GOVERNOR'S VETO

GV Bill Id:AB 294

Author:(Rodriguez)

As Enrolled Ver:September 16, 2019

2/3 vote

SUMMARY:

Sets forth guidelines for a state prison facility and a county jail to investigate the aggravated battery of "gassing" against both employees and inmates, requires the facility to complete an investigation within six months of the violation, provides regular notice to employees and inmates of their rights if subject to a gassing incident, mandates that facilities document gassing incidents, and requires training on gassing incidents and the provision of protective gear.

The Senate Amendments:

1. Expand to nonsworn employees of a detention facility the same rights established by this bill for sworn employees in the event of a gassing incident.
2. Provide that an inmate may be tested for diseases, as specified, subject to a finding of medical necessity by the chief medical officer or their designee.
3. Require county jails and state prisons to document all gassing incidents;
4. Allow a person sentenced to a state prison or county jail to receive an examination for human immunodeficiency virus (HIV), and hepatitis B and C, as specified, if the inmate has been exposed to the bodily fluids of another inmate.
5. Grant the right of an inmate to request that another inmate be tested for HIV, and hepatitis B and C, with clarification that existing law providing for an inmate to request the testing of another inmate apply.

6) Require notice to an inmate exposed in a gassing incident be provided with information explaining the inmate's rights regarding personal testing and the testing of another inmate.

Governor’s Veto Message:

This bill would codify guidelines for state prison and county jail facilities to investigate the aggravated battery of "gassing" against both employees and inmates. It would require the facility to complete an investigation within six months of the violation, provide regular notice to employees and inmates of their rights if subject to a gassing incident, mandate that facilities document gassing incidents, and require training on these incidents and the provision of protective gear.

I support adoption of the author's concern for employee safety in correctional settings, and best practices that are already-or should already be-taking place at the state and local level. I encourage counties that are not already practicing this bill's tenets, to follow best practices for the sake of staff and inmate safety. This bill, however, would create a potentially significant state reimbursable mandate. I encourage the proponents to work with their counties to ensure employees are safe at work and protected from these types of violent incidents.

I support adoption of the author's concern for employee safety in correctional settings, and best practices that are already-or should already be-taking place at the state and local level. I encourage counties that are not already practicing this bill's tenets, to follow best practices for the sake of staff and inmate safety. This bill, however, would create a potentially significant state reimbursable mandate. I encourage the proponents to work with their counties to ensure employees are safe at work and protected from these types of violent incidents.

COMMENTS:

According to the Author:

According to the author, "The California Department of Corrections and Rehabilitation is one of the largest law enforcement employers in the country. Every day thousands of men and women in our correctional system are interacting with inmates and offenders across the state. When these officers and staff are the victims of a gassing incident, they have a right to treatment and information about a communicable disease they may have been exposed to unknowingly. No one should be put at unnecessary risk while on the job; sadly these employees have not been afforded that right."

Arguments in Support:

According to the Riverside Sheriffs' Association, "As a result of re-alignment and other recent changes to our criminal justice system, incidents of gassings have grown significantly in county jails. It is imperative that the safety of our officers and staff be enhanced due to the growing frequency of these types of assaults."

Arguments in Opposition:

None.

FISCAL COMMENTS:

According to the Senate Appropriations Committee:

1. State prisons: Unknown, likely-major costs to the Department of Corrections and Rehabilitation, likely in the millions of dollars annually, to implement the provisions of this measure. Some of the ongoing cost drivers likely are the biennial training to all officers, the investigation timeline, and the tracking and documenting of specified information related to the attacks and perpetrators. One-time cost drivers likely would be the purchase and installation of the signage throughout the various facilities and the procurement of the equipment specified in this measure (e.g., shields and protective gear). (General Fund)

2) County jails: Costs to operators of a county jail would vary depending on the jail population size, the number of jails operated, number of correctional officers and other staff employed, and the how current training requirements, investigation procedures and timelines, signage, documentation procedures, and equipment of the sheriff or administrator align with the requirements of the bill. Local costs to comply with this measure likely would be subject to reimbursement from the General Fund as a state-mandated local program, the extent of which would be determined by the Commission on State Mandates. Considered in the aggregate, costs could reach into the millions of dollars, with higher initial one-time costs to procure the required equipment and signage and to develop appropriate training. (General Fund, local funds)

VOTES:

ASM PUBLIC SAFETY: 8-0-0

YES: Jones-Sawyer, Lackey, Bauer-Kahan, Diep, Kamlager-Dove, Quirk, Santiago, Wicks

ASM APPROPRIATIONS: 17-0-1

YES: Gonzalez, Bigelow, Bloom, Bonta, Brough, Calderon, Carrillo, Chau, Diep, Eggman, Fong, Gabriel, Friedman, Obernolte, Petrie-Norris, Quirk, Robert Rivas

ABS, ABST OR NV: Maienschein

ASSEMBLY FLOOR: 78-0-2

YES: Aguiar-Curry, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, O'Donnell, Obernolte, Patterson, Petrie-Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

ABS, ABST OR NV: Arambula, Eduardo Garcia

SENATE FLOOR: 40-0-0

YES: Allen, Archuleta, Atkins, Bates, Beall, Borgeas, Bradford, Caballero, Chang, Dahle, Dodd, Durazo, Galgiani, Glazer, Lena Gonzalez, Grove, Hertzberg, Hill, Hueso, Hurtado, Jackson, Jones, Leyva, McGuire, Mitchell, Monning, Moorlach, Morrell, Nielsen, Pan, Portantino, Roth, Rubio, Skinner, Stern, Stone, Umberg, Wieckowski, Wiener, Wilk

ASSEMBLY FLOOR: 79-0-0

YES: Aguiar-Curry, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, O'Donnell, Obernolte, Patterson, Petrie-Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

UPDATED:

VERSION: September 16, 2019

CONSULTANT: Nikki Moore / PUB. S. / (916) 319-3744 FN: 0002583

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 294

Author:(Rodriguez)

As Amended Ver:September 4, 2019

Majority vote

SUMMARY:

Sets forth guidelines for a state prison facility and a county jail to investigate the aggravated battery of "gassing" against both employees and inmates, requires the facility to complete an investigation within six months of the violation, provides regular notice to employees and inmates of their rights if subject to a gassing incident, mandates that facilities document gassing incidents, and requires training on gassing incidents and the provision of protective gear.

The Senate Amendments:

1. Expand to nonsworn employees of a detention facility the same rights established by this bill for sworn employees in the event of a gassing incident.
2. Provide that an inmate may be tested for diseases, as specified, subject to a finding of medical necessity by the chief medical officer or their designee.
3. Require county jails and state prisons to document all gassing incidents;
4. Allow a person sentenced to a state prison or county jail to receive an examination for human immunodeficiency virus (HIV), and hepatitis B and C, as specified, if the inmate has been exposed to the bodily fluids of another inmate.
5. Grant the right of an inmate to request that another inmate be tested for HIV, and hepatitis B and C, with clarification that existing law providing for an inmate to request the testing of another inmate apply.
6. Require notice to an inmate exposed in a gassing incident be provided with information explaining the inmate's rights regarding personal testing and the testing of another inmate.

COMMENTS:

According to the Author:

According to the author, "The California Department of Corrections and Rehabilitation is one of the largest law enforcement employers in the country. Every day thousands of men and women in our correctional system are interacting with inmates and offenders across the state. When these officers and staff are the victims of a gassing incident, they have a right to treatment and information about a communicable disease they may have been exposed to unknowingly. No one should be put at unnecessary risk while on the job; sadly these employees have not been afforded that right."

Arguments in Support:

According to the Riverside Sheriffs' Association, "As a result of re-alignment and other recent changes to our criminal justice system, incidents of gassings have grown significantly in county jails. It is imperative that the safety of our officers and staff be enhanced due to the growing frequency of these types of assaults."

Arguments in Opposition:

None.

FISCAL COMMENTS:

According to the Senate Appropriations Committee:

1. State prisons: Unknown, likely-major costs to the Department of Corrections and Rehabilitation, likely in the millions of dollars annually, to implement the provisions of this measure. Some of the ongoing cost drivers likely are the biennial training to all officers, the investigation timeline, and the tracking and documenting of specified information related to the attacks and perpetrators. One-time cost drivers likely would be the purchase and installation of the signage throughout the various facilities and the procurement of the equipment specified in this measure (e.g., shields and protective gear). (General Fund)
2. County jails: Costs to operators of a county jail would vary depending on the jail population size, the number of jails operated, number of correctional officers and other staff employed, and the how current training requirements, investigation procedures and timelines, signage, documentation procedures, and equipment of the sheriff or administrator align with the requirements of the bill. Local costs to comply with this measure likely would be subject to reimbursement from the General Fund as a state-mandated local program, the extent of which would be determined by the Commission on State Mandates. Considered in the aggregate, costs could reach into the millions of dollars, with higher initial one-time costs to procure the required equipment and signage and to develop appropriate training. (General Fund, local funds)

VOTES:

ASM PUBLIC SAFETY: 8-0-0

YES: Jones-Sawyer, Lackey, Bauer-Kahan, Diep, Kamlager-Dove, Quirk, Santiago, Wicks

ASM APPROPRIATIONS: 17-0-1

YES: Gonzalez, Bigelow, Bloom, Bonta, Brough, Calderon, Carrillo, Chau, Diep, Eggman, Fong, Gabriel, Friedman, Obernolte, Petrie-Norris, Quirk, Robert Rivas

ABS, ABST OR NV: Maienschein

ASSEMBLY FLOOR: 78-0-2

YES: Aguiar-Curry, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, O'Donnell, Obernolte, Patterson, Petrie‑Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

ABS, ABST OR NV: Arambula, Eduardo Garcia

SENATE FLOOR: 40-0-0

YES: Allen, Archuleta, Atkins, Bates, Beall, Borgeas, Bradford, Caballero, Chang, Dahle, Dodd, Durazo, Galgiani, Glazer, Lena Gonzalez, Grove, Hertzberg, Hill, Hueso, Hurtado, Jackson, Jones, Leyva, McGuire, Mitchell, Monning, Moorlach, Morrell, Nielsen, Pan, Portantino, Roth, Rubio, Skinner, Stern, Stone, Umberg, Wieckowski, Wiener, Wilk

UPDATED:

VERSION: September 4, 2019

CONSULTANT: Nikki Moore (Counsel) / PUB. S. / (916) 319-3744 FN: 0002341

 THIRD READING  

Bill No: AB 294

Author: Rodriguez (D), et al.

