BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 1154 (Hancock) 4
As Amended March 24, 2014
Hearing date: April 1, 2014
Penal Code
JRD:mc
PEACE OFFICERS:
SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT POLICE DEPARTMENT
HISTORY
Source: San Francisco Bay Area Rapid Transit District (BART)
Prior Legislation: AB 716 (Dickinson) - Chapter 534, Statutes of
2011
Support: Peace Officers Research Association of California
(PORAC)
Opposition:None known
KEY ISSUES
SHOULD THE SUNSET BE EXTENDED ON THE LAW THAT ALLOWS THE SAN
FRANCISCO BAY AREA TRANSIT AUTHORITY (BART) TO ISSUE PROHIBITION
ORDERS?
SHOULD A MEMBER OF THE BART POLICE DEPARTMENT HAVE THE ABILTY TO
REQUEST AN EX PARTE EMERGENCY PROTECTIVE ORDER?
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SHOULD A MEMBER OF THE BART POLICE DEPARTMENT BE ALLOWED TO TAKE
TEMPORARY CUSTODY OF A FIREARM OR OTHER DEADLY WEAPON, AS SPECIFIED?
PURPOSE
The purpose of this bill is to (1) extend the sunset on the law
that allows BART to issue prohibition orders banning persons
from entering district property for determined periods of time
for specified offenses; (2) allow a member of the BART Police
Department to have the ability to request an ex parte emergency
protective order from a judicial officer, if there are
reasonable grounds to believe a person is in immediate and
present danger of stalking; (3) provide BART police officers,
who respond to the scene of a domestic violence incident or
assault, to temporarily take custody of any firearms or deadly
weapons that are in plain sight or obtained during a lawful
search; and, (4) include BART police officers, as specified, in
the category of "officers" for purposes of Penal Code provisions
relating to law enforcement responses to domestic violence.
BART Issuance of Prohibition Orders
Current law allows BART, until January 1, 2015, to issue
prohibition orders banning persons from entering the property,
facilities, or vehicles of the transit district for determined
periods of time for specified offenses. Specifically, current
law allows BART to issue a prohibition order to a person who has
been cited on at least three separate occasions within a period
of 90 days for any of the following infractions committed in or
on a transit vehicle, bus stop, or station of the transit
district:
Interfering with the operator or operation of a transit
vehicle, or impeding the safe boarding or alighting of
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passengers.
Committing any act or engaging in any behavior that may, with
reasonable foreseeability, cause harm or injury to any person
or property.
Willfully disturbing others on or in a transit facility or
vehicle by engaging in boisterous or unruly behavior.
Carrying an explosive or acid, flammable liquid, or toxic or
hazardous material in a public transit facility or vehicle.
Urinating or defecating in a transit facility or vehicle,
except in a lavatory.
Willfully blocking the free movement of another person in a
transit facility or vehicle.
Defacing with graffiti the interior or exterior of the
facilities or vehicles of a public transportation system.
(Public Utilities Code � 99171.)
Current law allows BART to issue a prohibition order to a person
who has been arrested or convicted once for any of the following
misdemeanors or felonies committed in or on a vehicle, bus stop,
or station of the transit district:
Acts involving violence, threats of violence, lewd or
lascivious behavior, or possession or sale of any illegal
substance.
Loitering with the intent to engage in drug-related activity.
Loitering with the intent to commit prostitution.
The maximum duration of a prohibition order is as follows:
30 days for a first order, 90 days for a second order within
one year, and 180 days for a third order within one year
related to infractions.
30 days if issued pursuant to an arrest for a misdemeanor or
felony offense. Upon conviction for the offense, the order
may be extended to a total of 180 days for a misdemeanor and
one year for a felony.
A prohibition order is effective eleven days after delivery is
deemed complete unless the person contests the proposed order
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within 10 days in accordance with procedures adopted by the
transit district. The procedures must include, among other
things, an opportunity to request an initial review and the
opportunity, if the person is dissatisfied with the results of
the initial review, to request an administrative hearing. The
hearing must provide an independent, objective, fair, and
impartial review of the prohibition order, and the hearing
officer's employment and compensation may not be directly or
indirectly linked to the number of prohibition orders upheld.
If the transit district or hearing officer determines that the
person did not understand the nature and extent of his or her
actions or did not have the ability to control his or her
actions, the prohibition order shall be canceled. If the person
is dependent upon the transit system for trips of necessity,
including travel to or from medical or legal appointments,
school or training classes, places of employment, or obtaining
food, clothing, and necessary household items, the transit
district or hearing officer must modify the prohibition order to
allow for those trips. If the person is dissatisfied with the
result of the administrative hearing, he or she may seek
judicial review of the administrative hearing decision within 90
days. (Public Utilities Code � 99171.)
Current law requires the transit district to establish an
advisory commission that is tasked, among other things, with
monitoring the issuance of prohibition orders to ensure
compliance with anti-discrimination laws and with providing the
governing board of the transit district and the Legislature with
an annual report on the program. (Public Utilities Code �
99172.)
