BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 334


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          Date of Hearing:  March 24, 2015
          Counsel:               David Billingsley



                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                                  Bill Quirk, Chair





          AB  
                    334 (Cooley) - As Introduced  February 13, 2015


                       As Proposed to be Amended in Committee


          SUMMARY:  Requires training for law enforcement officers on the  
          profiling of motorcycle riders.  Requires local law enforcement  
          agency to adopt policies preventing the profiling of motorcycle  
          riders. Defines "profiling of motorcycle riders."  Specifically,  
          this bill:
          1)Requires that The Commission on Peace Officer Standards and  
            Training (POST) ensure that the profiling of motorcycle riders  
            is addressed in the course of basic law enforcement training  
            and offered to law enforcement officers in conjunction with  
            existing training regarding profiling.



          2)Requires local law enforcement agencies adopt written policies  
            designed to condemn and prevent the profiling of motorcycle  
            riders.  Requires that such policies review and audit existing  
            procedures, practices, and training materials, to ensure that  
            they do not enable or foster the practice of profiling  
            motorcycle riders.










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          3)Defines "profiling of motorcycle riders" as the practice of  
            detaining a suspect based on the fact a person rides a  
            motorcycle or wears motorcycle paraphernalia without any  
            individualized suspicion of the particular person being  
            stopped.

          EXISTING LAW:   
          1)Requires all peace officers to complete an introductory course  
            of training prescribed by POST, demonstrated by passage of an  
            appropriate examination developed by POST.  (Pen. Code, § 832,  
            subd. (a).)

          2)Establishes the Commission on Peace Officer Training and  
            Standards.  (Pen. Code, § 13500.)



          3)Empowers POST to develop and implement programs to increase  
            the effectiveness of law enforcement.  (Pen. Code, §13503.)



          4)Authorizes POST, for the purpose of raising the level of  
            competence of local law enforcement officers, to adopt rules  
            establishing minimum standards related to physical, mental and  
            moral fitness and training that shall govern the recruitment  
            of any peace officers in California.  (Pen. Code, § 13510,  
            subd. (a).)



          5)Requires POST to conduct research concerning job-related  
            educational standards and job-related selection standards to  
            include vision, hearing, physical ability, and emotional  
            stability and adopt standards supported by this research.   
            (Pen. Code, § 13510, subd. (b).)



          6)Requires POST to establish a certification program for peace  
            officers, which shall be considered professional certificates.  








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             (Pen. Code, § 13510.1, subd. (a).)



          7)Requires that the course of basic training for law enforcement  
            officers include adequate instruction on racial and cultural  
            diversity in order to foster mutual respect and cooperation  
            between law enforcement and members of all racial and cultural  
            groups. (Pen. Code, § 13519.4, subd. (b).)



          8)Defines "Racial profiling," as the practice of detaining a  
            suspect based on a broad set of criteria which casts suspicion  
            on an entire class of people without any individualized  
            suspicion of the particular person being stopped. (Pen. Code,  
            § 13519.4, subd. (e).)



          9)Prohibits a law enforcement officer from engaging in racial  
            profiling. (Pen. Code, § 13519.4, subd. (f).)

          FISCAL EFFECT:  Unknown

          COMMENTS:   

          1)Author's Statement:  According to the author, "Far from the  
            stereotypical 'outlaw' image, motorcycle enthusiasts are more  
            likely to be middle-class baby-boomers, and a great many are  
            veterans who enjoy the independence and comradery that the  
            sport affords. An increasing number of these enthusiasts are  
            older Californians that didn't have time for this hobby in the  
            past, but now are either discovering or re-discovering their  
            passion for motorcycles. They find it to be a fun recreational  
            activity to participate in with friends and family. 
            
