BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Gloria Romero, Chair A
2007-2008 Regular Session B
2
2
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AB 2296 (Mullin) 6
As Amended August 4, 2008
Hearing date: August 11, 2008
Penal Code (URGENCY)
JM:br
TRESPASS :
RESIDENTIAL PROPERTY OF ACADEMIC RESEARCHERS
HISTORY
Source: University of California
Prior Legislation: None directly on point
Support: California State University, Office of the Chancellor;
Stanford University; University of Southern
California; California Healthcare Institute
Opposition:None known
Assembly Floor Vote: No longer relevant
KEY ISSUE
SHOULD ENTRY ONTO THE RESIDENTIAL REAL PROPERTY OF AN ACADEMIC
RESEARCHER, WHEN DONE WITH THE INTENT TO CHILL OR INTERFERE WITH THE
RESEARCHER'S ACADEMIC FREEDOM, BE A MISDEMEANOR?
PURPOSE
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The purpose of this bill to provide that entry onto the
residential real property of an academic researcher for the
purpose of chilling or interfering with the researcher's
academic freedom is a trespass, punishable by a jail term of up
to six months, a fine of up to $1000, or both.
Existing constitutional law provides that "true threats" by
which a speaker means to communicate a serious expression of
intent to commit an act of violence to a particular person
or group of persons, are not protected by the First
Amendment. (Virginia v. Black (2003) 538 U.S. 343,
359-360.)
Existing constitutional law provides that a state may not
forbid or proscribe advocacy of the use of force, violence, or
unlawful actions except where such advocacy is directed to
inciting or producing imminent lawless action and is likely to
incite or produce such action. (Brandenberg v. Ohio (1969) 395
U.S. 444, 447.)
Existing law affords colleges and universities and their
faculty protection for academic freedom as a constitutional
interest in addition to protections for employee-speech. The
United States Supreme Court has held that universities occupy a
special niche in our constitutional tradition because of the
important purpose of public education and the expansive
freedoms of speech and thought associated with the university
environment. (Wieman v. Updegraff (1952) 344 U.S. 183, 195
(1952) (Frankfurter, J., concurring); Sweezy v. New Hampshire
(1957) 354 U.S. 234, 250, Shelton v. Tucker (1960) 364 U.S.
479, 487, Keyishian v. Board of Regents of Univ. of State of N.
Y. (1967) 385 U.S. 589, 603.)
Existing law includes numerous provisions defining various
forms of trespass and applicable penalties. Crime
definitions and penalties typically turn on whether any
damage has been done to property and whether the trespasser
refuses a valid request to leave the land. (Pen. Code
602-607.)
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Existing law provides that it is a misdemeanor, punishable by a
jail term of up to 6 months, a fine of up to $1000, or both,
for any person to, without written permission, enter cultivated
or fenced land that belongs to or is occupied by another, or to
enter uncultivated or unenclosed lands where signs forbidding
trespass are displayed not less than three to the mile along
the boundaries and at all roads and trails entering the land,
and where the person does one of the following acts:
Refuses or fails to leave immediately upon being
requested by the owner, owner's agent or person in lawful
possession to leave the lands;
Tears down, mutilates, or destroys any sign, signboard,
or notice forbidding trespass or hunting on the lands;
Removes, unlocks, or tampers with any lock on any gate
on or leading into the lands; or
Discharges a firearm. (Pen Code 602, subd. (l).)
Existing law provides that a person is guilty of a
misdemeanor, punishable by a county jail term of up to 6
months, a fine of up to $1000 or both, if he or she enters
any land for the purpose of injuring any property or property
rights, or with the intention of interfering with,
obstructing, or injuring any lawful business of the owner,
owner's agent, or any person in lawful possession of the
land. (Pen. Code 602, subd. (k).)
Existing law provides that it is misdemeanor, punishable by a
county jail term of up to 6 months, a fine of up to $1000 or
both, for any person to enter or remain in another person's
residence without consent. (Pen. Code 602.5, subd. (a).)
Where a resident or lawful occupant of the dwelling is present
during the offense, the crime is called "aggravated residential
trespass" and the maximum jail term is one year. (Pen. Code
602.5, subd. (b).)
Existing law provides that where a defendant is convicted of
aggravated residential trespass, the court may order the
defendant to attend counseling as a condition of probation.
