BILL NUMBER: SB 1536 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 9, 2012
INTRODUCED BY Senator Leno
FEBRUARY 24, 2012
An act to amend Section 43.7 of the Civil Code
4030 of the Penal Code , relating to personal
rights searches .
LEGISLATIVE COUNSEL'S DIGEST
SB 1536, as amended, Leno. Personal rights: liability.
Strip or b ody cavity search of detained
persons.
Existing law establishes a statewide policy strictly limiting
strip and body cavity searches of prearraignment detainees arrested
for infraction or misdemeanor offenses and to minors detained prior
to a detention hearing on the grounds that he or she is alleged to
have committed a misdemeanor or infraction offense. Existing law
prohibits a person arrested and held in custody on a misdemeanor or
infraction offense not involving weapons, controlled substances, or
violence, from being confined in the general jail population unless
prescribed conditions apply, including the person not being released
on his or her own recognizance and the person not being able to post
bail within a reasonable time, not less than 3 hours. Under existing
law, a person who knowingly and willfully authorizes or conducts a
strip, visual, or physical body cavity search in violation of the
prescribed provisions is guilty of a misdemeanor.
This bill would prohibit a person arrested and held in custody on
a misdemeanor or infraction offense not involving weapons, controlled
substances, or violence, from being confined in the general jail
population unless a judge or magistrate has determined that the
person does not qualify to be released on his or her own recognizance
and that, after being given a chance to post bail, the person is not
able to do so within a reasonable time. By changing the definition
of a crime, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Existing law governs personal rights and civil liability for
violation of those rights. Existing law provides that there is no
monetary liability on the part of, and no cause of action for damages
against, specified health related professional societies and members
of a duly appointed committee of a mental health professional
quality assurance committee or medical specialty society, or any
member of a duly appointed committee of a state or local health
related professional society, or duly appointed member of a committee
of a professional staff of a licensed hospital for an act performed
within the scope of the functions of peer review, as provided.
This bill would make nonsubstantive changes to these provisions.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 4030 of the Penal
Code is amended to read:
4030. (a) The Legislature finds and declares that law enforcement
policies and practices for conducting strip or body cavity searches
of detained persons vary widely throughout California. Consequently,
some people have been arbitrarily subjected to unnecessary strip and
body cavity searches after arrests for minor misdemeanor and
infraction offenses. Some present search practices violate state and
federal constitutional rights to privacy and freedom from
unreasonable searches and seizures.
It is the intent of the Legislature in enacting this section to
protect the state and federal constitutional rights of the people of
California by establishing a statewide policy strictly limiting strip
and body cavity searches.
(b) The provisions of this section shall apply only to
prearraignment detainees arrested for infraction or misdemeanor
offenses and to any a minor detained
prior to a detention hearing on the grounds that he or she is a
person described in Section 300, 601, or 602 of the Welfare and
Institutions Code alleged to have committed a misdemeanor or
infraction offense. The provisions of this section shall not apply to
any a person in the custody of the
Director of the Department of Corrections and
Rehabilitation or the Director of the Youth Authority
Department of Corrections and Rehabilitation,
Juvenile Facilities Division .
(c) As used in this section, "strip search" means a search
which that requires a person to remove
or arrange some or all of his or her clothing so as to permit a
visual inspection of the underclothing, breasts, buttocks, or
genitalia of such the person.
(d) As used in this section:
(1) "Body cavity" only means the stomach or rectal cavity of a
person, and vagina of a female person.
(2) "Visual body cavity search" means visual inspection of a body
cavity.
(3) "Physical body cavity search" means physical intrusion into a
body cavity for the purpose of discovering any
an object concealed in the body cavity.
(e) Notwithstanding any other provision of law, including Section
40304.5 of the Vehicle Code, when a person is arrested and taken into
custody, that person may be subjected to patdown searches, metal
detector searches, and thorough clothing searches in order to
discover and retrieve concealed weapons and contraband substances
prior to being placed in a booking cell.
