BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 2361 Hearing Date: June 21, 2016
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|Author: |Santiago |
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|Version: |June 15, 2016 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|JRD |
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Subject: Reserve Peace Officers: Private Universities
HISTORY
Source: University of Southern California; California College
and University Police Chiefs Association
Prior Legislation:Senate Bill 1126 (Presley) - 1991, relevant
portion of the bill removed
Support: University of Southern California; University of
California, Los Angeles; Claremont College Campus
Safety Department; California Association of Code
Enforcement Officers; California Narcotic Officers
Association; Los Angeles County Professional Peace
Officers Association; Association for Los Angeles
Deputy Sheriffs; Los Angeles Police Protective League;
Riverside Sheriffs Association; Western Association of
Campus Law Enforcement; one individual
Opposition:American Civil Liberties Union of California;
California Public Defenders Association
Assembly Floor Vote: 71 - 3
PURPOSE
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The purpose of this legislation is to allow local law
enforcement agencies to deputize or appoint reserve officers at
private universities, as specified.
Existing law provides whenever any qualified person is deputized
or appointed by the proper authority as a reserve or auxiliary
sheriff or city police officer, a reserve deputy sheriff, a
reserve deputy marshal, a reserve police officer of a regional
park district or of a transit district, a reserve park ranger, a
reserve harbor or port police officer of a county, city, or
district as specified in Section 663.5 of the Harbors and
Navigation Code, a reserve deputy of the Department of Fish and
Game, a reserve special agent of the Department of Justice, a
reserve officer of a community service district which is
authorized under subdivision (h) of Section 61600 of the
Government Code to maintain a police department or other police
protection, a reserve officer of a school district police
department under Section 35021.5 of the Education Code, a
reserve officer of a community college police department under
Section 72330, a reserve officer of a police protection district
formed under Part 1 (commencing with Section 20000) of Division
14 of the Health and Safety Code, or a reserve housing authority
patrol officer employed by a housing authority defined in
subdivision (d) of Section 830.31, and is assigned specific
police functions by that authority, the person is a peace
officer, if the person qualifies as set forth in Section 832.6.
The authority of a person designated as a peace officer pursuant
to this paragraph extends only for the duration of the person's
specific assignment. A reserve park ranger or a transit, harbor,
or port district reserve officer may carry firearms only if
authorized by, and under those terms and conditions as are
specified by, his or her employing agency. (Penal Code § 830.6
(a)(1).)
Existing law provides whenever any qualified person is deputized
or appointed by the proper authority as a reserve or auxiliary
sheriff or city police officer, a reserve deputy sheriff, a
reserve deputy marshal, a reserve park ranger, a reserve police
officer of a regional park district, transit district, community
college district, or school district, a reserve harbor or port
police officer of a county, city, or district as specified in
Section 663.5 of the Harbors and Navigation Code, a reserve
officer of a community service district that is authorized under
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subdivision (h) of Section 61600 of the Government Code to
maintain a police department or other police protection, or a
reserve officer of a police protection district formed under
Part 1 (commencing with Section 20000) of Division 14 of the
Health and Safety Code, and is so designated by local ordinance
or, if the local agency is not authorized to act by ordinance,
by resolution, either individually or by class, and is assigned
to the prevention and detection of crime and the general
enforcement of the laws of this state by that authority, the
person is a peace officer, if the person qualifies as set forth
in paragraph (1) of subdivision (a) of Section 832.6. The
authority of a person designated as a peace officer pursuant to
this paragraph includes the full powers and duties of a peace
officer as provided by Section 830.1. A transit, harbor, or port
district reserve police officer, or a city or county reserve
peace officer who is not provided with the powers and duties
authorized by Section 830.1, has the powers and duties
authorized in Section 830.33, or in the case of a reserve park
ranger, the powers and duties that are authorized in Section
830.31, or in the case of a reserve housing authority patrol
officer, the powers and duties that are authorized in
subdivision (d) of Section 830.31, and a school district reserve
police officer or a community college district reserve police
officer has the powers and duties authorized in Section 830.32.
