BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 1643 (Dickinson) 3
As Introduced February 13, 2012
Hearing date: May 8, 2012
Penal Code
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POLICE SECURITY OFFICERS
HISTORY
Source: Sacramento County Deputy Sheriffs' Association
Prior Legislation: AB 2626 (Jones) - vetoed, 2010
Support: California State Sheriffs' Association; Peace Officers
Research Association of California; Sacramento County
Sheriff; Los Angeles County Sheriff
Opposition:California Association of Licensed Security,
Agencies, Guards & Associates
Assembly Floor Vote: Ayes 67 - Noes 3
KEY ISSUES
SHOULD THE SACRAMENTO COUNTY SHERIFF AND THE CHIEF OF SACRAMENTO
POLICE HAVE THE AUTHORITY TO HIRE PUBLIC SECURITY OFFICERS TO
PROVIDE, PURSUANT TO CONTRACT WITH THE CITY OR COUNTY, SECURITY
SERVICES TO SPECIFIED PUBLIC AND PRIVATE ENTITIES WHOSE PRIMARY
BUSINESS SUPPORTS NATIONAL DEFENSE, OR WHOSE FACILITY IS QUALIFIED
AS A NATIONAL CRITICAL INFRASTRUCTURE?
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SHOULD ANY SUCH CONTRACT BE REQUIRED TO PROVIDE FOR FULL
REIMBURSEMENT TO THE CITY OR COUNTY OF SACRAMENTO OF THE ACTUAL
COSTS OF PROVIDING THOSE SERVICES, AS DETERMINED BY THE COUNTY
AUDITOR OR AUDITOR-CONTROLLER, OR BY THE CITY?
PURPOSE
The purpose of this bill is to (1) expand the authority of the
Sacramento County Sheriff and the Chief of Police of the City of
Sacramento to hire sheriffs or police security officers for the
purpose of protecting any properties owned, operated, or
administered by any public agency, privately owned company, or
nonprofit entity contracting for security services from the City
or County of Sacramento, whose primary business supports
national defense, or whose facility is qualified as a national
critical infrastructure under federal law or by a federal
agency, or that stores or manufactures material that, if stolen,
vandalized, or otherwise compromised, may compromise national
security or pose a danger to residents within the County of
Sacramento; (2) require that any such contract must provide for
full reimbursement to the City or County of Sacramento of the
actual costs of providing those services, as determined by the
county auditor or auditor-controller, or by the city; and (3)
provide that, prior to contracting for these services, the
Sacramento County Board of Supervisors or the governing board of
the City of Sacramento shall discuss the contract and the
requirements of this paragraph at a duly noticed public hearing.
Existing law provides for a variety of peace officer categories
and categories of public officers who are not peace officers but
who may exercise some of the powers of a peace officer. (Penal
Code � 830 et seq.)
Existing law creates a category of police or sheriff's security
officer - who is not a peace officer - as follows:
A police or sheriff's security officer is a public
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officer - employed by the police chief or sheriff - whose
primary duty is the security of locations or facilities as
directed by the sheriff.
Duties may include physical security and protection of
facilities owned, operated, or administered by the county
or other entities contracting with the city or county for
police services.
A police or sheriff's security officer is not a peace
officer, nor a peace officer for purposes of Government
Code Section 3301 - Public Safety Officers Procedural Bill
of Rights Act.
A police or sheriff's security officer may carry a
firearm, baton, and other safety equipment as authorized by
the sheriff while performing authorized duties; he or she
may not exercise peace officer powers of arrest but may
issue citations if authorized by the sheriff.
Each police or sheriff's security officer shall complete
a course of training pursuant to existing Commission on
Peace Officer Standards and Training peace officer training
requirements within 90 days of assuming his or her duties
(Section 832 training - 64 hours of basic peace officer
instruction: 40 hours of classroom "arrest and tactics"
training and 24 hours of firearms training.)
The authority of a police or sheriff's security officer
shall only be conferred while on duty.
No additional retirement benefits - safety officer
benefits - shall be conferred on police or sheriff's
security officers.
Police or Sheriff's security officers shall not be
required to comply with the Department of Consumer Affairs
training or permitting to carry a club or baton, if they
complete such a course of instruction approved by the
Commission on Peace Officer Standards and Training within
90 days of employment. (Penal Code �� 831.4, 12002.)
