Existing law authorizes a peace officer to arrest a person based on probable cause that the person has committed a public offense in the officers presence or that the person has committed a felony, though not in the officers presence.

Existing law requires a person operating a vehicle upon a highway to comply with the lawful orders of a peace officer. Existing law also requires a vehicle to yield and stop if pursued by a marked law enforcement vehicle displaying a lighted red lamp and sounding a siren, as reasonably necessary.

Existing law requires peace officers to receive training to recognize and eliminate criminal profiling based on race or identity.

This bill would define the term motorcycle profiling as the illegal consideration of the fact that a person is riding a motorcycle or wearing motorcycle or motorcycle club-related clothing as a factor in enforcement decisions, and would prohibit peace officers from engaging in motorcycle profiling. This bill would also provide a private right of action for persons who are subjected to motorcycle profiling in violation of the provisions of this bill.

ASSEMBLY THIRD READING

ATR Bill Id:AB 2972

Author:(Caballero)

As Introduced Ver:February 16, 2018

Majority vote

SUMMARY: Prohibits peace officers from engaging in ''motorcycle profiling'' and creates a private right of action for individuals subjected to such profiling. Specifically, this bill:

1. Prohibits peace officers from engaging in motorcycle profiling.
2. Defines "motorcycle profiling" as deciding to stop and question, take enforcement action, arrest, or search a person based on the fact that the person rides a motorcycle or wears motorcycle related clothing, without having any individualized suspicion of the particular person.
3. Establishes a private right of action for individuals subjected to such profiling to enjoin profiling and to seek damages against the peace officer and the officer's employing agency, as specified.

EXISTING LAW:

1. States that, ''A peace officer shall not engage in racial or identity profiling.''
2. Defines ''racial or identity profiling'' as the practice of detaining a suspect based on a perceived racial or other listed trait without any individualized or particular suspicion of the person being stopped.
3. Requires that the course of basic training for law enforcement officers include adequate instruction on racial and cultural diversity in order to foster mutual respect and cooperation between law enforcement and members of all racial and cultural groups.
4. Prohibits a governmental authority or agent thereof, from engaging "in a pattern or practice of conduct by law enforcement officers that deprives any person of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States (U.S.) or by the Constitution or laws of California."
5. Authorizes the Attorney General to bring a civil action in the name of the people in order to eliminate the pattern or practice of conduct that deprive people of rights and other privileges, as specified.
6. Requires each state and local agency that employs peace officers to submit an annual report to the Attorney General data regarding all stops conducted by that agency's peace officers, as specified.
7. Allows the California Highway Patrol to stop and inspect a vehicle upon reasonable belief that the vehicle is in violation of the law or is in an unsafe condition.
8. Prevents state and local law enforcement agencies from conducting motorcycle only checkpoints.

FISCAL EFFECT: Unknown. This bill is key non-fiscal by the Legislative Counsel.

COMMENTS:

1. Author's Statement: According to the author, ''The primary purpose of law enforcement is to ensure public safety, reduce and regulate crime, or behavior based on probable cause. Reports on profiling reflect the discrepancy between the expectations of law enforcement and the reality that law enforcement officers sometimes unlawfully search, stop, and question, individuals based on the appearance, not probable cause. Individuals who wear motorcycle paraphernalia, or ride a motorcycle are subject to the 'biker' stereotype. As a result, these profiling stops, searches, and seizures are costing communities morally and financially. Profiling results in a mismanagement of resources, in regards to law enforcement and the services they have to offer. This unlawful behavior also causes a sense of mistrust within communities that it occurs in, and therefore, an increase in crime.

''The proposed solution is to define in California statute that motorcycle profiling means the illegal use of a fact that person rides a motorcycle or wears motorcycle related apparel as a factor in deciding to stop and question, take enforcement action, arrest, or search a person or vehicle with or without legal basis under the Constitution of the United States.

''This bill addresses motorcycle profiling and is not intended to interfere with gang enforcement efforts in California or hinder in any way the ability of law enforcement to protect the public. The bill merely reinforces that all classes of people should be treated equally under the law, consistent with both the California and U.S. Constitution.

