BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 1968 (Wieckowski) 8
As Amended May 29, 2012
Hearing date: July 3, 2012
Penal Code
SM:dl
ARMING PROBATION OFFICERS
HISTORY
Source: State Coalition of Probation Organizations
Prior Legislation: AB 2157 (Logue) - 2010, failed passage in
Senate Public Safety.
Support: American Federation of State, County and Municipal
Employees (AFSCME), AFL-CIO; Peace Officers
Research Association of California
Opposition:California State Association of Counties (CSAC);
Chief Probation Officers of California; Los Angeles
County Board of Supervisors; Regional Council of Rural
Counties, Urban Counties Caucus
Assembly Floor Vote: Ayes 74 - Noes 0
KEY ISSUES
SHOULD EACH CHIEF PROBATION OFFICER BE REQUIRED TO DEVELOP A POLICY
FOR ARMING PROBATION OFFICERS AND DEPUTY PROBATION OFFICERS WHO
COMPRISE HIGH-RISK CASELOADS NO LATER THAN JUNE 30, 2013?
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SHOULD IT BE REQUIRED THAT THIS POLICY BE IMPLEMENTED NO LATER THAN
DECEMBER 31, 2013?
PURPOSE
The purpose of this bill is to provide that (1) any probation
officer or deputy probation officer is authorized to carry
firearms, but only as determined by the chief probation officer
on a case-by-case or unit-by-unit basis and only under those
terms and conditions specified by the chief probation officer
and, (2) each chief probation officer shall develop a policy for
arming probation officers and deputy probation officers who
comprise high-risk caseloads no later than June 30, 2013. This
policy shall be implemented no later than December 31, 2013.
Current law specifies that probation officers and deputy
probation officers are peace officers whose authority extends to
any place in the state while engaged in the performance of the
duties of their respective employment and for the purpose of
carrying out the primary function of their employment. Except as
specified in this section, these peace officers may carry
firearms only if authorized and under those terms and conditions
specified by their employing agency: (Penal Code Section
830.5(a).)
Additionally, the authority of these parole or probation
officers shall extend only as follows:
o To conditions of parole, probation, or post-release
community supervision by any person in this state on
parole, probation, or post-release community supervision.
o To the escape of any inmate or ward from a state or
local institution.
o To the transportation of persons on parole,
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probation, or post-release community supervision.
o To violations of any penal provisions of the law
which are discovered while performing the usual or
authorized duties of his or her employment.
o To the rendering of mutual aid to any other law
enforcement agency.
Current law does not include probation officers or deputy
probation officers among peace officers authorized to carry
firearms off duty. (Penal Code � 830.5(c).)
Current law provides that persons permitted to carry firearms
pursuant to this section, either on or off duty, shall meet
specified training requirements and shall qualify with the
firearm at least quarterly. It is the responsibility of the
individual officer or designee to maintain his or her
eligibility to carry concealable firearms off duty. Failure to
maintain quarterly qualifications by an officer or designee with
any concealable firearms carried off duty shall constitute good
cause to suspend or revoke that person's right to carry firearms
off duty. (Penal Code Section 830.5(d).)
This bill would provide that any probation officer or deputy
probation officer is authorized to carry firearms, but only as
determined by the chief probation officer on a case-by-case or
unit-by-unit basis and only under those terms and conditions
specified by the chief probation officer. Each chief probation
officer shall develop a policy for arming probation officers and
deputy probation officers who comprise high-risk caseloads no
later than June 30, 2013. This policy shall be implemented no
later than December 31, 2013.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
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
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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
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.
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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:
Under Assembly Bill 109, signed into law by Governor
Jerry Brown in 2011, probation officers are playing an
important role in the state's public safety
realignment. They are now responsible for some
offenders who were previously under the supervision of
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state parole agents. This increased responsibility
has raised serious safety concerns in probation
departments across the state. Probation officers are
experiencing increased caseloads. They are
responsible for probationer and community supervision,
court report submission, facilitating evidence-based
programs, collection and restitution of fines, and
referral to rehabilitation programs. Their safety
while dealing with offenders who were traditionally
supervised by parole agents should be a high priority.
AB 1968 would authorize any probation officer or
deputy probation officer to carry firearms, but only
as determined by the chief probation officer on a
case-by-case or unit-by-unit basis and only under
those terms and conditions specified by the chief
probation officer. It would require each chief
probation officer to develop a policy for arming
probation officers and deputy probation officers who
comprise high-risk caseloads by June 30, 2013, to be
implemented no later than December 31, 2013.
