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AB-329 Victim compensation: use of excessive force by law enforcement.(2019-2020)



Current Version: 07/08/20 - Amended Senate

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AB329:v95#DOCUMENT

Amended  IN  Senate  July 08, 2020
Amended  IN  Senate  June 17, 2019
Amended  IN  Assembly  April 08, 2019
Amended  IN  Assembly  March 06, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 329

Introduced by Assembly Member Rodriguez Kamlager

January 31, 2019

An act to add Section 1318.5 to the Health and Safety Code, and to amend Sections 241.2 and 243.2 of the Penal Code, relating to hospitals. amend Sections 13951 and 13956 of the Government Code, relating to victim compensation, making an appropriation therefor, and declaring the urgency thereof, to take effect immediately.


LEGISLATIVE COUNSEL'S DIGEST


AB 329, as amended, Rodriguez Kamlager. Hospitals: assaults and batteries. Victim compensation: use of excessive force by law enforcement.
Existing law provides for the compensation of victims and derivative victims of specified types of crimes by the California Victim Compensation Board from the Restitution Fund, a continuously appropriated fund, for specified losses suffered as a result of those crimes. Existing law defines various terms for purposes of these provisions, including “crime”, which includes any public offense wherever it may take place that would constitute a misdemeanor or felony.
This bill would revise the definition of “crime” to include the use of excessive force by a law enforcement officer regardless of whether the law enforcement officer is arrested or charged with commission of a crime or public offense. By expanding the types of crimes for which compensation can be paid from a continuously appropriated fund, the bill would make an appropriation.
Existing law specifies that a person is not eligible for compensation under specified conditions, including, among other things, if the board determines that denial of the claim for compensation is appropriate because of the nature of the victim’s involvement in the events leading to the crime, or the involvement of the person whose injury or death gives rise to the application. If the victim is determined to have been involved in the events leading to the qualifying crime, existing law specifies the factors that the board may consider to mitigate that involvement including, among other things, that the victim’s injuries were significantly more serious than reasonably could have been expected based on the victim’s level of involvement, or that a third party interfered in a manner that was not reasonably foreseeable by the victim.
This bill would, notwithstanding those provisions, prohibit the board from denying an application based upon the victim’s involvement in the crime if the claim is for injury or death that happened as a result of the use of excessive force by a law enforcement officer.
Existing law requires the board to deny an application if it finds that finds that the victim failed to cooperate reasonably with a law enforcement agency in the apprehension and conviction of a criminal committing the crime.
This bill would, notwithstanding those provisions, prohibit the board from denying an application based solely upon the victim’s failure to cooperate if the claim is for injury or death that happened as a result of the use of excessive force by a law enforcement officer. The bill would prohibit the board from denying an application for a claim based on injuries or death as a result of the use of excessive force by a law enforcement officer based solely on a police report, or the lack thereof, or based upon whether the law enforcement officer was arrested or charged with a crime. The bill would, absent a police report, authorize these claims to be supported by other evidence.
This bill would declare that it is to take effect immediately as an urgency statute.

Existing law defines an assault as an unlawful attempt, coupled with present ability, to commit a violent injury on the person of another. Under existing law, an assault committed on school or park property is punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding $2,000, or by both that fine and imprisonment. Existing law defines a battery as any willful and unlawful use of force or violence upon the person of another. Under existing law, a battery committed on school property, park property, or the grounds of a public or private hospital is punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding $2,000, or by both that fine and imprisonment.

This bill would make an assault committed on the property of a public or private hospital punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding $2,000, or by both that fine and imprisonment. By expanding the scope of a crime, this bill would impose a state-mandated local program.

This bill would additionally authorize a health facility to post a notice in the facility stating that an assault or battery against staff is a crime, and may result in a criminal conviction, as provided.

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.

Vote: MAJORITY2/3   Appropriation: NOYES   Fiscal Committee: YES   Local Program: YESNO  

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


SECTION 1.

