BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
2
6
2
AB 2623 (Allen) 3
As Amended May 25, 2012
Hearing date: July 3, 2012
Penal Code
JM:mc
STATE HOSPITAL POLICE: FIREARMS
HISTORY
Source: California State Law Enforcement Association
Prior Legislation: SB 353 (Presley) - Ch. 1165, Stats. 1989
Support: California Correctional Peace Officers Association;
Peace Officers Research Association of California
Opposition:Association of Regional Center Agencies; California
Disabilities Service Association
Assembly Floor Vote: Ayes 71 - Noes 0
KEY ISSUES
SHOULD THE DEPARTMENT OF MENTAL HEALTH AND THE DEPARTMENT OF
DEVELOPMENTAL SERVICES, BY JUNE 30, 2013, DEVELOP A POLICY FOR THE
ARMING OF HOSPITAL PEACE OFFICERS?
SHOULD THE POLICY FOR ARMING HOSPITAL PEACE OFFICERS BE IMPLEMENTED
BY JANUARY 1, 2014?
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PURPOSE
The purposes of this bill are to 1) require the Department of
Mental Health and the Department of Developmental Services to
develop a policy for the arming of hospital peace officers; and
2) require that the policy be developed by June 30, 2013, and
implemented by January 1, 2014.
Existing law provides that every peace officer shall
satisfactorily complete a course of training prescribed by the
Commission on Peace Officer Standards and Training (POST).
(Pen. Code � 832, subd. (a).)
Existing law provides that a person shall not have the powers of
a peace officer until he or she has satisfactorily completed the
POST course. (Pen. Code � 832, subd. (c).)
Existing law (Pen. Code � 832(e)(1)) provides that any person
who has completed 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:
Is returning to a management position that is at the
second level of supervision or higher.
Has successfully re-qualified for a basic course through
POST.
Has maintained proficiency through teaching the POST
course.
Was continuously employed as a peace officer in another
state or at the federal level during the break in service
in California.
Has previously met the testing requirement, has been
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appointed a peace officer under Penal Code Section 830.1,
subdivision (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. (Pen. Code � 832,
subd. (e)(2)(A)-(E).)
Existing law provides that a peace officer under the
jurisdiction of the Department of Mental Health (DMH)<1> or the
Department of Developmental Services (DDS) has authority to make
arrests of any person committing a public offense on hospital
grounds or any public offense that creates an immediate danger
to person or property or of the escape of a perpetrator. (Pen.
Code
� 830.38; Welf. & Inst. Code �� 4313 and 4493.)
Existing law provides that a hospital peace officer may make an
arrest in a declared state or local emergency,<2> provided that
the primary duty of the officers is be the enforcement of the
law as set forth in Welfare and Institutions Code Sections 4311,
4313, 4491, and 4493.<3> (Pen. Code � 830.38.)
Existing law provides that hospital peace officers may carry
firearms "only if authorized and under terms and conditions
specified by their employing agency." (Pen. Code � 830.38.)
This bill provides that DMH and DDS shall, by June 30, 2013,
develop a policy for arming state hospital peace officers while
---------------------------
<1> The Governor has proposed in the Budget to change name of
the Department of Mental Health to the Department of State
Hospitals.
(http://www.ebudget.ca.gov/StateAgencyBudgets/4000/4440/departmen
t.html.)
<2> Government Code Sections 8597 and 8598 provide that Highway
Patrol officers, Fish and Game deputies and designated Forestry
and Fire Protection employees have full peace officer powers in
a declared state or local emergencies, as specified.
<3> Sections 4311 and 4491 - hospital administrator may arrest,
or cause arrest, of any person committing public offense on
hospital grounds. Sections 4313 and 4493 - hospital
administrator may designate employee as police officer.
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those officers are performing hospital security functions
outside the secure area of the hospital.
This bill provides that DMH and DDS shall each implement the
policy concerning arming of peace officers by January 1, 2014.
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
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
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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.
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.
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COMMENTS
1. Need for this Bill
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 was
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 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.
All of the officers are currently trained on the
proper use of force and firearms in their respective
academies. They are one of the very few law
enforcement entities in the state that provides
unarmed transports of forensically committed
individuals. AB 2623 merely seeks to provide the same
level of protection to hospital police officers that
correctional officers have currently at the two state
mental hospitals.
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2. Commission on Peace Officer Standards and Training (POST)
Study of
Various Classifications of Peace Officers
In 1989, SB 353 (Presley), Ch. 1165, Stats. 1989, organized
peace officer agencies and categories by jurisdiction rather
than the scope of their authority. SB 353 also required a POST
(Commission on Peace Officers Standards and Training) 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. SB 353
included Penal Code Section 830.08, which provides that hospital
police are peace officers with specified, limited authority.
