BILL ANALYSIS �
AB 2623
Page 1
Date of Hearing: April 24, 2012
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2623 (Allen) - As Introduced: February 24, 2012
SUMMARY : Authorizes police officers of state hospitals under
the jurisdiction of the Department of Mental Health (DMH) or the
Department of Developmental Services (DDS) to carry firearms
without the authorization of their employing agency.
EXISTING LAW :
1)Provides that every peace officer shall satisfactorily
complete an introductory course of training prescribed by the
Commission on Peace Officer Standards and Training (POST) and
that after July 1, 1989 satisfactory completion of the course
shall be demonstrated by passage of an appropriate examination
developed or approved by POST. �Penal Code Section 832(a).]
2)Provides that prior to the exercise of peace officer powers,
every peace officer shall have satisfactorily completed the
POST course. �Penal Code Section 832(b).]
3)Provides that a person shall not have the powers of a peace
officer until he or she has satisfactorily completed the POST
course. �Penal Code Section 832(c).]
4)Provides that any person completing the POST training who does
not become employed as a peace officer within three years from
the date of passing the examination, or who has a three-year
or longer break in service as a peace officer, shall pass the
examination prior to the exercise of powers as a peace
officer. This requirement does not apply to any person who
meets any of the following requirements �Penal Code Section
832(e)(1)]:
a) Is returning to a management position that is at the
second level of supervision or higher �Penal Code Section
832(e)(2)(A)];
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b) Has successfully re-qualified for a basic course through
POST �Penal Code Section 832(e)(2)(B)];
c) Has maintained proficiency through teaching the POST
course �Penal Code Section 832(e)(2)(C)];
d) During the break in California service, was continuously
employed as a peace officer in another state or at the
federal level �Penal Code Section 832(e)(2)(D)]; and
e) Has previously met the testing requirement, has been
appointed a peace officer under Penal Code Section
830.1(c), and has continuously been employed as a custodial
officer as defined in Penal Code Section 831 or 831.5 since
completing the POST course. �Penal Code Section
832(e)(2)(E).]
5)Provides that officers of a state hospital under the
jurisdiction of DMH or DDS appointed pursuant to Welfare and
Institutions Code Sections 4313 or 4493 are peace officers
whose authority extends to any place in California for the
purpose of performing their primary duty or when making
arrests pursuant to Penal Code 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 Government Code Sections 8597 or 8598
provided that the primary duty of the peace officers shall be
the enforcement of the law as set forth in Welfare and
Institutions Code Sections 4311, 4313, 4491, and 4493. Those
peace officers may carry firearms only if authorized and under
terms and conditions specified by their employing agency.
(Penal Code Section 830.38.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Over the past
two decades the state has seen a dramatic increase in the
forensic population. Just thirteen years ago, half of the
patient population were forensic commitments, now over 92% of
the patients have committed some form of serious or violent
felony. The mental hospital system is bracing for the layoff
of several crucial psychiatric and therapeutic staff.
Unfortunately, this will create, though hard to imagine, an
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even greater risk to the level of care and security staff in
the state mental hospital system.
"Currently, the state mental hospitals rely on the Department of
Corrections and Rehabilitation to provide perimeter security
and transports at two of the five state hospitals. The
correctional officers that provide perimeter security and
transportation services at the state hospitals do so armed.
Hospital police officers at the remaining three state
hospitals provide the same transportation and perimeter
security unarmed. Furthermore, hospital police also do patrol
and traffic stops in marked police vehicles and provide mutual
aid to local law enforcement unarmed.
"This bill merely seeks to provide the same level of protection
to hospital police officers that correctional officers have
currently at the two state mental hospitals."
2)Mandatory POST Feasibility Study : In 1989, SB 353 (Presley),
Chapter 1165, Statutes of 1989, was introduced as a result of
interim hearings of the Senate Judiciary Subcommittee on
Corrections and Law Enforcement Agencies. SB 353 regrouped
peace officer categories according to the nature of their
jurisdiction rather than the scope of their authority. SB 353
also required a POST review of all classification requests
prior to legislative consideration of granting peace officer
status in the future or where there is a request to change
peace officer designation or status.
Pursuant to SB 353, Penal Code Section 13540 provides that POST
may charge a fee to the person or entity requesting a
feasibility study. The study must be completed within 18
months and include a review of the proposed duties and
responsibilities of the person employed in the category
seeking peace officer designation. (Penal Code Sections 13541
and 13542.)
This bill eliminates the discretion of the Director of DMH to
determine whether specified DMH peace officers may carry a
firearm. A POST study is required whenever there is a request
for a peace officer change in status. Under existing law,
peace officers employed by the DMH may only carry firearms if
authorized by their employing agency. This bill allows these
officers to carry firearms without the authorization of the
Director of DMH. Clearly, this is a change in status
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requiring a POST feasibility study to be conducted in order to
assess the need for these officers to carry firearms. If
these peace officers were not requesting a change in status,
there would be no need to introduce this bill.
3)Discretion of the Director of DMH : Under Penal Code Section
830.38, officers under the jurisdiction of DMH may carry
firearms if authorized by their employing agency. This
section gives the Director of DMH the discretion to determine
if officers in their employ face sufficient risks to justify
the carrying of firearms while on duty. As noted in the
author's statement, the Director of the DMH has contracted
with the California Department of Corrections and
Rehabilitation for armed correctional officers to provide
perimeter security at Patton and Coalinga State Hospitals.
These facilities house the most dangerous patients referred
from the court system, including sexually violent predators
(SVPs) committed pursuant to Welfare and Institutions Code
Section 6600. Clearly, this is an example of the Director
recognizing the increased risk associated with this population
and those facilities. Should the Legislature limit the
Director's discretion to determine whether or not firearms are
appropriate in the context of a mental hospital?
