BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 1362 Hearing Date: April 19, 2016
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|Author: |Mendoza |
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|Version: |March 31, 2016 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|JRD |
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Subject: Los Angeles County Metropolitan Transportation
Authority: Security Officers
HISTORY
Source: Teamsters
Prior Legislation:None known
Support: Unknown
Opposition:None known
PURPOSE
The purpose of this legislation is to: (1) authorize a person
regularly employed as a security officer by the Los Angeles
County Metropolitan Transit Authority (LACMTA) to detain a
person, as specified; (2) authorize these persons to carry a
wooden club or baton, as specified; (3) allow these persons to
carry a shotgun, as specified; (4) authorize the sale, giving,
lending, and importation of any large-capacity magazine to
LACMTA; and (5) authorize security officers employed by LACMTA
to possess large-capacity magazines, as specified.
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Existing law provides for the licensure and regulation of
private patrol operators (PPOs), armored contract carriers, and
security guards by the Bureau of Security and Investigative
Services (BSIS or Bureau) in the Department of Consumer Affairs
(DCA) under the Private Security Services Act (Act). (Business
and Professions Code § 7580 et. seq.)
Existing law defines a PPO as a person who, for any
consideration, furnishes a watchman, guard, patrolperson or
other person to protect persons or property. (Business and
Professions Code § 7582.1.)
Existing law defines a security guard or security officer as an
employee of a PPO whose job duties include protecting persons or
property. (Business and Professions Code § 7582.1.)
Existing law exempts from the Act specific persons from its
requirements. (Business and Professions Code § 7582.2.)
Existing law exempts from the Act, an officer or employee of the
United States of America, or of this state or a political
subdivision thereof, while the officer or employee is engaged in
the performance of his or her official duties. (Business and
Professions Code § 7582.2(b).)
Existing law requires that every licensee and any person
employed and compensated by a licensee, other lawful business or
public agency as a security guard or patrolperson, and who in
the course of that employment or business carries a firearm,
complete a course of training in the exercise of the powers to
arrest and a course of training in the carrying and use of
firearms. The course of training in the carrying and use of
firearms is not be required of any employee who is not required
or permitted by a licensee to carry or use firearms. The course
in the carrying and use of firearms and the course of training
in the exercise of the powers to arrest must meet the standards
prescribed by DCA, as specified.(Business and Professions Code §
7583.5.)
Existing law requires that a person entering the employ of a
licensee to perform the functions of a security guard or a
security patrolperson complete a course in the exercise of the
power to arrest prior to being assigned to a duty location, as
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specified. (Business and Professions Code § 7583.6.)
Existing law provides that the course of training in the
exercise of the power to arrest may be administered, tested, and
certified by any licensee or by any organization or school
approved by the department. The course of training shall be
approximately eight hours in length and shall cover the
following topics:
o Responsibilities and ethics in citizen arrest.
o Relationship between a security guard and a
peace officer in making an arrest.
o Limitations on security guard power to arrest.
o Restrictions on searches and seizures.
o Criminal and civil liabilities.
§ Personal liability.
§ Employer liability.
o Trespass law.
o Ethics and communications.
o Emergency situation response, including
response to medical emergencies.
o Security officer safety.
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o Any other topic deemed appropriate by the
bureau.
(Business and Professions Code § 7583.7.)
Existing law requires that the course of training in the
carrying and usage of the baton, the satisfactory completion of
which shall be required of applicants who wish to obtain a baton
permit, shall be in the format prescribed by DCA as delineated
in the bureau's "Baton Training Manual." The course of training
contained in the manual shall include, but not be limited to,
the following subjects:
Moral and legal aspects of baton usage.
Use of force.
Baton familiarization and uses.
First aid for baton injuries.
Fundamentals of baton handling.
o Stances and grips.
o Target areas.
o Defensive techniques.
o Control techniques.
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o Arrest and control techniques.
Examination of the subject matter as taught in the
classroom and as provided by the bureau.
(Business and Professions Code § 7583.9.)