(Penal Code § 830.6 (a)(2).)
Existing law states that the following persons are not peace
officers but may exercise the powers of arrest of a peace
officer as specified in Section 836 during the course and within
the scope of their employment, if they successfully complete a
course in the exercise of those powers pursuant to Section 832:
Persons designated by a cemetery authority pursuant to
Section 8325 of the Health and Safety Code.
Persons regularly employed as security officers for
independent institutions of higher education, recognized
under subdivision (b) of Section 66010 of the Education
Code, if the institution has concluded a memorandum of
understanding, permitting the exercise of that authority,
with the sheriff or the chief of police within whose
jurisdiction the institution lies.
Persons regularly employed as security officers for
health facilities, as defined in Section 1250 of the Health
and Safety Code, that are owned and operated by cities,
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counties, and cities and counties, as specified .
Employees or classes of employees of the California
Department of Forestry and Fire Protection designated by
the Director of Forestry and Fire Protection, as specified.
Persons regularly employed as inspectors, supervisors,
or security officers for transit districts, as defined in
Section 99213 of the Public Utilities Code, as specified.
Nonpeace officers regularly employed as county parole
officers pursuant to Section 3089.
Persons appointed by the Executive Director of the
California Science Center pursuant to Section 4108 of the
Food and Agricultural Code.
Persons regularly employed as investigators by the
Department of Transportation for the City of Los Angeles
and designated by local ordinance as public officers, as
specified.
Persons regularly employed by any department of the City
of Los Angeles who are designated as security officers and
authorized by local ordinance to enforce laws related to
the preservation of peace in or about the properties owned,
controlled, operated, or administered by any department of
the City of Los Angeles and authorized by a memorandum of
understanding with the Chief of Police of the City of Los
Angeles permitting the exercise of that authority..
Illegal dumping enforcement officers or code enforcement
officers, as specified.
(Penal Code §830.7.)
Existing law provides that every person deputized or appointed
shall have the powers of a peace officer only when the person is
any of the following:
A level I reserve officer deputized or appointed
pursuant to paragraph (1) or (2) of subdivision (a) or
subdivision (b) of Section 830.6 and assigned to the
prevention and detection of crime and the general
enforcement of the laws of this state, whether or not
working alone, and the person has completed the basic
training course for deputy sheriffs and police officers
prescribed by the Commission on Peace Officer Standards and
Training. For level I reserve officers appointed prior to
January 1, 1997, the basic training requirement shall be
the course that was prescribed at the time of their
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appointment. Reserve officers appointed pursuant to this
paragraph shall satisfy the continuing professional
training requirement prescribed by the commission.
A level II reserve officer assigned to the prevention
and detection of crime and the general enforcement of the
laws of this state while under the immediate supervision of
a peace officer who has completed the basic training course
for deputy sheriffs and police officers prescribed by the
Commission on Peace Officer Standards and Training, and the
level II reserve officer has completed the course required
by Section 832 and any other training prescribed by the
commission. Level II reserve officers appointed pursuant to
this paragraph may be assigned, without immediate
supervision, to those limited duties that are authorized
for level III reserve officers pursuant to paragraph (3).
Reserve officers appointed pursuant to this paragraph shall
satisfy the continuing professional training requirement
prescribed by the commission.
Level III reserve officers may be deployed and are
authorized only to carry out limited support duties not
requiring general law enforcement powers in their routine
performance. Those limited duties shall include traffic
control, security at parades and sporting events, report
taking, evidence transportation, parking enforcement, and
other duties that are not likely to result in physical
arrests. Level III reserve officers while assigned these
duties shall be supervised in the accessible vicinity by a
level I reserve officer or a full-time, regular peace
officer employed by a law enforcement agency authorized to
have reserve officers. Level III reserve officers may
transport prisoners without immediate supervision. Those
persons shall have completed the training required under
Section 832 and any other training prescribed by the
commission for those persons.