 Section 13951 of the Government Code is amended to read:

13951.
 As used in this chapter, the following definitions shall apply:
(a) “Board” means the California Victim Compensation Board.
(b) (1) “Crime” means a crime or public offense, wherever it may take place, that would constitute a misdemeanor or a felony if the crime had been committed in California by a competent adult.
(2) “Crime” includes an act of terrorism, as defined in Section 2331 of Title 18 of the United States Code, committed against a resident of the state, whether or not the act occurs within the state.
(3) “Crime” includes the use of excessive force by a law enforcement officer regardless of whether the law enforcement officer is arrested or charged for commission of a crime or public offense, as described in paragraph (1).
(c) “Derivative victim” means an individual who sustains pecuniary loss as a result of injury or death to a victim.
(d) “Law enforcement” means every district attorney, municipal police department, sheriff’s department, district attorney’s office, county probation department, and social services agency, the Department of Justice, the Department of Corrections, the Department of the Youth Authority, the Department of the California Highway Patrol, the police department of any campus of the University of California, California State University, or community college, and every agency of the State of California expressly authorized by statute to investigate or prosecute law violators.
(e) “Pecuniary loss” means an economic loss or expense resulting from an injury or death to a victim of crime that has not been and will not be reimbursed from any other source.
(f) “Peer counseling” means counseling offered by a provider of mental health counseling services who has completed a specialized course in rape crisis counseling skills development, participates in continuing education in rape crisis counseling skills development, and provides rape crisis counseling within the State of California.
(g) “Victim” means an individual who sustains injury or death as a direct result of a crime as specified in subdivision (e) of Section 13955.
(h) “Victim center” means a victim and witness assistance center that receives funds pursuant to Section 13835.2 of the Penal Code.

SEC. 2.

 Section 13956 of the Government Code is amended to read:

13956.
 Notwithstanding Section 13955, a person shall not be eligible for compensation under the following conditions:
(a) An application may be denied, in whole or in part, if the board finds that denial is appropriate because of the nature of the victim’s or other applicant’s involvement in the events leading to the crime, or the involvement of the person whose injury or death gives rise to the application.
(1) Factors that may be considered in determining whether the victim or derivative victim was involved in the events leading to the qualifying crime include, but are not limited to:
(A) The victim or derivative victim initiated the qualifying crime, or provoked or aggravated the suspect into initiating the qualifying crime.
(B) The qualifying crime was a reasonably foreseeable consequence of the conduct of the victim or derivative victim.
(C) The victim or derivative victim was committing a crime that could be charged as a felony and reasonably lead to him or her them being victimized. However, committing a crime shall not be considered involvement if the victim’s injury or death occurred as a direct result of a crime committed in violation of Section 261, 262, or 273.5 of, or for a crime of unlawful sexual intercourse with a minor in violation of subdivision (d) of Section 261.5 of, the Penal Code.
(2) If the victim is determined to have been involved in the events leading to the qualifying crime, factors that may be considered to mitigate or overcome involvement include, but are not limited to:
(A) The victim’s injuries were significantly more serious than reasonably could have been expected based on the victim’s level of involvement.
(B) A third party interfered in a manner not reasonably foreseeable by the victim or derivative victim.
(C) The board shall consider the victim’s age, physical condition, and psychological state, as well as any compelling health and safety concerns, in determining whether the application should be denied pursuant to this section. The application of a derivative victim of domestic violence under 18 years of age or derivative victim of trafficking under 18 years of age shall not be denied on the basis of the denial of the victim’s application under this subdivision.
(3) Notwithstanding paragraphs (1) and (2), if an application is for a claim based on injury or death that happened as a result of a crime, as defined in paragraph (3) of subdivision (b) of Section 13951, the board shall not deny the application based upon the victim’s involvement in the crime.
(b) (1) An application shall be denied if the board finds that the victim or, if compensation is sought by, or on behalf of, a derivative victim, either the victim or derivative victim failed to cooperate reasonably with a law enforcement agency in the apprehension and conviction of a criminal committing the crime. In determining whether cooperation has been reasonable, the board shall consider the victim’s or derivative victim’s age, physical condition, and psychological state, cultural or linguistic barriers, any compelling health and safety concerns, including, but not limited to, a reasonable fear of retaliation or harm that would jeopardize the well-being of the victim or the victim’s family or the derivative victim or the derivative victim’s family, and giving due consideration to the degree of cooperation of which the victim or derivative victim is capable in light of the presence of any of these factors. A victim of domestic violence shall not be determined to have failed to cooperate based on his or her their conduct with law enforcement at the scene of the crime. Lack of cooperation shall also not be found solely because a victim of sexual assault, domestic violence, or human trafficking delayed reporting the qualifying crime.
(2) Notwithstanding paragraph (1), if an application is for a claim based on injury or death that happened as a result of a crime, as defined in paragraph (3) of subdivision (b) of Section 13951, the board shall not deny the application based upon the victim’s failure to cooperate.

(2)

(3) An application for a claim based on domestic violence shall not be denied solely because a police report was not made by the victim. The board shall adopt guidelines that allow the board to consider and approve applications for assistance based on domestic violence relying upon evidence other than a police report to establish that a domestic violence crime has occurred. Factors evidencing that a domestic violence crime has occurred may include, but are not limited to, medical records documenting injuries consistent with allegations of domestic violence, mental health records, or that the victim has obtained a permanent restraining order.