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The court may issue a restraining order prohibiting the
defendant from contacting the victim for up to three years. A
person who commits residential trespass may also be prosecuted
for burglary or any other offense committed in conjunction with
the trespass. (Pen. Code 602.5, subd. (c)-(e).)
Existing law provides that a person is guilty of a
misdemeanor, punishable by a county jail term of up to 6
months, a fine of up to $1000 or both, if he or she refuses
or fails to leave real property or structures after the
owner, owner's agent or person in lawful possession requests
that the person leave the property. This crime also applies
where a peace officer acts on behalf of the owner, owner's
agent or person in lawful possession of the property. (Pen.
Code 602, subd. (o).)
Existing law generally provides that a person commits trespass
where he or she, without the written permission of the
landowner, the owner's agent or of the person in lawful
possession of the land either:
Willfully enters any lands under cultivation or
enclosed by fence, belonging to, or occupied by
another person; or,
Willfully enters upon uncultivated or unenclosed
lands where signs forbidding trespass are displayed
at intervals not less than three to the mile along
all exterior boundaries and at all roads and trails
entering the lands. (Pen. Code 602.8, subd.
(a).)
Existing law provides that trespassing (in circumstances other
than where the person refuses a valid order to leave the
premises, destroys a no-trespassing or no-hunting sign, tampers
with any lock, or discharges a firearm) is an infraction or a
misdemeanor, as follows:
First offense: infraction, punishable by a fine of $75.
(Pen. Code 602.8, subd. (b)(1).)
Second offense on any contiguous land of the same owner:
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infraction, punishable by a fine of $250. (Pen. Code 602.8,
subd. (b)(2).)
A third or subsequent offense on any contiguous land of the
same owner is a misdemeanor punishable by imprisonment in the
county jail not exceeding six months; by fine not exceeding
$1000; or both. (Pen. Code 602.8, subd. (b)(3).)
Existing law includes the following exceptions to the
trespassing law in Section 602.8:
A person who is conducting lawful union activities;
A person who is on the premises and engaging in
activities protected by the California or United States
Constitution;
A person making lawful service of process; and
An appropriately licensed person engaged in land
surveying.
Existing law provides that any person who interferes with a
lawful business or occupation that is open to the public, by
obstructing or intimidating those carrying on the business or
their customers, and who refuses to leave after being
requested to do so by the owner, the owner's agent or a peace
officer, is guilty of a misdemeanor. The penalty for this
crime is a jail term of up to 90 days, a fine of up to $400,
or both. (Pen. Code 602.1, subd. (a).)
Existing law provides that any person who intentionally
interferes with lawful business carried on by employees of a
public agency open to the public, by obstructing or
intimidating those carrying on business, is guilty of a
misdemeanor. The penalty for this crime is a jail term of up
to 90 days, a fine of up to $400, or both. (Pen. Code 602.1,
subd. (b).)
Existing law , as with related trespassing sections, provides
the following exceptions to the crime defined in subdivisions
(a) and (b) of Penal Code Section 602.1:
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A person who is conducting lawful union activities; and
A person who is on the premises and engaging in
activities protected by the California or United States
Constitution.
Existing civil tort law provides that trespass is an unlawful
interference with property. Civil trespass is defined by
decisional law. (Girard v. Ball (1981) 125 Cal.App.3d 772,
788.)
Existing standard jury instructions (promulgated by the
Judicial Council) set out the elements of civil trespass as
follows:
The plaintiff owned or occupied real property.
The defendant intentionally, recklessly or negligently
entered the property.
The plaintiff did not give permission for the entry.
The plaintiff suffered harm and the entry was a
substantial factor in causing the harm.
If the plaintiff suffered no actual harm from the
trespass, nominal damages (e.g., $1.00) shall be awarded.
(Cal. Civ. Jury Instr., 1-2000.)
Existing law includes the crime of making a credible threat of
death or great bodily injury, which includes the following
elements: the defendant made the threat "verbally," in writing
or by means of electronic communication device and with the
intent that it be actually taken as a threat; and the threat
was made under circumstances indicating that the defendant had
the means and intent to carry it out such that the victim was
placed in sustained fear for his own safety or that of his
immediate family. Making a credible threat is an alternate
felony-misdemeanor, punishable by a jail term of up to one
year, a fine of up to $1000, or both, or by imprisonment in a
state prison for 16 months, 2 years or 3 years and a fine of up
to $10,000. (Pen. Code 422.)