This important bill will make sure clear policies are
in place to protect the health and safety of our
probation officers as they carry out their
responsibilities under the public safety realignment.
2. Arming Probation Officers
Probation officers in California are responsible for supervising
adults and juveniles who are placed on probation by the courts.
In addition, under the public safety realignment of 2011,
probation departments also are responsible for supervising some
felons released from prison, and other felons who have received
"split sentences" pursuant to Penal Code section 1170 (h)(5).
They also conduct background investigations on persons convicted
of felonies and provide the court with "presentence reports" to
assist the court in sentencing. Supervising a probationer
involves both monitoring his or her compliance with the terms
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and conditions of the probation agreement as well as assisting
the probationer in successfully completing their probationary
term by complying with those terms, finding stable housing,
employment and completing any necessary treatment programs. The
role of the probation officer is, therefore, part law
enforcement officer and part social worker.
Whether probation officers should be armed has always been a
controversial subject. A December 2001 article in the journal
Federal Probation framed the issue as follows:
Whether POs should be armed continues to be a fiercely
debated topic in corrections today. In the federal
probation system, all but 11 of the 94 federal
judicial districts permit U.S. probation officers to
carry firearms. A review of the literature reveals
three major issues related to arming: philosophy,
liability, and officer safety (Brown, 1990; Sluder, et
al., 1991; DelGrosso, 1997).
The philosophical debate revolves around whether a
probation officer can effectively perform traditional
probation work while armed, with traditionalists
tending toward the negative anti-arming response and
enforcement-oriented POs tending toward the positive.
The traditionalists believe that carrying a firearm
contributes to an atmosphere of distrust between the
"client" and the probation officer, ultimately
impacting the ability of the officer to be an
effective agent of change. Enforcement-oriented
probation officers, on the other hand, commonly view a
firearm as an additional tool to protect themselves
from the risk associated with increased interaction
with violent, serious and/or high-risk offenders
(Sluder, et al., 1991).
( http://www.uscourts.gov/FederalCourts/ProbationPretrialServices/
FederalProbationJournal/FederalProbationJournal.aspx?doc=/uscourt
s/FederalCourts/PPS/Fedprob/2001decfp.pdf )
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The authors concluded:
The view of the authors on the issue of arming
probation officers is consistent with that supported
by the American Correctional Association, which
indicates that there should be a demonstrated need for
firearms, and once the need is established there
should be adequate and ongoing training.
(Id at page 27, emphasis in original.)
Current California law permits probation officers to be armed
only if so authorized by their employing agency. (Penal Code
section 830.5.) Not all probation departments in California arm
their officers. An announcement by the Chief Probation Officer
in Santa Clara County that it might allow a select group of its
probation officers to carry firearms drew criticism.
Santa Clara County, Calif., may soon equip a select
group of probation officers with firearms for the
first time - a move the probation chief describes as
necessary for the protection of her employees, reports
the San Jose Mercury News. The push to arm probation
officers who supervise more than 700 of the most
serious juvenile and adult offenders returned to their
communities has brought strong criticism from some
justice experts. They say the overwhelming presence
of a gun undercuts the officers' critical role
connecting ex-offenders with treatment, jobs and
education while they monitor the terms of their
probation - a vital part of the job which is part-cop,
part-social worker.
Union members and elected officials appear to support
the change. San Mateo, San Francisco and Marin arm
some probation officers. But Barry Krisberg, a senior
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fellow at Berkeley's Boalt Hall School of Law, called
the plan a "very bad idea that should be avoided at
all costs." Krisberg said police officers are armed;
probation officers need a markedly different approach.
"The issue boils down to: Are these people law
enforcement officers, or are they treaters and
helpers?" Krisberg said. "You can't be delivering
cognitive behavioral therapy with a gun strapped to
your waist. The therapeutic relationship is inhibited
and destroyed by someone carrying a gun openly."
( http://thecrimereport.org/2010/02/02/ca-county-to-arm-some-
probation-officers-krisberg-criticizes-idea/ )
Marin County does not arm its probation officers. In 2008 a
grand jury recommended that it revisit this policy. Its Chief
Probation Officer disagreed:
"Our focus is on the rehabilitative side, rather than
control and surveillance," said Chief Probation
Officer William Burke, who has not yet prepared an
official response to the report. "If we go down the
path of arming, we're drifting from what our true
function is. When you walk in with a gun on your hip,
you have a different relationship with someone than
when you don't."
Burke disagrees with the grand jury's assertion that
Marin's probation officers are more likely to monitor
violent offenders today than they were a decade ago.