            "According to the American Motorcycle Association, the average  
            age of their more than 215,000 members is 46 years old. Over  
            the past ten years, the average age of motorcycle owners  
            nationally rose from 33 to 40. Data from the California  
            Highway Patrol's SWITRS (Statewide Integrated Traffic Records  








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            System) show the steady climb of licensed motorcycle drivers  
            in California, from approximately 800,000 in 1994 to nearly  
            1.4 million in 2012. According to the DMV, 47% of California's  
            1.4 million motorcycle licensees are over the age of 50. Since  
            its founding in 1987, Motorcycle Safety Foundation-authorized  
            schools have educated more than 900,000 prospective  
            motorcyclists in California in motorcycle safety, including  
            62,000 in 2013 alone. Motorcycle education consists of  
            classroom time and practical learning to teach students safe  
            riding practices.

            "AB 334 ensures that law-abiding, recreational motorcycle  
            riders, including those wearing 'leathers' for safety if their  
            bike goes down, are not unfairly profiled by law enforcement  
            and stopped without other reasonable cause. It directs the  
            Commission on Peace Officer Standards and Training to  
            incorporate and address the profiling of motorcycle riders  
            during continuing law enforcement training. The bill also  
            requires local law enforcement agencies to adopt a written  
            policy to prevent the profiling of motorcycle riders. 

            "In 2011, Washington State enacted a similar statute. This  
            bill proposes California adopt the Washington approach."



          2)Prevalence of Profiling of Motorcyclists:  Based on the  
            material provided by the author, there were nearly 1.4 million  
            licensed motorcycle drivers in California in 2012.  However,  
            it is difficult to ascertain the extent of "profiling" based  
            on riding a motorcycle, or wearing motorcycle paraphernalia.   
            The author did provide some anecdotal evidence of profiling,  
            but no data has been provided to the Committee. 

          3)Current POST Training:  POST was created by the legislature in  
            1959 to set minimum selection and training standards for  
            California law enforcement.  According to the POST Web site,  
            the Regular Basic Course Training includes 42 separate topics,  
            ranging from juvenile law and procedure to search and seizure.  
             [POST, Regular Basic Course Training Specifications;  
            [<  http://post.ca.gov/regular-basic-course-training-specificatio 
            ns.aspx  >.]  These topics are taught during a minimum of 664  








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            hours of training.  [POST, Regular Basic Course, Course  
            Formats, available at:  
            <  http://post.ca.gov/regular-basic-course.aspx  .>]  



            POST currently provides specific training on racial profiling  
            and cultural diversity in connection with the mandate of Penal  
            Code section 13519.4.  According to POST that curriculum  
            consists of the following:



             Racial Profiling Training  

                Part I - Initial* - 5 Hours

               (1) Why Are We Here?

               (2) Racial Profiling Defined

               (3) Legal Considerations

               (4) History of Civil Rights

               (5) Impact of Racial Profiling

               (6) Community Considerations

               (7) Ethical Considerations



               Part II - Refresher** - 2 Hours

               (1) Review of Applicable Initial Training

               (2) Update on Changes in Law and Practices

               *Included in Basic Course after January 1, 2004.
              **To be completed every five years after initial training 









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            POST also provided a list of classes within their curriculum  
            related to the constitutional legality of enforcement actions  
            and impartial policing:

              Leadership, Professionalism and Ethics 
               Policing the Community (Fair and impartial enforcement)
               Introduction to Criminal Law 
               Laws of Arrest 
               Search and Seizure 
               Gang Awareness 

          4)U.S. Constitution, 4TH Amendment Implications:  The proposed  
            legislation will not impact the way courts evaluate the  
            lawfulness of police enforcement actions, including  
            investigative detentions, searches and arrests. 



            The Fourth Amendment of the United States Constitution  
            provides that "The right of the people to be secure in their  
            persons, houses, papers, and effects, against unreasonable  
            searches and seizures, shall not be violated, and no warrants  
            shall issue, but upon probable cause, supported by oath or  
            affirmation, and particularly describing the place to be  
            searched, and the persons or things to be seized."

