Bill Text: CA AB2138 | 2023-2024 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Peace officers: tribal police pilot project.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Engrossed) 2024-06-05 - In committee: Set, first hearing. Hearing canceled at the request of author. [AB2138 Detail]

Download: California-2023-AB2138-Introduced.html

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CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill

No. 2138

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Introduced by Assembly Member Ramos

February 06, 2024

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An act to amend Sections 830.8, 832, and 13509.6 of, and to add Section 830.16 to, the Penal Code, relating to peace officers.

LEGISLATIVE COUNSEL'S DIGEST

AB 2138, as introduced, Ramos. Peace officers: tribal police.

(1) Existing law defines those persons who are peace officers in the state, grants certain authority to those individuals and their employing entities, and places certain requirements on those individuals and their employing entities. Existing law also grants specified limited arrest authority to certain other persons, including federal criminal investigators and park rangers and peace officers from adjoining jurisdictions.

Existing federal law authorizes tribal governments to employ tribal police for the enforcement of tribal law on tribal lands. Existing federal law requires the State of California to exercise criminal jurisdiction on Indian lands. Existing state law deems a tribal police officer who has been deputized or appointed by a county sheriff as a reserve or auxiliary deputy to be a peace officer in the State of California.

This bill would deem certain tribal police officers to be peace officers on Indian lands and elsewhere in the state under specified circumstances. The bill would set certain minimum qualifications and training requirements for a tribal officer to act pursuant to this authority and would place certain requirements on the employing tribe, including certain financial responsibility requirements, a limited waiver of sovereign immunity, and the adoption of a tribal law or resolution authorizing that exercise of authority and providing for public access to certain records.

(2) Under existing law, federal criminal investigators and law enforcement officers are not California peace officers, but may exercise certain powers of a peace officer under specified circumstances.

This bill would extend this limited authority to tribal peace officers who possess a Special Law Enforcement Commission from the Bureau of Indian Affairs.

(3) Existing law establishes the Commission on Peace Officer Standards and Training to, among other things, set minimum standards for the selection and training of peace officers. Existing law requires any person described as a peace officer to complete a course of training prescribed by the commission. Existing law requires any person who completes the course and who does not become employed as a peace officer within 3 years, or has a break in service of more than 3 years, to retake the course or requalify, unless the person is returning to a management position, has maintained proficiency as an instructor, or has been continuously employed as a custodial officer, a federal law enforcement officer, or a peace officer in another state, as specified.

This bill would additionally exempt from the requirement to retake or requalify for the basic course a person who has been continuously employed as a tribal police officer, as specified.

(4) Existing law authorizes the Commission on Peace Officer Standards and Training to certify peace officers who have completed certain minimum training and field experience requirements and to suspend or revoke the certification of an officer in case of misconduct, as specified.

Existing law creates the Peace Officer Standards Accountability Division within the commission to review investigations conducted by law enforcement agencies and to conduct additional investigations into serious misconduct that may provide grounds for suspension or revocation of a peace officer’s certification, as specified. Existing law additionally creates the Peace Officer Standards Accountability Advisory Board with 9 members who are appointed, as specified, to review the findings after an investigation made by the division and to make a recommendation to the commission regarding any action to be taken against an officer’s certification.

This bill would add 2 additional members from California Indian tribes to the board to participate in cases involving tribal police, as specified.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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Bill Text

The people of the State of California do enact as follows:

SECTION 1.

 The Legislature finds and declares all of the following:

(a) California is home to more Native American and Alaska Native people than any other state in the country. There are approximately 109 federally recognized tribes in California and 67 nonfederally recognized tribes listed on the contact list maintained by the Native American Heritage Commission. Federally recognized tribes have a unique government-to-government relationship with local, state, and federal entities, and are recognized as sovereign nations. Tribes can create their own laws, governmental structure, and enrollment or membership rules for the land and citizens of their nation.

(b) California has the fifth largest caseload of missing and murdered Indigenous women and people. Nationwide, more than four in five Native American and Alaska Native women have experienced violence in their lifetime, and more than one in three have in the last year. One in 130 Native American children are likely to go missing each year. Indigenous women go missing and are murdered at rates higher than any other ethnic group in the United States. Nearly one-half of all indigenous women have been raped, beaten, or stalked by an intimate partner. LGBTQ+ Native Americans and people who identify as “two-spirit” people within tribal communities are also often the targets of violence.

(c) California Indian tribes retain the inherent authority to self-govern, including the authority to enact laws that govern their lands.

