BILL ANALYSIS
SENATE COMMITTEE ON CRIMINAL PROCEDURE
Senator Milton Marks, Chair A
1995-96 Regular Session B
1
4
AB 1496 (V. Brown) 9
As amended June 28, 1995 6
Hearing date: July 5, 1995
Penal Code
MMB:js
peace officers -
Psychological disability and concealed weapons permits
HISTORY
Source: California Association of Highway Patrolmen
Prior Legislation: AB 141 -- Chapter 428, Statutes of 1993
Support: California Union of Safety Employees; Peace
Officers Research Association of
California; California Correctional Peace Officers
Association; California
Organization of Police and Sheriffs; Long Beach Police
Officers Association
Opposition: California State Sheriffso Association; County
of Los Angeles Sheriffos
Department
Assembly Floor Vote: Ayes 70 - Noes 0
KEY ISSUE
EXISTING LAW GENERALLY ALLOWS RETIRED PEACE OFFICERS TO CARRY CONCEALED WEAPONS IN
PUBLIC IF THEY CARRIED WEAPONS DURING THEIR ACTIVE EMPLOYMENT. HOWEVER, PEACE
OFFICERS WHO RETIRE BECAUSE OF A PSYCHOLOGICAL DISABILITY AFTER JANUARY 1, 1989,
ARE NOT GRANTED THAT AUTHORITY.
Should opsychological DISABILITYo be clarified SO THAT NOT ALL SUCH DISABILITY
RETIREMENTS PRECLUDE GRANTING SOME OF THOSE RETIRED OFFICERS THE AUTHORITY TO CARRY
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CONCEALED WEAPONS IN PUBLIC?
PURPOSE
Under existing law honorably retired peace officers who,
during the course and scope of their employment as peace
officers, were authorized to, and did, carry firearms are
authorized to carry a concealed and loaded firearm during
retirement. However, existing law states that no peace
officer who is retired after January 1, 1989 due to
psychological disability may be issued an endorsement to
carry a concealed and loaded firearm. (Penal Code ? 12027.1)
This bill would modify the term opsychological disabilityo so
that some peace officers retired for such disability would be
allowed to carry concealed weapons after retirement.
The purpose of this bill is to allow some peace officers who
retire because of a psychological disability to carry
concealed weapons during retirement.
COMMENTS
1. Authoros Statement.
According to the author, this bill seeks to clarify
opsychological disabilityo retirement. The author states
that oby clarifying this area of the law, peace officers who
retire due to physiological stress rather than psychological
stress will be able to carry a concealed weapon, if their
request is granted.o
2. This Bill.
Existing law states that any peace officer is to be retired
for disability regardless of age or amount of service, if
incapacitated for the performance of duty as the result of an
injury or disease occurring in and arising out of the course
of his or her employment. Any peace officer who is
incapacitated due to other means will be retired regardless
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of age, but only after 10 years of service as a county peace
officer. Incapacity for performance of duty shall be
determined by the board of retirement. (Government Code ?
32053)
According to the California Highway Patrol, the basis for
retirement due to psychological disability is determined in
the same manner as workerso compensation for psychological
disability and is outlined in Labor Code Section 3208.3.
However the Department of Personnel Administration states
that there is a difference between workerso compensation
disability and retirement disability. Because the definition
of disability and oincapacity for performance of dutyo as
found in Government Code Section 21020 does not differentiate
between physical disability and psychological disability,
many law
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enforcement agencies reference Labor Code Section 3208.3.
Government Code Section 21020 is as follows:
As used in this part, odisabilityo and oincapacity for
performance of dutyo as a basis of retirement, mean
disability of permanent or extended and uncertain
duration, as determined by the board, or in the case of
a local safety member by the governing body of the
contracting agency employing such member, on the basis
of competent medical opinion.
The role of PERS (Public Employees Retirement Service) is
limited to determining whether an employee of the state
qualifies for oordinary disability,o which is disability due
to the result of non-work related activities or events, or if
the employee should be granted oindustrial disabilityo which
indicates that the state employee was rendered disabled to
perform their job due to an official activity. PERS does not
make any distinctions between psychological disability and
physiological disability -- that determination is to be made
by the retiring agency.
UNDER EXISTING LAW, WOULD A LAW ENFORCEMENT AGENCY HAVE THE
AUTHORITY TO MAKE A DISTINCTION BETWEEN PHYSIOLOGICAL
DISABILITY AND PSYCHOLOGICAL DISABILITY WHEN RETIRING A PEACE
OFFICER?
This bill would define - for purposes of carrying concealed
weapons during retirement - opsychological disabilityo to
exclude retirement for stress where the sole significant
manifestation of stress is a condition of hypertension,
coronary disease, diverticulitis, ulcers, cancer, any
combination thereof or other physiologically related
conditions.
IF THE PHYSIOLOGICAL STRESS WAS NOT A RESULT OF A
PSYCHOLOGICAL CONDITION, WOULDNoT THE PEACE OFFICER BE
GRANTED RETIREMENT DUE TO PHYSICAL DISABILITY AND NOT
PSYCHOLOGICAL DISABILITY?
if a physician has determined that a peace officer is retired
for mental incapacitation OR oPSYCHOLOGICAL DISABILITYo DUE
TO THE NATURE OF THE JOB, WHAT DETERMINATION IS MADE THAT HE
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OR SHE IS WELL ENOUGH TO CARRY A LOADED AND CONCEALED WEAPON?