Amended: 9/4/19 in Senate

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/11/19

AYES: Skinner, Moorlach, Bradford, Jackson, Mitchell, Morrell, Wiener

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/30/19

AYES: Portantino, Bates, Bradford, Durazo, Hill, Jones, Wieckowski

ASSEMBLY FLOOR: 78-0, 4/22/19 - See last page for vote

SUBJECT: Correctional facilities: gassing

SOURCE: Los Angeles County Professional Peace Officers Association

DIGEST:

This bill (1) imposes a 6-month timeline for local and state correctional facilities to complete investigations of gassing attacks; (2) requires local and state correctional facilities to provide notice to their employees informing them of their rights following a gassing attack, make protective gear available to staff, document gassing attacks, as specified, provide adequate officer training on how to prevent and mitigate the harm from gassing attacks, and replace any article of an officer’s uniform that has been soiled in a gassing attack; and (3) requires local and state correctional facilities to provide notice to inmates informing them of their rights if they are exposed to another inmate’s bodily fluids.

Senate Floor Amendments of 9/4/19 clarify that the right of an inmate who has been exposed to another inmate’s bodily fluids to request that the other inmate be tested for specified communicable diseases is subject to existing laws pertaining to the procedures for testing of inmates.

ANALYSIS:

Existing law:

1. Defines “gassing” as intentionally placing or throwing, or causing to be placed or thrown, upon the person of another, any human excrement or other bodily fluids or bodily substances or any mixture containing human excrement or other bodily fluids or bodily substances that results in actual contact with the person’s skin or membranes. (Pen. Code, §§ 243.9, subd. (b), 4501.1, subd. (b).)
   
2. Provides that every person confined in any local detention facility or state prison who commits a battery by gassing upon the person of any peace officer, as defined, or employee of the local detention facility or state prison is guilty of aggravated battery and shall be punished by imprisonment in a county jail, or by imprisonment in the state prison for two, three, or four years. (Pen. Code, §§ 243.9, subd. (a), 4501.1, subd. (a).)
3. Requires the person in charge of the local detention facility or state prison to use every available means to immediately investigate all reported or suspected gassing violations, including, but not limited to, the use of forensically acceptable means of preserving and testing the suspected gassing substance to confirm the presence of human excrement or other bodily fluids or bodily substances. (Pen. Code, §§ 243.9 subd. (c), 4501.1, subd. (c).)
4. Permits, if there is probable cause to believe that the inmate has committed a battery by gassing, the chief medical officer of the detention facility or state prison, when he or she deems it medically necessary to protect the health of an officer or employee who may have been the victim of a gassing, to order the inmate to receive an examination or test for hepatitis or tuberculosis or both on either a voluntary or involuntary basis immediately after the event, and periodically thereafter as determined to be necessary by the medical officer in order to ensure that further hepatitis or tuberculosis transmission does not occur. Requires the results of any examination or test to be provided to the officer or employee. (Pen. Code, §§ 243.9, subd. (c), 4501.1, subd. (c).)
5. Requires the person in charge of the local detention facility or state prison to refer all reports for which there is probable cause to believe that the inmate has committed a gassing offense to the local district attorney for prosecution. (Pen. Code, §§ 243.9, subd. (d), 4501.1, subd. (d).)
6. Requires a law enforcement employee who believes that he or she came into contact with bodily fluids of an inmate of a correctional institution to report the incident to the State Department of Public Health, by completing the specified form. Provides that the law enforcement employee may request a test for HIV or hepatitis B or C of the inmate. (Pen. Code, § 7510, subd. (a).)
7. Requires the report to be submitted by the end of the law enforcement employee’s shift during which the incident occurred, or if not practicable, as soon as possible, but no longer than two days after the incident, except that the chief medical officer may waive this filing period requirement if he or she finds that good cause exists. Requires the report to include names of witnesses to the incident, names of persons involved in the incident, and if feasible, any written statements from these parties. Requires the law enforcement employee to assist in the investigation of the incident, as requested by the chief medical officer. (Pen. Code, § 7510, subd. (b).)

This bill:

1. Requires the local facility or state prison to complete its investigation of a reported or suspected gassing incident within six months of the incident.
2. Provides that an officer or employee who is the victim of a reported or suspected gassing has the right to request the inmate be tested for hepatitis, tuberculosis, or both, subject to a finding of medical necessity by the chief medical officer.
3. Requires the local detention facility or state prison to consult with the district attorney’s office to determine the type of physical evidence and documentation that is necessary to prosecute a person for committing a gassing.
4. Provides that the local detention facility or state prison has the discretion to not test the gassing substance for the presence of a bodily fluid if the facility, in consultation with the district attorney’s office, determines that testing is unnecessary to obtain sufficient evidence of the gassing.
5. Provides that the provisions of this bill pertaining to testing the gassing substance do not preclude the right of an inmate to test the suspected gassing substance for purposes of providing a defense against any charges filed.
6. Requires the sheriff of each county or the administrator of each county jail, or the warden in charge of a state prison, to post a legible notice in an easily visible location to officers and employees of the jail that describes the rights of a victim of a gassing attack, and specifies the content that must be included in the notice.
7. Requires the sheriff of each county or the administrator of each county jail, or the warden in charge of a state prison, to provide a physical notice explaining a victim’s rights to aftercare in a gassing attack to an officer or employee who is a victim of a gassing attack immediately after the incident is reported. Requires this document to contain information substantially similar to the notice above. Requires the notice to be signed by both the sheriff or county jail administrator and the victim, or the warden of a state prison and the victim, and to serve as an acknowledgment of the victim’s rights after a gassing attack.
8. Requires the sheriff of each county or the administrator of each county jail, or the warden in charge of a state prison, to provide on an annual basis a facility-wide email, to the extent a facility-wide email is utilized by the county jail or state prison, describing a victim’s rights to aftercare in a gassing attack. Requires the email to contain information substantially similar to the notice described above and also include contact information for aftercare and counseling resources.
9. Requires a county jail or state prison to make protective gear, including, but not limited to, clothing, goggles, shields, and other protective devices, readily available to staff.
10. Requires a county jail or state prison to document all of the following: the total number of gassing incidents at the county jail or state prison and how many were committed by repeat offenders; the disposition of each gassing incident, including administrative penalties imposed, number of incidents prosecuted, the results of those prosecutions, and any discipline procedures or penalties imposed; a profile of the inmates who committed the gassing incidents, including the number of inmates who have one or more prior serious or violent felony convictions; efforts that the county jail or state prison has taken to limit these incidents, including staff training and the use of protective clothing, goggles, shields, or other protective gear; and the results and costs of medical testing related to gassing incidents.
11. Requires a county jail or state prison to provide adequate training to officers on how to prevent and mitigate the harm from gassing attacks on a biennial basis. Requires a county jail or state prison to provide adequate training to a newly hired officer on how to prevent and mitigate the harm from gassing attacks within three months of the newly hired officer’s employment date.
12. Requires a county jail or state prison to replace any article of an officer’s uniform that has been soiled in a gassing attack.
13. Specifies that a nonsworn employee of a correctional institution is a law enforcement employee.
14. Specifies that inmates confined in local facilities and state prisons have the right to be tested for specified communicable diseases if exposed to the bodily fluids of another inmate.
15. Specifies that inmates confined in local facilities and state prisons have the right to request that another inmate be tested for specified communicable diseases if exposed to the bodily fluids of that inmate, subject to existing laws.
16. Requires a county jail or state prison to document incidents in which an inmate intentionally exposes another inmate to the inmate’s bodily fluids. Requires a county jail or state prison to notify an inmate exposed to another inmate’s bodily fluids of the inmate’s rights.

Background

Gassing was established as a form of aggravated battery in 1997 when AB 995 (Pacheco, Chapter 591, Statutes of 1997) was enacted. AB 995 included a sunset provision that was eliminated by AB 1449 (Florez, Chapter 627, Statutes of 2000). Gassing is a specific form of a battery committed by an inmate on a peace officer or employee of a correctional facility in which the inmate “intentionally plac[es] or throw[s], or caus[es] to be placed or thrown, upon the person of another, any human excrement or other bodily fluids or bodily substances or any mixture containing human excrement or other bodily fluids or bodily substances that results in actual contact with the person's skin or membranes.” The penalty for gassing is two, three, or four years in prison or up to one year in county jail.

Current law requires the person in charge of a state or local correctional facility to immediately investigate all reported or suspected gassing incidents, and to use forensically acceptable means of preserving and testing a suspected gassing substance. Existing law permits the victim of a gassing attack to request that the inmate be tested for specified communicable diseases. However, the chief medical officer of the correctional facility makes the determination about whether testing an inmate is appropriate, and may require testing of the inmate in the absence of a request for testing.

State Auditor’s Report

At the request of the Joint Legislative Audit Committee, the State Auditor completed an audit of three correctional facilities—CDCR’s California Institute for Men, Los Angeles County’s Men’s Central Jail, and Alameda County’s Santa Rita Jail—to evaluate the health and safety of staff who were subject to gassing attacks. The State Auditor’s report was published in September 2018. (State Auditor, Correctional Officer Health and Safety: Some State and County Correctional Facilities Could Better Protect Their Officers From the Health Risks of Certain Inmate Attacks, Report 2018-106 <http://auditor.ca.gov/pdfs/reports/2018-106.pdf .) The report included the following findings:

• The correctional facilities did not consistently investigate gassing attacks in a thorough and timely manner, leading to relatively few prosecutions and convictions in those cases.
• The correctional facilities do not have adequate procedures to ensure that they provide care to victims of gassing attacks, including informing victims about the availably of medical testing for communicable diseases, worker’s compensation benefits, or counseling services.
• The correctional facilities have not established adequate internal processes to prevent and respond to gassing attacks, including appropriately disciplining inmates who commit these attacks, training officers on how to prevent and mitigate attacks, and tracking gassing attacks. (Id. at pp. 1-2.)

