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.  


                                   ***************