Existing law defines the crime of "stalking" as repeatedly
harassing or following another person in conjunction with the
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making of a credible threat against that person or his or her
immediate family. Stalking is an alternate felony-misdemeanor,
punishable by up to one year in the county jail and/or a fine
of up to $1000, or by imprisonment in state prison for 16
months, 2 or 3 years, and/or a fine of up to $10,000. (Pen.
Code 646.9.)
Existing law provides that for purposes of stalking
prosecutions a credible threat is one made orally, in writing,
or by conduct. A credible threat is one that is intended to
place the recipient in reasonable fear for his or her safety,
or the safety of immediate family members, and that would cause
a reasonable person to experience such fear. (Pen. Code
646.9, subd. (g).)
Existing law provides that willfully violating any court order
is the misdemeanor of criminal contempt, punishable up to six
months in the county jail and/or a fine of up to $1000. (Pen.
Code 166, subd. (a)(4).)
Existing law allows the court in imposing sentence in a
stalking case to issue a restraining order forbidding the
defendant from any contact with the victim for up to 10 years.
(Pen. Code 646.9, subd. (k).)
Existing law provides that violations of a restraining order
issued in a stalking case may be enforced and punished as
follows:
The violation may be prosecuted as misdemeanor contempt
of court under Penal Code Section 166, punishable by up to
one year in the county jail, a fine of up to $5000, or
both. (Pen. Code 166, subd. (b)(1).)
A defendant who is convicted of stalking while subject
to a stalking restraining order may be imprisoned for 2, 3
or 4 years. (Pen. Code 646.9, subd. (b).)
Existing law provides that a person who has "suffered
harassment" may seek a temporary restraining order and an
injunction to prevent such harassment. "Harassment" is defined
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thus: "[U]nlawful violence, a credible threat of violence, or
a knowing and willful course of conduct directed at a specific
person that seriously alarms, annoys, or harasses the person,
and that serves no legitimate purpose. The course of conduct
must be such as would cause a reasonable person to suffer
substantial emotional distress, and must actually cause
substantial emotional distress to the plaintiff." (Code. Civ.
Proc. 527.6.)
Existing law provides that an employer may seek a temporary
restraining order and injunction on behalf of an employee who
has been harassed at work through unlawful violence or a
credible threat of violence. In the discretion of the court,
the order and injunction can be applied to additional employees
and workplaces of the employer. (Code. Civ. Proc. 527.8.)
Existing law allows a court to dismiss a civil cause of action
(law suit) against a person where the suit arises from the
defendant's right of free speech, unless the court determines
the plaintiff has established a probability that he or she will
prevail in the suit.<1> (Code Civ. Proc. 425.16.)
Existing federal law includes crimes concerning disruption of
an animal enterprise. Any person who causes economic damages
totaling not exceeding $10,000 shall be fined, imprisoned for
not more than six months, or both. Where economic damages are
greater than $10,000, the defendant can be fined and imprisoned
for no more than 3 years. Where serious bodily injury occurs,
the defendant can be fined and imprisoned for up to 20 years.
Where death occurs, the defendant can be fined and imprisoned
for life. (18 U.S.C. 43, (a)-(b).)
Existing federal law defines an "animal enterprise" as 1) a
commercial or academic enterprise that uses animals for food or
fiber production, agriculture, research or testing; and 2) a
fair for advancing agricultural arts and sciences. "Physical
disruption" does not include disruption resulting from the
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<1> This law is usually referred to as the anti-SLAPP
(strategic lawsuit against public participation) statute.
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lawful public, governmental or enterprise employee reaction to
disclosure of information about an enterprise. (18 U.S.C.
43, (d)-(e).)
This bill defines a specific form of misdemeanor trespass that
is committed where a person, with the intent to chill or
interfere with the academic freedom of an academic researcher,
enters onto the residential real property of the academic
researcher.
This bill defines an "academic researcher" as "any person
lawfully engaged in research that is a student, trainee, or
employee of an accredited California community college, a
campus of the California State University or the University of
California, or a Western Association of Schools and Colleges
accredited, degree granting, non-profit institution."