The report made the following recommendations to assist the correctional facilities in addressing gassing incidents and related officer health and safety issues:

• Revise policies to document that it notifies victims of counseling services available following a gassing attack, as well as their right to request that the inmate be tested for a communicable disease.
• Develop goals for how long investigations should take and consistently collect physical evidence of the crime.
• Impose internal discipline to deter inmates from committing future gassing attacks.
• Provide training that is specific to preventing and responding to gassing attacks.
• Consistently track all gassing attacks to use as a tool to identify best practices for preventing future gassing attacks.
• Refer all gassing attacks to the district attorney when probable cause exists. (Id. at pp. 3-4.)

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Senate Appropriations Committee:

• County jails: Costs to operators of a county jail would vary depending on the jail population size, the number of jails operated, number of correctional officers and other staff employed, and the how current training requirements, investigation procedures and timelines, signage, documentation procedures, and equipment of the sheriff or administrator align with the requirements of the bill. Local costs to comply with this measure likely would be subject to reimbursement from the General Fund as a state-mandated local program, the extent of which would be determined by the Commission on State Mandates. Considered in the aggregate, costs could reach into the millions of dollars, with higher initial one-time costs to procure the required equipment and signage and to develop appropriate training. (General Fund, local funds)
• State prisons: Unknown costs to the Department of Corrections and Rehabilitation associated with the shortened investigation timeline. (General Fund)

SUPPORT: (Verified 9/4/19)

Los Angeles County Professional Peace Officers Association (source)

Association of Deputy District Attorneys

Association of Los Angeles Deputy Sheriffs

California Association of Code Enforcement Officers

California Correctional Peace Officers Association

California Correctional Peace Officer Association Benefit Trust Fund

California Correctional Supervisors Organization

California Narcotic Officers’ Association

College and University Police Chiefs Association

Los Angeles County Probation Officers Union AFSCME Local 685

Los Angeles County Sheriff’s Department

Riverside Sheriffs’ Association

San Bernardino County Sheriff’s Department

OPPOSITION: (Verified 9/4/19)

None received

ASSEMBLY FLOOR: 78-0, 4/22/19

AYES: Aguiar-Curry, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Petrie-Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

NO VOTE RECORDED: Arambula, Eduardo Garcia

Prepared by: Stephanie Jordan / PUB. S. /

9/5/19 15:41:50

**** END ****

 THIRD READING  

Bill No: AB 294

Author: Rodriguez (D), et al.

Amended: 6/18/19 in Senate

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/11/19

AYES: Skinner, Moorlach, Bradford, Jackson, Mitchell, Morrell, Wiener

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/30/19

AYES: Portantino, Bates, Bradford, Durazo, Hill, Jones, Wieckowski

ASSEMBLY FLOOR: 78-0, 4/22/19 - See last page for vote

SUBJECT: Correctional facilities: gassing

SOURCE: Los Angeles County Professional Peace Officers Association

DIGEST:

This bill (1) imposes a 6-month timeline for local and state correctional facilities to complete investigations of gassing attacks; (2) requires local and state correctional facilities to provide notice to their employees informing them of their rights following a gassing attack, make protective gear available to staff, document gassing attacks, as specified, provide adequate officer training on how to prevent and mitigate the harm from gassing attacks, and replace any article of an officer’s uniform that has been soiled in a gassing attack; and (3) requires local and state correctional facilities to provide notice to inmates informing them of their rights if they are exposed to another inmate’s bodily fluids.

ANALYSIS:

Existing law:

1. Defines “gassing” as intentionally placing or throwing, or causing to be placed or thrown, upon the person of another, any human excrement or other bodily fluids or bodily substances or any mixture containing human excrement or other bodily fluids or bodily substances that results in actual contact with the person’s skin or membranes. (Pen. Code, §§ 243.9, subd. (b), 4501.1, subd. (b).)
   
2. Provides that every person confined in any local detention facility or state prison who commits a battery by gassing upon the person of any peace officer, as defined, or employee of the local detention facility or state prison is guilty of aggravated battery and shall be punished by imprisonment in a county jail, or by imprisonment in the state prison for two, three, or four years. (Pen. Code, §§ 243.9, subd. (a), 4501.1, subd. (a).)
3. Requires the person in charge of the local detention facility or state prison to use every available means to immediately investigate all reported or suspected gassing violations, including, but not limited to, the use of forensically acceptable means of preserving and testing the suspected gassing substance to confirm the presence of human excrement or other bodily fluids or bodily substances. (Pen. Code, §§ 243.9 subd. (c), 4501.1, subd. (c).)
4. Permits, if there is probable cause to believe that the inmate has committed a battery by gassing, the chief medical officer of the detention facility or state prison, when he or she deems it medically necessary to protect the health of an officer or employee who may have been the victim of a gassing, to order the inmate to receive an examination or test for hepatitis or tuberculosis or both on either a voluntary or involuntary basis immediately after the event, and periodically thereafter as determined to be necessary by the medical officer in order to ensure that further hepatitis or tuberculosis transmission does not occur. Requires the results of any examination or test to be provided to the officer or employee. (Pen. Code, §§ 243.9, subd. (c), 4501.1, subd. (c).)
5. Requires the person in charge of the local detention facility or state prison to refer all reports for which there is probable cause to believe that the inmate has committed a gassing offense to the local district attorney for prosecution. (Pen. Code, §§ 243.9, subd. (d), 4501.1, subd. (d).)
6. Requires a law enforcement employee who believes that he or she came into contact with bodily fluids of an inmate of a correctional institution to report the incident to the State Department of Public Health, by completing the specified form. Provides that the law enforcement employee may request a test for HIV or hepatitis B or C of the inmate. (Pen. Code, § 7510, subd. (a).)
7. Requires the report to be submitted by the end of the law enforcement employee’s shift during which the incident occurred, or if not practicable, as soon as possible, but no longer than two days after the incident, except that the chief medical officer may waive this filing period requirement if he or she finds that good cause exists. Requires the report to include names of witnesses to the incident, names of persons involved in the incident, and if feasible, any written statements from these parties. Requires the law enforcement employee to assist in the investigation of the incident, as requested by the chief medical officer. (Pen. Code, § 7510, subd. (b).)

This bill:

1. Requires the local facility or state prison to complete its investigation of a reported or suspected gassing incident within six months of the incident.
2. Provides that an officer or employee who is the victim of a reported or suspected gassing has the right to request the inmate be tested for hepatitis, tuberculosis, or both, subject to a finding of medical necessity by the chief medical officer.
3. Requires the local detention facility or state prison to consult with the district attorney’s office to determine the type of physical evidence and documentation that is necessary to prosecute a person for committing a gassing.
4. Provides that the local detention facility or state prison has the discretion to not test the gassing substance for the presence of a bodily fluid if the facility, in consultation with the district attorney’s office, determines that testing is unnecessary to obtain sufficient evidence of the gassing.
5. Provides that the provisions of this bill pertaining to testing the gassing substance do not preclude the right of an inmate to test the suspected gassing substance for purposes of providing a defense against any charges filed.
6. Requires the sheriff of each county or the administrator of each county jail, or the warden in charge of a state prison, to post a legible notice in an easily visible location to officers and employees of the jail that describes the rights of a victim of a gassing attack, and specifies the content that must be included in the notice.
7. Requires the sheriff of each county or the administrator of each county jail, or the warden in charge of a state prison, to provide a physical notice explaining a victim’s rights to aftercare in a gassing attack to an officer or employee who is a victim of a gassing attack immediately after the incident is reported. Requires this document to contain information substantially similar to the notice above. Requires the notice to be signed by both the sheriff or county jail administrator and the victim, or the warden of a state prison and the victim, and to serve as an acknowledgment of the victim’s rights after a gassing attack.
8. Requires the sheriff of each county or the administrator of each county jail, or the warden in charge of a state prison, to provide on an annual basis a facility-wide email, to the extent a facility-wide email is utilized by the county jail or state prison, describing a victim’s rights to aftercare in a gassing attack. Requires the email to contain information substantially similar to the notice described above and also include contact information for aftercare and counseling resources.
9. Requires a county jail or state prison to make protective gear, including, but not limited to, clothing, goggles, shields, and other protective devices, readily available to staff.
10. Requires a county jail or state prison to document all of the following: the total number of gassing incidents at the county jail or state prison and how many were committed by repeat offenders; the disposition of each gassing incident, including administrative penalties imposed, number of incidents prosecuted, the results of those prosecutions, and any discipline procedures or penalties imposed; a profile of the inmates who committed the gassing incidents, including the number of inmates who have one or more prior serious or violent felony convictions; efforts that the county jail or state prison has taken to limit these incidents, including staff training and the use of protective clothing, goggles, shields, or other protective gear; and the results and costs of medical testing related to gassing incidents.
11. Requires a county jail or state prison to provide adequate training to officers on how to prevent and mitigate the harm from gassing attacks on a biennial basis. Requires a county jail or state prison to provide adequate training to a newly hired officer on how to prevent and mitigate the harm from gassing attacks within three months of the newly hired officer’s employment date.
12. Requires a county jail or state prison to replace any article of an officer’s uniform that has been soiled in a gassing attack.
13. Specifies that a nonsworn employee of a correctional institution is a law enforcement employee.
14. Specifies that inmates confined in local facilities and state prisons have the right to be tested for specified communicable diseases if exposed to the bodily fluids of another inmate.
15. Specifies that inmates confined in local facilities and state prisons have the right to request that another inmate be tested for specified communicable diseases if exposed to the bodily fluids of that inmate, subject to existing laws.
16. Requires a county jail or state prison to document incidents in which an inmate intentionally exposes another inmate to the inmate’s bodily fluids. Requires a county jail or state prison to notify an inmate exposed to another inmate’s bodily fluids of the inmate’s rights.

