BILL ANALYSIS
AB 1972
Page 1
Date of Hearing: March 23, 2010
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1972 (Carter) - As Amended: March 17, 2010
SUMMARY : Adds school security officers to the list of persons
making it a crime to willfully resist, delay, or obstruct in the
discharge or attempted discharge of any duty of his or her
office or employment. Additionally states legislative intent to
encourage school districts to inform students and their parents
of the inclusion of school security officers in Penal Code
Section 148.
EXISTING LAW :
1)States that every person who willfully resists, delays, or
obstructs any public officer, peace officer, or an emergency
medical technician as specified, in the discharge or attempt
to discharge any duty of his or her office or employment, when
no other punishment is prescribed, shall be punished by a fine
not exceeding $1,000, or by imprisonment in a county jail not
to exceed one year, or by both that fine and imprisonment.
[Penal Code Section 148(a)(1).]
2)Specifies that except as specified, every person who knowingly
and maliciously interrupts, disrupts, impedes, or otherwise
interferes with the transmission of a communication over a
public safety radio frequency shall be punished by a fine not
exceeding $1,000, imprisonment in a county jail not exceeding
one year, or by both that fine and imprisonment. [Penal Code
Section 148(a)(2).]
3)States that every person who, during the commission of any
offense described, as specified, removes or takes any weapon,
other than a firearm, from the person of, or immediate
presence of, a public officer or peace officer shall be
punished by imprisonment in a county jail not to exceed one
year or in the state prison. [Penal Code Section 148(b).]
4)States that every person who resists, delays, or obstructs,
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and removes or takes a firearm from the person of, or
immediate presence of, a public officer or peace officer shall
be punished by imprisonment in the state prison. [Penal Code
Section 148(c).]
5)States that except as specified, every person who removes or
takes without intent to permanently deprive, or who attempts
to remove or take a firearm from the person of, or immediate
presence of, a public officer or peace officer, while the
officer is engaged in the performance of his or her lawful
duties, shall be punished by imprisonment in a county jail not
to exceed one year or in the state prison. [Penal Code
Section 148(d).] Specifies that in order to prove a
violation, as specified, the prosecution shall establish that
the defendant had the specific intent to remove or take the
firearm by demonstrating that any of the following direct, but
ineffectual, acts occurred [Penal Code Section 148(d)]:
a) The officer's holster strap was unfastened by the
defendant;
b) The firearm was partially removed from the officer's
holster by the defendant;
c) The firearm safety was released by the defendant;
d) An independent witness corroborates that the defendant
stated that he or she intended to remove the firearm and
the defendant actually touched the firearm;
e) An independent witness corroborates that the defendant
actually had his or her hand on the firearm and tried to
take the firearm away from the officer who was holding it;
f) The defendant's fingerprint was found on the firearm or
holster;
g) Physical evidence authenticated by a scientifically
verifiable procedure established that the defendant touched
the firearm; and,
h) In the course of any struggle, the officer's firearm
fell and the defendant attempted to pick it up.
6)A person shall not be convicted when the resistance, delay, or
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obstruction, and the removal or taking of the weapon or
firearm or attempt thereof, was committed against the same
public officer, peace officer, or emergency medical
technician. A person may be convicted of multiple violations
of this section if more than one public officer, peace
officer, or emergency medical technician are victims. [Penal
Code Section 148(e).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Background : According to the background provided by the
author, "Existing law requires that every person who willfully
resists, delays, or obstructs any public officer, peace
officer, or emergency medical technician in the discharge of
his or her duty, when no other punishment is prescribed, be
punished by a fine not exceeding $1,000, or by imprisonment in
a county jail not exceeding one year, or by both the fine and
imprisonment.
"Existing law provides school districts with the power to
establish a security department. Current law also asserts
that 'school security officers provide security services as a
watchperson, security guard, or patrolperson on or about
premises owned or operated by a school district to protect
persons or property.'
"To increase safety at schools, school districts have often
teamed school security officers with sworn peace officers.
These officers share in the task of keeping students and staff
safe; however, it is legal to willfully obstruct school
security officers in the performance of this important task.
"Last year, a Californian Appellate Court reversed a minor's
conviction for resisting a public officer because the officer
was not a public officer under Penal Code Section 148. The
court found the officer to be a campus security officer who is
not included in the list of persons in which it is a crime to
willfully resist, delay, or obstruct in the performance of his
or her job."