3. Existing Discretion of the Director of the Department of
Mental Health to Authorize Hospital Police to Carry of
Firearms
Penal Code Section 830.38 provides that hospital police officers
employed by the Department of Mental Health (DMH) and the
Department of Developmental Services (DSS) may carry firearms
while on duty "only if authorized and under those terms and
conditions specified by their employing agency." (Penal Code �
830.38.) DMH has contracted with the California Department of
Corrections and Rehabilitation (CDCR) for armed correctional
officers to provide perimeter security at Patton and Coalinga
State Hospitals. These facilities house certain classes of
potentially dangerous forensic patients who have been committed
to state hospitals from the criminal justice system.
4. Directing DMH and DSS to "Develop a Policy for Arming Hospital
Police" would Likely Require DMH and DSS to Authorize Hospital
Police to Carry Firearms
This bill would not immediately authorize hospital police
officers to carry firearms. However, the bill does direct DMH
and DSS to "develop a policy for arming" state hospital peace
officers. It could be argued that this provision calling for
DMH and DSS to develop policy "for arming" hospital officers
implicitly assumes that DMH shall authorize officers to carry
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weapons. The policy would, under this argument, simply specify
how that authority is to be exercised. That position would
appear to be supported by the requirement in the bill that the
policy be implemented by January 1, 2014. If the department
must only consider whether or not to arm officers, there would
be no need to implement that consideration.
If the bill is intended to direct DMH and DSS to consider
whether or not hospital peace officers should carry firearms,
the bill could be drafted to much more clearly state that. For
example, the bill could state that DMH and DSS shall develop a
policy on whether or not hospital police can carry firearms.
The bill could also state that if the departments decide that
officers should carry firearms, the departments shall state the
conditions for them to do so.
DOES THE BILL IMPLIEDLY PROVIDE THAT DMH AND DSS WILL AUTHORIZE
HOSPITAL POLICE TO CARRY FIREARMS UNDER CIRCUMSTANCES DESCRIBED
IN THE RELEVANT POLICY?
5. Issue About how Hospital Police would Carry and use Firearms
The bill states that DMH and DSS shall develop a policy for
arming hospital peace officers "outside of the secure area of
the hospital." The secure treatment area of hospital is the
place where high-security forensic patients are held and
treated. The presence of firearms in treatment areas - secure
or not - could create safety and security problems, and could be
seen as inhibiting treatment.
In a recent arbitration decision upholding the determination of
DMH not to authorize hospital police to carry firearms, the
California Statewide Law Enforcement Association argued that
hospital police should be armed when performing perimeter
security and transporting patients off of hospital grounds.
Perimeter-only security is provided at Coalinga and Patton by
armed CDCR officers.
Authorizing hospital police officers to carry firearms on the
hospital perimeters could create logistical problems. Perhaps
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there would need to be strict separation between the duty of an
officer allowed to carry a firearm outside a treatment area and
an officer who was assigned to duty within a hospital treatment
area. An officer who moves from an area where guns are allowed
to an area where guns are prohibited would need to remove and
store the gun. In an emergency where all available hospital
police must respond to a treatment area, officers carrying
firearms would have to either carry a gun into a treatment area
or delay his or her response to secure the firearm. If firearms
need to be secured, the hospitals would likely need to create
special storage areas and policies.
6. Arbitration Decision on Authority of Hospital Police to Carry
Firearms
In July 2011, the California Statewide Law Enforcement
Association (CSLEA) filed a grievance because DMH had not
authorized DMH hospital police to carry firearms. CSLEA and DMH
submitted the issue to arbitration.
CSLEA argued in the arbitration proceedings that arming hospital
police was necessary for DMH to provide reasonable protection
for all employees and patients. Hospital police officers face
particularly dangerous situations when performing duties outside
hospital facilities, including providing perimeter security and
acting as transportation officers, patrol officers, canine
handlers and compassionate leave officers. The nature of these
duties establishes that hospital police should be authorized to
carry firearms.
DMH argued that hospital police do not perform duties that
require them to be armed. Hospital police are not general
jurisdiction police officers. Firearms are not appropriate in
the context of a mental hospital. To the contrary, not carrying
firearms enhances the ability of hospital police to perform
their unique mission. In a situation where an armed officer is
necessary, such as transportation of a potentially dangerous
patient outside of hospital grounds, there are options that do
not put hospital police officers at risk.
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The arbitrator ruled that hospital police officers are not
general jurisdiction peace officers. They are employees of DMH
and expected to act in accordance with DMH policies and
directives. Hospital police officers have the training and
experience to perform their duties without placing themselves in
situations where they would need a firearm. The arbitrator
noted that the record was devoid of examples of hospital police
officers being attacked or injured while on an off-grounds
assignment. The record thus did not establish that officers
face hazards and risks beyond those presented by their regular
duties. The arbitrator denied the grievance.
7. CRIPA (Constitutional Rights of Institutionalized Persons Act)
U.S. Department of Justice (DOJ) Consent Decree and
Monitoring of all DMH Hospitals Except Coalinga
In 2011, the Senate Budget and Fiscal Review Committee prepared
the following summary of the ongoing U.S. DOJ investigation and
litigation under the Constitutional Rights of Institutionalized
Persons Act concerning conditions and treatment in DMH:
In July 2002, the U.S. DOJ completed a review of
conditions at Metropolitan State Hospital.