''The motorcycling community is a diverse one, and individual riders deserve to be judged on specific actions and behaviors, not solely on their chosen mode of transportation.''

1. Argument in Support: According to the American Motorcyclist Association (AMA), ''Assembly Bill 2972 will re-affirm the state's long commitment to fairness and impartiality for its residents and visitors, in particular those who enjoy owning and riding motorcycles. The issue of rider profiling is an important one within the motorcycling community, and we fully support this important legislation.

''Founded in 1924, the AMA is the premier advocate for the motorcycling community and lifestyle. Our members are interested in any action that may affect their enjoyment of motorcycles. Our mission is to promote the motorcycle lifestyle and protect the future of motorcycling. However, this submission shall not preclude other individual AMA members, clubs or district organization from submitting their own additional comments or support letters.

''Similar anti-profiling legislation has been enacted in Washington state, New Jersey, and Maryland and is under consideration in a number of other jurisdictions. The motorcycling community is a diverse one, and individual riders deserve to be judged on specific actions and behaviors, not solely by their chosen mode of transportation.''

1. Argument in Opposition: According to the California Association of Highway Patrolmen (CAHP) and the Peace Officers Research Association of California (PORAC), ''The CAHP and PORAC feel strongly that motorcycle riders are not profiled. So much so that the CAHP asked the Department to gather some hard data and wanted to share those statistics with you.

• In 2014, the total number of registered vehicles in California was 23,805,920.
• In 2014, the total number of registered motorcycles in California was 862,705.
• In 2014, motorcycles consisted of approximately 3.6% of vehicles on the road.
• Of the total number of motorcycles registered in 2014, approximately 2.7% were cited.

''Taking these statistics into account, motorcycle riders are stopped far less than their portion of the population. If anything, these numbers could suggest that there is not enough enforcement.''

Please see the policy committee analysis for a full discussion of this bill.

Analysis Prepared by: Mureed Rasool / PUB. S. / (916) 319-3744 FN: 0002674

Date of Hearing:

Consultant: Mureed Rasool

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 2972

Author:(Caballero) – As Introduced Ver:

SUMMARY:

Prohibits peace officers from engaging in “motorcycle profiling” and creates a private right of action for individuals subjected to such profiling. Specifically, this bill:

1. Prohibits peace officers from engaging in motorcycle profiling.
   
2. Defines “motorcycle profiling” as deciding to stop and question, take enforcement action, arrest, or search a person based on the fact that the person rides a motorcycle or wears motorcycle related clothing, without having any individualized suspicion of the particular person.
   
3. Establishes a private right of action for individuals subjected to such profiling to enjoin profiling and to seek damages against the peace officer and the officer’s employing agency, as specified.

EXISTING LAW:

1. States that, “A peace officer shall not engage in racial or identity profiling.” (Pen. Code, § 13519.4, subd. (f).)
   
2. Defines “racial or identity profiling” as the practice of detaining a suspect based on a perceived racial or other listed trait without any individualized or particular suspicion of the person being stopped. (Pen. Code, § 13519.4, subd. (e).)
   
3. Requires that the course of basic training for law enforcement officers include adequate instruction on racial and cultural diversity in order to foster mutual respect and cooperation between law enforcement and members of all racial and cultural groups. (Pen. Code, § 13519.4, subd. (b).)
   
4. Prohibits a governmental authority or agent thereof, from engaging “in a pattern or practice of conduct by law enforcement officers that deprives any person of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States or by the Constitution or laws of California.” (Civ. Code, § 52.3, subd. (a).)
   
5. Authorizes the Attorney General to bring a civil action in the name of the people in order to eliminate the pattern or practice of conduct that deprive people of rights and other privileges, as specified. (Civ. Code, § 52.3, subd. (b).)
   
6. Requires each state and local agency that employs peace officers to submit an annual report to the Attorney General data regarding all stops conducted by that agency’s peace officers, as specified. (Gov. Code, § 12525.5.)
   