"I don't know that things are more dangerous now than
they were 10 years ago," Burke said. "Marin County's
arrest records for felonies are among the lowest in
the state. It's not quite the war zone some people
would suggest."
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Stating that only 6 of the Bay Area's 14 counties choose to
arm their probation officers Burke stated:
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"There are probation departments with greater public
safety issues than Marin which choose not to arm,"
Burke said, noting that Alameda, Contra Costa and
Solano counties use unarmed officers.
( http://www.marinij.com/marinnews/ci_9639017?IADID=Search-ww
w.marinij.com-www.marinij.com )
3. What This Bill Would Do
Current law states that probation officers and deputy probation
officers have limited peace officer status and may carry
firearms while on duty "only if authorized and under those terms
and conditions specified by their employing agency." (Penal
Code Section 830.5(a).) This bill would require that chief
probation officers make the arming determination on a
case-by-case or unit-by-unit basis. In other words, there could
be no arming policy that applies department-wide.
This bill would also require each chief probation officer in
California to develop a policy for arming probation officers and
deputy probation officers "who comprise high-risk caseloads" no
later than June 30, 2013. This policy shall be implemented no
later than December 31, 2013.
The wording of this bill is ambiguous but could be interpreted
to require probation chiefs to arm probation officers with
"high-risk" case loads. This would be a significant departure
from long-standing policy in California that gives individual
probation chiefs discretion to decide whether any or all of
their deputies have a demonstrated need to carry firearms. The
Committee has not been presented with evidence that the chiefs
have exercised this discretion inappropriately such that the
Legislature needs to dictate this decision. There also appears
to be no evidence that would support a blanket policy to arm all
probation officers who supervise high-risk caseloads. Some
departments may not have "high-risk" caseloads per se and may
instead require all of their deputy probation officers to
supervise some high-risk probationers, making such a blanket
policy in reality, a policy that would result in all probation
officers being armed, even where the chief probation officer and
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the local community feel this is inappropriate and unwanted.
At a minimum this bill would place a requirement on chief
probation officers to develop a policy within the next six
months on arming probation officers. Public Safety Realignment,
enacted into law last year, has had profound effects on
probation departments and has placed significant new burdens on
chief probation officers as they try to adjust to the new and
substantially expanded role of probation departments in the
criminal justice system. Members may wish to discuss whether
imposing this new requirement on probation chiefs at a time when
they are tasked with implementing realignment, would be in the
best use of those chief's limited time and resources.
4. Statement in Support
The American Federation of State, County and Municipal Employees
(AFSCME) states:
After passage of AB 109 (Committee on Budget, Chapter
15, Statutes of 2011), also known as the Public Safety
Realignment Bill, county probation officers were
assigned responsibility for state parolees - a
function previously undertaken by state parole
officers. Under present law, state parole officers
are currently armed because of the high-risk
population they were required to supervise - the very
same population now supervised by probation. To
protect these officers from the risk of harm posed, AB
1968 provides for arming only those probation officers
who will supervise the "high-risk" state offenders
transferred from the state. In all other respects,
current law applies. AB 1968 will not be implemented
without the same firearms training now required of
deputy sheriffs and police officers.
The success of the Public Safety Realignment hinges in
part on the services provided by probation officers.
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Their safety in personal meetings with offenders who
were traditionally supervised by parole agents should
be a high priority. AB 1968 will strengthen the
protection and personal safety of these officers.
5. Statement in Opposition
The California State Association of Counties (CSAC), County of
Los Angeles, Regional Council of Rural Counties, and Urban
Counties Caucus state:
Under current law, probation officers may be
authorized by their employing agency to carry a
firearm. It is our understanding that in a vast
majority of the counties - approximately 80 percent -
the probation department arms at least some of their
officers. Arming decisions are - appropriately, in
our view - arrived at locally, based on the needs,
preferences and requirements of that particular
community as determined by the county. This model
works well and allows county boards of supervisors and
chief probation officers to evaluate and assess the
circumstances, caseload, and risk exposure that might
necessitate officer arming on a case-by-case basis.
Questions of officer safety; designating the specific
personnel or caseload types that may warrant arming;
and consideration of the rather significant issues of
- among others - liability, cost, and training are all
decisions best left at the local level.
While counties strongly support a robust and selective
decision-making process regarding the important
question of arming probation officers, we are opposed
to the legislative mandate as contemplated in AB 1968.
Inevitably, the state will bear the cost of this
requirement, given that it is a clear mandate and,
respectfully, we do not see the need for the bill as
currently drafted.
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