(f) No person arrested and held in custody on a misdemeanor or
infraction offense, except those involving weapons, controlled
substances , or violence nor any minor detained prior to a
detention hearing on the grounds that he or she is a person
described in Section 300, 601 or 602 of the Welfare and Institutions
Code, except for those minors alleged to have committed felonies or
offenses involving weapons, controlled substances or violence, shall
be subjected to a strip search or visual body cavity search prior to
placement in the general jail population, unless a peace officer has
determined there is reasonable suspicion based on specific and
articulable facts to believe such the
person is concealing a weapon or contraband, and a strip search will
result in the discovery of the weapon or contraband. No strip search
or visual body cavity search or both may be conducted without the
prior written authorization of the supervising officer on duty. The
authorization shall include the specific and articulable facts and
circumstances upon which the reasonable suspicion determination was
made by the supervisor.
(g) (1) Except pursuant to the provisions of paragraph (2), no
person arrested and held in custody on a misdemeanor or infraction
offense not involving weapons, controlled substances , or
violence, shall be confined in the general jail population unless all
of the following are true:
(i) The person is not cited and released.
(ii) The person is not released A
judge or magistrate has determined that the person does not
qualify for release on his or her own recognizance pursuant to
Article 9 (commencing with Section 1318) of Chapter 1 of Title 10 of
Part 2.
(iii) The Once a determination has been
made that the person does not qualify for release on his or her own
recognizance, and the person has been given the opportunity to post
bail, the person is not able to post bail within a reasonable
time not less than three hours.
(2) No person may be housed in the general jail population prior
to release pursuant to the provisions of paragraph (1) unless a
documented emergency exists and there is no reasonable alternative to
such that placement. Such
The person shall be placed in the general
population only upon prior written authorization documenting the
specific facts and circumstances of the emergency. The written
authorization shall be signed by the uniformed supervisor of the
facility or by a uniformed watch commander. Any
A person confined in the general jail population pursuant
to paragraph (1) shall retain all rights to release on citation, his
or her own recognizance, or bail which that
were preempted as a consequence of the emergency.
(h) No person arrested on a misdemeanor or infraction offense, nor
any a minor described in subdivision
(b), shall be subjected to a physical body cavity search except under
the authority of a search warrant issued by a magistrate
specifically authorizing the physical body cavity search.
(i) A copy of the prior written authorization required by
subdivisions (f) and (g) and the search warrant required by
subdivision (h) shall be placed in the agency's records and made
available, on request, to the person searched or his or her
authorized representative. With regard to any
a strip, visual , or body search, the time, date
and place of the search, the name and sex of the person conducting
the search , and a statement of the results of the search,
including a list of any items removed from the person searched,
shall be recorded in the agency's records and made available, upon
request, to the person searched or his or her authorized
representative.
(j) Persons conducting a strip search or a visual body cavity
search shall not touch the breasts, buttocks, or genitalia of the
person being searched.
(k) A physical body cavity search shall be conducted under
sanitary conditions, and only by a physician, nurse practitioner,
registered nurse, licensed vocational nurse , or emergency
medical technician Level II licensed to practice in this state.
Any A physician engaged in providing
health care to detainees and inmates of the facility may conduct
physical body cavity searches.
( l ) All persons conducting or otherwise present
during a strip search or visual or physical body cavity search shall
be of the same sex as the person being searched, except for
physicians or licensed medical personnel.
(m) All strip, visual , and physical body cavity
searches shall be conducted in an area of privacy so that the search
cannot be observed by persons not participating in the search.
Persons are A person is considered to
be participating in the search if their his
or her official duties relative to search procedure
require them requires him or her to be present
at the time the search is conducted.
(n) A person who knowingly and willfully authorizes or conducts a
strip, visual , or physical body cavity search in
violation of this section is guilty of a misdemeanor.
(o) Nothing in this section shall be construed as limiting any
common law or statutory rights of any a
person regarding any an action for
damages or injunctive relief, or as precluding the prosecution under
another provision of law of any a peace
officer or other person who has violated this section.
(p) Any A person who
suffers damage or harm as a result of a violation of this section may
bring a civil action to recover actual damages, or one thousand
dollars ($1,000), whichever is greater. In addition, the court may,
in its discretion, award punitive damages, equitable relief as it
deems necessary and proper, and costs, including reasonable attorney'
s fees.
SEC. 2. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.