(3)

(4) An application for a claim based on a sexual assault shall not be denied solely because a police report was not made by the victim. The board shall adopt guidelines that allow it to consider and approve applications for assistance based on a sexual assault relying upon evidence other than a police report to establish that a sexual assault crime has occurred. Factors evidencing that a sexual assault crime has occurred may include, but are not limited to, medical records documenting injuries consistent with allegations of sexual assault, mental health records, or that the victim received a sexual assault examination.

(4)

(5) An application for a claim based on human trafficking as defined in Section 236.1 of the Penal Code shall not be denied solely because no police report was made by the victim. The board shall adopt guidelines that allow the board to consider and approve applications for assistance based on human trafficking relying upon evidence other than a police report to establish that a human trafficking crime as defined in Section 236.1 of the Penal Code has occurred. That evidence may include any reliable corroborating information approved by the board, including, but not limited to, the following:
(A) A Law Enforcement Agency Endorsement issued pursuant to Section 236.2 of the Penal Code.
(B) A human trafficking caseworker, as identified in Section 1038.2 of the Evidence Code, has attested by affidavit that the individual was a victim of human trafficking.

(5)

(6) (A) An application for a claim by a military personnel victim based on a sexual assault by another military personnel shall not be denied solely because it was not reported to a superior officer or law enforcement at the time of the crime.
(B) Factors that the board shall consider for purposes of determining if a claim qualifies for compensation include, but are not limited to, the evidence of the following:
(i) Restricted or unrestricted reports to a military victim advocate, sexual assault response coordinator, chaplain, attorney, or other military personnel.
(ii) Medical or physical evidence consistent with sexual assault.
(iii) A written or oral report from military law enforcement or a civilian law enforcement agency concluding that a sexual assault crime was committed against the victim.
(iv) A letter or other written statement from a sexual assault counselor, as defined in Section 1035.2 of the Evidence Code, licensed therapist, or mental health counselor, stating that the victim is seeking services related to the allegation of sexual assault.
(v) A credible witness to whom the victim disclosed the details that a sexual assault crime occurred.
(vi) A restraining order from a military or civilian court against the perpetrator of the sexual assault.
(vii) Other behavior by the victim consistent with sexual assault.
(C) For purposes of this subdivision, the sexual assault at issue shall have occurred during military service, including deployment.
(D) For purposes of this subdivision, the sexual assault may have been committed off base.
(E) For purposes of this subdivision, a “perpetrator” means an individual who is any of the following at the time of the sexual assault:
(i) An active duty military personnel from the United States Army, Navy, Marine Corps, Air Force, or Coast Guard.
(ii) A civilian employee of any military branch specified in clause (i), military base, or military deployment.
(iii) A contractor or agent of a private military or private security company.
(iv) A member of the California National Guard.
(F) For purposes of this subdivision, “sexual assault” means an offense included in Section 261, 262, 264.1, 286, 287, formerly 288a, or Section 289 of the Penal Code, as of the date the act that added this paragraph was enacted.
(c) (1) Notwithstanding Section 13955, no person who is convicted of a violent felony listed in subdivision (c) of Section 667.5 of the Penal Code may be granted compensation until that person has been discharged from probation or has been released from a correctional institution and has been discharged from parole, or has been discharged from postrelease community supervision or mandatory supervision, if any, for that violent crime. In no case shall compensation be granted to an applicant pursuant to this chapter during any period of time the applicant is held in a correctional institution, or while an applicant is required to register as a sex offender pursuant to Section 290 of the Penal Code.
(2) A person who has been convicted of a violent felony listed in subdivision (c) of Section 667.5 of the Penal Code may apply for compensation pursuant to this chapter at any time, but the award of that compensation may not be considered until the applicant meets the requirements for compensation set forth in paragraph (1).
(d) Notwithstanding any provision of this section, if an application is for a claim based on injury or death that happened as a result of a crime, as defined in paragraph (3) of subdivision (b) of Section 13951, the board shall not deny the application based solely on a police report, or the lack thereof, or based upon whether the law enforcement officer was arrested or charged with a crime. If there is no police report, the application may be supported by other evidence to establish that a crime occurred.

SEC. 3.

 This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect. The facts constituting the necessity are:
Presently, many Californians are engaging in civil demonstrations against violence committed by law enforcement officers. In order to ensure that victims, and the families of victims, who suffer injuries or death as a result of the use of excessive force by law enforcement officers have access to compensation for medical and mental health expenses and, in the worst case, funeral services, it is necessary that this act take effect immediately.”
SECTION 1.

