Untitled California Attorney General Opinion

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
_________________________
:
OPINION : No. 85-107
:
of : JULY 3, 1986
:
JOHN K. VAN DE KAMP :
Attorney General :
:
JACK R. WINKLER :
Deputy Attorney General :
:
________________________________________________________________________
THE HONORABLE PATRICK JOHNSTON, MEMBER OF THE
CALIFORNIA ASSEMBLY, requests an opinion on the following questions:
1. What duties may be assigned to a level III reserve peace officer?
2. What degree of supervision is required over a level III reserve peace
officer?
3. May a level I reserve peace officer supervise a level III reserve peace
officer?
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CONCLUSIONS
1. A level III reserve peace officer may:
(a) Be assigned to perform search and rescue, personnel
administration support, community public information services, communications
technician services and scientific services without supervision; and
(b) Be given other limited duty assignments which do not require use
of general law enforcement powers in their routine performance and which may only be
performed under the direct supervision of a peace officer possessing a regular POST
basic certificate. General law enforcement powers include the investigation of crime
including the interrogation of suspects and witnesses and search for physical evidence;
peace officer arrests, searches and seizures; and the taking and maintaining of custody of
persons arrested for or convicted of crime.
2. The degree of supervision required over a level III reserve peace
officer is that required to provide reasonable assurance that the limited duty assigned will
be successfully performed without harm to the reserve or others.
3. A level I reserve peace officer may supervise a level III reserve peace
officer only if he or she possesses a regular basic certificate issued by the Commission on
Peace Officer Standards and Training.
ANALYSIS
Penal Code section 830.6(a)(1) provides for the appointment of reserve
peace officers as follows:
"Whenever any qualified person is deputized or appointed by the
proper authority as a reserve or auxiliary sheriff or city policeman, a deputy
sheriff, a reserve peace officer of a regional park district, or a deputy of the
Department of Fish and Game, and is assigned specific police functions by
such authority, such person is a peace officer; provided, such person
qualifies as set forth in Section 832.6, and provided further, that the
authority of such person as a peace officer shall extend only for the duration
of such specific assignment."
Since all three questions concern "level III" reserve peace officers, this
analysis will focus on that category. The "level" of a reserve peace officer refers to the
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subdivision of section 832.6(a)1 in which the three categories are described. Thus, a level
I reserve peace officer is described in subdivision (1), a level II reserve peace officer in
subdivision (2) and a level III in subdivision (3) of section 832.6(a).
The first question submitted concerns the duties which may be assigned a
level III reserve peace officer. The assignments which may be given reserve peace
officers are governed by section 832.6(a) which reads:
"(a) On or after January 1, 1981, every person deputized or
appointed as described in subdivision (a) of Section 830.6 shall have the
powers of a peace officer only when such person is:
"(1) Deputized or appointed pursuant to paragraph (1) of subdivision
(a) of Section 830.6 and is assigned to the prevention and detection of
crime and the general enforcement of the laws of this state, whether or not
working alone, and the person has completed the basic training prescribed
by the Commission on Peace Officer Standards and Training.
". . . . . . . . . . . . . . . . . . . . . ."
"(2) Assigned to the prevention and detection of crime and the
general enforcement of the laws of this state while under the immediate
supervision of a peace officer possessing a basic certificate issued by the
Commission on Peace Officer Standards and Training, the person is
engaged in a field training program approved by the Commission on Peace
Officer Standards and Training, and the person has completed the course
required by Section 832 and such other training prescribed by the
commission; or
"(3) Deployed and authorized only to carry out limited duties not
requiring general law enforcement powers in their routine performance.
Those persons shall be permitted to perform these duties only under the
direct supervision of a peace officer possessing a basic certificate issued by
the commission, and shall have completed the training required under
Section 832 and any other training prescribed by the commission for those
persons. Notwithstanding the provisions of this paragraph, a level III
reserve officer may perform search and rescue, personnel administration
support, community public information services, communications
1
Section references are to the Penal Code unless otherwise indicated.
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technician services, and scientific services, which do not involve direct law
enforcement without supervision." (As amended by ch. 761, Stats. 1984.)
No judicial decisions have been found construing section 832.6. We must
therefore interpret the section according to the applicable rules of statutory construction.