Existing law provides that a public officer or employee, when
authorized by ordinance, may arrest a person without a warrant
whenever the officer or employee has reasonable cause to believe
that the person to be arrested has committed a misdemeanor in
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the presence of the officer or employee that is a violation of a
statute or ordinance that the officer or employee has the duty
to enforce. (Penal Code � 836.5(a).)
Existing law provides that the board of supervisors of any
county may contract on behalf of the sheriff of that county, and
the legislative body of any city may contract on behalf of the
chief of police of that city, to provide supplemental law
enforcement services to:
Private individuals or private entities to preserve the
peace at special events or occurrences that happen on an
occasional basis.
Private nonprofit corporations that are recipients of
federal, state, county, or local government low-income
housing funds or grants to preserve the peace on an ongoing
basis.
Private entities at critical facilities on an occasional
or ongoing basis. A "critical facility" means any building,
structure, or complex that in the event of a disaster,
whether natural or manmade, poses a threat to public
safety, including, but not limited to, airports, oil
refineries, and nuclear and conventional fuel powerplants.
Contracts entered into pursuant to this section shall
provide for full reimbursement to the county or city of the
actual costs of providing those services, as determined by
the county auditor or auditor-controller, or by the city,
as the case may be.
Such services, except as specified, shall be rendered by
regularly appointed full-time peace officers, as defined in
Section 830.1 of the Penal Code.
Peace officer rates of pay shall be governed by a
memorandum of understanding.
A contract entered into pursuant to this section shall
encompass only law enforcement duties and not services
authorized to be provided by a private patrol operator, as
defined in Section 7582.1 of the Business and Professions
Code.
Contracting for law enforcement services, as authorized
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by this section, shall not reduce the normal and regular
ongoing service that the county, agency of the county, or
city otherwise would provide.
Prior to contracting for ongoing services, the board of
supervisors or legislative body, as applicable, shall
discuss the contract and the requirements of this section
at a duly noticed public hearing. (Gov. Code � 53069.8.)
This bill would expand the authority of the Sacramento County
Sheriff and the Chief of Police of the City of Sacramento to
hire sheriff's or police security officers, as described above,
for the purpose of protecting:
any properties owned, operated, or administered by any
public agency, privately owned company, or nonprofit entity
contracting for security services from the City or County
of Sacramento,
whose primary business supports national defense, or
whose facility is qualified as a national critical
infrastructure under federal law or by a federal agency,
or that stores or manufactures material that, if stolen,
vandalized, or otherwise compromised, may compromise
national security or pose a danger to residents within the
County of Sacramento.
This bill provides that any such contract must provide for full
reimbursement to the City or County of Sacramento of the actual
costs of providing those services, as determined by the county
auditor or auditor-controller, or by the city.
This bill provides that, prior to contracting for these
services, the Sacramento County Board of Supervisors or the
governing board of the City of Sacramento shall discuss the
contract and the requirements of this paragraph at a duly
noticed public hearing.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
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In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). 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 January 12, 2010, a
three-judge federal panel issued an order requiring California
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to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
According to the author:
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Current law permits a security officer employed by a
sheriff or police chief to provide physical security
for "critical facilities," owned, operated,
controlled, or administered by the county, city, or
owned by a municipal agency that contracts with a
county or city for general law enforcement purposes.
Under current law, "critical facilities" are defined
as any building, structure, or complex that in the
event of a disaster, whether natural or manmade, poses
a threat to public safety, including, but not limited
to, airports, oil refineries, and nuclear and
conventional fuel power plants. Security officers
employed by a sheriff or police chief however, are not
now permitted to guard property owned by a private
party or other governmental entity that does not
contract back with a city or county for law
enforcement services, even if the property meets the
definition of a "critical facility."
In Sacramento County there are several properties that
have critical facility characteristics and that are
important to national security, or which, if
compromised or attacked, pose a severe threat to
public safety, such as Folsom Dam, and the former
nuclear reactor at Rancho Seco (stored spent nuclear
fuel). In recent years, diminishing city and county
resources have meant reductions in sheriff and police
patrol services, and while sworn officers will always
respond to an emergency at any property containing a
critical facility, notwithstanding who the owner may
be, it is always safer to have security deployed at
these facilities or be able to respond to potential
threats and prevent untoward events from occurring in
the first place. Given the sensitive nature of
critical facilities in the County or City of
Sacramento, it is best that they have security
provided by personnel who are under the employ,
direction, and who have been subject to training
overseen by county and city law enforcement.