(d) Approximately 27 tribal governments in the state have exercised their inherent authority by establishing law enforcement agencies to maintain public safety on Indian lands. Additionally, tribes have exercised their inherent authority by establishing 22 tribal courts statewide, serving approximately 40 tribes.

(e) Federal law requires certain states, including the State of California, to enforce state criminal laws on Indian lands in those states, but does not provide adequate resources to the selected states or the tribes within those states for public safety.

(f) Thirteen states and the federal government provide tribal law enforcement authority to enforce state or federal law if tribal officers meet qualifications delineated in the state and federal authorizing legislation and regulations. Twenty-one of the 27 tribal governments in California that have law enforcement departments have deputation agreements with the Bureau of Indian Affairs, Office of Justice Services, which allows qualified tribal officers to become special commissioned federal officers authorized to enforce federal law on Indian lands in their jurisdiction.

(g) Legal status as a peace officer in California has been granted to a large number of persons under state law, including, without limitation, the members of the University of California and California State University Police Department and certain employees of the Department of Fish and Wildlife, the Department of Parks and Recreation, and the Department of Alcoholic Beverage Control. Limited peace officer status has been granted to others, including, without limitation, museum safety and security employees of the California Science Center, police appointed by the California Exposition and State Fair, certain employees of the California Department of Tax and Fee Administration, and persons designated by a local agency as a park ranger. Tribes have been excluded from that designation.

(h) State law grants the authority to exercise state peace officer arrest authority to certain federal law enforcement officers, and while some county sheriffs recognize tribal officers with a special commission as federal officer for purposes of that law, other sheriffs do not, or will not allow these officers to arrest offenders for violations of state law.

(i) While there are avenues for tribal officers to enforce state law on Indian lands, these options are limited, discretionary, and inconsistently applied across counties. While state law authorizes a county sheriff to deputize a tribal officer as a reserve or auxiliary deputy, those agreements are often limited by the sheriff’s term in office and subject to termination at any time.

(j) Where state and county law enforcement departments have developed close working and cooperative relationships with the tribal law enforcement agencies, these relationships have resulted in greater public safety for both the Indian and non-Indian communities.

SEC. 2.

 Section 830.8 of the Penal Code is amended to read:

830.8.

 (a) Federal criminal investigators and law enforcement officers officers, and tribal police officers possessing a Special Law Enforcement Commission from the federal Bureau of Indian Affairs are not California peace officers, but may exercise the powers of arrest of a peace officer in any of the following circumstances:

(1) Any circumstances specified in Section 836 of this code or Section 5150 of the Welfare and Institutions Code for violations of state or local laws.

(2) When these investigators and law enforcement officers are engaged in the enforcement of federal criminal laws and exercise the arrest powers only incidental to the performance of these duties.

(3) When requested by a California law enforcement agency to be involved in a joint task force or criminal investigation.

(4) When probable cause exists to believe that a public offense that involves immediate danger to persons or property has just occurred or is being committed.

In all of these instances, the provisions of Section 847 shall apply. These investigators and law enforcement officers, prior to the exercise of these arrest powers, shall have been certified by their agency heads as having satisfied the training requirements of Section 832, or the equivalent thereof.

This subdivision does not apply to federal officers of the Bureau of Land Management or the United States Forest Service. These officers have no authority to enforce California statutes without the written consent of the sheriff or the chief of police in whose jurisdiction they are assigned.

(b) Duly authorized federal employees who comply with the training requirements set forth in Section 832 are peace officers when they are engaged in enforcing applicable state or local laws on property owned or possessed by the United States government, or on any street, sidewalk, or property adjacent thereto, and with the written consent of the sheriff or the chief of police, respectively, in whose jurisdiction the property is situated.

(c) National park rangers are not California peace officers but may exercise the powers of arrest of a peace officer as specified in Section 836 and the powers of a peace officer specified in Section 5150 of the Welfare and Institutions Code for violations of state or local laws provided these rangers are exercising the arrest powers incidental to the performance of their federal duties or providing or attempting to provide law enforcement services in response to a request initiated by California state park rangers to assist in preserving the peace and protecting state parks and other property for which California state park rangers are responsible. National park rangers, prior to the exercise of these arrest powers, shall have been certified by their agency heads as having satisfactorily completed the training requirements of Section 832.3, or the equivalent thereof.

(d) Notwithstanding any other provision of law, during a state of war emergency or a state of emergency, as defined in Section 8558 of the Government Code, federal criminal investigators and law enforcement officers who are assisting California law enforcement officers in carrying out emergency operations are not deemed California peace officers, but may exercise the powers of arrest of a peace officer as specified in Section 836 and the powers of a peace officer specified in Section 5150 of the Welfare and Institutions Code for violations of state or local laws. In these instances, the provisions of Section 847 of this code and of Section 8655 of the Government Code shall apply.