This bill includes legislative findings that while those who
oppose the use of animals in research are entitled to protest
such research, violence against other persons and destruction
of property is unacceptable and should not be tolerated, as
specified.
This bill additionally states that unlawful acts that threaten
or intimidate researchers or their family members are not
protected by the First Amendment and that these acts directly
threaten researchers' rights to academic freedom.
This bill includes a provision stating that its provisions do
not apply to any person who is lawfully engaged in labor union
activities that are protected under state or federal law.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California continues to face an extraordinary and severe prison
and jail overcrowding crisis. California's prison capacity
remains nearly exhausted as prisons today continue to be
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operated with a significant level of overcrowding.<2> A year
ago, the Legislative Analyst's office summarized the trajectory
of California's inmate population over the last two decades:
During the past 20 years, jail and prison
populations have increased significantly. County
jail populations have increased by about 66
percent over that period, an amount that has been
limited by court-ordered population caps. The
prison population has grown even more
dramatically during that period, tripling since
the mid-1980s.<3>
The level of overcrowding, and the impact of the population
crisis on the day-to-day prison operations, is staggering:
As of December 31, 2006, the California
Department of Corrections and Rehabilitation
(CDCR) was estimated to have 173,100 inmates in
the state prison system, based on CDCR's fall
2006 population projections. However, . . . the
department only operates or contracts for a total
of 156,500 permanent bed capacity (not including
out-of-state beds, . . . ), resulting in a
shortfall of about 16,600 prison beds relative to
the inmate population. The most significant bed
shortfalls are for Level I, II, and IV inmates,
as well as at reception centers. As a result of
the bed deficits, CDCR houses about 10 percent of
the inmate population in temporary beds, such as
in dayrooms and gyms. In addition, many inmates
are housed in facilities designed for different
security levels. For example, there are
currently about 6,000 high security (Level IV)
inmates housed in beds designed for Level III
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<2> Analysis of the 2007-08 Budget Bill: Judicial and
Criminal Justice, Legislative Analyst's Office (February 21,
2007); see also, court orders, infra.
<3> California's Criminal Justice System: A Primer.
Legislative Analyst's Office (January 2007).
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inmates.
. . . (S)ignificant overcrowding has both
operational and fiscal consequences.
Overcrowding and the use of temporary beds create
security concerns, particularly for medium- and
high-security inmates. Gyms and dayrooms are not
designed to provide security coverage as well as
in permanent housing units, and overcrowding can
contribute to inmate unrest, disturbances, and
assaults. This can result in additional state
costs for medical treatment, workers'
compensation, and staff overtime. In addition,
overcrowding can limit the ability of prisons to
provide rehabilitative, health care, and other
types of programs because prisons were not
designed with sufficient space to provide these
services to the increased population. The
difficulty in providing inmate programs and
services is exacerbated by the use of program
space to house inmates. Also, to the extent that
inmate unrest is caused by overcrowding,
rehabilitation programs and other services can be
disrupted by the resulting lockdowns.<4>
As a result of numerous lawsuits, the state has entered into
several consent decrees agreeing to improve conditions in the
state's prisons. As these cases have continued over the past
several years, prison conditions nonetheless have failed to
improve and, over the last year, the scrutiny of the federal
courts over California's prisons has intensified.
The federal court has appointed a receiver to take over the
direct management and operation of the prison medical health
care delivery system from the state. The crisis has continued
to escalate and, in July of last year, the federal court
established a three-judge panel to consider placing a cap on
the number of prisoners allowable in California prisons. It is
anticipated that the court will reach its decision this year.
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<4> Analysis 2007-08 Budget Bill, supra, fn. 1.
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In his order establishing the judicial panel, Judge Thelton
Henderson stated in part:
It is clear to the Court that the crowded conditions
of California's prisons, which are now packed well
beyond their intended capacity, are having - and in
the absence of any intervening remedial action, will
continue to have - a serious impact on the
Receiver's ability to complete the job for which he
was appointed: namely, to eliminate the
unconstitutional conditions surrounding delivery of
inmate medical health care.
