BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair S 2013-2014 Regular Session B 1 1 5 SB 1154 (Hancock) 4 As Amended March 24, 2014 Hearing date: April 1, 2014 Penal Code JRD:mc PEACE OFFICERS: SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT POLICE DEPARTMENT HISTORY Source: San Francisco Bay Area Rapid Transit District (BART) Prior Legislation: AB 716 (Dickinson) - Chapter 534, Statutes of 2011 Support: Peace Officers Research Association of California (PORAC) Opposition:None known KEY ISSUES SHOULD THE SUNSET BE EXTENDED ON THE LAW THAT ALLOWS THE SAN FRANCISCO BAY AREA TRANSIT AUTHORITY (BART) TO ISSUE PROHIBITION ORDERS? SHOULD A MEMBER OF THE BART POLICE DEPARTMENT HAVE THE ABILTY TO REQUEST AN EX PARTE EMERGENCY PROTECTIVE ORDER? (More) SB 1154 (Hancock) Page 2 SHOULD A MEMBER OF THE BART POLICE DEPARTMENT BE ALLOWED TO TAKE TEMPORARY CUSTODY OF A FIREARM OR OTHER DEADLY WEAPON, AS SPECIFIED? PURPOSE The purpose of this bill is to (1) extend the sunset on the law that allows BART to issue prohibition orders banning persons from entering district property for determined periods of time for specified offenses; (2) allow a member of the BART Police Department to have the ability to request an ex parte emergency protective order from a judicial officer, if there are reasonable grounds to believe a person is in immediate and present danger of stalking; (3) provide BART police officers, who respond to the scene of a domestic violence incident or assault, to temporarily take custody of any firearms or deadly weapons that are in plain sight or obtained during a lawful search; and, (4) include BART police officers, as specified, in the category of "officers" for purposes of Penal Code provisions relating to law enforcement responses to domestic violence. BART Issuance of Prohibition Orders Current law allows BART, until January 1, 2015, to issue prohibition orders banning persons from entering the property, facilities, or vehicles of the transit district for determined periods of time for specified offenses. Specifically, current law allows BART to issue a prohibition order to a person who has been cited on at least three separate occasions within a period of 90 days for any of the following infractions committed in or on a transit vehicle, bus stop, or station of the transit district: Interfering with the operator or operation of a transit vehicle, or impeding the safe boarding or alighting of (More) SB 1154 (Hancock) Page 3 passengers. Committing any act or engaging in any behavior that may, with reasonable foreseeability, cause harm or injury to any person or property. Willfully disturbing others on or in a transit facility or vehicle by engaging in boisterous or unruly behavior. Carrying an explosive or acid, flammable liquid, or toxic or hazardous material in a public transit facility or vehicle. Urinating or defecating in a transit facility or vehicle, except in a lavatory. Willfully blocking the free movement of another person in a transit facility or vehicle. Defacing with graffiti the interior or exterior of the facilities or vehicles of a public transportation system. (Public Utilities Code § 99171.) Current law allows BART to issue a prohibition order to a person who has been arrested or convicted once for any of the following misdemeanors or felonies committed in or on a vehicle, bus stop, or station of the transit district: Acts involving violence, threats of violence, lewd or lascivious behavior, or possession or sale of any illegal substance. Loitering with the intent to engage in drug-related activity. Loitering with the intent to commit prostitution. The maximum duration of a prohibition order is as follows: 30 days for a first order, 90 days for a second order within one year, and 180 days for a third order within one year related to infractions. 30 days if issued pursuant to an arrest for a misdemeanor or felony offense. Upon conviction for the offense, the order may be extended to a total of 180 days for a misdemeanor and one year for a felony. A prohibition order is effective eleven days after delivery is deemed complete unless the person contests the proposed order (More) SB 1154 (Hancock) Page 4 within 10 days in accordance with procedures adopted by the transit district. The procedures must include, among other things, an opportunity to request an initial review and the opportunity, if the person is dissatisfied with the results of the initial review, to request an administrative hearing. The hearing must provide an independent, objective, fair, and impartial review of the prohibition order, and the hearing officer's employment and compensation may not be directly or indirectly linked to the number of prohibition orders upheld. If the transit district or hearing officer determines that the person did not understand the nature and extent of his or her actions or did not have the ability to control his or her actions, the prohibition order shall be canceled. If the person is dependent upon the transit system for trips of necessity, including travel to or from medical or legal appointments, school or training classes, places of employment, or obtaining food, clothing, and necessary household items, the transit district or hearing officer must modify the prohibition order to allow for those trips. If the person is dissatisfied with the result of the administrative hearing, he or she may seek judicial review of the administrative hearing decision within 90 days. (Public Utilities Code § 99171.) Current law requires the transit district to