SECTION 1. Section 43.7 of the Civil Code is
amended to read:
43.7. (a) There shall be no monetary liability on the part of,
and no cause of action for damages shall arise against, any member of
a duly appointed mental health professional quality assurance
committee that is established in compliance with Section 4070 of the
Welfare and Institutions Code, for any act or proceeding undertaken
or performed within the scope of the functions of the committee which
is formed to review and evaluate the adequacy, appropriateness, or
effectiveness of the care and treatment planned for, or provided to,
mental health patients in order to improve quality of care by mental
health professionals if the committee member acts without malice, has
made a reasonable effort to obtain the facts of the matter as to
which he or she acts, and acts in reasonable belief that the action
taken by him or her is warranted by the facts known to him or her
after the reasonable effort to obtain facts.
(b) There shall be no monetary liability on the part of, and no
cause of action for damages shall arise against, any professional
society, any member of a duly appointed committee of a medical
specialty society, or any member of a duly appointed committee of a
state or local professional society, or duly appointed member of a
committee of a professional staff of a licensed hospital (provided
that the professional staff operates pursuant to written bylaws that
have been approved by the governing board of the hospital), for any
act or proceeding undertaken or performed within the scope of the
functions of the committee that is formed to maintain the
professional standards of the society established by its bylaws, or
any member of any peer review committee whose purpose is to review
the quality of medical, dental, dietetic, chiropractic, optometric,
acupuncture, psychotherapy, or veterinary services rendered by
physicians and surgeons, dentists, dental hygienists, podiatrists,
registered dietitians, chiropractors, optometrists, acupuncturists,
veterinarians, marriage and family therapists, professional clinical
counselors, or psychologists, which is composed chiefly of physicians
and surgeons, dentists, dental hygienists, podiatrists, registered
dietitians, chiropractors, optometrists, acupuncturists,
veterinarians, marriage and family therapists, professional clinical
counselors, or psychologists for any act or proceeding undertaken or
performed in reviewing the quality of medical, dental, dietetic,
chiropractic, optometric, acupuncture, psychotherapy, or veterinary
services rendered by physicians and surgeons, dentists, dental
hygienists, podiatrists, registered dietitians, chiropractors,
optometrists, acupuncturists, veterinarians, marriage and family
therapists, professional clinical counselors, or psychologists or any
member of the governing board of a hospital in reviewing the quality
of medical services rendered by members of the staff if the
professional society, committee, or board member acts without malice,
has made a reasonable effort to obtain the facts of the matter as to
which he, she, or it acts, and acts in reasonable belief that the
action taken by him, her, or it is warranted by the facts known to
him, her, or it after the reasonable effort to obtain facts.
"Professional society" includes legal, medical, psychological,
dental, dental hygiene, dietetic, accounting, optometric,
acupuncture, podiatric, pharmaceutic, chiropractic, physical
therapist, veterinary, licensed marriage and family therapy, licensed
clinical social work, licensed professional clinical counselor, and
engineering organizations having as members at least 25 percent of
the eligible persons or licentiates in the geographic area served by
the particular society. However, if the society has fewer than 100
members, it shall have as members at least a majority of the eligible
persons or licentiates in the geographic area served by the
particular society.
"Medical specialty society" means an organization having as
members at least 25 percent of the eligible physicians and surgeons
within a given professionally recognized medical specialty in the
geographic area served by the particular society.
(c) This section does not affect the official immunity of an
officer or employee of a public corporation.
(d) There shall be no monetary liability on the part of, and no
cause of action for damages shall arise against, any physician and
surgeon, podiatrist, or chiropractor who is a member of an
underwriting committee of an interindemnity or reciprocal or
interinsurance exchange or mutual company for any act or proceeding
undertaken or performed in evaluating physicians and surgeons,
podiatrists, or chiropractors for the writing of professional
liability insurance, or any act or proceeding undertaken or performed
in evaluating physicians and surgeons for the writing of an
interindemnity, reciprocal, or interinsurance contract as specified
in Section 1280.7 of the Insurance Code, if the evaluating physician
and surgeon, podiatrist, or chiropractor acts without malice, has
made a reasonable effort to obtain the facts of the matter as to
which he or she acts, and acts in reasonable belief that the action
taken by him or her is warranted by the facts known to him or her
after the reasonable effort to obtain the facts.
(e) This section shall not be construed to confer immunity from
liability on any quality assurance committee established in
compliance with Section 4070 of the Welfare and Institutions Code or
hospital. In any case in which, but for the enactment of the
preceding provisions of this section, a cause of action would arise
against a quality assurance committee established in compliance with
Section 4070 of the Welfare and Institutions Code or hospital, the
cause of action shall exist as if the preceding provisions of this
section had not been enacted.