. . . (T)his case is also somewhat unique in that
even Defendants acknowledge the seriousness of the
overcrowding problem, which led the Governor to
declare a state of emergency in California's prisons
in October 2006. While there remains dispute over
whether crowded conditions are the primary cause of
the constitutional problems with the medical health
care system in California prisons, or whether any
relief other than a prisoner release order will remedy
the constitutional deprivations in this case, there
can be no dispute that overcrowding is at least part
of the problem. . . . The record is equally clear
that the Receiver will be unable to eliminate the
constitutional deficiencies at issue in this case in a
reasonable amount of time unless something is done to
address the crowded conditions in California's
prisons. This Court therefore believes that a
three-judge court should consider whether a prisoner
release order is warranted . . . . (Hon. Thelton
Henderson, Order dated July 23, 2007 in Plata v.
Schwarzenegger (N.D. Cal) No. C01-1351 TEH (citations
omitted).)
Similarly, Judge Lawrence Karlton stated:
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There is no dispute that prisons in California are
seriously and dangerously overcrowded. () The
record suggests there will be no appreciable
change in the prison population in the next two
years. (Hon. Lawrence K. Karlton, Senior Judge,
United States District Court, Order dated July 23,
2007 in Coleman v. Schwarzenegger (E.D. Cal.) No.
S90-0520 LKK JFM P (citations omitted).)
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
Courts have long recognized that academic freedom is "a
special concern of the First Amendment." (Regents of
the University of California v. Bakke (1978) 438 U.S.
265, 312, quoting Keyishan v. Board of Regents (1967)
385 U.S. 589.) That concern is particularly important
in the area of research.
As explained in Sweezy v. New Hampshire (1957) 354 U.S.
234, 250 (plurality opinion by Warren, C.J.): "The
essentiality of freedom in the community of American
universities is almost self-evident . . . . Teachers
and students must always remain free to inquire, to
study and to evaluate . . . otherwise our civilization
will stagnate and die." Thus, scholarship and research
"must be left as unfettered as possible." (Id. at p.
263 (Frankfurter, J., concurring). Protection of
academic inquiry "extends as readily to the scholar in
the laboratory as to the teacher in the classroom" and
"consists in the right of the individual faculty member
to . . . carry on research, and publish without
interference from the government, the community, the
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university administration, or his fellow faculty
members." (Dow Chemical v. Allen (7th Cir. 1982) 672
F.2d 1262, 1274-1275.)
Traditional targets for research opponents have been
campus facilities. The Internet and other
technological advances provide extremists with
additional ways to threaten researchers at home.
Academic freedom is jeopardized by threats aimed at
researchers and their families. AB 2296 sends a
message that violence or threats of violence are never
the answer.
Currently, the most vehement and violent attacks on
academic freedom have arisen concerning animal
research. Recent attacks have taken place at the homes
of professors at UC Berkeley, UCLA and UC Santa Cruz.
These attacks have ranged from the planting of
explosive devices on a doorstep to holding a family
hostage at a child's birthday party.
These attacks will only increase. The Washington Post
reported on March 11, 2008: "Experts say the shift
toward more personal attacks is a response to
increasingly fortified laboratories, which universities
began securing in the 1980s and 1990s as attacks
heightened. 'Now, groups have shunned " Fort Knox " in
favor of ill-prepared homes,' said Jerry Vlasik, the
former vivisector turned spokesman for the North
American Animal Liberation Press Office. Vlasik
[advocates] using 'whatever force against animal
research scientists is necessary. If killing them is
the only way to stop them,' he said in a telephone
interview, 'then I said killing them would certainly be
justified.'"
This trespass bill will help law enforcement officials
arrest and prosecute persons who seek to destroy
academic freedom. Trespass prosecutions may lead to
evidence in cases of violence.
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2. Existing Trespass Laws are Very Complicated
California trespass laws are very complicated. The trespass
laws include nine separate sections, each with different crimes
with separate elements. The major trespass section - 602 - has
an entire alphabet's worth of subdivisions. Most of the
subdivisions in Section 602 define separate crimes, typically
each with slightly different elements than the other
subdivisions.
3. Existing Laws that May Apply in Cases Involving Violence
against or Intimidation of Academic Researchers
According to the author and interested parties, animal rights
activists have entered the residential property of researchers
to protest or condemn the use of animals in research. Some
protests have been very vehement and aggressive. Protesters
have committed vandalism and assaulted or threatened
researchers and their family members.
