BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 2506 (Salas) 6
As Introduced February 21, 2014
Hearing date: June 17, 2014
Penal Code
JRD:sl
PEACE OFFICERS
HISTORY
Source: California Correctional Peace Officers Association
Prior Legislation: AB 2623 (Allen) - Chapter 161, Statutes of
2012.
AB 1289 (Horton) - 2005, held in the Assembly
Appropriations
AB 1567 (Correa) - 2004, held in Senate
Appropriations
AB 1987 (Harman) - 2002, died Assembly Public
Safety
Support: Unknown
Opposition:Taxpayer for Improving Public Safety
Assembly Floor Vote: Ayes 69 - Noes 0
KEY ISSUE
SHOULD MEDICAL TECHNICAL ASSISTANTS EMPLOYED BY THE STATE HOSPITALS
BE PERMITTED TO CARRY FIREARMS WHILE OFF-DUTY, AS SPECIFIED?
PURPOSE
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AB 2506 (Salas)
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The purpose of this legislation is to permit medical technical
assistants (MTAs) who are peace officers employed by the state
hospitals to carry firearms while off-duty.
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).
(Penal Code � 832(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. (Penal Code � 832(c).)
Existing law 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. (Penal Code � 832(e)(1)) 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
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.
(Penal Code � 832(e)(2)(A)-(E).)
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Existing law states medical technical assistants 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. (Penal Code � 830.5.)
Existing law provides that a correctional officer employed by
the Department of Corrections and Rehabilitation (CDCR), or of
CDCR, Division of Juvenile Justice, having custody of wards or
any employee of CDCR designated by the secretary or any
correctional counselor series employee of CDCR or any medical
technical assistant series employee designated by the secretary
or designated by the secretary and employed by the State
Department of Mental Health or any employee of the Board of
Parole Hearings designated by the secretary or employee of CDCR,
Division of Juvenile Justice, designated by the secretary or any
superintendent, supervisor, or employee having custodial
responsibilities in an institution operated by a probation
department, or any transportation officer of a probation
department, may carry firearms only if authorized and under
those terms and conditions specified by their employing agency.
(Penal Code � 830.5(b) [emphasis added].)
Existing law provides that the following persons may carry a
firearm while not on duty: a parole officer of the CDCR, or
CDCR, Division of Juvenile Justice, a correctional officer or
correctional counselor employed by CDCR, or an employee of CDCR,
Division of Juvenile Justice, having custody of wards or any
employee of CDCR designated by the secretary. A parole officer
of the Juvenile Parole Board may carry a firearm while not on
duty only when so authorized by the chairperson of the board and
only under the terms and conditions specified by the
chairperson. Nothing in this section shall be interpreted to
require licensure pursuant to Section 25400. The director or
chairperson may deny, suspend, or revoke for good cause a
person's right to carry a firearm under this subdivision. That
person shall, upon request, receive a hearing, as provided for
in the negotiated grievance procedure between the exclusive
employee representative and CDCR, Division of Juvenile Justice,
or the Juvenile Parole Board, to review the director's or the
chairperson's decision. (Penal Code � 830.5(c).)
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Existing law specifies that persons permitted to carry firearms
pursuant to this section, either on or off duty, shall meet the
training requirements of Penal Code � 832 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 � 830.5(d).)
This bill would permit MTAs series employees designated by the
Secretary of CDCR or designated by the secretary and employed by
the Department of State Hospitals (DSH) as peace officers
authorized to carry a firearm while not on duty.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
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In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
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137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
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Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for Legislation
According to the Author:
When current law was amended to allow the Department
of State Hospitals (DSH) to employ Medical Technical
Assistants (MTA's) directly (instead of through an
agreement with CDCR), the section allowing on-duty
carry was properly amended (Penal code section
830.5(b)), however the parallel section authorizing
off-duty carry was not so amended.
2. Effect of Legislation
An MTA with DSH "is a Registered Nurse (RN), Licensed Vocational
Nurse (LVN) or a Licensed Psychiatric Technician (LPT) who is
also a peace officer with the California Department of [State
Hospitals] in the Vacaville or Salinas Valley Psychiatric
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Program."<1> (http://www.dsh. ca.gov/Jobs/docs /MTA_ HANDOUT
_05_2.pdf) MTAs are utilized "[i]n lieu of Correctional
Officers in a correctional facility in instances where medical
skills are required of custodial officers in addition to their
usual responsibilities for the custody and supervision of
inmates."
(http://www.calhr.ca.gov/state-hr-professionals/pages/8217.aspx)
Specifically, MTAs are:
[R]esponsible for observation of patient conditions
and behaviors, provision of first aid and/or nursing
interventions in all unit routine functions and
emergencies, documentation of the unit treatment
program such as leisure activities, medication
compliance, and daily living skills, preparation,
administration, and charting of medication(s), noting
of physicians' orders, taking/recording of vital
signs, facilitating group and milieu treatment
activities, participating in treatment team functions,
assisting and learning to supervise and serve meals,
escorting patients to consultations, visits, hearings,
etc. The MTA maintains security of the facility by
doing routine/random clothed/unclothed body searches,
cell searches, contraband control.
(http://jobs.spb.ca.gov/wvpos/more_info.cfm?recno=36098
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<1> DSH currently operates facilities within two California
prisons-Salinas Valley State Prison (SVSP) and the California
Medical Facility (CMF). Specifically, Salinas Valley State
Prison contains a division of the Department of State Hospitals
(DSH) on grounds within the secured perimeter, DSH - Salinas
Valley. This is an intermediate care inpatient psychiatric
hospital, primarily servicing Level IV high security inmates who
have a major mental health disorder that has diminished their
ability to function within the general prison environment. DSH -
Salinas Valley has two stand alone treatment centers and four
retrofitted 180 housing units totaling 370 beds.
(http://cdcr.ca.gov/Facilities_Locator/SVSP.html.) DSH also
operates a licensed, Acute Care Psychiatric Hospital and an
Intermediate Care Facility within CMF.
(http://cdcr.ca.gov/Facilities_Locator/CMF.html.)
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5.)
Under existing law, MTAs working for the DSH are permitted
to carry firearms while on duty, but not while off duty.<2>
(Penal Code section 830.5(b).) Custodial officers with
CDCR are permitted to carry firearms while on duty. (Id.)
CDCR custodial officers are, additionally, allowed to carry
firearms while not on duty. (Penal Code section 830.5(c).)
This legislation would eliminate this inconsistency by
allowing MTAs to carry weapons while off duty.
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<2> It is, however, the current policy of the DSH that MTAs
within their facilities and the surrounding areas should not be
armed with firearms because it is a therapeutic environment.