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  








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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