BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
5
SB 5 (Maldonado)
As Amended April 13, 2009
Hearing date: April 21, 2009
Uncodified Law
SM:mc
PEACE OFFICER STATUS FOR FIRE DEPARTMENT BOMB TECHNICIANS:
FEASIBILITY STUDY
HISTORY
Source: California Professional Firefighters
Prior Legislation: None
Support: Unknown
Opposition:None known
KEY ISSUE
SHOULD $30,000 BE APPROPRIATED FROM THE GENERAL FUND FOR A
FEASIBILITY STUDY BY THE COMMISSION ON PEACE OFFICER STANDARDS AND
TRAINING REGARDING THE APPROPRIATENESS OF DESIGNATING AS PEACE
OFFICERS, AS SPECIFIED, MEMBERS OF A FIRE DEPARTMENT BOMB SQUAD UNIT
WHO ARE CERTIFIED, AS OF DECEMBER 31, 2009, BY THE FEDERAL BUREAU OF
INVESTIGATION AS CERTIFIED BOMB TECHNICIANS?
PURPOSE
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The purpose of this bill is to appropriate from the General Fund
$30,000 for the purpose of funding a feasibility study by POST
regarding the appropriateness of designating as peace officers,
as specified, members of a fire department bomb squad unit who
are certified, as of December 31, 2009, by the Federal Bureau of
Investigation as certified bomb technicians.
Existing law provides that the following persons are peace
officers whose authority extends to any place in the state for
the purpose of performing their primary duty, or when making an
arrest pursuant to Section 836 as to any public offense with
respect to which there is immediate danger to person or
property, or of the escape of the perpetrator of that offense,
or pursuant to Section 8597 or 8598 of the Government Code.
These peace officers may carry firearms only if authorized and
under terms and conditions specified by their employing agency:
Members of an arson-investigating unit, regularly paid
and employed in that capacity, of a fire department or fire
protection agency of a county, city, city and county,
district, or the state, if the primary duty of these peace
officers is the detection and apprehension of persons who
have violated any fire law or committed insurance fraud.
Members other than members of an arson-investigating
unit, regularly paid and employed in that capacity, of a
fire department or fire protection agency of a county,
city, city and county, district, or the state, if the
primary duty of these peace officers, when acting in that
capacity, is the enforcement of laws relating to fire
prevention or fire suppression.
Voluntary fire wardens as are designated by the Director
of Forestry and Fire Protection pursuant to Section 4156 of
the Public Resources Code, provided that the primary duty
of these peace officers shall be the enforcement of the law
as that duty is set forth in Section 4156 of the Public
Resources Code.
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Firefighter/security guards by the Military Department,
if the primary duty of the peace officer is the enforcement
of the law in or about properties owned, operated, or
administered by the employing agency or when performing
necessary duties with respect to patrons, employees, and
properties of the employing agency. (Penal Code 830.37.)
Existing law requires every peace officer to complete an
introductory course of training prescribed by the Commission
on Peace Officer Standards and Training and that persons
described as peace officers who have not satisfactorily
completed the prescribed training course shall not have the
powers of a peace officer until they satisfactorily complete
the course. (Penal Code 832.)
Existing law sets qualifications for "holding office as a peace
officer" including that applicants be found to be free from any
physical, emotional, or mental condition which might adversely
affect the exercise of the powers of a peace officer.
(Government Code 1029 and 1031.)
Existing law requires that any person or persons desiring peace
officer status under Chapter 4.5 (commencing with Section 830)
of Title 3 of Part 2 who, on January 1, 1990, were not entitled
to be designated as peace officers under that chapter shall
request the Commission on Peace Officer Standards and Training
to undertake a feasibility study regarding designating that
person or persons as peace officers. The request and study
shall be undertaken in accordance with regulations adopted by
the commission. The commission may charge any person requesting
a study, a fee, not to exceed the actual cost of undertaking the
study. Nothing in this article shall apply to or otherwise
affect the authority of the Department of Corrections and
Rehabilitation, as specified, to designate peace officers as
provided for in Section 830.5. (Penal Code 13540(a).)
Existing law requires that any person or persons who are
designated as peace officers under Chapter 4.5, (commencing with
Section 830) of Title 3 of Part 2, and who desire a change in
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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. The request and study shall be undertaken in accordance
with regulations adopted by the commission. The commission may
charge any person, agency, or organization requesting a study, a
fee, not to exceed the actual cost of undertaking the study.