The Legislature finds and declares all of the following:

(a)In a national survey by the Journal of Emergency Medicine, it was found that out of 263 residents and attendants, 78 percent of them experienced at least one act of workplace violence in just 12 months.

(b)According to the United States Department of Labor Bureau of Labor Statistics, health care workers experience the most nonfatal incidents of workplace violence compared to other professions, with violent attacks accounting for almost 70 percent of all nonfatal workplace assaults, causing days away from work in the United States.

(c)In a 2018 survey by the American College of Emergency Physicians, 7 in 10 respondents said their hospital reported the incident, yet only 3 percent pressed charges.

(d)In 2014, in an effort to keep health care workers safe from the recognized hazard of workplace violence, the Legislature passed Senate Bill 1299, which required the Division of Occupational Safety and Health to adopt regulations focused on the issue of health care workplace violence prevention. In 2017, the division adopted Section 3342 of Title 8 of the California Code of Regulations. This act supplements and in no way abrogates these existing regulations.

(e)Although hospitals have taken numerous measures to protect their staff and everyone in the hospital, additional help is needed to ensure that when patients do assault individuals in the hospital, they are held accountable and the penalties act as a deterrent from future assaultive behavior.

(f)Under current California law, if a serious injury is sustained, or weapons are used, a battery may be prosecuted as a felony.

(g)As of 2018, California is one of the few states that has not passed a felony law that pertains to violence committed inside a health care facility.

SEC. 2.Section 1318.5 is added to the Health and Safety Code, to read:
1318.5.

A health facility licensed under this chapter may post a notice in a conspicuous place in any area of the facility, including, but not limited to, the waiting area, lobby, or entrance, stating substantially the following:


WE WILL NOT TOLERATE any form of threatening or aggressive behavior toward our staff, patients, or visitors. Assaults and batteries against our staff, patients, or visitors are crimes and may result in a criminal conviction. All staff have the right to carry out their work without fearing for their safety.


SEC. 3.Section 241.2 of the Penal Code is amended to read:
241.2.

(a)(1)When an assault is committed on school property, park property, or the property of a public or private hospital, against any person, the assault is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in the county jail not exceeding one year, or by both that fine and imprisonment.

(2)When a violation of this section is committed by a minor on school property, the court may, in addition to any other fine, sentence, or as a condition of probation, order the minor to attend counseling as deemed appropriate by the court at the expense of the minor’s parents. The court shall take into consideration the ability of the minor’s parents to pay, however, no minor shall be relieved of attending counseling because of the minor’s parents’ inability to pay for the counseling imposed by this section.

(b)For the purposes of this section, the following terms have the following meanings:

(1)“Hospital” means a facility for the diagnosis, care, and treatment of human illness that is subject to, or specifically exempted from, the licensure requirements of Chapter 2 (commencing with Section 1250) of Division 2 of the Health and Safety Code.

(2)“School,” as used in this section, means any elementary school, junior high school, four-year high school, senior high school, adult school or any branch thereof, opportunity school, continuation high school, regional occupational center, evening high school, technical school, or community college.

(3)“Park,” as used in this section, means any publicly maintained or operated park. It does not include any facility when used for professional sports or commercial events.

SEC. 4.Section 243.2 of the Penal Code is amended to read:
243.2.

(a)(1)Except as otherwise provided in Section 243.6, when a battery is committed on school property, park property, or the property of a public or private hospital, against any person, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in the county jail not exceeding one year, or by both the fine and imprisonment.

(2)When a violation of this section is committed by a minor on school property, the court may, in addition to any other fine, sentence, or as a condition of probation, order the minor to attend counseling as deemed appropriate by the court at the expense of the minor’s parents. The court shall take into consideration the ability of the minor’s parents to pay, however, no minor shall be relieved of attending counseling because of the minor’s parents’ inability to pay for the counseling imposed by this section.

(b)For the purposes of this section, the following terms have the following meanings:

(1)“Hospital” means a facility for the diagnosis, care, and treatment of human illness that is subject to, or specifically exempted from, the licensure requirements of Chapter 2 (commencing with Section 1250) of Division 2 of the Health and Safety Code.

(2)“Park” means any publicly maintained or operated park. It does not include any facility when used for professional sports or commercial events.

(3)“School” means any elementary school, junior high school, four-year high school, senior high school, adult school or any branch thereof, opportunity school, continuation high school, regional occupational center, evening high school, technical school, or community college.

(c)This section shall not apply to conduct arising during the course of an otherwise lawful labor dispute.

SEC. 5.

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.