establish an advisory commission that is tasked, among other things, with monitoring the issuance of prohibition orders to ensure compliance with anti-discrimination laws and with providing the governing board of the transit district and the Legislature with an annual report on the program. (Public Utilities Code § 99172.) This bill would extend the sunset to January 1, 2018, on the laws described above that allow BART police to issue prohibition orders banning persons from entering district property for determined periods of time for specified offenses, and require BART to maintain an advisory committee. Ex Parte Emergency Protective Orders Sought by BART Police Officers (More) SB 1154 (Hancock) Page 5 Current law allows peace officers, as defined in Penal Code sections 830.1, 830.2 and 830.32, to request that a judicial officer issue an ex parte emergency protective order. In the request, the peace officer must assert reasonable grounds to believe that a person is in immediate and present danger of stalking based upon the person's allegation that he or she has been willfully, maliciously, and repeatedly followed or harassed by another person who has made a credible threat with the intent of placing the person who is the target of the threat in reasonable fear for his or her safety. If the judge issues the protective order, it expires at the earlier of the following times: (1) the close of judicial business on the fifth court day following the day of its issuance; or, (2) the seventh calendar day following the day of its issuance. (Penal Code § 646.91.) This bill would allow BART police officers, as defined in Penal Code section 830.5, to request a temporary restraining order from a judicial officer, if there are reasonable grounds to believe that a person is in immediate and present danger of stalking, as specified. BART Police Officers' Ability to take Deadly Weapons into Temporary Custody Current law requires certain peace officers, who are at the scene of a domestic violence incident involving a threat to human life or a physical assault, or who are serving a protective order as defined in section 6218 of the Family Code, to take temporary custody of any firearm or other deadly weapon in plain sight, or discovered pursuant to a consensual or other lawful search, as necessary for the protection of the peace officer or other persons present. (Penal Code § 18250.) This bill would require BART police officers to take control of a firearm, or other deadly weapon, when they are at the scene of a domestic violence incident involving a threat to human life or a physical assault, or who are serving a protective order as defined in section 6218 of the Family Code, to take temporary (More) SB 1154 (Hancock) Page 6 custody of any firearm or other deadly weapon in plain sight, or discovered pursuant to a consensual or other lawful search, as necessary for the protection of the peace officer or other persons present. Law Enforcement Response to Domestic Violence Current law generally sets forth specified requirements concerning the law enforcement response to domestic violence, including the development and implementation of policies concerning officers' responses to domestic violence calls, dispatchers' responses to domestic violence calls, law enforcement records of domestic violence protection orders, the provision of pamphlet information to persons who are to be protected under a protective order, and the collection of data. (Penal Code § 13700 et seq.) This bill would include BART police officers within the definition of "officer" for purposes of these sections. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION For the last several years, severe overcrowding in California's prisons has been the focus of evolving and expensive litigation relating to conditions of confinement. On May 23, 2011, the United States Supreme Court ordered California to reduce its prison population to 137.5 percent of design capacity within two years from the date of its ruling, subject to the right of the state to seek modifications in appropriate circumstances. Beginning in early 2007, Senate leadership initiated a policy to hold legislative proposals which could further aggravate the prison overcrowding crisis through new or expanded felony prosecutions. Under the resulting policy, known as "ROCA" (which stands for "Receivership/ Overcrowding Crisis Aggravation"), the Committee held measures that created a new felony, expanded the scope or penalty of an existing felony, or otherwise increased the application of a felony in a manner (More) SB 1154 (Hancock) Page 7 which could exacerbate the prison overcrowding crisis. Under these principles, ROCA was applied as a content-neutral, provisional measure necessary to ensure that the Legislature did not erode progress towards reducing prison overcrowding by passing legislation, which would increase the prison population. In January of 2013, just over a year after the enactment of the historic Public Safety Realignment Act of 2011, the State of California filed court documents seeking to vacate or modify the federal court order requiring the state to reduce its prison population to 137.5 percent of design capacity. The State submitted that the, ". . . population in the State's 33 prisons has been reduced by over 24,000 inmates since October 2011 when public safety realignment went into effect, by more than 36,000 inmates compared to the 2008 population . . . , and by nearly 42,000 inmates since 2006 . . . ." Plaintiffs opposed the state's