(Penal Code 13540(b).)
This bill appropriates from the General Fund $30,000 for the
purpose of funding a feasibility study by POST regarding the
appropriateness of designating as peace officers, as specified,
members of a fire department bomb squad unit who are certified,
as of December 31, 2009, by the Federal Bureau of Investigation
as certified bomb technicians.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
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<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
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Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
Unlike their law enforcement counterparts, as well as
fire department-based bomb squad technicians in other
states, in California, fire department-based bomb
technicians are not classified as "peace officers."
As a result, these technicians are often placed at a
critical disadvantage when they are required to
testify in court regarding an emergency incident they
may have diffused and their credentials are questioned
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<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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simply because of a lack of "peace officer"
classification.
Also unlike their law enforcement counterparts and
fire department-based technicians in other states,
California's fire department-based bomb squad
technicians do not carry firearms because of the
aforementioned classification oversight. This can
pose a significant safety threat to squad members when
they are called on to respond to a high risk incident
that may involve individual perpetrators who
specifically are looking to do these public safety
personnel harm.
This bill would direct the Legislature to appropriate
$30,000 for The Commission on Peace Officer Standards
and Training to conduct, in accordance with Section
13540 of the Penal Code, a feasibility study regarding
designating, as peace officers subject to the same
powers as those granted pursuant to section 830.37 of
the Penal Code, members of a bomb squad unit who are
certified by the Federal Bureau of Investigation as
certified bomb technicians by December 31, 2009.
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2. Background
According to background provided by the author:
The great majority -- approximately 90% -- of the
roughly 450 bomb squads in the nation are
police/sheriff department-based. However, the
remaining 10% of these squads are a part of a fire
department. A certified bomb technician is an
individual who has attended the Federal Bureau of
Investigations (FBI) Hazardous Devices School in
Huntsville, Alabama, and is currently serving in the
capacity of a bomb technician for a recognized bomb
squad. Once a technician completes the FBI course, he
or she is certified by the FBI regardless of the
agency to which they are affiliated and is issued an
official bomb technician credential. More than 200
firefighters nationwide have been certified by the FBI
and trained to deal with explosive devices, as well as
utilize and employ various types of related equipment.
Ultimately, firefighters play an important and useful
role in bomb-related activities.
In California, four fire agencies have certified bomb
technicians performing in that capacity: CAL FIRE,
Imperial County, Ontario City and San Diego City. The
City of San Diego's bomb squad, for example, is more
than 30 years old and one of the busiest in the
nation. The City's 10 fire department bomb
technicians are charged with responding to all
incidents involving explosive materials, incendiary
devices, improvised explosive devices, military or
commercially manufactured ordinances, accidental
explosions, bombings and other related matters.
3. Requirement of a Feasibility Study
Since 1989, California law has required that "any person or
persons desiring peace officer status
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. . . 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.) Peace officer status is a highly coveted designation
for any public employee. Persons designated as peace officers
enjoy enhanced retirement benefits, the protections of the Peace
Officers' Bill of Rights (Government Code 3300, et seq.),
powers of arrest and authority to carry concealed firearms, as
specified, as well as various other legal distinctions. Because
of the desirability of peace officer status, and the
proliferation of legislative proposals to grant that status to
various constituent groups, the Legislature established the
feasibility study requirement of Penal Code section 13540 as a
vetting process for such requests. The Commission on Peace
Officer Standards and Training was considered the most qualified
agency to determine whether the job duties of the requesting
person or persons justify their being granted the powers and
privileges of peace officers.
The sponsor of this bill, the California Professional
Firefighters, is seeking peace officer status under section
830.37 of the Penal Code for their members who are Bomb Squad
technicians employed by fire departments. Under the existing
law described above, such a grant of peace officer status first
requires a feasibility study by POST, as described above.
(Penal Code section 13540.) POST is authorized to charge any
person or persons requesting the study a fee, not to exceed the
actual cost of the study.
SHOULD $30,000 BE APPROPRIATED FROM THE GENERAL FUND TO FUND A
FEASIBILITY STUDY BY POST OF THIS REQUEST FOR PEACE OFFICER
STATUS?
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