Monday, September 28, 2009
Court of Appeal: Resisting Campus Security Officers Not a Crime
By Steven M. Ellis, Staff Writer
Running from a public school security officer does not support a criminal charge of resisting or delaying a public officer, the Fourth District Court of Appeal ruled Friday.
Reversing an order adjudicating a minor delinquent, Div. Two held that campus security officers hired by a public school district are not “public officers” under Penal Code Sec. 148(a)(1) because they neither exercise a delegated sovereign function of government nor hold a tenured position.
The minor, identified only as M.M., was tried on the basis of evidence that he ran from campus security officers responding to an alleged incident of vandalism at Arroyo Valley High School in San Bernardino in January of last year.
Report of Vandalism
According to the opinion, Campus Security Officer Bryan Butts and two other officers were responding to a report of vandalism on campus when they saw a group of students scatter and gave pursuit. The officers followed a group of three or four students, one of whom was the minor, and Butts yelled several times to stop.
Butts said he and the minor were acquainted with one another, having had over 30 conversations, and Butts yelled directly at him—by name—to stop many times. However, the minor continued to run and Butts saw him throw a white container on the ground, which Butts said he believed was a spray paint can.
M.M. eventually exited the campus and encountered Campus Security Officer Yanez, who had been driving his patrol car around the perimeter of the school campus. Unlike Butts, Yanez was a peace officer employed by the San Bernardino City Unified School District, and the minor submitted to Yanez’s command to stop and was arrested.
Butts later returned to retrieve the object thrown, but found only a water bottle.
The minor was charged with felony vandalism—later reduced to a misdemeanor—and resisting or delaying a public officer. San Bernardino Superior Court Commissioner Michael A. Knish dismissed the vandalism charge for lack of evidence, but found that the minor resisted a public officer and placed him on probation in the custody of his mother.
Not ‘Public Officer’
On appeal, M.M. argued his conviction was not supported by substantial evidence because Butts was not a public officer for the purposes of Sec. 148, and the Court of Appeal agreed in an opinion by Justice Art W. McKinster.
Citing the definition of a public officer set forth by Div. One of this district’s Court of Appeal in People v. Rosales (2005) 129 Cal.App.4th 81, McKinster wrote that campus security officers, as a matter of law, were not public officers because they simply provided security services to the school district and reported such activities to the district and local law enforcement agencies rather than exercising a delegated sovereign function of government.
He further opined that campus security officers were similarly not public officers because they were neither elected nor officially appointed for a specified period of time, but simply hired by the school district.
The prosecution contended that school officers are public officers under Education Code Secs. 38000 and 38001.5(c), which establish a mechanism for school districts to establish campus security, because they perform a public function for the benefit of the public, but McKinster rejected the assertion.
“We assume that failure to obey and cooperate with a campus security officer may involve some school-imposed sanction; we are concerned about public safety on school campuses, and the protection of property and maintenance of order on school grounds,” he said. “However, as a court, we must interpret the laws as the Legislature has enacted them.”
Noting that the Legislature could amend existing law to make school officers public officers, McKinster said the court could not “by judicial fiat change the laws enacted by the Legislature to further public policy objectives.”
Presiding Justice Manuel A. Ramirez and Justice Betty Ann Richli joined McKinster in his opinion.
The case is In re M.M., E045714.
Copyright 2009, Metropolitan News Company