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AB 1643 would allow private and municipal owners of
property, whose primary business supports national
defense, or is qualified as a national critical
structure, or houses material that if compromised may
pose a danger to residents of Sacramento County, to
contract with the Sacramento police chief or the
County sheriff to provide publicly employed security
officers to guard and respond to problems and threats
at the property site. Under the bill's provisions,
the property owners would fully reimburse the city or
county for these security personnel services.
Use of publicly employed security personnel would be
beneficial should one of the subject properties become
the target of terrorists or face a threat from some
other kind of peril. The public has an interest in
keeping these facilities secure and use of publicly
employed security personnel would ensure that the
security meets a high standard and is publicly
accountable. It would also mean that the higher level
of security provided by publicly employed security
personnel would reduce overall law enforcement costs
due to fewer incidents occurring at these properties.
Fewer incidents, which would otherwise require a sworn
officer response, will diminish, and thereby reduce
the burden on the county sheriff's or city police
department(s).
2. Expanding the Role of "Police or Sheriff's Security Officers"
In 1996, the Legislature created the "sheriff's security
officer" classification of public employee. (AB 2651(Hawkins)
Chap. 143, Stats. of 1996.) In 1999, this was expanded to allow
police chiefs to also employ these officers. (SB 1163 (Ortiz)
Chap. 112, Stats. of 1999.) These employees are not peace
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officers and are required by statute only to receive basic
arrest and firearms training. Employing police or sheriff's
departments may require these employees to receive further
training, however.
Existing section 831.4 provides that the duties of a police or
sheriff's security officer may include physical security and
protection of properties owned, operated, or administered by the
county or any municipality or special district contracting for
police services from the county pursuant to Section 54981 of the
Government Code, or necessary duties with respect to the
patrons, employees, and properties of the employing county or
contracting entities. The purpose of this bill is to expand
those authorized duties to allow these police or sheriff's
security officers to be used to guard property belonging to
private companies "whose primary business supports national
defense, or whose facility is qualified as national critical
infrastructure under federal law or by a federal agency, or who
stores or manufactures material which, if stolen, vandalized, or
otherwise compromised, may compromise national security or may
pose a danger to residents of the County of Sacramento."
Under current law the board of supervisors of any county may
contract on behalf of the sheriff of that county, and the
legislative body of any city may contract on behalf of the chief
of police of that city, to provide supplemental law enforcement
services to "Private entities at critical facilities on an
occasional or ongoing basis." A "critical facility" means any
building, structure, or complex that in the event of a disaster,
whether natural or manmade, poses a threat to public safety,
including, but not limited to, airports, oil refineries, and
nuclear and conventional fuel powerplants." (Gov. Code �
53069.8) However, existing law specifies that these services
shall be rendered by full-time peace officers, as defined, and
shall encompass only "law enforcement duties" and not "services
authorized to be provided by a private patrol operator" (i.e.,
private security guards). (Ibid.) By contrast, this bill would
allow the Sacramento County Sheriff or Sacramento Police Chief
to provide the services of sheriff's or police security
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officers, who are not peace officers to these private companies
pursuant to a contract with the city or county, to perform
duties that are currently performed by private security guards.
3. Limits on "Police or Sheriff's Security Officers"
The current provisions of Penal Code section 831.4 pertaining to
police or sheriff's security officers contain a number of
limitations. They are not covered by the Public Safety Officers
Procedural Bill of Rights; they have no authority except when on
duty and they do not qualify for public safety retirement
benefits. These security officers do not have peace officer
arrest powers, but may issue citations for infractions if
authorized by the sheriff. Additionally, current Penal Code
section 836.5 allows any public officer authorized by ordinance
to "arrest a person without a warrant whenever he has reasonable
cause to believe that the person to be arrested has committed a
misdemeanor in his presence which is a violation of a statute or
ordinance which the officer or employee has the duty to
enforce." Thus, a police or sheriff's security officer
authorized by ordinance to make such misdemeanor arrests is
authorized to do so pursuant to existing law. The police or
sheriff's security officers included in this bill would be
subject to the same limitations.