Vandalism and assault are, of course, criminal offenses. (Pen.
Code 594, 240, 245.) Making a credible threat to kill or
inflict great bodily injury and stalking are alternate
felony-misdemeanors. (Pen. Code 422, 646.9.) Further,
existing law defines non-consensual entry into the residence of
another person as trespass, a misdemeanor punishable by a jail
term of up to six months. Where a person residing in the home
is present at the time of the trespass, the defendant can be
jailed for up to one year. (Pen. Code 602.5.)
Other trespass laws may apply in some situations. For example,
where one, without consent, enters land upon which signs
prohibiting entry have been posted, he or she is guilty of an
infraction or a misdemeanor. (Pen. Code 602.8.) A person is
guilty of a misdemeanor if he or she enters fenced land, or
land upon which no trespassing signs have been posted, and
thereafter refuses to leave, tears down or defaces the sign
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forbidding entry, removes or tampers with a lock on a gate, or
discharges a firearm. (Pen. Code 602, subd. (l).) A person
is guilty of a misdemeanor if he or she fails to leave property
or structure after being requested to do so. (Pen. Code 602,
subd. (o).)
Numerous laws apply where vandalism, violence and credible
threats of violence are used against researchers. It appears
that investigation and prosecution of these incidents is
hampered by a paucity of evidence as to who are the
perpetrators. Perhaps a new form of trespass would lead police
to fruitful evidence in these cases.
Existing law also provides that a person is guilty of trespass
where he or she enters another person's land "for the purpose
of injuring any property or property rights or with the
intention of interfering with, obstructing or injuring any
lawful business or occupation carried on" by the owner, agent
or lawful possessor of the land. (Pen. Code 602, subd. (k).)
The only appellate cases found by counsel interpreting this
section concerned commercial business enterprises. It is
unclear how this Penal Code section would be applied in a case
where the entry occurred on residential land (as opposed to the
actual residential structure) and the prosecution alleged that
the defendant interfered with the property rights or "business"
of the resident or residents. Thus, existing trespass laws
concerning interference with a business may be interpreted as
not applying to entry of residential property with intent to
chill academic research conducted elsewhere.
Further, in urban and suburban areas it is unusual to see signs
forbidding trespass. Covenants and restrictions or zoning
rules may prohibit a researcher from placing signs or fencing
around his or her residential property. In such circumstances,
the only applicable trespass law is arguably very narrow: the
offense occurs only once someone refuses to comply with a
request to leave the property, leaving unaddressed disturbing
conduct on the property which may precede such a request.
DO EXISTING TRESPASS LAWS NOT COVER CIRCUMSTANCES WHERE A
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PERSON ENTERS THE RESIDENTIAL LAND OF AN ACADEMIC RESEARCHER
WITH INTENT TO INTERFERE WITH THE RESEARCHER'S RIGHT TO CONDUCT
LAWFUL RESEARCH?
SHOULD SUCH A TRESPASS LAW BE ENACTED?
4. Defining Academic Freedom and an Academic Researcher
The sponsor, the University of California, would define
academic freedom as "the lawful performance, dissemination, or
publication of academic research or instruction." That
definition has been incorporated into the bill. This
definition is broad, ranging from the hard sciences (chemistry,
biology, zoology) to political science, history and the arts.
Academic research and instruction can touch on controversial
issues, just as does political discourse and action. Examples
include stem-cell research, climate change, reproductive rights
and Middle East politics and religions. As noted in the
"Purpose" section and in Comment #5 of this analysis, a long
line of court decisions have given political speech and
academic freedom very strong protections under the First
Amendment.
The bill further defines the term "academic researcher" as "any
person lawfully engaged in academic research who is a student,
trainee, or employee of an accredited California community
college, a campus of the California State University or the
University of California, or a Western Association of Schools
and Colleges accredited, degree granting, nonprofit
institution." This definition would limit application of the
bill to persons conducting research under the umbrella of a
legitimate institution of higher education. It would appear
that sham or shell colleges or universities would not be
covered by the bill.
5. First Amendment Issues
This bill may raise First Amendment free speech challenges. It
has been stated that political speech and speech concerning
public issues are entitled to great protection under the First
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Amendment. (Burson v. Freeman (1992) 504 U.S. 191, Perry Ed.