Background

Gassing was established as a form of aggravated battery in 1997 when AB 995 (Pacheco, Chapter 591, Statutes of 1997) was enacted. AB 995 included a sunset provision that was eliminated by AB 1449 (Florez, Chapter 627, Statutes of 2000). Gassing is a specific form of a battery committed by an inmate on a peace officer or employee of a correctional facility in which the inmate “intentionally plac[es] or throw[s], or caus[es] to be placed or thrown, upon the person of another, any human excrement or other bodily fluids or bodily substances or any mixture containing human excrement or other bodily fluids or bodily substances that results in actual contact with the person's skin or membranes.” The penalty for gassing is two, three, or four years in prison or up to one year in county jail.

Current law requires the person in charge of a state or local correctional facility to immediately investigate all reported or suspected gassing incidents, and to use forensically acceptable means of preserving and testing a suspected gassing substance. Existing law permits the victim of a gassing attack to request that the inmate be tested for specified communicable diseases. However, the chief medical officer of the correctional facility makes the determination about whether testing an inmate is appropriate, and may require testing of the inmate in the absence of a request for testing.

State Auditor’s Report

At the request of the Joint Legislative Audit Committee, the State Auditor completed an audit of three correctional facilities—CDCR’s California Institute for Men, Los Angeles County’s Men’s Central Jail, and Alameda County’s Santa Rita Jail—to evaluate the health and safety of staff who were subject to gassing attacks. The State Auditor’s report was published in September 2018. (State Auditor, Correctional Officer Health and Safety: Some State and County Correctional Facilities Could Better Protect Their Officers From the Health Risks of Certain Inmate Attacks, Report 2018-106 <http://auditor.ca.gov/pdfs/reports/2018-106.pdf ) The report included the following findings:

• The correctional facilities did not consistently investigate gassing attacks in a thorough and timely manner, leading to relatively few prosecutions and convictions in those cases.
• The correctional facilities do not have adequate procedures to ensure that they provide care to victims of gassing attacks, including informing victims about the availably of medical testing for communicable diseases, worker’s compensation benefits, or counseling services.
• The correctional facilities have not established adequate internal processes to prevent and respond to gassing attacks, including appropriately disciplining inmates who commit these attacks, training officers on how to prevent and mitigate attacks, and tracking gassing attacks. (Id. at pp. 1-2.)

The report made the following recommendations to assist the correctional facilities in addressing gassing incidents and related officer health and safety issues:

• Revise policies to document that it notifies victims of counseling services available following a gassing attack, as well as their right to request that the inmate be tested for a communicable disease.
• Develop goals for how long investigations should take and consistently collect physical evidence of the crime.
• Impose internal discipline to deter inmates from committing future gassing attacks.
• Provide training that is specific to preventing and responding to gassing attacks.
• Consistently track all gassing attacks to use as a tool to identify best practices for preventing future gassing attacks.
• Refer all gassing attacks to the district attorney when probable cause exists. (Id. at pp. 3-4.)

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Senate Appropriations Committee:

• County jails: Costs to operators of a county jail would vary depending on the jail population size, the number of jails operated, number of correctional officers and other staff employed, and the how current training requirements, investigation procedures and timelines, signage, documentation procedures, and equipment of the sheriff or administrator align with the requirements of the bill. Local costs to comply with this measure likely would be subject to reimbursement from the General Fund as a state-mandated local program, the extent of which would be determined by the Commission on State Mandates. Considered in the aggregate, costs could reach into the millions of dollars, with higher initial one-time costs to procure the required equipment and signage and to develop appropriate training. (General Fund, local funds)
• State prisons: Unknown costs to the Department of Corrections and Rehabilitation associated with the shortened investigation timeline. (General Fund)

SUPPORT: (Verified 8/30/19)

Los Angeles County Professional Peace Officers Association (source)

Association of Deputy District Attorneys

Association of Los Angeles Deputy Sheriffs

California Association of Code Enforcement Officers

California Correctional Peace Officers Association

California Correctional Peace Officer Association Benefit Trust Fund

California Correctional Supervisors Organization

California Narcotic Officers’ Association

College and University Police Chiefs Association

Los Angeles County Probation Officers Union AFSCME Local 685

Los Angeles County Sheriff’s Department

Riverside Sheriffs’ Association

San Bernardino County Sheriff’s Department

OPPOSITION: (Verified 8/30/19)

None received

ASSEMBLY FLOOR: 78-0, 4/22/19

AYES: Aguiar-Curry, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Petrie-Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

NO VOTE RECORDED: Arambula, Eduardo Garcia

Prepared by: Stephanie Jordan / PUB. S. /

9/1/19 9:46:14

**** END ****

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

AB 294 (Rodriguez) - Correctional facilities: gassing

Bill Summary:

AB 294 would establish new procedures, training, signage, and requirements for state prisons and county jails with respect to gassings attacks and new rights with respect to victims of those attacks.

Fiscal Impact:

• State prisons: Unknown, likely-major costs to the Department of Corrections and Rehabilitation, likely in the millions of dollars annually, to implement the provisions of this measure. Some of the ongoing cost drivers likely are the biennial training to all officers, the investigation timeline, and the tracking and documenting of specified information related to the attacks and perpetrators. One-time cost drivers likely would be the purchase and installation of the signage throughout the various facilities and the procurement of the equipment specified in this measure (e.g., shields and protective gear). (General Fund)
• County jails: Costs to operators of a county jail would vary depending on the jail population size, the number of jails operated, number of correctional officers and other staff employed, and the how current training requirements, investigation procedures and timelines, signage, documentation procedures, and equipment of the sheriff or administrator align with the requirements of the bill. Local costs to comply with this measure likely would be subject to reimbursement from the General Fund as a state-mandated local program, the extent of which would be determined by the Commission on State Mandates. Considered in the aggregate, costs could reach into the millions of dollars, with higher initial one-time costs to procure the required equipment and signage and to develop appropriate training. (General Fund, local funds)

Background:

According to the analysis of this bill by the Senate Committee on Public Safety:

Gassing is a specific form of [aggravated] battery committed by an inmate on a peace officer or employee of a correctional facility in which the inmate “intentionally plac[es] or throw[s], or caus[es] to be placed or thrown, upon the person of another, any human excrement or other bodily fluids or bodily substances or any mixture containing human excrement or other bodily fluids or bodily substances that results in actual contact with the person's skin or membranes.” The penalty for gassing is two, three, or four years in prison or up to one year in county jail.

Current law requires the person in charge of a state or local correctional facility to immediately investigate all reported or suspected gassing incidents, and to use forensically acceptable means of preserving and testing a suspected gassing substance. Existing law permits the victim of a gassing attack to request that the inmate be tested for specified communicable diseases. However, the chief medical officer of the correctional facility makes the determination about whether testing an inmate is appropriate, and may require testing of the inmate in the absence of a request for testing.

Proposed Law:

This bill would:

• Allow an officer or employee who is the victim of a reported or suspected gassing attack to request that the inmate involved with the attack be tested for certain communicable diseases, as specified.
• Require a state prison facility and a county jail to make protective gear, such as clothing, goggles, and shields, readily available to staff.
• Require a state prison facility and a county jail to provide adequate training to officers on how to prevent and mitigate the harm from gassing attacks, as specified.
• Require a state prison facility and a county jail to replace any article of an officer’s uniform that has been soiled in a gassing attack.
• Require a state prison facility and a county jail to complete investigations of gassing attacks within 6 months of the attack.
• Allow a person sentenced to a state prison or county jail to receive an examination for HIV if the inmate has been exposed to the bodily fluids of another inmate, and to receive an examination for hepatitis B and C if the inmate has been exposed to human excrement, bodily fluids, bodily substances, or any mixture containing those substances and to request that the other inmate be tested for HIV and hepatitis B and C, as specified.
• Require the warden of a state prison and the county sheriff or administrator of a county jail to post a notice relating to the rights of a victim of a gassing attack and to provide a notice to an officer, employee, or inmate of the facility or jail who is the victim of the attacks, informing them of their rights.
• Require a state prison and a county jail to document specified information relating to gassing attacks.

Related Legislation:

AB 1737 (Obernolte, 2017), as introduced, would have allowed instead of required the testing of the substance used in a gassing incident, if, in consultation with the local district attorney, that testing is necessary to obtain sufficient evidence to prosecute the offense. AB 1737 was later amended to a different subject not related to gassing.

SB 1419 (Runner, 2011) would have expanded the crime of gassing to include any person who throws bodily fluids at a peace officer, as specified, regardless of if that person is incarcerated. This new crime would have been punishable by two, three, or four years in state prison. SB 1419 was failed passage in the Senate Committee on Public Safety.