Existing law requires that all baton course material provided to
the certificate holder in the "Baton Training Manual" issued by
the bureau be covered in each class session. And, in no event
shall the class instruction for the course required for baton
certification total less than eight hours. (Business and
Professions Code § 7583.13.)
Existing law requires that a baton training facility issue a
bureau-developed baton permit to any person who successfully
completes a baton training course as described in Section 7585.9
and possesses a valid security guard registration card issued
pursuant to Article 4 (commencing with Section 7583) or who has
made application for that registration card. (Business and
Professions Code § 7583.14.)
Existing law makes it unlawful to possess a loaded rifle or
shotgun in any vehicle or conveyance or its attachments which is
standing on or along or is being driven on or along any public
highway or other way open to the public, as specified. This
prohibition does not apply to peace officers or members of the
Armed Forces of this state or the United States, while on duty
or going to or returning from duty. (Fish and Game Code §
2006.)
Existing law authorizes certain persons who are not peace
officers to exercise the powers of arrest under certain
circumstances, if they have completed a specific training
course prescribed by the Commission on Peace Officer
Standards and Training. (Penal Code § 830.7).
Existing law provides that an arrest is taking a person
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into custody, in a case and in the manner authorized by
law. An arrest may be made by a peace-officer or by a
private person. (Penal Code § 834.)
Existing law allows a private person to arrest another:
For a public offense committed or attempted in his
presence.
When the person arrested has committed a felony,
although not in his presence.
When a felony has been in fact committed, and he has
reasonable cause for believing the person arrested to have
committed it.
(Penal Code § 837).
Existing law provides that, nothing in any provision listed in
Section 16580, prohibits any police officer, special police
officer, peace officer, or law enforcement officer, from
carrying any wooden club or baton. (Penal Code § 22295(a).)
Existing law provides that, nothing in any provision listed in
Section 16580 prohibits a uniformed security guard, regularly
employed and compensated by a person engaged in any lawful
business, while actually employed and engaged in protecting and
preserving property or life within the scope of employment, from
carrying any wooden club or baton if the uniformed security
guard has satisfactorily completed a course of instruction
certified by DCA in the carrying and use of the club or baton,
as specified. (Penal Code § 22295(b) and (c).)
Existing law states that any uniformed security guard who
successfully completes a course of instruction under this
section is entitled to receive a permit to carry and use a club
or baton within the scope of employment, issued by DCA. (Penal
Code § 22295(d).)
Existing law states that any person who has received a permit or
certificate that indicates satisfactory completion of a club or
baton training course approved by the Commission on Peace
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Officer Standards and Training prior to January 1, 1983, is not
be required to obtain a club or baton permit or complete a
course certified by DCA. (Penal Code § 22295(e).)
Existing law provides that a person is guilty of carrying a
loaded firearm when the person carries a loaded firearm
upon the person or in a vehicle while at any public place
or on any public street in an incorporated city or in any
public place or on any public street in a prohibited area
of an unincorporated territory. (Penal Code § 25850(a).)
Existing law provides that section 25850 does not apply to any
armored vehicle guard, as defined in Section 7582.1 of the
Business and Professions Code, if either of the following
conditions is satisfied:
The guard was hired prior to January 1, 1977, and is
acting within the course and scope of employment.
The guard was hired on or after January 1, 1977, has
received a firearms qualification card from the Department
of Consumer Affairs, and is acting within the course and
scope of employment.
(Penal Code § 26015.)
Existing law provides that security guards are allowed to
carry concealed weapons while actually shipping,
transporting, or delivering money or other things of value.
(Penal Code § 25630.)
Existing law provides that uniformed security guards or
night watch persons employed by any public agency, while
acting within the scope and course of their employment, may
carry loaded firearm as long as they have been issued a
certificate from the DCA indicating they have completed a
course in the carrying and use of firearms and a course
training in the exercise of the power of arrest. (Penal
Code § 26030.)