motion, arguing that, "California prisons, which currently average 150% of capacity, and reach as high as 185% of capacity at one prison, continue to deliver health care that is constitutionally deficient." In an order dated January 29, 2013, the federal court granted the state a six-month extension to achieve the 137.5 % inmate population cap by December 31, 2013. The Three-Judge Court then ordered, on April 11, 2013, the state of California to "immediately take all steps necessary to comply with this Court's . . . Order . . . requiring defendants to reduce overall prison population to 137.5% design capacity by December 31, 2013." On September 16, 2013, the State asked the Court to extend that deadline to December 31, 2016. In response, the Court extended the deadline first to January 27, 2014 and then February 24, 2014, and ordered the parties to enter into a meet-and-confer process to "explore how defendants can comply with this Court's June 20, 2013 Order, including means and dates by which such compliance can be expedited or accomplished and how this Court can ensure a durable solution to the prison crowding problem." (More) SB 1154 (Hancock) Page 8 The parties were not able to reach an agreement during the meet-and-confer process. As a result, the Court ordered briefing on the State's requested extension and, on February 10, 2014, issued an order extending the deadline to reduce the in-state adult institution population to 137.5% design capacity to February 28, 2016. The order requires the state to meet the following interim and final population reduction benchmarks: 143% of design bed capacity by June 30, 2014; 141.5% of design bed capacity by February 28, 2015; and 137.5% of design bed capacity by February 28, 2016. (More) If a benchmark is missed the Compliance Officer (a position created by the February 10, 2016 order) can order the release of inmates to bring the State into compliance with that benchmark. In a status report to the Court dated February 18, 2014, the state reported that as of February 12, 2014, California's 33 prisons were at 144.3 percent capacity, with 117,686 inmates. 8,768 inmates were housed in out-of-state facilities. The ongoing prison overcrowding litigation indicates that prison capacity and related issues concerning conditions of confinement remain unresolved. While real gains in reducing the prison population have been made, even greater reductions may be required to meet the orders of the federal court. Therefore, the Committee's consideration of ROCA bills -bills that may impact the prison population - will be informed by the following questions: Whether a measure erodes realignment and impacts the prison population; Whether a measure addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction; Whether a bill corrects a constitutional infirmity or legislative drafting error; Whether a measure proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy; and, Whether a bill addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy. COMMENTS 1.Need for This Bill The author states in part: (More) SB 1154 (Hancock) Page 10 SB 1154 seeks to clarify that BART Police Officers, like other police officers in the state, have the authority to issue Emergency Protective Orders (EPO) for individuals in a domestic violence situation within the transit system, and that they have the authority to confiscate weapons while investigating such circumstances. SB 1154 makes clear that BART Police are included in the definition of officers under the general provisions of law enforcement response to domestic violence, and clarifies that they have the authority to issue EPOs, and take temporary custody of firearms or deadly weapons while conducting domestic violence investigations. Specifically, this bill adds BART Police to the following Penal Code Sections: 13700, 646.91, and 18250. 2.Effect of the Legislation Prior to implementing the prohibition order program, BART was required to establish an advisory commission to monitor the issuance of prohibition orders to ensure compliance with anti-discrimination laws and with providing the governing board of the transit district and the Legislature with an annual report on the program. (Public Utilities Code § 99172.) In its recent draft annual report, BART indicates that it issued one hundred and forty-six prohibition orders based on misdemeanor or felony arrests between May 6, 2013, and December 31, 2013. None of the alleged violators contested the order. The top violation was for domestic battery under Penal Code section 243(e)(1). In addition, BART issued six infraction citations over this same period for violations on the list of infractions eligible for a prohibition order. None of the cited offenders repeated the violations three or more times within the 90-day period. This SB 1154 (Hancock) Page 11 legislation would permit BART to continue issuing these prohibition orders. Additionally, in response to the high percentage of prohibition orders that were related to domestic battery, this legislation would give BART police officers additional powers relating to domestic violence crimes. According to BART: SB 1154 will clarify that BART Police Officers, like other police officers around the state, are included in the definition of officers under the general provisions of law enforcement response to domestic violence, and clarifies that they have the authority to issue Emergency Protective Orders (EPOs), and take temporary custody of firearms or deadly weapons while conducting domestic investigations. ***************