Staff Comments:

At the request of the Joint Legislative Audit Committee, the State Auditor conducted an audit of three correctional facilities—one state prison and two county jails—to evaluate the health and safety of staff who were subject to gassing attacks. The audit revealed that the facilities did not consistently investigate gassing attacks, do not have adequate procedures to ensure proper care for victims of these attacks, and have not developed adequate internal processes to prevent and respond to these attacks. The Auditor made a number of recommendations resulting from the audit findings. These include the following:

• Revise policies to document that it notifies victims of counseling services available following a gassing attack, as well as their right to request that the inmate be tested for a communicable disease.
• Develop goals for how long investigations should take and consistently collect physical evidence of the crime.
• Impose internal discipline to deter inmates from committing future gassing attacks.
• Provide training that is specific to preventing and responding to gassing attacks.
• Consistently track all gassing attacks to use as a tool to identify best practices for preventing future gassing attacks.
• Refer all gassing attacks to the district attorney when probable cause exists.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2019 - 2020 Regular

Bill No: AB 294 Hearing Date: June 11, 2019

Subject: Correctional Facilities: Gassing

HISTORY

Source: Los Angeles County Professional Peace Officers Association

Prior Legislation: SB 1419 (Runner), not heard in Senate Public Safety Committee in 2010

AB 1449 (Florez), Ch. 627, Stats. 2000

AB 995 (Pacheco), Ch. 591, Stats. 1997

SB 136 (Costa), Ch. 684, Stats. 1997

Support: Association of Deputy District Attorneys; Association of Los Angeles Deputy Sheriffs; California Association of Code Enforcement Officers; California Correctional Peace Officers Association; California Correctional Peace Officer Association Benefit Trust Fund; California Correctional Supervisors Organization; California Narcotic Officers’ Association; College and University Police Chiefs Association; Los Angeles County Probation Officers Union AFSCME Local 685; Los Angeles County Sheriff’s Department; Riverside Sheriffs’ Association; San Bernardino County Sheriff’s Department

Opposition: None known

Assembly Floor Vote: 78 - 0

PURPOSE

The purposes of this bill are to: 1) impose a 6-month timeline for local and state correctional facilities to complete investigations of gassing attacks; and 2) require local and state correctional facilities to provide notice to their employees informing them of their rights following a gassing attack, make protective gear available to staff, document gassing attacks, as specified, provide adequate officer training on how to prevent and mitigate the harm from gassing attacks, and replace any article of an officer’s uniform that has been soiled in a gassing attack.

Existing law defines “gassing” as intentionally placing or throwing, or causing to be placed or thrown, upon the person of another, any human excrement or other bodily fluids or bodily substances or any mixture containing human excrement or other bodily fluids or bodily substances that results in actual contact with the person’s skin or membranes. (Pen. Code, §§ 243.9, subd. (b), 4501.1, subd. (b).)

Existing law provides that every person confined in any local detention facility or state prison who commits a battery by gassing upon the person of any peace officer, as defined, or employee of the local detention facility or state prison is guilty of aggravated battery and shall be punished by imprisonment in a county jail, or by imprisonment in the state prison for two, three, or four years. (Pen. Code, §§ 243.9, subd. (a), 4501.1, subd. (a).)

Existing law requires the person in charge of the local detention facility to use every available means to immediately investigate all reported or suspected gassing violations, including, but not limited to, the use of forensically acceptable means of preserving and testing the suspected gassing substance to confirm the presence of human excrement or other bodily fluids or bodily substances. (Pen. Code, § 243.9 subd. (c).)

This bill requires the local facility to complete its investigation within six months of the gassing incident.

Existing law permits, if there is probable cause to believe that the inmate has committed a battery by gassing, the chief medical officer of the detention facility, when he or she deems it medically necessary to protect the health of an officer or employee who may have been the victim of a gassing, to order the inmate to receive an examination or test for hepatitis or tuberculosis or both on either a voluntary or involuntary basis immediately after the event, and periodically thereafter as determined to be necessary by the medical officer in order to ensure that further hepatitis or tuberculosis transmission does not occur. Requires the results of any examination or test to be provided to the officer or employee. (Pen. Code, § 243.9, subd. (c).)

This bill provides that an officer or employee who is the victim of a reported or suspected gassing has the right to request the inmate be tested for hepatitis, tuberculosis, or both, subject to a finding of medical necessity by the chief medical officer.

Existing law requires the person in charge of the local detention facility to refer all reports for which there is probable cause to believe that the inmate has committed a gassing offense to the local district attorney for prosecution. (Pen. Code, § 243.9, subd. (d).)

This bill requires the local detention facility to consult with the district attorney’s office to determine the type of physical evidence and documentation that is necessary to prosecute a person for committing a gassing.

This bill provides that the local detention facility has the discretion to not test the gassing substance for the presence of a bodily fluid if the facility, in consultation with the district attorney’s office, determines that testing is unnecessary to obtain sufficient evidence of the gassing.

This bill provides that the provisions of this bill pertaining to testing the gassing substance do not preclude the right of an inmate to test the suspected gassing substance for purposes of providing a defense against any charges filed.

This bill requires the sheriff of each county or the administrator of each county jail to post a legible notice in an easily visible location to officers and employees of the jail that describes the rights of a victim of a gassing attack.

This bill requires the notice to be entitled “Victims’ Right to Aftercare in a Gassing Attack” and state the following:

“If you have direct contact with the bodily fluids of an inmate, you have the right to be informed by supervisory or medical personnel if the inmate has a communicable disease. You have the right to request that the inmate be tested for the human immunodeficiency virus (HIV), hepatitis, and tuberculosis. You have the right to access counseling services at the time of your request for disease testing and when the test results are provided to you. You are entitled to workers’ compensation insurance if you are injured or disabled in the course of employment.”

This bill requires the sheriff of each county or the administrator of each county jail to provide a physical notice explaining a victim’s rights to aftercare in a gassing attack to an officer or employee who is a victim of a gassing attack immediately after the incident is reported. Requires this document to contain information substantially similar to the notice above. Requires the notice to be signed by both the sheriff or county jail administrator and the victim and to serve as an acknowledgment of the victim’s rights after a gassing attack.

This bill requires the sheriff of each county or the administrator of each county jail to provide on an annual basis a facility-wide email, to the extent a facility-wide email is utilized by the county jail, describing a victim’s rights to aftercare in a gassing attack. Requires the email to contain information substantially similar to the notice described above and also include contact information for aftercare and counseling resources.

This bill requires a county jail to make protective gear, including, but not limited to, clothing, goggles, shields, and other protective devices, readily available to staff.

This bill requires a county jail to document all of the following:

• The total number of gassing incidents at the county jail and how many were committed by repeat offenders.
• The disposition of each gassing incident, including administrative penalties imposed, number of incidents prosecuted, the results of those prosecutions, and any discipline procedures or penalties imposed.
• A profile of the inmates who committed the gassing incidents, including the number of inmates who have one or more prior serious or violent felony convictions.
• Efforts that the county jail has taken to limit these incidents, including staff training and the use of protective clothing, goggles, shields, or other protective gear.
• The results and costs of medical testing related to gassing incidents.

This bill requires a county jail to provide adequate training to officers on how to prevent and mitigate the harm from gassing attacks on a biennial basis. Requires a county jail to provide adequate training to a newly hired officer on how to prevent and mitigate the harm from gassing attacks within three months of the newly hired officer’s employment date.

This bill requires a county jail to replace any article of an officer’s uniform that has been soiled in a gassing attack.

This bill provides that “gassing” has the same meaning as described in Penal Code section 243.9, subdivision (b), and “officer” means a peace officer, as defined Penal Code section 830 et seq.

Existing law requires the warden or other person in charge of the state prison to use every available means to immediately investigate all reported or suspected gassing violations, including, but not limited to, the use of forensically acceptable means of preserving and testing the suspected gassing substance to confirm the presence of human excrement or other bodily fluids or bodily substances. (Pen. Code, § 4501.1, subd. (c).)

This bill requires the state prison to complete its investigation within six months of the incident.

Existing law permits, if there is probable cause to believe that the inmate has committed a battery by gassing, the chief medical officer of the state prison, when he or she deems it medically necessary to protect the health of an officer or employee who may have been the victim of a gassing, to order the inmate to receive an examination or test for hepatitis or tuberculosis or both on either a voluntary or involuntary basis immediately after the event, and periodically thereafter as determined to be necessary by the medical officer in order to ensure that further hepatitis or tuberculosis transmission does not occur. Requires the results of any examination or test to be provided to the officer or employee. (Pen. Code, § 4501.1, subd. (c).)

This bill provides that an officer or employee who is the victim of a reported or suspected gassing has the right to request the inmate be tested for hepatitis, tuberculosis, or both, subject to a finding of medical necessity by the chief medical officer.

Existing law requires the warden or other person in charge of the state prison to refer all reports for which there is probable cause to believe that the inmate has committed a gassing offense to the local district attorney for prosecution. (Pen. Code, § 4501.1, subd. (d).)

This bill requires the state prison to consult with the district attorney’s office to determine the type of physical evidence and documentation that is necessary to prosecute a person for committing a gassing.

This bill provides that the state prison has the discretion to not test the gassing substance for the presence of a bodily fluid if the facility, in consultation with the district attorney’s office, determines that testing is unnecessary to obtain sufficient evidence of the gassing.

This bill provides that the provisions of this bill pertaining to testing the gassing substance do not preclude the right of an inmate to test the suspected gassing substance for purposes of providing a defense against any charges filed.

This bill requires the warden in charge of a state prison to post a legible notice in an easily visible location to officers and employees of the facility that describes the rights of a victim of a gassing attack.

This bill requires the notice to be entitled “Victims’ Right to Aftercare in a Gassing Attack” and to state the following:

“If you have direct contact with the bodily fluids of an inmate, you have the right to be informed by supervisory or medical personnel if the inmate has a communicable disease. You have the right to request that the inmate be tested for the human immunodeficiency virus (HIV), hepatitis, and tuberculosis. You have the right to access counseling services at the time of your request for disease testing and when the test results are provided to you. You are entitled to workers’ compensation insurance if you are injured or disabled in the course of employment.”

This bill requires the warden in charge of a state prison to provide a physical notice explaining a victim’s rights to aftercare in a gassing attack to an officer or employee who is a victim of a gassing attack immediately after the incident is reported. Requires the document to contain information substantially similar to the notice described above. Requires the notice to be signed by both the warden and the victim and to serve as an acknowledgment of the victim’s rights after a gassing attack.

This bill requires the warden in charge of a state prison to provide on an annual basis a facility-wide email, to the extent a facility-wide email is utilized by the state prison, describing a victim’s rights to aftercare in a gassing attack. Requires the email to contain information substantially similar to the notice described above and also include contact information for aftercare and counseling resources.

This bill requires a state prison to make protective gear, including, but not limited to, clothing, goggles, shields, and other protective devices, readily available to staff.