4. Policy Issues
Under current law, in addition to contracting for the use of
peace officers for "law enforcement duties" (see comment 2,
above), private entities can, and often do, employ off-duty
peace officers as security guards. (Penal Code � 70; Gov. Code
�� 1126, 1127.) However, owners of private facilities, even
those that might be of national security significance, might opt
to hire less well-trained security guards, public or private,
because off-duty peace officers are too expensive.
Use of public employees to guard privately owned facilities
might be beneficial to the public if those facilities could
become targets for terrorist attacks or could otherwise pose a
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danger to the public, such as a chemical manufacturing plant or
an oil refinery. The public has an interest in keeping these
facilities secure and use of public employees to guard them
could provide greater accountability and standards as to the
level of security at these facilities. One policy issue this
raises is whether allowing private companies to receive these
security services from public employees could come at the
taxpayers' expense. This bill addresses that issue by requiring
that these services be provided only by way of a contract,
approved at a public hearing by the County Board of Supervisors
or the "governing board of the City of Sacramento," as
applicable, and that any such contract must provide for full
reimbursement to the county or city of the actual costs of
providing those services, as determined by the county auditor or
auditor-controller, or by the city.
5. Governor's Veto Message
In 2010, Governor Schwarzenegger vetoed AB 2626, which was
substantially similar to this bill. In his veto message he
stated:
Existing law allows sheriffs and police chiefs to
employ public officers to guard public locations and
facilities as directed. This bill would allow
security officers employed by the Sheriff of the
County of Sacramento to be contracted out to a private
company for the purpose of guarding private property.
While off duty law enforcement officers are often
hired by private firms to guard critical
infrastructure, it is for a law enforcement purpose
and not to replace private security guards. This
bill, however, would allow public officers to be
contracted out to provide services that private
companies would otherwise provide. These duties
should not be performed at the expense of taxpayers.
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6. Statement in Support
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Sacramento County Sheriff Scott Jones states:
This legislation will allow the Sacramento Sheriff's
and Police Departments to contract to specific private
entities whose primary business supports national
defense or whose facility falls under critical
infrastructure or national security concerns. There
is not only value to our departments in our ability to
expand enterprise-based services, but to the private
customer as well, in that they would have the
ability�,] should they choose to contract with us, to
receive the additional expertise, infrastructure and
resources of the entire Department. Importantly,
Sheriff's security and police officers are supervised
by peace officers, and in cases of any critical
emergency they have the back up of sheriff's deputies
or city police officers, sworn supervisors, and other
Departmental resources, including SWAT, air support,
bomb teams, K9, etc.
Presently the Sacramento Sheriff's Department has
contracts using security officers for security at
Folsom Dam, the Sacramento International Airport, all
State Courts and Power Balance Pavilion.
7. Statement in Opposition
The California Association of Licensed Security Agencies, Guards
and Associates states:
We feel that AB 1643 is bad public policy
fundamentally because it places the public sector in
competition with the private sector in an area in
which the private sector is clearly very capable of
providing the service necessary. Additionally, the
definition of sites at which public security officers
might be allowed to compete with the private sector is
so overly broad as to include virtually any site.
Finally, it gives the perception that utilizing the
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Sheriff's public security officers brings some greater
authority to the facility protection.
A security officer employed by the Sheriff of
Sacramento County is trained under California Penal
Code �section] 832, which is inherently different from
the training curriculum that private security officers
are required to complete under California Business and
Professions Code �section] 7583.6.
PC 832 does not require fundamental security officer
training such as, weapons of mass destruction, access
control and hazmat awareness, to name a few. In fact,
the Bureau of Security & Investigative Services has
already opined that a private security officer cannot
use PC 832 training in place of the private security
training requirement under BPC 7583.6. . . .
The Roles of a security officer protecting a facility
are inherently different from those of a peace
officer, or even a security officer trained under
public law enforcement authority. To place the two in
competition with each other creates perceptions, not
always accurate, that they are the same and that one
would have greater authority in the eyes of the law.
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