(e) (1) Any qualified person who is appointed as a Washoe tribal law enforcement officer is not a California peace officer, but may exercise the powers of a Washoe tribal peace officer when engaged in the enforcement of Washoe tribal criminal laws against any person who is an Indian, as defined in subsection (d) of Section 450b of Title 25 of the United States Code, on Washoe tribal land. The respective prosecuting authorities, in consultation with law enforcement agencies, may agree on who shall have initial responsibility for prosecution of specified infractions. This subdivision is not meant to confer cross-deputized status as California peace officers, nor to confer California peace officer status upon Washoe tribal law enforcement officers when enforcing state or local laws in the State of California. Nothing in this section shall be construed to impose liability upon or to require indemnification by the County of Alpine or the State of California for any act performed by an officer of the Washoe Tribe. Washoe tribal law enforcement officers shall have the right to travel to and from Washoe tribal lands within California in order to carry out tribal duties.

(2) Washoe tribal law enforcement officers are exempted from the provisions of subdivision (a) of Section 25400 and subdivision (a) and subdivisions (c) to (h), inclusive, of Section 25850 while performing their official duties on their tribal lands or while proceeding by a direct route to or from the tribal lands. Tribal law enforcement vehicles are deemed to be emergency vehicles within the meaning of Section 30 of the Vehicle Code while performing official police services.

(3) As used in this subdivision, the term “Washoe tribal lands” includes the following:

(A) All lands located in the County of Alpine within the limits of the reservation created for the Washoe Tribe of Nevada and California, notwithstanding the issuance of any patent and including rights-of-way running through the reservation and all tribal trust lands.

(B) All Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

(4) As used in this subdivision, the term “Washoe tribal law” refers to the laws codified in the Law and Order Code of the Washoe Tribe of Nevada and California, as adopted by the Tribal Council of the Washoe Tribe of Nevada and California.

SEC. 3.

 Section 830.16 is added to the Penal Code, to read:

830.16.

 (a) As provided in this section, a person designated by a federally recognized Indian tribe in California who is regularly employed by the tribe as a law enforcement, police, or public safety officer or investigator is a peace officer.

(b) (1) A person shall not be designated as a peace officer pursuant to this section unless the person meets the training standards for peace officers as described in Section 832 and any regulations adopted thereto.

(2) A person acting as a peace officer pursuant to this section is subject to the requirements of Sections 1029, 1031, and 1031.4 of the Government Code.

(3) A tribe designating a person as a peace officer pursuant to this section shall document that person’s compliance with paragraphs (1) and (2) and submit that documentation to the Commission on Peace Officer Standards and Training in a form and manner prescribed by the commission for the purposes of certification pursuant to Section 832.

(c) (1) The authority of a peace officer designated pursuant to this section extends to any place within the territorial boundaries of the Indian country of the employing tribe.

(2) The authority of a peace officer designated pursuant to this section may extend to any place in the state, under any of the following circumstances:

(A) At the request of a state or local law enforcement agency.

(B) Under exigent circumstances involving an immediate danger to persons or property, or of the escape of a perpetrator.

(C) For the purpose of making an arrest, when a public offense has occurred, or there is probable cause to believe a public offense has occurred, within the Indian country of the tribe that employs the peace officer, and with the prior consent of the chief of police or chief, director, or chief executive officer of a consolidated municipal public safety agency, or person authorized by that chief, director, or officer to give consent, if the place is within a city, or of the sheriff, or person authorized by the sheriff to give consent, if the place is within an unincorporated area of a county.

(D) Notwithstanding subparagraph (C), when the peace officer is in hot pursuit or close pursuit of an individual that the officer has reasonable suspicion has violated or attempted to violate state law and the violation occurred within the Indian country of the tribe that employs the peace officer.

(E) When delivering an apprehended person to the custody of a law enforcement authority in the city or county in which the offense occurred.

(d) Subdivision (a) only applies to a person employed by a tribe that meets all of the following requirements:

(1) The tribal government has enacted a law or resolution expressing their intent that tribal officers be California peace officers and adopting any requirements prescribed by this section.

(2) (A) The tribal government has adopted an ordinance or other enforceable policy that provides public access to tribal records relating to any exercise of authority granted to the tribe by this section, in a manner equivalent to the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code).

(B) Any record related to conduct specified in Section 832.7 by a person designated as a California peace officer by the tribe, including any administrative record of the tribe specifically related to such conduct, shall be maintained and made available for public inspection pursuant to the ordinance or policy described in subparagraph (A).