This bill requires a state prison to document all of the following:

• The total number of gassing incidents at the state prison and how many were committed by repeat offenders.
• The disposition of each gassing incident, including administrative penalties imposed, number of incidents prosecuted, the results of those prosecutions, and any discipline procedures or penalties imposed.
• A profile of the inmates who committed the gassing incidents, including the number of inmates who have one or more prior serious or violent felony convictions.
• Efforts that the state prison has taken to limit these incidents, including staff training and the use of protective clothing, goggles, shields, or other protective gear.
• The results and costs of medical testing related to gassing incidents.

This bill requires a state prison to provide adequate training to officers on how to prevent and mitigate the harm from gassing attacks on a biennial basis. Requires a state prison to provide adequate training to a newly hired officer on how to prevent and mitigate the harm from gassing attacks within three months of the newly hired officer’s employment date.

This bill requires a state prison to replace any article of an officer’s uniform that has been soiled in a gassing attack.

This bill provides that “gassing” has the same meaning as described in Penal Code section 4501.1, subdivision (b), and “officer” means a peace officer, as defined in Penal Code section 830 et seq.

Existing law requires a law enforcement employee who believes that he or she came into contact with bodily fluids of an inmate of a correctional institution to report the incident to the State Department of Public Health, by completing the specified form. Provides that the law enforcement employee may request a test for HIV or hepatitis B or C of the inmate. (Pen. Code, § 7510, subd. (a).)

This bill specifies that a nonsworn employee of a correctional institution is a law enforcement employee.

Existing law requires the report to be submitted by the end of the law enforcement employee’s shift during which the incident occurred, or if not practicable, as soon as possible, but no longer than two days after the incident, except that the chief medical officer may waive this filing period requirement if he or she finds that good cause exists. Requires the report to include names of witnesses to the incident, names of persons involved in the incident, and if feasible, any written statements from these parties. Requires the law enforcement employee to assist in the investigation of the incident, as requested by the chief medical officer. (Pen. Code, § 7510, subd. (b).)

Existing law requires the chief medical officer to decide whether or not to require HIV or hepatitis B or C testing of the inmate within 24 hours of receipt of the report regardless of whether the report filed by the law enforcement employee contains a request for testing. (Pen. Code, § 7511, subd. (a).)

Existing law requires any peace officer, firefighter, custodial officer, as defined, a custody assistant, as defined, a nonsworn uniformed employee of a law enforcement agency whose job entails the care or control of inmates in a detention facility, a nonsworn employee of a law enforcement agency whose job description entails the collection of fingerprints, or emergency medical personnel who, while acting within the scope of his or her duties, is exposed to an arrestee’s blood or bodily fluids, as defined, to do the following:

• Prior to filing a petition with the court, a licensed health care provider is required to notify the arrestee of the bloodborne pathogen exposure and make a good faith effort to obtain the voluntary informed consent of the arrestee or the arrestee’s authorized legal representative to perform a test for HIV, hepatitis B, and hepatitis C. Requires the voluntary informed consent to be in writing. Provides that once consent is given in writing, the arrestee is required to provide three specimens of blood for testing as provided in this chapter.
• If voluntary informed consent is not given in writing, the affected individual may petition, ex parte, the court for an order requiring testing, as provided. Requires the petition to include a written certification by a health care professional that an exposure, including the nature and extent of the exposure, has occurred. (Health & Saf. Code, § 121060.)

Existing law defines “bloodborne pathogen exposure” as a percutaneous injury, including, but not limited to, a needle stick or cut with a sharp object, or the contact of nonintact skin or mucous membranes with any of the bodily fluids identified in subdivision (b), in accordance with the most current bloodborne pathogen exposure definition established by the federal Centers for Disease Control and Prevention. (Health & Saf. Code, § 121060.1, subd. (a).)

Existing law provides that “bodily fluids” means any of the following: blood, tissue, mucous containing visible blood, semen, and vaginal secretions. (Health & Saf. Code, § 121060.1, subd. (b).

COMMENTS

1. Need for This Bill

According to the author:

According to a 2018 State Auditor report on Correction Officer Health and Safety, correctional facilities throughout the State were found to inadequately and inconsistently document incidents of “gassing attacks”, where an inmate throws a bodily fluid at a staff member, which might also contain a communicable disease. Investigations of multiple attacks were also found to be done in an untimely manner. These shortcomings consequently results in fewer successful prosecutions of inmates who commit gassing attacks, meaning that these attacks often go unpunished, and fails to deter future attacks. Further, the report revealed the correctional facilities did not adequately inform victims immediately following the gassing attacks of available aftercare services, such as medical and counseling services, nor advised victims about their right to request the inmate be tested for communicable diseases.

1. Gassing

Gassing was established as a form of aggravated battery in 1997 when AB 995 (Pacheco), Chapter 591, Statutes of 1997, was enacted. AB 995 included a sunset provision that was eliminated by AB 1449 (Florez), Chapter 627, Statutes of 2000. Gassing is a specific form of a battery committed by an inmate on a peace officer or employee of a correctional facility in which the inmate “intentionally plac[es] or throw[s], or caus[es] to be placed or thrown, upon the person of another, any human excrement or other bodily fluids or bodily substances or any mixture containing human excrement or other bodily fluids or bodily substances that results in actual contact with the person's skin or membranes.” The penalty for gassing is two, three, or four years in prison or up to one year in county jail.

Current law requires the person in charge of a state or local correctional facility to immediately investigate all reported or suspected gassing incidents, and to use forensically acceptable means of preserving and testing a suspected gassing substance. Existing law permits the victim of a gassing attack to request that the inmate be tested for specified communicable diseases. However, the chief medical officer of the correctional facility makes the determination about whether testing an inmate is appropriate, and may require testing of the inmate in the absence of a request for testing.

1. State Auditor’s Report

At the request of the Joint Legislative Audit Committee, the State Auditor completed an audit of three correctional facilities—CDCR’s California Institute for Men, Los Angeles County’s Men’s Central Jail, and Alameda County’s Santa Rita Jail—to evaluate the health and safety of staff who were subject to gassing attacks. The State Auditor’s report was published in September 2018. (State Auditor, Correctional Officer Health and Safety: Some State and County Correctional Facilities Could Better Protect Their Officers From the Health Risks of Certain Inmate Attacks, Report 2018-106 <http://auditor.ca.gov/pdfs/reports/2018-106.pdf>) The report included the following findings:

• The correctional facilities did not consistently investigate gassing attacks in a thorough and timely manner, leading to relatively few prosecutions and convictions in those cases.
• The correctional facilities do not have adequate procedures to ensure that they provide care to victims of gassing attacks, including informing victims about the availably of medical testing for communicable diseases, worker’s compensation benefits, or counseling services.
• The correctional facilities have not established adequate internal processes to prevent and respond to gassing attacks, including appropriately disciplining inmates who commit these attacks, training officers on how to prevent and mitigate attacks, and tracking gassing attacks.

(Id. at pp. 1-2.)

The report made the following recommendations to assist the correctional facilities in addressing gassing incidents and related officer health and safety issues:

• Revise policies to document that it notifies victims of counseling services available following a gassing attack, as well as their right to request that the inmate be tested for a communicable disease.
• Develop goals for how long investigations should take and consistently collect physical evidence of the crime.
• Impose internal discipline to deter inmates from committing future gassing attacks.
• Provide training that is specific to preventing and responding to gassing attacks.
• Consistently track all gassing attacks to use as a tool to identify best practices for preventing future gassing attacks.
• Refer all gassing attacks to the district attorney when probable cause exists.

(Id. at pp. 3-4.)

1. Effect of This Bill

This bill is intended to address several of the issues raised by the State Auditor’s report. Specifically, this bill requires a correctional facility to complete an investigation of a gassing incident within six months of the incident. It also mandates that correctional facilities provide notice to their employees of their rights if they are the victim of a gassing attack by posting the following notice in an easily visible location:

If you have direct contact with the bodily fluids of an inmate, you have the right to be informed by supervisory or medical personnel if the inmate has a communicable disease. You have the right to request that the inmate be tested for communicable disease. You have the right to access counseling services at the

time of your request for disease testing and when the test results are provided to you. You are entitled to workers’ compensation insurance if you are injured or disabled in the course of employment.

In addition, this bill requires that correctional facilities provide a physical notice explaining a victim’s rights to aftercare to a victim of an actual gassing attack, as well as an annual facility-wide email describing a victim’s rights following a gassing incident.

This bill requires a correctional facility to provide protective gear, including, but not limited to, clothing, goggles, shields, and other protective devices. This bill also requires that a correctional facility replace any article of an officer’s uniform that has been soiled in a gassing attack.

This bill requires state and local correctional facilities to document all of the following:

• The total number of gassing incidents at the state prison and how many were committed by repeat offenders.
• The disposition of each gassing incident, including administrative penalties imposed, number of incidents prosecuted, the results of those prosecutions, and any discipline procedures or penalties imposed.
• A profile of the inmates who committed the gassing incidents, including the number of inmates who have one or more prior serious or violent felony convictions.
• Efforts that the state prison has taken to limit these incidents, including staff training and the use of protective clothing, goggles, shields, or other protective gear.
• The results and costs of medical testing related to gassing incidents.

Finally, this bill requires state and local correctional facilities to provide adequate training to officers on how to prevent and mitigate the harm from gassing attacks on a biennial basis, and requires newly hired officers to receive this training within three months from their start date.

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 294

Author:(Rodriguez)

As Amended Ver:March 6, 2019

Majority vote

SUMMARY:

Sets forth guidelines for a detention facility to investigate the aggravated battery of "gassing," including requiring a facility to complete a timely investigation of an incident, provide regular notice to employees of their rights if subject to a gassing incident, mandate the documentation of incidents, and require training on gassing incidents and the provision of protective gear.