(Penal Code § 832.6 (a)(1)-(3).)
Existing law states that a reserve officer who has previously
satisfied the training requirements stated, and has served as a
level I or II reserve officer within the three-year period prior
to the date of a new appointment shall be deemed to remain
qualified as to the Commission on Peace Officer Standards and
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Training requirements if that reserve officer accepts a new
appointment at the same or lower level with another law
enforcement agency. If the reserve officer has more than a
three-year break in service, he or she shall satisfy current
training requirements. This training shall fully satisfy any
other training requirements required by law, including those
specified in Section 832. (Penal Code §832.6(a)(5).)
This bill provides that, notwithstanding subdivision (b) of
Section 830.7, a person regularly employed as a security officer
for an independent institution of higher education recognized
under subdivision (b) of Section 66010 of the Education Code may
be deputized or appointed by the sheriff or the chief of police
of the jurisdiction in which the institution is located as a
reserve deputy or officer pursuant to Section 830.6,
notwithstanding that he or she is compensated by the institution
of higher education or that the assigned specific law
enforcement functions and duties may be of a recurring or
continuous nature, if both of the flowing requirements are met:
The person meets the requirements specified in Section
832.6, as specified.
The institution of higher education and the appropriate
local law enforcement agency have entered into a memorandum
of understanding.
This bill provides that the authority of a person designated as
a peace officer pursuant to this section applies only while he
or she is engaged in the performance of his or her assigned
duties, as specified.
This bill provides that vehicles owned by institutions of higher
education that are specifically designated for use by the
institutions' employees who are designated as reserve deputies
or officers pursuant to this section shall be deemed authorized
emergency vehicles for all purposes of the law within the
jurisdictions specified by the sheriff or the chief of police.
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
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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).
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
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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 Legislation
According to the author:
In California, limited peace officer status is granted to
security officers employed by the University of California,
California State University, and California community
colleges (Penal Code § 830.2 and 830.32; Education Code §
92600, 89560, and 72330). Unlike their counterparts at
public institutions, security officers at various
independent institutions of higher education are not
classified as peace officers, and therefore lack equivalent
powers. This current arrangement limits the provision of an
appropriate level of campus security.
California statute offers two opportunities for enhanced
security capabilities at private, non-profit independent
colleges: reserve officers (P.C. § 830.6) and limited
powers of arrest (P.C. § 830.7). However, these remedies
remain inadequate. First, statute is unclear on whether all
independent institutions of higher education can utilize
reserve officers. Second, limited powers of arrest are not
sufficient for the increasingly unique security situations
present on college campuses.
AB 2361 clarifies that independent institutions of higher
education can utilize reserve officers. This measure allows
security officers employed by independent institutions of
higher education to be deputized or appointed by the
sheriff or chief of police of the jurisdiction in which the
institution is located as a reserve deputy or officer,
provided (1) the individual being deputized or appointed
has met specified training requirements and (2) the
institution has a memorandum of understanding (MOU) with
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local law enforcement that permits this action. This
measure will help improve campus safety at independent
institutions of higher education.
2.Prior-POST Feasibility Study
The Penal Code states that any person or persons desiring peace
officer status "shall request the Commission on Peace Officer
Standards and Training to undertake a feasibility study
regarding designating that person or persons as peace officers."
(Penal Code § 13540(a). And, any person or persons who are
designated as peace officers "who desire a change in peace
officer designation or status, shall request the Commission on
Peace Officer Standards and Training to undertake a study to
assess the need for a change in designation or status." (Penal
Code § 13540(b).)
In October 1990, the Association of Independent California
Colleges and Universities requested a peace officer feasibility
study regarding peace officer positions for private colleges and
universities described in Senate Bill 1126 (Presley, of
1991).<1> The study was to focus on Stanford University,
University of the Pacific, and University of Southern
California.