Existing law provides that, except as specified, any person
in this state who manufactures or causes to be
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manufactured, imports into the state, keeps for sale, or
offers or exposes for sale, or who gives, or lends, any
large-capacity magazine is punishable by specific penalties
or as a felony. (Penal Code § 32310.)
Existing law exempts any federal, state, county, city, and
county, or city agency that is charged with the enforcement
of any law from the sale of, giving of, lending of,
importation into this state of, purchase of, any large
capacity magazine. (Penal Code § 32400.)
This bill provides that, notwithstanding any other law, persons
regularly employed as security officers by the Los Angeles
County Metropolitan Transportation Authority are not peace
officers and may not exercise the powers of arrest of a peace
officer, as specified in Section 836. However, these persons may
be authorized by the governing board of the authority to detain
individuals on properties owned, controlled, operated, and
administered by the authority when exigent circumstances exist.
For purposes of this section, exigent circumstances exist only
when the security officer has probable cause to believe that a
person is at risk of serious bodily injury or death or a person
has been assaulted and the suspect is attempting to flee. A
detention made pursuant to this section shall be limited to a
reasonable time to allow for an investigation by a peace
officer.
This bill provides that nothing in any provision listed in
Section 16580 prohibits a security officer regularly employed by
the Los Angeles County Metropolitan Transportation Authority
from carrying any wooden club or baton.
This bill provides that notwithstanding Section 25850 of this
code and Section 2006 of the Fish and Game Code, a person
regularly employed by the Los Angeles County Metropolitan
Transportation Authority as a security officer may be permitted
to carry a shotgun, as defined in Section 17190, in a patrol
vehicle or armored vehicle owned by the authority for use in
carrying out the security officer's official duties when
performing revenue protection duties. A security officer may
only carry a shotgun in a vehicle pursuant to this section if
the vehicle is an armored vehicle designated for revenue
collection and only when the officer is performing revenue
protection duties.
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This bill provides that Section 32310 does not apply to the sale
of, giving of, lending of, importation into this state of, or
purchase of, any large-capacity magazine to or by the Los
Angeles County Metropolitan Transportation Authority for use by
its employee security officers in the discharge of their
official duties.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several 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 December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 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).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
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v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state 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:
Security officers employed by the Los Angeles County Mass
Transit Authority (LACMTA) are charged with the protection
of transit personnel, transit property, and persons using
transit services. Over the years, their job has become
increasingly dangerous. It often requires interaction with
individuals engaged in criminal conduct, individuals
threatening violence, or, in some circumstances, individuals
committing violent acts. Unfortunately, the law is not
clear with respect to what these officers can do once
they've detained an individual committing these acts. Since
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they are not peace officers, LACMTA security officers are
limited to making a citizen's arrest. This creates
significant liability concerns. An additional matter dealt
with in this bill is to clarify what weapons LACMTA security
officers are permitted to use in the course of their duties.
2. Background of Los Angeles County Metropolitan Transit
Authority
LACMTA is the public transportation operating agency for the
County of Los Angeles formed in 1993 out of a merger of the
Southern California Rapid Transit District and the Los Angeles
County Transportation Commission. It is chartered under state
law as a regional transportation planning agency.
Metro directly operates bus, light rail, heavy rail, and bus
rapid transit services. It provides funding and directs
planning for commuter rail and freeway/expressway projects
within Los Angeles County. In February 2016, LACMTA reports
that there were 26,233,143 boardings for the bus system. With
respect to the rail system, LACMTA highlights that there were
34,785,787 boardings.
The agency develops and oversees transportation plans, policies,
funding programs, and both short-term and long-range solutions
that address the county's increasing mobility, accessibility and
environmental needs. The agency is also the primary transit
provider for the City of Los Angeles providing the bulk of such
services while the City of Los Angeles Department of
Transportation operates a much smaller system of its own
Commuter Express bus service to outlying suburbs in the city of
Los Angeles and the Downtown Area Short Hop (DASH), mini-bus
service in downtown and other neighborhoods in the city of Los
Angeles.