Major Provisions

1. Requires a detention facility to complete its investigation into a gassing incident within six months of the battery;
2. Gives the officer or employee who is subject to a reported or suspected gassing incident the right to request the inmate be tested for human immunodeficiency virus (HIV), hepatitis, and tuberculosis;
3. Requires the warden or administrator in charge of a detention facility to post a notice entitled "Victims' Right to Aftercare in a Gassing Attack" in an easily visible location to officers and employees of the facility that describes the rights of a victim of aggravated battery, as specified;
4. Mandates the warden or facility administrator provide a physical notice explaining a victim's rights to aftercare in a gassing incident to an officer or employee who is a victim of aggravated battery immediately after the incident is reported, as specified;
5. Requires a detention facility to make protective gear, including, but not limited to, clothing, goggles, shields, and other protective devices, readily available to staff;
6. Mandates that a detention facility document gassing incidents as specified;
7. Requires a detention facility to provide adequate training to officers on how to prevent and mitigate the harm from gassing incidents on a biennial basis, and to a newly hired officer within three months of hire; and,
8. Requires a detention facility to replace any article of an officer's uniform that has been soiled in a gassing incident.

COMMENTS:

According to the Author:

According to the author, "The California Department of Corrections and Rehabilitation is one of the largest law enforcement employers in the country. Every day thousands of men and women in our correctional system are interacting with inmates and offenders across the state. When these officers and staff are the victims of a gassing incident, they have a right to treatment and information about a communicable disease they may have been exposed to unknowingly. No one should be put at unnecessary risk while on the job; sadly these employees have not been afforded that right."

Arguments in Support:

According to the Riverside Sheriffs' Association, "As a result of re-alignment and other recent changes to our criminal justice system, incidents of gassings have grown significantly in county jails. It is imperative that the safety of our officers and staff be enhanced due to the growing frequency of these types of assaults."

Arguments in Opposition:

The American Civil Liberties Union writes in opposition to this bill stating, "The provisions of AB 294 go far beyond what is recommended in the 2018 State Auditor's Report on Correctional Health and Safety. That report recognized that the law already allows officers who are subject to gassing attacks to request that the inmate involved be tested for communicable disease under certain circumstances but found that officers were not being adequately informed of their rights under existing law. The report recommended that the correctional facilities that were audited revise their policies to document that they notify victims of gassing attacks of their right to request that the inmate be tested for communicable disease in those situations where it is already permitted under law."

FISCAL COMMENTS:

According to the Assembly Appropriations Committee:

1. Minor and absorbable costs to the California Department of Corrections and Rehabilitation to post legible notices in easily visible locations advising gassing victims of their rights.
2. Minor costs to California Correctional Healthcare Services (CCHCS) for possible increased inmate testing following an alleged gassing attack.
3. Possible one-time and annual non-reimbursable costs in the thousands of dollars to local public safety agencies managing jails to complete gassing investigations within six months and prepare and post notices to victim of possible gassing attacks.

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

VOTES:

ASM PUBLIC SAFETY: 8-0-0

YES: Jones-Sawyer, Lackey, Bauer-Kahan, Diep, Kamlager-Dove, Quirk, Santiago, Wicks

ASM APPROPRIATIONS: 17-0-1

YES: Gonzalez, Bigelow, Bloom, Bonta, Brough, Calderon, Carrillo, Chau, Diep, Eggman, Fong, Gabriel, Friedman, Obernolte, Petrie-Norris, Quirk, Robert Rivas

ABS, ABST OR NV: Maienschein

UPDATED:

VERSION: March 6, 2019

COUNSEL: Nikki Moore (Counsel)/ PUB. S. / (916) 319-3744 FN: 0000095

Date of Hearing: April 3, 2019

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 294

Author:(Rodriguez) – As Amended Ver:March 6, 2019

Urgency: No State Mandated Local Program: Yes Reimbursable: Yes

SUMMARY:

Requires a California Department of Corrections and Rehabilitation (CDCR) warden or county sheriff or administer to (a) post a legible notice in an easily visible location to officers and employees of the prison or jail that describes the rights of a victims of gassing and (b) provide physical notice of those rights to each victim of gassing. Specifically, this bill:

1. Requires CDCR and any county jail to document specified information related to gassing attacks.
2. Directs CDCR and any county jail to provide adequate training to officers on how to prevent and mitigate the harm from gassing attacks and replace any article of an officer’s uniform that has been soiled in a gassing attack.
   
3. Requires CDCR and any county jail to complete investigations of gassing within six months of the violation.
   
4. Provides CDCR or the county jail the discretion not to test the gassing substance for the presence of bodily fluid if it determines that testing is unnecessary to obtain sufficient evidence of the gassing.
   
5. Provides the officer or employee who is the victim of a reported or suspected gassing attack with the right to request the inmate involved with the attack be tested for any communicable disease.
   

FISCAL EFFECT:

1. Minor and absorbable costs to CDCR to post legible notices in easily visible locations advising gassing victims of their rights.
2. Minor costs to California Correctional Healthcare Services (CCHCS) for possible increased inmate testing following an alleged gassing attack.
3. Possible one-time and annual non-reimbursable costs in the thousands of dollars to local public safety agencies managing jails to complete gassing investigations within six months and prepare and post notices to victim of possible gassing attacks.

COMMENTS:

1. Purpose. According to the author:

The California Department of Corrections and Rehabilitation is one of the largest law enforcement employers in the country. Every day thousands of men and women in our correctional system are interacting with inmates and offenders across the state. When these officers and staff are the victims of a gassing incident, they have a right to treatment and information about a communicable disease they may have been exposed to unknowingly. No one should be put at unnecessary risk while on the job; sadly these employees have not been afforded that right.”

1. Comments. Gassing is punishable by imprisonment in county jail or state prison for a period of two, three or four years. Local and state detention facilities are required to immediately investigate any incident of suspected gassing and test any matter to confirm the presence of bodily fluids. Existing law also allows a chief medical officer to test an inmate for HIV, hepatitis or tuberculosis on an involuntary basis if there is probable cause to believe the inmate committed a gassing. The California State Auditor issued a report in 2018 on gassing and determined the three correctional facilities visited did not notify victims of suspected gassing of possible exposure to communicable diseases.
2. Support. According to the Riverside Sheriffs’ Association:

As a result of re-alignment and other recent changes to our criminal justice system, incidents of gassings have grown significantly in county jails. It is imperative that the safety of our officers and staff be enhanced due to the growing frequency of these types of assaults.

1. Related Legislation. AB 1737 (Obernolte) authorizes, but does not require, the testing of the substance used in a gassing incident, if, in consultation with the local district attorney, that testing is necessary to obtain sufficient evidence to prosecute the offense.
2. Prior Legislation. SB 1419 (Runner), of the 2010-2011 Legislative Session, would have expanded the crime of gassing to include any person who throws bodily fluids at a peace officer, as specified, whether or not that person is incarcerated. This new felony would have been punishable by two, three or four years in state prison. SB 1419 was held in the Senate Public Safety Committee.
   

Analysis Prepared by: Kimberly Horiuchi / APPR. / (916) 319-2081

Date of Hearing: March 12, 2019

Counsel: Nikki Moore

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 294

Author:(Rodriguez) – As Amended Ver:March 6, 2019

SUMMARY:

1. Sets forth guidelines for a detention facility to investigate the aggravated battery of “gassing,” including requiring a facility to complete a timely investigation of an incident, provide regular notice to employees of their rights if subject to a gassing incident, mandate the documentation of incidents, and require training on gassing incidents and the provision of protective gear. Specifically, this bill:
   
2. Requires a detention facility to complete its investigation into a gassing incident within six months of the battery;
   
3. Gives the officer or employee who is subject to a reported or suspected gassing incident the right to request the inmate be tested for HIV, hepatitis, and tuberculosis;
   
4. Requires the detention facility to consult with the local district attorney’s office to determine what physical evidence and documentation is necessary to prosecute a person for committing the aggravated battery of gassing;
   
5. Vests the facility with the discretion to not test the gassing substance for the presence of a bodily fluid if the detention facility, in consultation with the local district attorney’s office, determines that testing is unnecessary to obtain sufficient evidence of the aggravated battery;
   
6. Requires the warden or administrator in charge of a detention facility to post a notice entitled “Victims’ Right to Aftercare in a Gassing Attack” in an easily visible location to officers and employees of the facility that describes the rights of a victim of aggravated battery, as specified;
   
7. Mandates the warden or facility administrator provide a physical notice explaining a victim’s rights to aftercare in a gassing incident to an officer or employee who is a victim of aggravated battery immediately after the incident is reported, as specified;
   
8. Requires the warden or facility administrator provide on an annual basis a facilitywide email describing a victim’s rights to aftercare in a gassing incident, as specified;
   
9. Requires a detention facility to make protective gear, including, but not limited to, clothing, goggles, shields, and other protective devices, readily available to staff;
   
10. Mandates that a detention facility document the following:
    
    1. The total number of gassing incidents at the detention facility and how many were committed by repeat offenders;
       
    2. The disposition of each gassing incident, including administrative penalties imposed, number of incidents prosecuted, the results of those prosecutions, and any discipline procedures or penalties imposed;
       
    3. A profile of the inmates who committed the gassing incidents, including the number of inmates who have one or more prior serious or violent felony convictions;
       
    4. Efforts that the detention facility has taken to limit these incidents, including staff training and the use of protective clothing, goggles, shields, or other protective gear; and,
       
    5. The results and costs of medical testing related to gassing incidents.
       
11. Requires a detention facility to provide adequate training to officers on how to prevent and mitigate the harm from gassing incidents on a biennial basis, and to a newly hired officer within three months of hire; and,
    
12. Requires a detention facility to replace any article of an officer’s uniform that has been soiled in a gassing incident.

EXISTING LAW:

1. Defines “gassing” as intentionally placing or throwing, or causing to be placed or thrown, upon the person of another, any human excrement or other bodily fluids or bodily substances or any mixture containing human excrement or other bodily fluids or bodily substances that results in actual contact with the person's skin or membranes. (Pen. Code, §§ 243.9 subd. (b), and 4501.1 subd. (b); Welf. & Inst. Code, § 1768.85 subd. (b).)
   