Recommendations for improvements at Metropolitan in
�assessing and treating patients] were provided to
DMH. ? U.S. DOJ identified similar conditions at
Napa, Patton, and Atascadero. The Administration and
US DOJ reached a Consent Judgment for an "Enhanced
Plan"? in 2006. ? A Court Monitor ? ensure�s]
compliance. Failure to comply with the Enhanced Plan
�could] result in ? receivership ?
According to staff of the Budget Committee, only Napa and
Metropolitan are currently under CRIPA monitoring. However,
Budget Committee staff have noted that proposed staffing cuts at
state hospitals could subject the department to renewed CRIPA
scrutiny.
8. Some DMH Staff Argue the CRIPA Plan has Made DMH
Facilities More Dangerous
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Media reports have noted staff complaints that excessive
documentation in the CRIPA plan increased violence in the
hospitals by decreasing time for treating and observing
patients. Some staff also argued that the plan does not
recognize the danger posed by forensic patients and that
patients do not face negative consequences for violent
behavior.<4>
Regardless of any problems in the CRIPA plan, it does appear
that DMH facilities are insecure and dangerous. For example,
Napa is an open campus of 138 acres with isolated areas. Napa
psychiatric tech Donna Gross was murdered by a patient named
Massey in 2010. Although Massey had a serious criminal history,
he was allowed to walk unsupervised on hospital grounds.
Reports state that Massey dragged Gross over a wall where they
could not be seen. Because Gross was outside, her personal
alarm did not work.
9. DMH Evaluation of Security Needs and Plans for Security
Enhancements
DMH issued a 2010 report on hospital security needs. The report
noted that some forensic patients are more dangerous than
others. Schizophrenic patients are relatively amenable to
treatment, including with psychiatric drugs. Patients with
anti-social personality disorders typically do not improve with
medication and often do not respond to other forms of therapy.
Symptomatically, anti-social personality patients display
disregard for the rights of other, lack remorse and require more
security and observation. (2010 DMH Security Report, pp. 5-6.)
Recommendations for Specialized Treatment Units for Aggressive
Patients
These units would house aggressive patients with a
propensity for violence.
--------------------------
<4>
http://www.npr.org/2011/04/08/134961895/violence-surges-at-hospit
al-for-mentally-ill-criminals.
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Higher staff to patient ratio than other units.
Physical restraints used when patients enter or exit
rooms.
Patient rooms with high-security doors.
Atascadero State Hospital plans to modify rooms and
assign hospital police to a specialized treatment unit of
about 20-25 patients.
Open Campus Security Issues at Napa, Metropolitan, and Patton
Napa, Metropolitan, and Patton have open campuses that were
intended to house and treat non-forensic patients. These
following security changes have been recommended for these
facilities:
Additional lighting and fencing.
Increased use of boundaries and exclusion areas.
Teams to monitor grounds, including psych techs to
monitor patient behavior and hospital police to address
security and law enforcement.
Increased hospital police staffing.
Statewide Security Recommendations
Video surveillance equipment to monitor patients and
prevent escape.
Upgraded alarm systems.
Keyboard controls.
New doors with windows for patient monitoring.
Furniture that can't be used as weapons.
Training staff in security and safety.
WOULD THE RECOMMENDATIONS IN THE 2010 DMH SECURITY REPORT
SIGNIFICANTLY INCREASE SAFETY IN DMH HOSPITALS?
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10. DMH Transition Plan - Comments on Safety and Security
DMH recently issued a report on the transition of DMH to the
Department of State Hospitals (DSH). The report included
relatively limited references to security issues, including
these:
Although the �transition] team was not charged with
reviewing violence in the hospitals, any discussion of
clinical care ? must begin by acknowledging the
intertwined issues of clinical case complexity and the
dangerousness of the patient population. ? �These
dangerous patients] are not the types of patients that
researchers include in clinical trials and the
literature guiding their treatment is very thin. Thus
? any changes in the administration of clinical care
must consider the potential impact on patient and
staff safety. (Transition Team Report, DMH, Nov.
2011, pp. 146-147.)<5>
? The goal is to improve internal and perimeter
security to protect patients, staff, and communities.
The objectives relate to updating special orders,
identifying necessary equipment and purchasing it,
analyzing training requirements, and annually auditing
safety equipment. (Id, at pp. 146-147.)<6>
11. Prior Failed Legislation Concerning Arming of Hospital
Officers
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
---------------------------
<5>
http://www.dmh.ca.gov/News/docs/Transition_Plan/DMH_TransitionTea
m_Report_11-28-2011(final_sec6)ch.pdf
<6>
http://www.dmh.ca.gov/News/docs/Transition_Plan/DMH_TransitionTea
m_Report_11-28-2011(final_title-intro)ch.pdf
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the employing agency. AB 1289 was held on the Assembly
Appropriations Committee's Suspense File.
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.
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 Assembly Public
Safety.
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