Assn. v. Perry Local Educators' Assn. (1983) 460 U.S. 37, 45.)
The courts have long recognized a right to distribute pamphlets
and other material door-to-door. (Martin v. City of Struthers
(1943) 319 U.S. 141, 145-146.)
On the other hand, a person's protected right of privacy is
greatest in his or her home. In particular, a person has a
privacy right to bar solicitations at his or her residence.
(Rowan v. United States Post Office (1970) 397 U.S. 728,
735-737.) "Nothing in the Constitution compels us to listen to
or view any unwanted communication, whatever its merit; we see
no basis for according the printed word or pictures a different
or more preferred status because they are sent by mail. The
ancient concept that 'a man's home is his castle' into which
'not even the king may enter' has lost none of its vitality,
and none of the recognized exceptions includes any right to
communicate offensively with another." (Id. at p. 737.)
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However, the place where speech takes place and the manner in
which it is made are important in determining the amount of
protection given the speech. (Aguilar v. Avis (1999) 21
Cal.4th 121, 156.) "[T]he nature of the forum and the
conflicting interests involved have remained important in
determining the degree of protection afforded by the [First]
Amendment to the speech in question." (Lehman v. City of
Shaker Heights (1974) 418 U.S. 298, 302-303 - plur. opn.)
Even speech about a campaign for elective office can be
regulated by reasonable and even-handed restrictions on time,
place and manner. In Lehman, the court upheld a ban on
political advertisements on public transit vehicles. (Ibid.)
The United States Supreme Court has held that expressive
conduct intended to intimidate is not protected by the First
Amendment. (Virginia v. Black (2003) 538 U.S. 343.) Further,
there is support in (U.S.) Supreme Court decisions for an
argument that academic freedom is a specially protected form of
speech and expressive conduct. In deciding First Amendment
issues raised by this bill, reviewing courts would be expected
to balance protesters' rights to speak on public issues against
the right to academic freedom and the right of the researcher
to peacefully enjoy his or her home.
The cases of Hamburg v. Wal-Mart (2004) 116 Cal.App.4th 497 and
Robins v. Pruneyard (1979) 23 Cal.3d 899 consider the rights of
citizens to engage in political speech and activity on private
property. However, the properties involved in these cases were
commercial enterprises. It is likely that the courts would
grant more trespass protection to the owners and occupants of
residential property.
The court in Pruneyard held: "In this appeal from a judgment
denying an injunction we hold that the soliciting at a shopping
center of signatures for a petition to the government is an
activity protected by the California Constitution." The court
noted that large-scale shopping centers are public forums akin
to public squares. (Pruneyard, at p. 902.)
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6. History of This Bill
This bill previously was heard in both the Assembly and Senate
Judiciary Committees. It previously contained only civil law
provisions. As heard in Senate Judiciary in June, the bill
created civil remedies where a person posted on the Internet
the name and address of an animal researcher with the intent to
incite great bodily harm or threats against the researcher.
The bill also provided that an animal researcher could seek
civil remedies if another person violated the researcher's
demand that his or her home address or telephone number not be
posted.
The bill was amended on the Senate Floor on July 2, 2008 to
include only contained legislative declarations and statements
of intent. The bill stated that while protests and expressions
of views on animal research are protected by the First
Amendment, the use of threats, violence, or destruction of
property should not be tolerated.
7. Specific Statute Controls over a More General Statute -
Suggested Amendment to State that This Bill Shall Not
Prohibit Prosecution under Any Other Provision of Law
It appears that in many cases where the prosecution could
readily prove the elements of the form of trespass defined by
this bill, the prosecutor also could prove an equally serious
or more serious crime. However, where both a general and
specific crime cover the same conduct, the more specific crime
is deemed to apply. This is true even where the more specific
crime provides for lesser penalties than the more general
crime. The "specific over general" rule applies unless the
Legislature states that prosecution under the specific statute
does not limit prosecution under any other law.
SHOULD THIS BILL CONTAIN A PROVISION STATING THAT IT SHALL NOT
BE INTERPRETED SO AS TO PROHIBIT PROSECUTION UNDER ANY OTHER
PROVISION OF LAW?
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