2. Provides that every person confined in any local detention facility, state prison or facility under the jurisdiction of the Department of Juvenile Justice who commits a battery by gassing upon the person of any peace officer, as defined, or employee of the local detention facility, state prison, or juvenile justice facility, is guilty of aggravated battery and shall be punished by imprisonment in a county jail, or by imprisonment in the state prison for two, three, or four years. (Pen. Code, §§ 243.9 subd. (a), and 4501.1 subd. (a); Welf. & Inst. Code, § 1768.85 subd. (a).)
   
3. Requires that the person in charge of the local detention facility, state prison or juvenile justice facility shall use every available means to immediately investigate all reported or suspected gassing violations, including, but not limited to, the use of forensically acceptable means of preserving and testing the suspected gassing substance to confirm the presence of human excrement or other bodily fluids or bodily substances. (Pen. Code, §§ 243.9 subd. (c), and 4501.1 subd. (c); Welf. & Inst. Code, § 1768.85 subd. (c).)
   
4. Permits, if there is probable cause to believe that the inmate has committed the offense of gassing, the chief medical officer of the detention facility, to order the inmate accused of committing the crime to receive an examination or test for hepatitis or tuberculosis on either a voluntary or involuntary basis immediately after the event, and periodically thereafter as determined to be necessary by the medical officer in order to ensure that further hepatitis or tuberculosis transmission does not occur. (Pen. Code, §§ 243.9 subd. (c), and 4501.1 subd. (c); Welf. & Inst. Code, § 1768.85 subd. (c).)
   
5. Allows an officer or employee, as specified, who while acting within the scope of his or her duties is exposed to an arrestee's blood or bodily fluids, as defined, seek voluntary and involuntary testing of an arrestee’s blood for HIV and hepatitis. (Health & Saf. Code, § 121060.)
   
6. Requires that the person in charge of the local detention facility, state prison or juvenile justice facility shall refer all reports for which there is probable cause to believe that the inmate has committed a gassing offense to the local district attorney for prosecution. (Pen. Code, §§ 243.9 subd. (d), and 4501.1 subd. (d); Welf. & Inst. Code, § 1768.85 subd. (d).)
   

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “The California Department of Corrections and Rehabilitation is one of the largest law enforcement employers in the country. Every day thousands of men and women in our correctional system are interacting with inmates and offenders across the state. When these officers and staff are the victims of a gassing incident, they have a right to treatment and information about a communicable disease they may have been exposed to unknowingly. No one should be put at unnecessary risk while on the job; sadly these employees have not been afforded that right.”
   
2. Gassing as Aggravated Battery. Gassing was established as a specific form of aggravated battery in 2000, and describes a battery on a peace officer or detention center employee by a detention center inmate. The act, by an inmate in a local detention facility, county jail, or state prison, of “intentionally placing or throwing, or causing to be placed or thrown, upon the person of another, any human excrement or other bodily fluids or bodily substances or any mixture containing human excrement or other bodily fluids or bodily substances that results in actual contact with the person's skin or membranes” constitutes this specific form of aggravated battery. The penalty for this crime is two, three, or four years in prison or up to one year in county jail. Current law requires the person in charge of a detention facility to immediately investigate any report of a gassing incident, and follow forensically acceptable means of preserving and testing a suspected gassing substance. Existing law also permits an employee subject to a gassing incident to seek either voluntary or involuntary testing of an inmate to determine whether that person has HIV, tuberculosis, and hepatitis.
3. 2018 State Auditor Report on Correction Response Gassing Incidents Identifies Deficiencies in Investigations and Response: Following a request by the Joint Legislative Audit Committee, the California State Auditor visited three correctional facilities^[1] to review incidents where correctional staff were the targets of gassing incidents. The Auditor concluded that the three correctional facilities visited “should improve their processes to ensure that they provide all available aftercare to victims of gassing attacks, investigate such attacks more quickly and thoroughly, and better prevent and respond to gassing attacks.” The Auditor found that the reviewed facilities “did not adequately inform victims immediately following the gassing attacks of aftercare services, such as medical and counseling services” nor did they “consistently document that they advised victims of their right to request that the inmate who committed the gassing attack be tested for a communicable disease.”
   
   Troublingly, the Auditor reported that there were cases where inmates infected with a communicable disease targeted victims in gassing incidents in 2017, but the facilities did not notify the victims of the known-exposure risk until after the Auditor’s inquiries in August 2018. The Auditor reported that only 31 percent of gassing incidents occurring at the reviewed facilities from 2015 through 2017 resulted in inmate convictions, and that district attorneys declined to prosecute four of the 45 cases reviewed because there was not sufficient physical evidence of the crime. The report also states that the cases were not referred for prosecution in a timely manner.
   
   This bill is intended to address the issued flagged by the Auditor, and would require a detention facility to complete an investigation into a gassing incident within six months of the incident. It would mandate regular notice requirements by a detention facility to inform employees of their rights if they are victims of a gassing incident, and require the following notice entitled “Victims’ Right to Aftercare in a Gassing Attack” be posted at a detention facility:
   

“If you have direct contact with the bodily fluids of an inmate, you have the right to be informed by supervisory or medical personnel if the inmate has a communicable disease. You have the right to request that the inmate be tested for communicable disease. You have the right to access counseling services at the time of your request for disease testing and when the test results are provided to you. You are entitled to workers’ compensation insurance if you are injured or disabled in the course of employment.”

This bill would also require a detention facility to provide protective gear, including, but not limited to, clothing, goggles, shields, and other protective devices. By mandating a timely investigation in conjunction with the local district attorney, and mandating notice requirements and the provision of training on gassing incidents, and the provision of protective gear, this bill seeks to cure the deficiencies identified by the Auditor in facilities’ response to a gassing incident.

1. Testing Inmates for Specified Communicable Diseases: This bill states that an officer or employee has the right to request that an inmate be tested for HIV, hepatitis, and tuberculosis if there is a gassing incident. Current law allows a chief medical officer of a detention facility to order a person be tested for hepatitis or tuberculosis if there is probable cause to believe that the individual committed a gassing incident, and if the test is medically necessary to protect the alleged victim. Additionally, existing law establishes a procedure for a custodial officer or other employee, as specified, to request a person voluntarily submit to a test for HIV, or if that person does not consent, allow a court to order an inmate be tested for HIV if probable cause exists to believe the inmate exposed an officer, as specified, to a bloodborne pathogen. This bill would not expand or change the facility’s right to test an inmate, voluntarily or involuntarily, as provided under existing law, but only requires only that an officer be notified of the right to request that the inmate be tested.
   
2. Discretion to Decline to Test Substance After Consultation with the Local District Attorney: This bill would allow a facility investigator, in consultation with the local district attorney, to determine whether it is necessary to test the suspected gassing material in order to have sufficient evidence to bring charges against the alleged attacker. As a safeguard, this bill specifies that a defendant, or that person’s representative, would be permitted to test the material, which ensures the defendant’s due process rights to properly scrutinize the evidence against him or her.
   
3. Replacement Uniforms: This bill would require a state prison or county jail to replace any article of an officer's uniform that is soiled in a gassing incident. According to the CDCR’s Department Operations Manual, CDCR is to provide reimbursement for the repair or replacement of damaged or stolen personal property an employee wears or uses in the course of employment.^[2]
   
4. System-wide Emails: According to CDCR, many CDCR employees do not have an email account established by CDCR and employees do not have access to email during work hours. Thus, this bill provides that emails shall be utilized to the extent that an individual facility normally provides information to employees via email.
   
5. Argument in Support: According to the Riverside Sheriffs’ Association, “As a result of re-alignment and other recent changes to our criminal justice system, incidents of gassings have grown significantly in county jails. It is imperative that the safety of our officers and staff be enhanced due to the growing frequency of these types of assaults.”
   
6. Argument in Opposition: The American Civil Liberties Union writes in opposition to AB 294 stating, “The provisions of AB 294 go far beyond what is recommended in the 2018 State Auditor’s Report on Correctional Health and Safety. That report recognized that the law already allows officers who are subject to gassing attacks to request that the inmate involved be tested for communicable disease under certain circumstances but found that officers were not being adequately informed of their rights under existing law. The report recommended that the correctional facilities that were audited revise their policies to document that they notify victims of gassing attacks of their right to request that the inmate be tested for communicable disease in those situations where it is already permitted under law.”
   
7. Related Legislation: AB 1737 (Olbernolte), would authorize, but does not require, the testing of the substance used in a gassing incident, if, in consultation with the local district attorney, that testing is necessary to obtain sufficient evidence to prosecute the offense.
   
8. Prior Legislation:
   
   1. AB 1449 (Florez), Chapter 627, Statutes of 2000, established gassing as a special form of aggravated battery.
      
   2. SB 1419 (Runner) of the 2010-2011 Legislative Session, would have expanded the crime of gassing to include anyone who throws bodily fluids at a peace officer, as specified, whether or not that person is incarcerated. This new felony would be punishable by two, three, or four years in state prison. SB 1419 was held in the Senate Public Safety Committee.
      

REGISTERED SUPPORT / OPPOSITION:

Support

Los Angeles County Professional Peace Officers Association (Sponsor)
Association for Los Angeles Deputy Sheriffs
Association of Deputy District Attorneys
California Association of Code Enforcement Officers
California Correctional Peace Officers Association
California Correctional Supervisors Organization
California Narcotic Officers' Association
College and University Police Chiefs Association
Los Angeles County Probation Officers Union AFSCME Local 685
Riverside Sheriffs' Association

Oppose

American Civil Liberties Union of California
California Public Defenders Association

Analysis Prepared by:

Nikki Moore / PUB. S. / (916) 319-3744

1. The Auditor visited the California Department of Corrections and Rehabilitation’s California Institute for Men (CIM), the Los Angeles County Sheriff’s Department’s Men’s Central Jail (Men’s Central), and the Alameda County Sheriff’s Office’s Santa Rita Jail (Santa Rita). ↑

2. CDCR, Department Operations Manual, page 110, available at https://www.cdcr.ca.gov/regulations/
   adult_operations/DOM_TOC.html. ↑