BILL ANALYSIS Ó
AB 1040
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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
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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
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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
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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
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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".
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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
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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
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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
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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