responsible for a person on probation or post-release community supervision who is deemed to be high risk pursuant to a risk-based assessment system be authorized to carry a firearm while on duty and would provide that this authorization may only be revoked by the chief probation officer for good cause. That change would take these officers from a default position of not carrying firearms unless granted that authority by their superiors to a default position of carrying firearms unless their superiors can find good cause to revoke that right. This bill, therefore, removes the discretion from chief probation officers in determining whether to arm their deputies if the deputies supervise high-risk individuals on post-release community supervision. 4)Many Deputy Probation Officers Supervise a Variety of Individuals : Probation officers routinely supervise a variety of individuals on misdemeanor probation (when required), domestic violence probationers, felony probationers, and under realignment those individuals on post-release supervision. Probation officers will often have a mixed caseload of a variety of these types of individuals. Under this bill, a probation officer who monitors just one individual deemed high risk would be granted the authority to carry a firearm unless his or her supervisor can find good cause to revoke that privilege. 5)"High Risk" Probationers : This bill requires probation officers who supervise "high-risk" individuals to be armed and trained by the chief probation officer of each county. However, this bill does not define what makes an individual "high risk". Penal Code Section 830.5(g) makes reference to "high-risk transportation details" and "high-risk escape details" and gives the secretary of CDCR discretion to determine what is a "high-risk detail". Another reference in the Penal Code to "high-risk" offenders relates to sex offenders who have been deemed to pose a high risk to the public of committing a sex offense as determined by the State Authorized Risk Assessment Tool for Sex Offenders (SARATSO) as set forth in Penal Code Sections 290.04 to 290.06, inclusive. Other than sex offenders, probationers and individuals on post-release community supervision are not administered any type of risk from which one could determine whether or not the person is deemed to be "high risk". AB 1040 Page 6 6)Mandatory Supervision : This bill requires the chief probation officer of each county to train and arm those probation officers and deputy probation officers who are assigned supervision duties over persons on probation or post-release community supervision who are deemed "high risk". However, this bill does not include probation officers who supervise individuals that under realignment are on mandatory supervision pursuant to Penal Code Section 1170(h). Should this bill be amended to include "high-risk" individual who are under mandatory supervision by a probation officer? 7)Governor's Veto of AB 1968 : This bill is a reintroduction of AB 1968 (Wieckowski), of the 2011-12 Legislative Session, which was vetoed. As introduced, AB 1968 was substantially similar to this bill in that AB 1968 required that probation officers responsible for "high-risk" individuals on probation or post-release community supervision be armed. AB 1968 was substantially amended in the Assembly Appropriations Committee to require the chief probation officer to develop a policy for arming probation officers whose caseload is comprised of high-risk individuals, and authorized probation officers to carry firearms as determined by the chief probation officer on a case by case basis. The Governor's veto message stated: "This bill requires a chief probation officer to develop and implement an official policy covering the arming of deputy probation officers. "I am sympathetic to what the proponents are trying to accomplish by this bill. But since local circumstances differ, I am reluctant to force this matter form the state level. The chief probation officers are closer and better situated to make the decision. The principles of subsidiarity apply." 8)Arguments in Support : a) The State Coalition of Probation Organizations writes, "AB 1040 would authorize any probation or deputy probation officer to carry if he or she is responsible for supervising "high risk" offenders. We are proud to sponsor this legislation with your office. "Rank-and-file probation officers are responsible for AB 1040 Page 7 probationer and community supervision, facilitating evidence-based programs, court report submission, criminal investigation (limited), collection and restitution of fines and referral to rehabilitation programs. Probation officers have been at the receiving end of public safety realignment, which has resulted in the transition of inmates formerly under the supervision of state parole agents, to local probation officers. "The reality is the Realignment has created enhanced danger for probation officers every day. Furthermore, realignment has resulted in an increased caseload, as well as more sophisticated and high-risk offenders for probation. Therefore, it is imperative that probation officers have adequate tools to perform their jobs and, ultimately, to successfully implement realignment." b) The Los Angeles County Probation Officers Union argues, "After passage of AB 109 (Realignment), county probation officers were assigned responsibility for state parolees - function previously undertaken by state parole officers. Under present law, state parole officers are currently armed because of the high risk population they were required to supervise - the very same population now supervised by probation. To protect these officers from the risk of harm posed, AB 1040 requires that probation be given the same tools and protection which their predecessors had. Officer safety is and must be the primary consideration of our probation officers. "Currently, 52 of 58 counties have armed probation officers who must supervise "high risk" AB 109 parolee felons. Several have not despite the obvious safety risk to the officers. The safety risk is so grave that the California Police Chiefs have publically stated that, if requested, they will assign a police officer to accompany any Deputy Probation Officer who requests assistance." 9)Arguments in Opposition : a) The Alameda County Board of Supervisors state, "AB 1040 removes discretion and authority from Alameda County and the chief Probation Officer which of its deputy probation officers are authorized to carry a firearm in the course of their duties. If passed, this bill would remove the Chief AB 1040 Page 8 Probation Officer's ability to determine which staff to arm and when, limit decision making around assigning unit staff, based on arming, and likely serve as a platform to arm all staff. "In addition, this legislation does not address any potential problems with deputy probation officers completing a psychological test specific to carrying a firearm. If this bill were to pass, the Probation Department would advocate conducting these tests for all staff, which could lead to potential issues for staff who do not pass the psychological exam. "Without AB 1040, the Chief Probation Officer still has the discretion to arm deputy probation officers supervising PRCS or high risk probationers, allowing Probation to put in place its own policies that meet the unique needs of the Department." b) The Los Angeles County Board of Supervisors state, "AB 1040 would remove the Board of Supervisors and the Chief Probation Officer's discretion to authorize probation officers to carry firearms by requiring all officers supervising specific types of probationers be armed. Due to the potential increased of armed probation officers, this requirement could cause the County to incur additional costs for: 1) weapons training, and the purchase of weapons and ammunition; 2) litigation and liability due to accidental discharge or misuse of a weapon associated with the increased number of armed employees; and 3) a substantial increase in active and retiree benefit costs associated with employees authorized to carry a firearm." 10)Prior Legislation : AB 1968 (Wieckowski), of the 2011-12 Legislative Session, required the chief probation officer to develop a policy for arming probation officers whose caseload is comprised of high-risk individuals, and authorized probation officers to carry firearms as determined by the chief probation officer on a case by case basis. AB 1968 was vetoed. REGISTERED SUPPORT / OPPOSITION : Support AB 1040 Page 9 American Federation of State, County and Municipal Employees Association for Los Angeles Deputy Sheriffs Association of Orange County Deputy Sheriffs California Fraternal Order of Police California Police Chiefs Association California Teamsters Public Affairs Council County of San Mateo Probation and Detention Association Fraternal Order of Police, N. California Probation Lodge #19 Long Beach Police Officers Association Los Angeles County Probation Officers Union Los Angeles Police Protective League Orange County Employees Association Peace Officers Research Association of California Probation Peace Officers Association of Contra Costa County Riverside Sheriffs' Association Sacramento County Deputy Sheriffs Association Sacramento County Probation Association Santa Ana Police Officers Association Santa Clara Probation Peace Officers Union, Local 1587 Shasta County Professional Peace Officers Association State Coalition of Probation Organizations Ventura County Professional Peace Officers' Association Opposition Alameda County Board of Supervisors California State Association of Counties California State Sheriffs' Association Chief Probation Officers of California Los Angeles County Board of Supervisors Rural County Representatives of California Analysis Prepared by : Gregory Pagan / PUB. S. / (916) 319-3744