The principle rules were summarized in Moyer v. Workmen's Comp. Appeals Bd. (1973)
10 Cal.3d 222, 230, as follows:
"We begin with the fundamental rule that a court should ascertain
the intent of the Legislature so as to effectuate the purpose of the law. In
determining such intent the court turns first to the words themselves for the
answer. We are required to give effect to statutes according to the usual,
ordinary import of the language employed in framing them. If possible,
significance should be given to every word, phrase, sentence and part of an
act in pursuance of the legislative purpose; a construction making some
words surplusage is to be avoided. When used in a statute words must be
construed in context, keeping in mind the nature and obvious purpose of the
statute where they appear. Moreover, the various parts of a statutory
enactment must be harmonized by considering the particular clause or
section in the context of the statutory framework as a whole." (Citations
and quotations omitted.)
The courts consider the legislative history of the statute as well as the circumstances of its
enactment in determining the intent of the Legislature. (People v. Black (1982) 32 Cal.3d
1, 5.)
As originally enacted in chapter 987, Statutes of 1977, subdivision (3) of
section 832.6(a) provided: "Deployed only in such limited functions as would not usually
require general law enforcement powers and . . . [the training requirements]." The words
"general law enforcement powers" have not been defined in the statute nor by the
Commission on Peace Officer Standards and Training (POST). Nevertheless, we believe
that in the context of section 832.6(a), they were intended to refer to those powers which
would normally be exercised by level I and level II reserve peace officers assigned to "the
prevention and detection of crime and the general enforcement of the laws of this state"
as this phrase is used in subdivisions (1) and (2). The latter phrase was interpreted by
POST in 1978 in the course of establishing the training requirements for the three levels
of reserves. The phrase was said to refer
"to a Level I or Level II reserve officer assigned to:
 investigate crime, or
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 patrol a geographic area and
 handle personally the full range of citizen
requests for police services and
 take enforcement action on the full range of law
violations for which the reserve's department
has law enforcement responsibilities." (POST
Bulletin 78-13 dated August 9, 1978,
announcing the adoption of reserve officer
training requirements.)
The substance of this definition was incorporated in section H-1 (revised
July 15, 1982) of the POST Administrative Manual2 as follows:
"2. Definitions. For purposes of clarifying Penal Code Section
832.6, and establishing uniformity in implementing and conducting the
POST Reserve Officer Program, the following definitions apply:
". . . . . . . . . . . . . . . . . . . . . ."
"h. 'Prevention and detection of crime and the general enforcement
of laws "refers to the peace officer authority of a Level I or Level II reserve
officer assigned to investigate crime, or patrol a geographic area and
personally handle the full range of requests for police services, and take
enforcement action on the full range of law violations for which the
reserve's department has enforcement responsibility. . . ."
The courts give great weight to the interpretation of a statute by the
administrative agency empowered to promulgate regulations to advance its purposes
unless the interpretation is clearly erroneous. (Norman v. Unemployment Ins. Appeals
Bd. (1983) 34 Cal.3d 1, 8.)
While we have found no legislative or administrative enumeration of the
"general law enforcement powers" referred to in subdivision (3) of section 832.6(a), they
refer to powers which are not routinely required in performing the limited duties which
may be assigned level III reserves. This limitation is set in marked contrast to the general
2
The provisions of section H of the POST Administrative Manual have been adopted by
reference in section 1007, title 11 of the California Administrative Code.
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duties of "the prevention and detection of crime and the general enforcement of the laws"
which may be assigned to level I and II reserves and which do routinely require the use of
general law enforcement powers. Thus, the POST definition of such assignments
provides a basis for determining what general law enforcement powers are routinely
required in its performance. We believe those powers would include the investigation of
crime including the interrogation of suspects and witnesses and search for physical
evidence; peace officer arrests, searches and seizures; and the taking and maintaining of
custody of persons arrested for or convicted of crime.
The first sentence of subdivision (3) of section 832.6(a) as amended in
1984 contains the same limitation on assignment of level III reserves as the original 1977
version but in more explicit language. The words "not usually require" were replaced by
"not requiring . . . in their routine performance." The "authority" as well as the
deployment of level III reserves was limited by the 1984 amendment. However, the
subject of the limitation was not changed, namely the use of "general law enforcement
powers." Thus, the 1984 amendment made little change in the substantive limit the statute
places on the unspecified limited duties which may be assigned to level III reserves. The
second sentence of the 1984 version of subdivision (3) of section 832.6(a) carried
forward the training requirements for level III reserves and added a new supervision
requirement. This was the "direct supervision" of the unspecified limited duties to which
level III reserves may be assigned under the first sentence of subdivision (1) of section
832.6(a). The nature of such direct supervision will be discussed later.