4)Arbitration Proceedings : In July 2011, the California
Statewide Law Enforcement Association (CSLEA) and the DMH
agreed to arbitrate a grievance on behalf of the Departments
Hospital Police Officers (HPOs). The hearing was held over a
period of five days, and the parties availed themselves to
examine and cross-examine witnesses and to introduce relevant
evidence, exhibits and argument.
The parties were unable to agree on how to frame the issues. To
resolve the matter, the parties agreed to allow the arbitrator
to frame the issue of the grievance. The arbitrator
determined, from the record, the issue as follows: is the DMH
in violation of the Bargaining Unit 7 Memorandum of
Understanding when HPOs are assigned duties off hospital
grounds and not permitted to carry a firearm during the
assignment? If so, what shall be the appropriate remedy?
The CSLEA position is that the DMH must provide reasonable
safeguards for the protection and safety of all employees and
patients. DMH is exposing the HPOs to risks and dangers by
failing to arm them in situations inherently dangerous and not
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just ordinary risks of the job. These dangerous situations
include assignments as transportation officers, patrol
officers, canine handlers, compassionate leave, and perimeter
security. The health and safety of the HPOs is constantly
unnecessarily exposed and threatened when performing
off-grounds assignments.
The DMH position is that an HPO is an unarmed position, and that
HPOs are not general jurisdiction police officers; HPOs do not
serve as adjuncts for community policing. Firearms are not
appropriate in the context of a mental hospital. The
uniqueness and special mission of the HPOs is enhanced be
their unarmed status. The outside, external duties assigned
to HPOs are reasonably associated to their responsibility and
duties. The DMH has built in safeguards so that in unusual
cases involving an outside assignment, such as transport of a
patient and an armed officer is necessary, there are a range
of options available that do not put HPOs at risk.
The arbitrator ruled that HPOs, though sworn law enforcement
officers, are not general jurisdiction peace officers; they
are employees of DMH. As such, they are expected to act in
accordance with DMH policies and directives. All HPOs have
undergone POST training. With POST training and experience,
they are expected to be able to assess a situation and
exercise judgment as to an appropriate response. An
appropriate response does not include placing one's self in
harm's way.
The argument for arming HPOs while on assignment off hospital
consisted of "what ifs". The record was void of any examples
of HPOs being attacked while on an off-grounds assignment or
of being injured while on such assignments. Nothing was put
into the record showing hazards and risks exist which are not
an ordinary characteristic of the work or not reasonably
associated with the performance of an HPOs responsibility and
duties. The grievance was denied.
5)Argument in Support : According to the California Correctional
Peace Officer Association , "As a result of changes over the
last two decades, the patient population of state hospital
system has changed dramatically. Today, approximately 90
percent of the patient population is there as a result of a
forensic commitment. To insure public safety, it is important
that peace officers transporting these patients in the
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communities have appropriate safety equipment. In addition,
state hospital peace officers make traffic stops of vehicles
in and around the hospital grounds. No peace office should be
expected to make such stops unless equipped with appropriate
equipment for their personal safety."
6)Argument in Opposition : According to the California
Association of Psychiatric Technicians (CAPT) , "The bill, as
drafted, is not exclusive to Hospital Police Officers (HPO)
carrying firearms only while performing escorting duties
outside the state-hospital grounds. The bill permits the
carrying of firearms outside secure treatment areas. The
areas outside of secure treatment are non-secured hospitals
units, parking lots, specialized treatment units,
administration buildings or any place on the grounds of a
state hospital that is not fenced. If an HPO, while escorting
a patient, outside of the hospital grounds needs added
protection, perhaps alternative methods of a nonlethal nature
could be utilized, such as tasers, mace or enhanced staffing.
"CAPT feels the need to carry firearms or to have firearms on
the grounds of a state hospital is unwise and unnecessary.
Existing Welfare and Institutions Code allows peace officers
to carry firearms if authorized and under terms and conditions
specified by the employing agency. The Department of Mental
Health has elected not to authorize HPOs to carry firearms
since there can be unintended consequences and patients, staff
and the broader community. Firearms are contrary to creating
a supportive and therapeutic environment."
7)Related Legislation : AB 1968 (Wieckowski) would have allowed
a probation officer who supervises a high-risk probationer to
carry a firearm without the authorization of the employing
agency. AB 1968 failed passage in this Committee, was granted
reconsideration, and will be heard for "vote only" by this
Committee today.
8)Prior Legislation :
a) AB 1289 (Horton), of the 2005-06 Legislative Session,
would have allowed peace officers at state hospitals under
the jurisdiction of DMH and DDS to carry firearms without
the authorization of the employing agency. AB 1289 was
held on the Assembly Appropriations Committee's Suspense
File.
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b) AB 2338 (Samuelian), of the 2003-04 Legislative Session,
would have allowed welfare fraud investigators to carry
firearms without the authorization of their employing
agency. AB 2238 failed passage in this Committee.
c) AB 1567 (Correa), of the 2003-04 Legislative Session,
would have allowed "limited authority" peace officers,
including those employed by DMH, to carry firearms without
authorization of their employing agency. AB 1567 was held
on the Senate Appropriations Committee's Suspense File.
d) AB 1987 (Harman), of the 2001-02 Legislative Session,
would have allowed officers employed by various public
agencies, including DMH, to carry firearms without the
authorization of their employing agency. AB 1987 failed
passage in this Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Correctional Peace Officers Association
Opposition
Association of Regional Center Agencies
California Association of Psychiatric Technicians
California Disabilities Service Association
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
319-3744