            The Fourth Amendment's prohibition against unreasonable search  
            and seizure covers law enforcement actions including  
            investigative detentions, arrests, searches of persons or  
            vehicles.

            The test to determine the constitutional validity of an  
            officer's detention, search, arrest or other action  
            implicating the right to be free from unreasonable search and  
            seizure is and objective test.  In analyzing the  
            reasonableness of a particular search or seizure, "it is  
            imperative that the facts be judged against an objective  
            standard" Terry v. Ohio (1968) 39 U.S. 1, 21.  Under that  
            test, the court would examine whether objective facts legally  
            support the enforcement action the officer took.  The  
            officer's subjective belief or intent is generally not  
            material to the judicial determination of the legality of the  








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            enforcement action.   
            
          5)Proposed Legislation Will Not Affect the Admissibility of  
            Evidence Obtained by Law Enforcement During a Detention,  
            Arrest, or Search:  Proposition 8, passed in 1982, limited the  
            circumstances a trial court may exclude relevant evidence as a  
            sanction for the violation of state statutes. (Cal. Const.,  
            art. I, § 28, subd. (d).)  Pursuant to Proposition 8, trial  
            courts can only exclude evidence acquired through an  
            unreasonable search or seizure by law enforcement if that  
            exclusion is required under federal law. 

            "What Proposition 8 does is to eliminate a judicially created  
            remedy for violations of the search and seizure provisions of  
            the federal or state Constitutions, through the exclusion of  
            evidence so obtained, except to the extent that exclusion  
            remains federally compelled." In re Lance W. (1985) 37 Cal. 3d  
            873,886-887.)

          6)Proposed Amendment to be Taken in Committee:  The proposed  
            amendment alters the definition of "profiling of motorcycle  
            riders."  The language of the proposed amendment is as  
            follows:  
          
          (c) For purposes of this section, "profiling of motorcycle  
          riders" is the practice of detaining a suspect based on the fact  
          a person rides a motorcycle or wears motorcycle paraphernalia  
          without any individualized suspicion of the particular person  
          being stopped.

            The language of the proposed amendment is consistent with the  
            language the Legislature adopted to define "racial profiling."  
            (Cal. Pen. Code, § 13519.4.)

            Letters in Support and Opposition were submitted prior to the  
            proposed amendment.

          7)Argument in Support:  According to Western States  
            Representative Nicholas Haris of the American Motorcyclist  
            Association, "The motorcycling community is a diverse one, and  
            individual riders deserve to be judged on specific actions and  
            behaviors, not solely by their chosen mode of transportation."  








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             Mr. Haris also refers to the fact that similar legislation  
            has been enacted in Washington state in 2011 and has been  
            proposed in Minnesota and Arizona.
          


          8)Argument in Opposition:  According to the Sacramento County  
            Deputy Sheriffs' Association, the proposed legislation, ". . .  
            if enacted, will hinder our ability to protect the public by  
            classifying legitimate and constitutional police practices as  
            unlawful.  Additionally, AB 334 expressly states that law  
            enforcement officers shall be banned from legally stopping  
            motorcycle riders in cases where officers have a legal right -  
            and duty - to stop riders in violation of traffic and other  
            laws."



            "This bill in its current form will protect criminal  
            motorcycle gang members and prevent dedicated law enforcement  
            officers from ensuring the safety of the law-abiding public."

          REGISTERED SUPPORT / OPPOSITION:

          Support

          Biker's Rights Organization
          American Motorcyclist Association
          California Public Defender Association
          ABATE of California
          126 private individuals


          Opposition
          
          Sacramento County Deputy Sheriffs' Association
          Los Angeles County Professional Peace Officer Association
          Fraternal Order of Police
          Long Beach Police Officers Association
          Santa Ana Police Officers Association










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          Analysis Prepared  
          by:              David Billingsley / PUB. S. / (916) 319-3744