2)School Security Officers are Private Security Guards and are
not Members of the Police Department : School security
officers are not members of the police department. School
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security officers are private security guards hired by the
school district to enforce security on school premises. As
such, private security guards are not required to have the
requisite POST training of peace officers. However, unlike
private security guards in the private sector, these officers
are hired by the county to protect a county facility. The
question is whether these individuals should be treated as
"public officers" for the purposes of law enforcement.
Therefore the policy question here is whether security guards
hired to protect a county facility should have the powers
outlined in Penal Code Section 148?
3)In re M.M. : In re M.M., 177 Cal App 4th 1339 (2009) is a case
currently pending hearing before the California Supreme Court.
In M.M., the defendant was a juvenile charged with resisting
arrest on a school campus when he was told by a pursuing
school security officer to stop. The court of appeal held
that the school security officer was not a "public officer"
because he was a hired "security officer" and not a peace
officer. The court further noted that unlike other "public
officers," a school security officer does not exercise a
delegated sovereign function of government nor is a school
security officer elected or officially appointed. Instead, a
school security officer is an employee hired by the county to
provide security on school campuses.
The court of appeal noted, "The Legislature can amend the
existing laws to include security officers hired by public
school districts as 'public officers' for the purpose of
section 148. We, as a court, cannot by judicial fiat change
the laws enacted by the Legislature to further public policy
objectives. That is the province of the Legislature." (In re
M.M. at 1346.)
The California Supreme Court granted certiorari and will be
hearing this matter this session.
4)Argument in Support : According to the San Bernardino District
Attorney's Office , "[t]he proposed amendment [to Penal Code
Section 148] extends the protection from being delayed,
interfered with or resisted to school security officers
employed by school districts. The amendment is in direct
response to the Fourth District, second division Court of
Appeal decision of In Re M.M. (177 Cal.App.4th 1339),
reversing a conviction obtained by our office. The court of
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appeal found that school security officers were not covered by
Penal Code section 148.
"School security officers provide vital protection to students,
teachers, administrators and our campuses. Many school
districts either cannot afford their own school police
departments, cannot contract with local law enforcement to
have a police officer present on all campuses, or have reached
the conclusion that a full time police officer or sheriff's
deputy is not required for security at all of their schools.
In the absence of full time police, school security officers
are charged with keeping campuses safe and secure. Their
ability to discharge this responsibility is seriously hampered
if members of the campus community, invited guests or
intruders know they can delay, obstruct, or resist the lawful
commands of the security officers. The potential for
escalating violence, destruction of property, risk or injury
and delay in documenting criminal incidents clearly increases
without this protection."
5)Argument in Opposition : According to the California Public
Defender's Association (CDPA) , "AB 1972 is apparently in
response to the Court of Appeal's decision In re M.M. (2009),
previously published at 177 Cal.App.4th 1339, review granted
Jan. 21, 2010, #S177704. The M.M. case held that school
security officers are not 'public officers' covered by Pen. C.
148. The California Supreme Court's grant of review
depublished that case, and the Supreme Court will now decide
the question in due course.
"AB 1972, by adding school security guards directly into the
statute, may make that case moot, and the Supreme Court may
dismiss it. CPDA believes that the court of appeal decision
in In re M.M. was correct and is confident that the Supreme
Court will affirm it. Our bench and bar need guidance on the
term 'public officer,' so CPDA hopes that the Legislature will
not short circuit the Supreme Court's decision.
"But quite apart from the purely legal question of whether a
school security officer is a 'public officer,' there are sound
public policy reasons not to add school security officers to
the list in Pen. C. 148.
"School security officers (SSOs) primarily work with school
children. Situations of childish resistance, delays, and
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obstruction of SSOs that are not accompanied by criminal acts,
should not be handled in the criminal or delinquency systems,
but rather should be handles as what they really are: matters
of school discipline. We do not disagree that criminal acts
should be handled by the courts (just as in the M.M. case,
where the crime of vandalism was alleged), but that matters
involving failure to obey SSOs without an associated crime
being alleged, should be handled instead by the school."
REGISTERED SUPPORT / OPPOSITION :
Support
San Bernardino Sheriff's Department
San Bernardino District Attorney's Office
Opposition
American Civil Liberties Union
California Public Defender's Association
Friends Committee on Legislation of California
Legal Services for Prisoners with Children
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744