BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 303 Hearing Date: June 9, 2015
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|Author: |Gonzalez |
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|Version: |April 16, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JRD |
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Subject: Searches: County Jails
HISTORY
Source: Author
Prior Legislation:AB 1367 (Waters) - Chapter 35, Statutes of
1984.
Support: American Civil Liberties Union; California Attorneys
for Criminal Justice;
California Public Defenders Association; L.A. County
Probation Officers Union; Legal Services for Prisoners
with Children; Orange County Employees Association;
Riverside Sheriffs' Association; State Coalition of
Probation Organizations; Youth Law Center
Opposition:None Known
Assembly Floor Vote: 77 - 0
PURPOSE
The purpose of this legislation is to require that during a
strip search or body cavity search of a juvenile, all persons
within sight be of the same sex as the person being searched,
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except for physicians or licensed medical personnel, as
specified.
Existing law makes legislative findings and declarations that
law enforcement policies and practices for conducting strip or
body cavity searches of detained persons vary widely throughout
California. Consequently, some people have been arbitrarily
subjected to unnecessary strip and body cavity searches after
arrests for minor misdemeanor and infraction offenses. Some
present search practices violate state and federal
constitutional rights to privacy and freedom from unreasonable
searches and seizures. (Penal Code § 4030(a).)
Existing law states the intent of the Legislature in enacting
this section to protect the state and federal constitutional
rights of the people of California by establishing a statewide
policy strictly limiting strip and body cavity searches. (Penal
Code § 4030(a).)
Existing law provides that all persons conducting or otherwise
present during a strip search or visual or physical body cavity
search shall be of the same sex as the person being searched,
except for physicians or licensed medical personnel. (Penal
Code § 4030(l).)
Existing law provides that the provisions these specified
searches shall apply only to pre-arraignment detainees arrested
for infraction or misdemeanor offenses and to any minor detained
prior to a detention hearing on the grounds that he or she is a
person described in specified sections of the Welfare and
Institutions Code alleged to have committed a misdemeanor or
infraction offense. The provisions of this section shall not
apply to any person in the custody of the Director of the
Department of Corrections or the Director of the Youth
Authority. (Penal Code § 4030(b).)
Existing law defines:
"Strip search" as a search which requires a person
to remove or arrange some or all of his or her clothing
so as to permit a visual inspection of the underclothing,
breasts, buttocks, or genitalia of such person. (Penal
Code § 4030(c).)
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"Body cavity" as the stomach or rectal cavity of a
person, and vagina of a female person. (Penal Code §
4030(d)(1).)
"Visual body cavity search" as the visual inspection
of a body cavity. (Penal Code § 4030(d)(2).)
"Physical body cavity search" as the physical
intrusion into a body cavity for the purpose of
discovering any object concealed in the body cavity.
(Penal Code § 4030(d)(3).)
Existing law states that when a person is arrested and taken
into custody, that person may be subjected to pat-down searches,
metal detector searches, and thorough clothing searches in order
to discover and retrieve concealed weapons and contraband
substances prior to being placed in a booking cell. (Penal Code
§ 4030(e).)
Existing law provides that no person arrested and held in
custody on a misdemeanor or infraction offense, except those
involving weapons, controlled substances or violence nor any
minor detained prior to a detention hearing on the grounds that
he or she is a person described in specified sections of the
Welfare and Institutions Code, except for those minors alleged
to have committed felonies or offenses involving weapons,
controlled substances or violence, shall be subjected to a strip
search or visual body cavity search prior to placement in the
general jail population, unless a peace officer has determined
there is reasonable suspicion based on specific and articulable
facts to believe such person is concealing a weapon or
contraband, and a strip search will result in the discovery of
the weapon or contraband. No strip search or visual body cavity
search or both may be conducted without the prior written
authorization of the supervising officer on duty. The
authorization shall include the specific and articulable facts
and circumstances upon which the reasonable suspicion
determination was made by the supervisor. (Penal Code §
4030(f).)
Existing law provides that no person arrested on a misdemeanor
or infraction offense, nor any minor, shall be subjected to a
physical body cavity search except under the authority of a
search warrant issued by a magistrate specifically authorizing
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the physical body cavity search. (Penal Code § 4030(h).)
Existing law provides that persons conducting a strip search or
a visual body cavity search shall not touch the breasts,
buttocks, or genitalia of the person being searched. (Penal
Code § 4030(j).)
Existing law states that a physical body cavity search shall be
conducted under sanitary conditions, and only by a physician,
nurse practitioner, registered nurse, licensed vocational nurse
or emergency medical technician Level II licensed to practice in
this state. Any physician engaged in providing health care to
detainees and inmates of the facility may conduct physical body
cavity searches. (Penal Code § 4030(k).)