3. Bureau of Security and Investigative Services in the
Department of Consumer Affairs
Bureau of Security and Investigative Services (BSIS) currently
licenses about 380,000 companies and employees serving in the
areas of alarm services, locksmith services, private
investigation, private security, repossession, and firearm and
baton training. Based on the past three fiscal years, the
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Bureau issues an average of 1,900 company licenses, 71,000
employee registrations, and 12,000 Bureau firearm permits. On
average, the Bureau renews 9,500 company licenses, 105,000
employee registrations, and 11,500 Bureau firearm permits each
year.
Specifically, the Bureau regulates the following Acts:
Alarm Company Act
Locksmith Act
Private Investigator Act
Private Security Services Act
Proprietary Security Services Act
Collateral Recovery Act
Currently, BSIS does not have jurisdiction over LACMTA since it
is a public agency. However, the Bureau does regulate
individuals that desire to be a security guard and carry a
firearm and baton.
Standard procedure for LACMTA security guards include
registering with BSIS as a security guard and applying for a
firearms and baton permit. Applicants undergo a rigorous
application process where they must complete a background check
and other mandatory training requirements. Once registration is
complete and both permits are received, LACMTA security guards
can carry both a firearm and baton. Approximately 90% of
LACMTA's security guards are classified as armed guards.
4. Memorandum of Understanding with Los Angeles Sheriff's
Department
LACMTA currently has a Memorandum of Understanding (MOU) with
the Los Angeles Sheriff's Department to provide law enforcement
services. This MOU was recently extended. In a letter to the
Board of Supervisors, the Los Angeles Sheriff stated:
IT IS RECOMMENDED THAT THE BOARD:
Delegate authority to the Sheriff, as an agent for the
County, to execute Modification Number Twelve
(Modification) to the Agreement for Transit Community
Policing Services with Metro, extending the term of the
Agreement for one year, from July 1, 2015, through June 30,
SB 1362 (Mendoza ) PageM
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2016, at a maximum annual cost not to exceed $102,851,601.
The total not to exceed contract sum is $568,627,498.
The purpose of the Modification to this Agreement is to
provide Metro with law enforcement services for an
additional year, from July 1, 2015, through June 30, 2016.
The Agreement was approved by the Board on June 30, 2009,
and will expire on June 30, 2015.
Metro completed an extensive public safety audit in 2014.
However, Metro is in the process of reviewing the audit
findings and implementing the necessary corrective
measures. Metro is also in the process of deciding what
contract changes they will require in the next Request for
Proposal (RFP). It is in the best interest of Metro and the
County to extend the term of the current Agreement in order
for Metro and the Department to review the audit findings
and make plans for adjusting Transit Community Policing
Services provided to Metro. An extension of the Agreement
for one year through June 30, 2016, will allow for the
continued provision of law enforcement services by the
Department, while the parties negotiate a new agreement for
law enforcement services.
The Agreement with Metro has provided benefits to the
County as a whole, primarily resulting in greater
visibility and faster response times to all Metro related
incidents. This has further enhanced the Department's
ability to deploy personnel and other resources during
times of mutual aid, disaster, and emergency. The
Department has been able to expand partnerships, provide
greater responsiveness, and increase regional focus on
reducing crime as a result of serving Metro within the
County. (http://file.lacounty.gov/bos/supdocs/94997.pdf.)
4. Effect of This Legislation
Arrest Provisions
Existing law allows a private person to arrest another: (1) for
a public offense committed or attempted in his presence; (2)
when the person arrested has committed a felony, although not in
his presence; or, (3) when a felony has been in fact committed,
and he has reasonable cause for believing the person arrested to
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have committed it. (Penal Code § 837.) Because armed security
officers are not peace officers, they exercise a private
person's power to arrest, which, in most cases, does not allow
security officers to detain an individual. The BSIS training
manual explains,
A person who voluntarily responds to questioning and is not
actually restrained (i.e., free to go at any time) is
considered to be detained. A person may be detained by the
police for further questioning in an investigation, and
that person is not necessarily under arrest. The police
have the authority to detain a person against his/her will
and still not arrest
that person. Security guard/proprietary private security
officers do not have the authority to detain a person
against their will except under Penal Code Section 490.5
[allows merchants to detain shoplifters]. . . (Power to
Arrest Training Manual, BSIS, June 2015,
http://www.bsis.ca.gov/forms_pubs/poa.pdf.)
