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