Existing law provides that all strip, visual and physical body
cavity searches shall be conducted in an area of privacy so that
the search cannot be observed by persons not participating in
the search. Persons are considered to be participating in the
search if their official duties relative to search procedure
require them to be present at the time the search is conducted.
(Penal Code § 4030(m).)
Existing law states that a person who knowingly and willfully
authorizes or conducts a strip, visual or physical body cavity
search in violation of this section is guilty of a misdemeanor.
(Penal Code § 4030(n).)
Existing law states that nothing in this section shall be
construed as limiting any common law or statutory rights of any
person regarding any action for damages or injunctive relief, or
as precluding the prosecution under another provision of law of
any peace officer or other person who has violated this section.
(Penal Code § 4030(o).)
Existing law states that any person who suffers damage or harm
as a result of a violation of this section may bring a civil
action to recover actual damages, or one thousand dollars
($1,000), whichever is greater. In addition, the court may, in
its discretion, award punitive damages, equitable relief as it
deems necessary and proper, and costs, including reasonable
attorney's fees. (Penal Code § 4030(p).)
This bill states that all persons conducting or otherwise
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present or within sight of the juvenile during a strip search or
visual or physical body cavity search must be of the same sex as
the person being searched, except for physicians or licensed
medical personnel.
This bill authorizes any person who suffers damage or harm as a
result of a violation of this section to bring a civil action to
recover actual damages, or one thousand dollars ($1,000),
whichever is greater. In addition, the court may, in its
discretion, award punitive damages, equitable relief as it deems
necessary and proper, and costs, including reasonable attorney's
fees.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
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.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity." (
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
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While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Legislation
According to the author:
Under existing law, all persons conducting a strip
search must be of the same sex as the person being
searched, except for physicians or licensed medical
personnel. Unfortunately, there have been some cases
where officers of the opposite sex are within sight of
the person being strip searched, causing distress
among detainees.
Last year, the Youth Law Center filed a formal
complaint to the U.S. Department of Justice on the
excessive use of pepper spray in San Diego. According
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to report, one of the incidents presented involved a
girl who was in suicide watch and refused to strip
because a male staffer was within sight during the
search. Due to the guidelines established by the
local department of probation, the girl was pepper
sprayed immediately as she would not follow orders.
She was pepper sprayed four times until she finally
gave up.
The lack of guidance and a potential loophole in
current law have led to officers' use of pepper spray
on inmates who correctly object to the presence of
opposite sex personnel during strip searches. One way
to reduce confrontation between officers and inmates
is to clarify that no person present or "within sight"
of the inmate can be of the opposite sex during these
procedures. According to reports, it appears that the
prohibition against officers of the opposite sex being
"present" could be plausibly denied because of the
term's lack of a definition.
While the "present" standard for strip searches
existing in current law is vague and prone to abuse,
AB 303 will clarify who can and cannot be "within
sight" of an inmate being stripped search in order to
prevent cases like the ones seen in San Diego County.
By adding "within sight" of the victim, the bill
closes a loophole where a probation officer conducting
the strip search was of the same sex as the victim but
all other officers present or visible to the inmate
were not. The bill is limited to Juvenile Detention
Centers in California.
2. Effect of Legislation
On April 2, 2012, the Supreme Court upheld the validity of strip
searches by jail officials for even minor offenses when a person
is being placed in the general population. (Florence v. Board
of Chosen Freeholders of County of Burlington, 2012 US Lexis
2712.) The Court, however, did not directly address the issue
of strip searches before a person's detention is reviewed by a
judicial officer. (Id.)
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California law regulates when and how strip searches occur in
local detention facilities. The provision, which was passed in
1984, has the codified legislative intent to strictly limit
strip and body cavity searches. The provisions of the law apply
only to adult and juvenile pre-arraignment detainees arrested
for infractions or misdemeanors. This bill maintains the
existing practice of permitting strip searches of inmates prior
to them entering the general population and simply specifies
that all persons within view of the search must also be of the
same gender. According to those in support, this modification,
while small, will make a significant difference to those persons
being searched and will not impose a significant burden on law
enforcement agencies conducting these searches.
3. Argument in Support
According to the California Public Defenders Association:
Current law requires that any strip search, physical
body cavity search, or visual body cavity search of an
arrestee be conducted by a person of the same sex as
the arrestee, and only in the presence of others of
the same sex as the arrestee. AB 303 would amend
Penal Code section 4030 to also require that when such
searches are conducted, any person "within sight of
the inmate" be of the same sex as the person being
searched. The new requirement will maintain current
exceptions for physicians or licensed medical
personnel. Penal Code section 4030 applies only to
prearrangement detainees, including minors, arrested
for infraction or misdemeanor cases.
CPDA supports the goal of AB 303, which is to ensure
that such searches are conducted in a manner that
helps to minimize, at least in some measure, the
indignity suffered by those arrested for low-level
offenses.
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