(3) The tribal government has adopted a limited waiver of tribal sovereign immunity for any claim against a tribal officer arising from any actions or omission of a tribal police officer acting as a California peace officer pursuant to this section in an amount not exceeding the limitations of the insurance coverage described in paragraph (4).

(4) The tribal government maintains, either through self-insurance or through a policy of liability and property damage insurance, coverage in an amount of no less than two million dollars ($2,000,000) per incident for all vehicles operated by police personnel, and, either through self-insurance or through a policy of professional liability insurance, coverage in an amount no less than two million dollars ($2,000,000) per incident for the negligent or wrongful acts or omissions of its police officers.

(5) The tribal government has submitted all required documentation of compliance with this subdivision to the Department of Justice, in a manner and form prescribed by the department.

(e) A tribe employing any peace officer pursuant to this section shall comply with Sections 13510.8 and 13510.9.

(f) When a peace officer authorized under this section issues a citation for a violation of state law, the citation shall require the person cited to appear in the superior court of the county in which the offense was committed, and shall be submitted to the district attorney of that county.

(g) Any criminal charge resulting from a custodial arrest made by, or citation issued by, a peace officer designated pursuant to this section, while exercising the authority granted by the section, shall be within the jurisdiction of the courts of the State of California.

(h) Any official action taken by a peace officer designated pursuant to this section, while exercising the authority granted by this section, including, without limitation, any detention, arrest, use of force, citation, release, search, or application for, or service of, any warrant, shall be taken in accordance with all applicable state laws.

(i) As used in this section, the term “Indian country” has the same meaning as provided in Section 1151 of Title 18 of the United States Code.

SEC. 4.

 Section 832 of the Penal Code is amended to read:

832.

 (a) Every person described in this chapter as a peace officer shall satisfactorily complete an introductory training course prescribed by the Commission on Peace Officer Standards and Training. On or after July 1, 1989, satisfactory completion of the course shall be demonstrated by passage of an appropriate examination developed or approved by the commission. Training in the carrying and use of firearms shall not be required of a peace officer whose employing agency prohibits the use of firearms.

(b) (1) Every peace officer described in this chapter, prior to the exercise of the powers of a peace officer, shall have satisfactorily completed the training course described in subdivision (a).

(2) Every peace officer described in Section 13510 or in subdivision (a) of Section 830.2 may satisfactorily complete the training required by this section as part of the training prescribed pursuant to Section 13510.

(c) Persons described in this chapter as peace officers who have not satisfactorily completed the course described in subdivision (a), as specified in subdivision (b), shall not have the powers of a peace officer until they satisfactorily complete the course.

(d) A peace officer who, on March 4, 1972, possesses or is qualified to possess the basic certificate as awarded by the Commission on Peace Officer Standards and Training is exempted from this section.

(e) (1) A person completing the training described in subdivision (a) who does not become employed as a peace officer within three years from the date of passing the examination described in subdivision (a), or who has a three-year or longer break in service as a peace officer, shall pass the examination described in subdivision (a) prior to the exercise of the powers of a peace officer, except for a person described in paragraph (2).

(2) The requirement in paragraph (1) does not apply to a person who meets any of the following requirements:

(A) Is returning to a management position that is at the second level of supervision or higher.

(B) Has successfully requalified for a basic course through the Commission on Peace Officer Standards and Training.

(C) Has maintained proficiency through teaching the course described in subdivision (a).

(D) During the break in California service, was continuously employed as a peace officer in another state or at the federal level.

(E) Was continuously employed as a police officer by a federally recognized Indian tribe and was deputized or commissioned to enforce state or federal law.

(E)

(F) Has previously met the requirements of subdivision (a), has been appointed as a peace officer under subdivision (c) of Section 830.1, and has been continuously employed as a custodial officer as defined in Section 831 or 831.5 by the agency making the peace officer appointment since completing the training prescribed in subdivision (a).

(f) The commission may charge appropriate fees for the examination required by subdivision (e), not to exceed actual costs.

(g) Notwithstanding any other law, the commission may charge appropriate fees for the examination required by subdivision (a) to each applicant who is not sponsored by a local or other law enforcement agency, or is not a peace officer employed by, or under consideration for employment by, a state or local agency, department, or district, or is not a custodial officer as defined in Sections 831 and 831.5. The fees shall not exceed actual costs.

(h) (1) When evaluating a certification request from a probation department for a training course described in this section, the commission shall deem there to be an identifiable and unmet need for the training course.