This legislation authorizes an armed security guard to detain a
suspect when working for LACMTA. Specifically, this legislation
would authorize detention in cases in which these guards are
"authorized by the governing board of the authority to detain
individuals on properties owned, controlled, operated, and
administered by the authority when exigent circumstances exist.
For purposes of this section, exigent circumstances exist only
when the security officer has probable cause to believe that a
person is at risk of serious bodily injury or death or a person
has been assaulted and the suspect is attempting to flee. A
detention made pursuant to this section shall be limited to a
reasonable time to allow for an investigation by a peace
officer."
Security Guard use of a Baton
Security guards are currently allowed to carry a baton.
Specifically, existing law states that any uniformed security
guard who successfully completes a course of instruction under
this section is entitled to receive a permit to carry and use a
club or baton within the scope of employment, issued by the DCA.
(Penal Code § 22295(d).) This legislation, as drafted, would
allow a security officer who is regularly employed by LACMTA to
carry and use a club or baton without training or a permit.
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Members may wish to consider whether it is appropriate to allow
a security officer, with not training, to carry and use a club
or baton.
Security Officer Carrying Shotgun
Under existing law it is a crime to carry a loaded firearm
upon your person or in a vehicle while at any public place.
(Penal Code § 25850(a).) Armored vehicle guards are,
however, exempt from this prohibition, so long as they
possess a firearms qualification card from DCA, and they
are acting within the course and scope of employment.
(Penal Code § 26015.) However, a provision of the fish and
game code makes it unlawful to possess a loaded rifle or
shotgun in any vehicle which is standing on or along or is
being driven on or along any public highway or other way
open to the public. (Fish and Game Code § 2006). The
only exceptions to this provision are for law enforcement
and law enforcement. (Id.)
This legislation would allow a security officer employed by the
LACMTA to carry a shotgun in a patrol vehicle or armored vehicle
for use in carrying out the security officer's official duties
when performing revenue protection duties. And, limits this
ability to when a security officer is in an armored vehicle
designated for revenue collection and only when the officer is
performing revenue protection duties. While these provisions
bring clarity and consistency to the code, members may wish to
consider recommending an amendment requiring that a security
officer that carries a shotgun pursuant to this legislation
possess a firearms qualification card from DCA.
Security Officer Use of a Large-capacity Magazine
An existing state law bans the sale and manufacture of
high-capacity magazines, but allows possession of the magazines.
(Penal Code §32400.) Los Angeles recently passed a city
ordinance prohibiting the possession of large-capacity magazines
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(magazines that contain more than 10 rounds).<1> The ordinance
lists a number of groups that are exemption from the
prohibition, including law enforcement, historical societies,
and armored car businesses.
The LACMTA is, however, not exempt from the prohibition on
large-capacity magazines. As such, this legislation seeks to
allow LACMTA to purchase large-capacity magazines and for their
officers to us them in their official duties. Members may wish
to consider whether it is appropriate to grant this exemption to
LACMTA, which would act as an exception to the recently enacted
Los Angeles ordinance.
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<1> The Los Angeles City Council approved the ordinance on July
18, 2015. The mayor signed the ordinance on August 7, 2015.
The ordinance went into effect on September 19, 2015.
(https://cityclerk.lacity.org/lacityclerk
connect/index.cfm?fa=ccfi.viewrecord&cfnumber=13-0068.) There
were additional exceptions to the ordinance added in January of
2016.
(https://cityclerk.lacity.org/lacityclerkconnect/index.cfm?fa=ccf
i. viewrecord&cfnumber =13-0068-S2.)