The third sentence added to subdivision (3) of section 832.6(a) by the 1984
amendment created an exception to the supervision requirement by authorizing specified
assignments for level III reserves "without supervision." The words "which do not
involve direct law enforcement" in said third sentence are ambiguous. They could refer
to those portions of the specified assignments which do not involve direct law
enforcement or to a legislative determination that none of the assignments specified
involve direct law enforcement. In our view, the context requires the latter meaning.
Responding to the first question, we conclude that a level III reserve peace
officer may:
(a) be assigned to perform search and rescue, personnel
administration support, community public information services,
communications technicians services and scientific services without
supervision; and
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(b) be given other limited duty assignments which do not require
general law enforcement powers in their routine performance if the
performance of such duties is directly supervised as required.
The request for this opinion asks more specifically whether level III
reserves may, without supervision, be assigned to enforce criminal provisions of the
Vehicle Code, Penal Code, harbor and boating laws or local ordinances by issuing
citations or making arrests. The answer is no for two reasons. Since the enforcement
duties described are not among those specified in the last sentence of subdivision (3) of
section 832.6(a) to which a level III reserve may be assigned without supervision, any
such assignment would require direct supervision as provided in the second sentence of
the same subdivision. Further, the enforcement duties described routinely require the
making of arrests in their performance and are therefore not a limited duty which may be
assigned to a level III reserve under the first sentence of subdivision (3) of section
832.6(a).
The request for this opinion also asks specifically whether level III
reserves, when working without direct supervision, may "handle and/or transport"
prisoners? Again, the answer is no for two reasons. Since such assignments are not
among those specified which the statutes state may be performed without supervision, the
statute requires direct supervision. The taking and maintenance of custody of a person
arrested or convicted of a crime is a general law enforcement power which is routinely
required in the transporting and other "handling" of prisoners.
The request for this opinion also asks specifically whether level III reserve
peace officers working without direct supervision have the authority "of arrest, search
and seizure." The only assignments which may lawfully be given a level III reserve
which may be performed without direct supervision are those specified in the statute,
namely search and rescue, personnel administration support, community public
information services, communications technicians services and scientific services which
the Legislature has determined do not involve direct law enforcement. However, when
working such specified assignments, a level III reserve peace officer "is a peace officer"
(see § 830.6(a)(1)) and "shall have the powers of a peace officer" for the duration of the
assignment (see first sentence of § 832.6(a), supra) even though they are not routinely
required in the performance of such assignments. Should some unusual circumstances
arise in the performance of such assignments which call for the exercise of a peace
officer's powers of arrest, search and seizure, the level III reserve peace officer would
then have the authority to exercise such powers.
The second question presented asks what degree of supervision is required
over a level III reserve peace officer? First, we must distinguish between those
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assignments of level III reserves which do require supervision and those which do not.
As previously noted, the last sentence of subdivision (3) of section 632.6(a) provides that
a level III reserve may perform specified services "without supervision." This contrasts
with the "direct supervision" required over other assignments of level III officers in the
first and second sentences of that subdivision. Thus, the statute provides no special
supervision requirements with respect to search and rescue, personnel administration
support, community public information services, communications technicians services
and scientific services assigned to level III reserves. This does not mean that level III
reserves perform such assignments without any supervision. They are still subject to the
orders and directions of their superiors in the chain of command who may provide for
such supervision of such assignments as they deem appropriate. However, there is no
statutory requirement for a particular kind of supervision of such assignments as there is
with others.
With respect to other assignments of level III reserves not specified in the
last sentence of subdivision (3) of section 632.6(a), the second sentence of that
subdivision requires that such duties may be performed only under the "direct
supervision" of a peace officer possessing a basic POST certificate. Neither the
Legislature nor POST has defined the term "direct supervision" as used in this statute.