(2) A probation department that is a certified provider of the training course described in this section shall not be required to offer the course to the general public.

SEC. 5.

 Section 13509.6 of the Penal Code is amended to read:

13509.6.

 (a) No later than January 1, 2023, the Governor shall establish the Peace Officer Standards Accountability Advisory Board, hereafter referred to in this chapter as the board.

(b) The purpose of the board shall be to make recommendations on the decertification of peace officers to the commission.

(c) The protection of the public and all constitutional and statutory rights shall be the highest priority for the board as it upholds the standards for peace officers in California.

(d) The board shall consist of nine members, as follows:

(1) One member shall be a peace officer or former peace officer with substantial experience at a command rank, appointed by the Governor.

(2) One member shall be a peace officer or former peace officer with substantial experience at a management rank in internal investigations or disciplinary proceedings of peace officers, appointed by the Governor.

(3) Two members shall be members of the public, who shall not be former peace officers, who have substantial experience working at nonprofit or academic institutions on issues related to police accountability. One of these members shall be appointed by the Governor and one by the Speaker of the Assembly.

(4) Two members shall be members of the public, who shall not be former peace officers, who have substantial experience working at community-based organizations on issues related to police accountability. One of these members shall be appointed by the Governor and one by the Senate Rules Committee.

(5) Two members shall be members of the public, who shall not be former peace officers, with strong consideration given to individuals who have been subject to wrongful use of force likely to cause death or serious bodily injury by a peace officer, or who are surviving family members of a person killed by the wrongful use of deadly force by a peace officer, appointed by the Governor.

(6) One member shall be an attorney, who shall not be a former peace officer, with substantial professional experience involving oversight of peace officers, appointed by the Governor.

(e) (1) Commencing on January 1, 2025, the board shall, as provided in this subdivision, consist of 11 members, including those appointed pursuant to subdivision (d), and additionally, two members from California Indian tribes, appointed by the Governor, who have substantial experience living in a tribal community that has tribal law enforcement, and who have substantial experience with tribal officer accountability.

(2) The two members appointed pursuant to this subdivision shall participate only in cases in which the conduct under review involves a tribal police officer acting as a peace officer pursuant to Section 830.16.

(3) Of the two members initially appointed pursuant to this subdivision, one member shall be appointed for a term of three years and one shall be appointed for a term of two years. Thereafter, each member shall be appointed for a term of three years and shall hold office until the appointment of the member’s successor or until one year has elapsed since the expiration of the term for which the member was appointed, whichever occurs first. Any vacancy from these two positions shall be filled by appointment for the unexpired term. No person shall serve more than two terms consecutively. The Governor may, after hearing, remove any such member from the board for neglect of duty or for other just cause.

(4) A member appointed pursuant to this subdivision shall not serve as the chair.

(5) The members appointed pursuant to this subdivision shall receive compensation pursuant to subdivision (i).

(6) The members appointed pursuant to this subdivision shall complete the training course described in subdivision (j).

(e)

(f) Except as otherwise provided in subdivision (f), (g), each member shall be appointed for a term of three years and shall hold office until the appointment of the member’s successor or until one year has elapsed since the expiration of the term for which the member was appointed, whichever occurs first. Vacancies occurring shall be filled by appointment for the unexpired term of a person with the same qualification for appointment as the person being replaced. No person shall serve more than two terms consecutively. The Governor shall remove from the board any peace officer member whose certification as a peace officer has been revoked. The Governor may, after hearing, remove any member of the board for neglect of duty or other just cause.

(f)

(g) Of the members initially appointed to the board, three shall be appointed for a term of one year, three for a term of two years, and three for a term of three years. Successor appointments shall be made pursuant to subdivision (e). (f).

(g)

(h) The Governor shall designate the chair of the board from among the members of the board. The person designated as the chair shall serve as chair of the board at the pleasure of the Governor. The board shall annually select a vice chair from among its members. A majority of the members of the board shall constitute a quorum.

(h)

(i) Each member of the board shall receive a per diem of three hundred fifty dollars ($350) for each day actually spent in the discharge of official duties, including any required training and reasonable time spent in preparation for public hearings, and shall be reimbursed for travel and other expenses necessarily incurred in the performance of official duties. Upon request of a member based on financial necessity, the commission shall arrange and make direct payment for travel or other necessities rather than providing reimbursement.

(i)

(j) All members of the board shall complete a 40-hour decertification training course, as developed by the commission, which shall include, but not be limited to, subjects regarding the decertification process, internal investigations, evidentiary standards, use of force standards and training, and local disciplinary processes.