The POST study found:
Peace officer authority is one appropriate means to provide
for the safety and security of private educational
institutions. However, law enforcement officers and
university security officers do not agree on the need for
peace officer authority for private university security
departments. This difference of opinion also exists among
the other states contact in this study.
The three institutions which are the focus of this study
have demonstrated a need for a security program. However,
this need should not be presumed to exist at other private
educational institutions. Senate Bill 1126 does not
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<1> SB 1126, introduced in March 1991, would have bestowed upon
any private, accredited, postsecondary educational institution
the authority to employ peace officers.
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require a demonstration of need by institutions which are
not the subject of the study.
Because alternate models exist to provide security services
to private colleges and universities, it is inappropriate
to create a new category of peace officer solely for the
use of private educational institutions. Additionally, the
creation of a new category of peace officer must follow the
public policy decision by the Legislature to delegate
governmental police power to private enterprise.
(A Report to the Legislature and the Association of
Independent California Colleges and Universities on Peace
Officer Feasibility Study, October 1991.)
The study, thus, recommended:
The Commission recommends the public policy issue, the
delegation of governmental policy power to a private
entity, be decided by the Legislature before a new peace
officer category is created.
The Commission further recommends that employees of private
universities and colleges not be designated as peace
officers. (Id.)
The report outlined five alternative models for campus security
including:
Utiliz[ing] reserve peace officers of the local agency in
which the educational jurisdiction the educational
institution is located.
This is the model employed by Stanford University and
University of the Pacific.
Issues related to the proper and legal use of reserve
officers exist in this model. Issues include civil
liability; supervision and management of a law enforcement
program by the appointing authority; and, concerns
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regarding the continued use of this alternative. (Id.)
3.Reserve Officers at Private Universities: Stanford University
and University of the Pacific
Penal Code section 830.6 provides local law enforcement with the
ability to deputize or appoint reserve officers. In 1973,
Assemblymember Dixon Arnett requested an Attorney General
Opinion on the following question:
May a sheriff assign specific peace officer functions of a
continuing nature to a reserve deputy under section 830.6
of the Penal Code, although the reserve officer is paid by
another entity?
The Attorney General opinion concluded:
Under state law, a sheriff may assign specific law
enforcement functions to his reserve deputies even though
they are paid by another entity and the assigned duties may
be of a recurring or continuous nature. Such deputies are
peace officers only while performing their assigned duties
in behalf of the sheriff. (California Attorney General's
Opinion, 56 Ops. Cal. Atty. Gen. 390 (1973.)
Both the University of the Pacific and Stanford University
depend on this interpretation of 830.6 to support their use of
reserve officers for campus security. As stated above, there
are issues related to the use of reserve officers for campus
security, including supervision and liability. The MOU between
Stanford and the Sheriff of the County of Santa Clara clearly
addresses these issues. The MOU begins by stating:
In order to provide for the assignment of certain specific
police functions to qualified members of the Stanford
University Department of Public Safety, and in compliance
with the request of the University, the Sheriff of the
County of Santa Clara will deputize Reserve Deputy Sheriffs
(under Section 830.6 of the Penal Code) under conditions
herewith set forth.
The MOU specifies that:
All persons to be deputized as Stanford Reserves pursuant
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to his memorandum must:
A. be employed full time by the Stanford
University Department of Public Safety;
B. meet the minimum standards for employment as
prescribed by the California Commission on Peace
Officer Standards and Training and such further
reasonable qualifications deemed necessary by the
Sheriff;
C. meet the minimum standards for training as
prescribed by the California Commission on Peace
Officer Standards and Training for Level I Reserve
Deputy Sheriffs as described in Sections 830.6 and
832.6 of the California Penal Code and such further
reasonable standards for training as required by the
Sheriff;
D. be recommended for such deputization by the
Chief and approved by the Sheriff or his/her designee.