The term must be distinguished from the term "immediate supervision" used in
subdivision (2) of section 632.6(a) in reference to level II reserves which POST has
defined.3
In the context of section 832.6(a)(3), it is the limited duties assigned the
level III reserve under the first sentence which must be performed under "direct
supervision." We believe the Legislature imposed the supervision requirement to provide
reasonable assurance that the level III reserve, with his or her limited training, will
successfully perform the limited duties assigned. The form this supervision must take
depends upon the nature of the limited duties assigned. The law places no limit on the
kind of duties which may be assigned requiring only that they be limited, i.e., restricted to
a narrow range of activity which is well defined as to what the level III reserve is to do
and not do, and that such duties do not require the exercise of general law enforcement
powers in their routine performance. Without attempting any exhaustive listing, we think
such limited duties would include such assignments as issuing parking tickets, directing
3
POST Administrative Manual section H-1 (revised July 15, 1982) provides:
"2.f. 'Immediate supervision' [in section 832.6(a)] means the reserve officer acts
under the direction of a peace officer, possessing a basic certificate, who is routinely
in the physical proximity of and available to the reserve officer; however, allowance
is permitted for necessary temporary separations. (Applies only to Level II reserve
officers.)"
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traffic, transporting equipment, acting as court bailiff, crowd control and specified
surveillance. Circumstances could preclude even such assignments to level III reserves,
such as when information indicates that violence may reasonably be expected which
would require the exercise of general law enforcement powers. The kind of supervision
which would provide reasonable assurance of the successful performance of the limited
duty assigned does not necessarily require the close proximity of the supervising officer.
If the assigned duty is to remain at a phone booth and phone the supervising officer at
headquarters when he sees someone enter or leave a particular building, an occasional
phone call to see that the reserve is alert at his post would provide reasonable assurance
that the duty will be successfully performed. Reviewing duplicate parking tickets would
provide reasonable assurance of the performance of that duty. Spot checks of the
courtroom would provide reasonable assurance of the performance of a bailiff's duties.
Thus, the nature of the supervision may be as varied as the nature of the duties to be
supervised. One generalization may be made as the result of the statutory requirement
that the supervision be "direct." The adjective "direct" connotes that the supervision is to
be characterized by a close logical, causal and consequential relationship and provided
personally without the associative effort of anyone else. (See Webster's Third New
International Dictionary.) Thus, the supervising officer may not delegate his supervising
responsibilities to others. The greater the risk of harm to the reserve or to others the
closer the supervision must be to reasonably assure that performance will be without
injury and thus successful. When the risk of harm is great, the supervisor should be in a
position to intervene where necessary to prevent the harm. We conclude that the degree
of supervision required over a level III reserve peace officer is that required to provide
reasonable assurance that the limited duty assigned will be successfully performed
without harm to the reserve or others.
The third question is whether a level I reserve peace officer may supervise a
level III reserve peace officer? Section 832.6(a)(3) requires that the officer supervising a
level III reserve peace officer possess "a basic certificate issued by the commission."
POST Administrative Manual section H-1 (revised July 15, 1982) provides "2.g. 'Peace
officer possessing a basic certificate' refers to a regular officer or a reserve officer who
has been issued a regular POST Basic Certificate." We think the Legislature had this
definition in mind when it amended section 832.6 in 1984. Thus, a level I reserve peace
officer may act as a supervising officer to a level III reserve if he possesses a regular
POST Basic Certificate.
Section 832.6(a)(1) authorizes assignment of level I reserve peace officers
if they have completed the requisite training. Possession of a regular POST Basic
Certificate is not a requisite to an assignment as a level I reserve peace officer. POST
Administrative Manual section H-4 (revised January 1, 1981) provides:
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"2.b. Reserve Officer Certificate: This certificate is issued by POST
to reserve officers who meet the requirements for Level I assignment and in
addition have completed 200 hours of general law enforcement experience.
The certificate is not required by statute nor necessary to exercise peace
officer powers as a Level I reserve officer."
The requirements for a regular POST Basic Certificate are even more stringent. POST
Administrative Manual section F-1 (revised January 26, 1984) provides the requirements
for a regular POST Basic Certificate. These include satisfactory completion of the
appropriate POST Basic Course Training requirements, meeting the eligibility
requirement in section F-1-2 and the application requirements in section F-1-3 and
completion of "a period of satisfactory service in the appropriate program . . . of no less
than one year, as attested by the department head."
We conclude that a level I reserve peace officer may supervise a level III
reserve peace officer only if he or she possesses a regular POST Basic Certificate.
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