7. Allows the California Highway Patrol to stop and inspect a vehicle upon reasonable belief that the vehicle is in violation of the law or is in an unsafe condition. (Veh. Code, §2804.)
   
8. Prevents state and local law enforcement agencies from conducting motorcycle only checkpoints. (Veh. Code, § 2814.1.)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “The primary purpose of law enforcement is to ensure public safety, reduce and regulate crime, or behavior based on probable cause. Reports on profiling reflect the discrepancy between the expectations of law enforcement and the reality that law enforcement officers sometimes unlawfully search, stop, and question, individuals based on the appearance, not probable cause. Individuals who wear motorcycle paraphernalia, or ride a motorcycle are subject to the ‘biker’ stereotype. As a result, these profiling stops, searches, and seizures are costing communities morally and financially. Profiling results in a mismanagement of resources, in regards to law enforcement and the services they have to offer. This unlawful behavior also causes a sense of mistrust within communities that it occurs in, and therefore, an increase in crime.
   
   “The proposed solution is to define in California statute that motorcycle profiling means the illegal use of a fact that person rides a motorcycle or wears motorcycle related apparel as a factor in deciding to stop and question, take enforcement action, arrest, or search a person or vehicle with or without legal basis under the Constitution of the United States.
   
   “This bill addresses motorcycle profiling and is not intended to interfere with gang enforcement efforts in California or hinder in any way the ability of law enforcement to protect the public. The bill merely reinforces that all classes of people should be treated equally under the law, consistent with both the California and U.S. Constitution.
   
   “The motorcycling community is a diverse one, and individual riders deserve to be judged on specific actions and behaviors, not solely on their chosen mode of transportation.”
   
2. Current California Laws Prohibiting Profiling by Law Enforcement: At present, courts use the United States Supreme Court’s Fourth Amendment reasonableness test to evaluate the lawfulness of police enforcement actions, including investigative detentions, searches, and arrests.
   
   The Fourth Amendment of the United States Constitution provides that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Fourth Amendment’s prohibition against unreasonable search and seizure covers law enforcement actions including investigative detentions, arrests, and searches of persons or vehicles.

Regarding Fourth Amendment rights against unreasonable searches and seizures, the California Supreme Court has stated, “A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231.) Specific to traffic stops, the California Supreme Court has also stated that, “Ordinary traffic stops are treated as investigatory detentions for which the officer must be able to articulate specific facts justifying the suspicion that a crime is being committed.” (People v. Hernandez (2008) 45 Cal.4th 295, 299.)

Furthermore, California law states that, “No governmental authority, or agent of a governmental authority, or person acting on behalf of a governmental authority, shall engage in a pattern or practice of conduct by law enforcement officers that deprives any person of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States or by the Constitution or laws of California.” (Civ. Code, § 52.3, subd. (a).) California law authorizes the Attorney General to bring civil actions to eliminate such patterns or practices. (Civ. Code, § 52.3, subd. (b).) Currently, courts are split as to whether individuals have an implied private right of action under this section. (Scocca v. Smith (N.D.Cal. 2012) WL 2375203, 8; but see Ley v. State (2004) 114 Cal.App.4th 1297, 1306.)

As seen above, existing law already prohibits law enforcement officers from detaining an individual without providing facts which would justify a suspicion of criminal activity. Motorcycles, motorcycle riding, and wearing motorcycle paraphernalia are not inherently criminal acts and, as a result, law enforcement officers are currently prohibited from detaining an individual based on those facts alone.

1. Prevalence of Profiling Motorcyclists: Based on the material provided by the California Association of Highway Patrolmen and the Peace Officers Research Association of California, motorcycles consisted of approximately 3.6% of vehicles on the road in California in 2014. Of these, approximately 2.7% were cited.
   
   These numbers suggest that motorcyclists are actually being cited at a rate disproportionally lower than their population size. As no statistics were provided for any other years, it is difficult to ascertain the extent of “profiling” based on riding a motorcycle, or wearing motorcycle paraphernalia.
   