With regard to management and supervision the MOU states:
The Sheriff's oversight and operational authority under
this Agreement will be carried out by a Captain employed by
the Santa Clara Officer of the Sheriff who shall act at the
direction of the Sheriff in policy matters and at the
direction of the Chief<2> in operational matters, unless
specifically directed by the Sheriff. . .
Stanford University agrees to fund the Captain position
discussed immediately above and will pay, in quarterly
installments, that amount equaling the annual salary and
benefits which the Captain receives from the Santa Clara
County Officer of the Sheriff.
The MOU, additionally, addresses liability:
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<2> According to the MOU, the "operational control and
supervision of Stanford Reserves for such functions performed as
private citizen employees of Stanford University shall be
exercised by the Chief. . ."
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Stanford University will provide for its own coverage for
any potential liability arising from actions of the
Stanford Reserves . . . pursuant to the Memorandum and in
the event that additional premiums are necessary in order
that the Stanford Reserves be covered by the false arrest
insurance provided by the County of Santa Clara, Stanford
University will agree to pay the additional amount. The
University will also agree to indemnify, save harmless and
defend the County of Santa Clara and tis officers, agents
and employees from all liability or claims for money or
damages, arising from any allege negligent or wrongful acts
or omissions of on-duty Stanford Reserves and/or Stanford
University excluding any such alleged negligent or wrongful
acts or omissions done at the express and specific
direction of the Sheriff or any Sheriff's representative.
Finally, the MOU sets forth a process for internal affairs
investigations:
The Sheriff will review and approve Stanford University
Department of Public Safety polices guiding Internal
Affairs investigations. The Stanford University Department
of Public Safety will notify the Sheriff whenever it
intends to conduct an Internal Affairs investigation on a
matter that meets the requirements of the Santa Clara
County Sheriff's Office General Orders for conducting an
Internal Affairs Investigation. The Sheriff may elect to
take responsibility for such investigation.
4. Effect of this Legislation
While the University of the Pacific and Stanford both have
agreements with local law enforcement to use reserve officers,
University of Southern California has not been able to utilize
reserve officers. According to information provided to the
committee, this is because the statutes do not clearly allow for
this practice. This legislation would, thus, make it clear in
the Penal Code that local law enforcement agencies could
deputize or appoint reserve officers at private universities
in their jurisdiction, even though those officers are being paid
by another entity.
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5. Argument in Support
According to the University of Southern California:
In California, unlike their counterparts at public
institutions, security officers at public institutions,
security officers at private institutions are not
classified as peace officers, limiting their ability to
protect their campus community. Campus administrators need
to be able to provide assurance to their communities that
campus safety officials will not only take proactive
measures to prevent campus violence, but will also
effectively respond to any acts of violence and thereby
minimize harm to the communities. Campus violence, in
particular campus shooting incidents, has been occurring
with increasing frequency. In addition, many universities
are major centers of research and would also be considered
attractive targets for acts of terrorism.
6. Argument in Opposition
The American Civil Liberties Union states, with regard to the
previous version of the bill:
Penal Code section 13540 requires that "Any person or
persons desiring peace officer status?shall request the
Commission on Peace Officer Standards and Training to
undertake a feasibility study regarding designating that
person or persons as peace officers." By failing to require
such a study, this bill would violate Penal Code section
13540. The requirements of Penal Code section 13540 were
enacted precisely because so many groups would like peace
officers authority extended to them. This reflected in the
Legislature's understanding that it is frequently
approached with such requests but the decision is too
important to be dealt with in the absence of an objective
evaluation of the need.
Additionally, this bill would grant the powers reserved for
peace officers in making arrests and in the use of force
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without any of the accountability that accompanies these
awesome powers. The power given to police officers should
never be divorced from the democratic institutions that
confer that power and regulate its use. Despite their
status as peace officers, these private employees would not
be accountable to the public in any way.
At a time when communities throughout the country are
striving for greater accountability for their public police
agencies, the Legislature should not be conferring police
powers on private parties with no public accountability
whatsoever.
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