3. The Oppositionos Concerns (as of June 2, 1995).
The California State Sheriffso Association has stated the
following:
It is CSSAos opinion that if an officer retires on
a psychological disability, it has been determined
by competent medical authority that the officeros
mental state is such that they may not act as a
rational person in a stress situation and are no
longer competent to be a peace officer. Because of
this determination by competent medical
authorities, CSSA believes that such a person is
not eligible to have the authority to carry a
concealed firearm.
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The California State Sheriffso Association has suggested that
the bill be amended to make it permissive and not mandatory
and to give the final authority to the issuing agency. The
language they have recommended to replace the current
language on page 4, lines 11 (after the period) through 16 is
as follows:
oAn officer who retires due to psychological
disability may petition his department and his
department may approve the officeros petition to
carry a concealed and loaded firearm if the officer
provides a written opinion from a physician or
psychologist that his or her disability does not
endanger the retired officer or others.o
The Los Angeles County Sheriffos Department is concerned that
opeace officers who retire as a result of a psychological
disability do so only after a carefully considered
evaluation. A determination that a person is unfit for duty
as a peace officer is made both to ensure the officeros
welfare and to protect the public at large. Unsuitability
for duty generally entails an inability to manage stresses
associated with decision-making in crisis situations, a
deficient perception of reality, or inappropriate emotional
responses when interacting with people. The level of risk
and danger posed to themselves and others may be transitory
or variable in nature, depending on the level of stress
experienced, current treatment (including medication) and
other factors at a given point in time.o
The Los Angeles County Sheriffos Department also notes that
while the above stated conditions can be stabilized, ongoing
medical or psychiatric treatment is usually desirable. The
Sheriffos Department states that once an officer is retired,
othere is no obligation to seek continued treatment.
Psychologically disabled officers are not subject to
monitoring or continuing assessment by either mental health
professionals or their co-workers and supervisors after they
have retired.o
IF AN OFFICER WHO IS RETIRED ON STRESS DISABILITY IS GRANTED
CERTIFICATION TO CARRY A CONCEALED AND LOADED FIREARM IN
PUBLIC, SHOULD HE OR SHE BE REQUIRED TO HAVE THEIR STRESS
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CONDITION MONITORED AND RE-EVALUATED BY THE CERTIFYING OR
ENDORSING AGENCY?
4. Additional Comments.
IF A PEACE OFFICER, WHO WAS RETIRED FOR oPSYCHOLOGICAL
DISABILITYo AND WAS ELIGIBLE TO CARRY HIS OR HER CONCEALED
AND LOADED WEAPON, HARMED HIMSELF OR HERSELF, OR ANOTHER
INDIVIDUAL, WOULD THE CERTIFYING OR ENDORSING AGENCY BE HELD
LIABLE?
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5. Prior Legislation.
AB 141 (1993) rewrote Penal Code Section 12027.1 to permit
all honorably retired peace officers to carry firearms
concealed and loaded, if during the course of their
employment they were authorized to carry firearms.
AB 141 specified that individuals retired because of
psychological disability shall not be authorized to carry
loaded firearms.
The Governoros signature message, dated September 21, 1993,
regarding AB 141, as found in the Assembly Daily Journal for
the 1993-1994 Regular Session, page 4748, stated the
following:
This bill [AB 141] would authorize all honorably
retired peace officers who carried a firearm in the
course of his or her duties when active to carry a
concealed weapon upon retirement. Also, this bill
would require full notice and binding arbitration
for any denial or revocation of this privilege.
I am concerned, however, that the requirement for
law enforcement agencies to participate in binding
arbitration to deny or revoke a retireeos authority
to carry a concealed weapon is too onerous.
Currently law enforcement agencies follow
departmental procedures and offer limited hearings
prior to making their decisions whether to deny or
revoke a retireeos privilege. This is sufficient.
If a retiree is denied by the employing agency, the
retiree may still apply for a permit to the local
law enforcement agency in the community where he or
she resides.
The author and the sponsor have agreed to introduce
legislation next year to eliminate these new
arbitration provisions.
DOES THIS BILL ADDRESS THE GOVERNORoS CONCERNS?
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6. Alternative Amendments.
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The sponsors of AB 1496 have provided an alternative
amendment which lifts most of its language from Labor Code ?
3208.3 which discusses the threshold of compensability for
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psychiatric injury and which is used by most law enforcement
agencies for defining opsychiatric disability.o The
alternate amendment is as follows:
For purposes of this section, a opsychological
disabilityo is a mental disorder which is
diagnosed using the terminology and criteria of
the American Psychiatric Associationos Diagnostic
and Statistical Manual of Mental Disorders, or the
terminology and diagnostic criteria of other
psychiatric diagnostic manuals generally approved
and accepted nationally by practitioners in the
field of psychiatric medicine.
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