This bill would extend the sunset to January 1, 2018, on the
laws described above that allow BART police to issue prohibition
orders banning persons from entering district property for
determined periods of time for specified offenses, and require
BART to maintain an advisory committee.
Ex Parte Emergency Protective Orders Sought by BART Police
Officers
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Current law allows peace officers, as defined in Penal Code
sections 830.1, 830.2 and 830.32, to request that a judicial
officer issue an ex parte emergency protective order. In the
request, the peace officer must assert reasonable grounds to
believe that a person is in immediate and present danger of
stalking based upon the person's allegation that he or she has
been willfully, maliciously, and repeatedly followed or harassed
by another person who has made a credible threat with the intent
of placing the person who is the target of the threat in
reasonable fear for his or her safety. If the judge issues the
protective order, it expires at the earlier of the following
times: (1) the close of judicial business on the fifth court day
following the day of its issuance; or, (2) the seventh calendar
day following the day of its issuance. (Penal Code � 646.91.)
This bill would allow BART police officers, as defined in Penal
Code section 830.5, to request a temporary restraining order
from a judicial officer, if there are reasonable grounds to
believe that a person is in immediate and present danger of
stalking, as specified.
BART Police Officers' Ability to take Deadly Weapons into
Temporary Custody
Current law requires certain peace officers, who are at the
scene of a domestic violence incident involving a threat to
human life or a physical assault, or who are serving a
protective order as defined in section 6218 of the Family Code,
to take temporary custody of any firearm or other deadly weapon
in plain sight, or discovered pursuant to a consensual or other
lawful search, as necessary for the protection of the peace
officer or other persons present. (Penal Code � 18250.)
This bill would require BART police officers to take control of
a firearm, or other deadly weapon, when they are at the scene of
a domestic violence incident involving a threat to human life or
a physical assault, or who are serving a protective order as
defined in section 6218 of the Family Code, to take temporary
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custody of any firearm or other deadly weapon in plain sight, or
discovered pursuant to a consensual or other lawful search, as
necessary for the protection of the peace officer or other
persons present.
Law Enforcement Response to Domestic Violence
Current law generally sets forth specified requirements
concerning the law enforcement response to domestic violence,
including the development and implementation of policies
concerning officers' responses to domestic violence calls,
dispatchers' responses to domestic violence calls, law
enforcement records of domestic violence protection orders, the
provision of pamphlet information to persons who are to be
protected under a protective order, and the collection of data.
(Penal Code � 13700 et seq.)
This bill would include BART police officers within the
definition of "officer" for purposes of these sections.
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
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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.
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."
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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
137.5% of design bed capacity by February 28, 2016.
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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 February 18, 2014, the
state reported that as of February 12, 2014, California's 33
prisons were at 144.3 percent capacity, with 117,686 inmates.
8,768 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,
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 This Bill
The author states in part:
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SB 1154 seeks to clarify that BART Police Officers,
like other police officers in the state, have the
authority to issue Emergency Protective Orders (EPO)
for individuals in a domestic violence situation
within the transit system, and that they have the
authority to confiscate weapons while investigating
such circumstances.
SB 1154 makes clear that BART Police are included in
the definition of officers under the general
provisions of law enforcement response to domestic
violence, and clarifies that they have the authority
to issue EPOs, and take temporary custody of firearms
or deadly weapons while conducting domestic violence
investigations. Specifically, this bill adds BART
Police to the following Penal Code Sections: 13700,
646.91, and 18250.
2.Effect of the Legislation
Prior to implementing the prohibition order program, BART was
required to establish an advisory commission to monitor the
issuance of prohibition orders to ensure compliance with
anti-discrimination laws and with providing the governing board
of the transit district and the Legislature with an annual
report on the program. (Public Utilities Code � 99172.)
In its recent draft annual report, BART indicates that it issued
one hundred and forty-six
prohibition orders based on misdemeanor or felony arrests
between May 6, 2013, and December 31, 2013. None of the alleged
violators contested the order. The top violation was for
domestic battery under Penal Code section 243(e)(1). In
addition, BART issued six infraction citations over this same
period for violations on the list of infractions eligible for a
prohibition order. None of the cited offenders repeated the
violations three or more times within the 90-day period. This
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legislation would permit BART to continue issuing these
prohibition orders.
Additionally, in response to the high percentage of prohibition
orders that were related to domestic battery, this legislation
would give BART police officers additional powers relating to
domestic violence crimes. According to BART:
SB 1154 will clarify that BART Police Officers, like
other police officers around the state, are included in
the definition of officers under the general provisions
of law enforcement response to domestic violence, and
clarifies that they have the authority to issue
Emergency Protective Orders (EPOs), and take temporary
custody of firearms or deadly weapons while conducting
domestic investigations.
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