   According to the information provided by the bill’s sponsors, that is not the case. The bill’s sponsor gathered information provided by the Department of Highway Patrol including, citation information and the total number of vehicles registered in California by type; and miles driven estimates from the Federal Highway Association, Kelly Blue Book, and other sources. Based on those sources, the bill’s sponsor estimated that, per miles driven, motorcyclists get cited at a rate double that of other vehicles.
   
   However, the absence of concrete data is still dissimilar from the amount of information regarding racial profiling^[1], which current law expressly prohibits. (Pen. Code, § 13519.4, subd. (f).)
2. Argument in Support: According to the American Motorcyclist Association, “Assembly Bill 2972 will re-affirm the state’s long commitment to fairness and impartiality for its residents and visitors, in particular those who enjoy owning and riding motorcycles. The issue of rider profiling is an important one within the motorcycling community, and we fully support this important legislation.
   
   “Founded in 1924, the AMA is the premier advocate for the motorcycling community and lifestyle. Our members are interested in any action that may affect their enjoyment of motorcycles. Our mission is to promote the motorcycle lifestyle and protect the future of motorcycling. However, this submission shall not preclude other individual AMA members, clubs or district organization from submitting their own additional comments or support letters.
   
   “Similar anti-profiling legislation has been enacted in Washington state, New Jersey and Maryland and is under consideration in a number of other jurisdictions. The motorcycling community is a diverse one, and individual riders deserve to be judged on specific actions and behaviors, not solely by their chosen mode of transportation.”
   
3. Argument in Opposition: According to the California Association of Highway Patrolmen (CAHP) and the Peace Officers Research Association of California (PORAC), “The CAHP and PORAC feel strongly that motorcycle riders are not profiled. So much so that the CAHP asked the Department to gather some hard data and wanted to share those statistics with you.
   

• In 2014, the total number of registered vehicles in California was 23,805,920.
• In 2014, the total number of registered motorcycles in California was 862,705.
• In 2014, motorcycles consisted of approximately 3.6% of vehicles on the road.
• Of the total number of motorcycles registered in 2014, approximately 2.7% were cited.
  

“Taking these statistics into account, motorcycle riders are stopped far less than their portion of the population. If anything, these numbers could suggest that there is not enough enforcement.”

1. Prior Legislation:
   
   1. AB 334 (Cooley), of the 2015-2016 Legislative Session, would have required training for law enforcement officers on the profiling of motorcycle riders. AB 334 was held in the Assembly Appropriations Committee.
      
   2. AB 1047 (Jeffries), Chapter 89, Statutes of 2012, prohibits state and local law enforcement agencies from conducting motorcycle-only checkpoints.
      
   3. SB 1102 (Murray), Chapter 684, Statutes of 2000, among other things, prohibits racial profiling by law enforcement officers.

REGISTERED SUPPORT / OPPOSITION:

Support

American Motorcyclist Association (Sponsor)

ABATE of California

Bikers of Lesser Tolerance, California

California Public Defenders Association

Nick’s Computer Works

Opposition

California Association of Highway Patrolmen

California Police Chiefs Association

California Statewide Law Enforcement Association

Peace Officers Research Association of California

California State Sheriffs’ Association

Analysis Prepared by:

Mureed Rasool / PUB. S. / (916) 319-3744

1. President’s Task Force on 21st Century Policing. (2015). Final Report of the President’s Task Force on 21st Century Policing. Washington, DC: Office of Community Oriented Policing Services. <https://ric-zai-inc.com/Publications/cops-p311-pub.pdf> [Mar. 22, 2018]; Mercury News. (2010). Report: African-Americans Compose 28 Percent of Oakland’s Population, 62 Percent of Police Stops. <https://www.mercurynews.com/2014/03/24/report-african-americans-compose-28-percent-of-oaklands-population-62-percent-of-police-stops/> [Mar. 22, 2018]; Los Angeles Times. (2010). Justice Department Warns LAPD to Take Stronger Stance Against Race Profiling. <http://articles.latimes.com/2010/nov/14/local/la-me-lapd-bias-20101114> [Mar. 22, 2018]. ↑