BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                           Senator Gloria Romero, Chair              A
                             2007-2008 Regular Session               B

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          AB 2296 (Mullin)                                           6
          As Amended August 11, 2008 
          Hearing date:  August 13, 2008
          Penal Code   (URGENCY)
          JM:br



              TRESPASS ON RESIDENTIAL PROPERTY OF ACADEMIC RESEARCHERS  ;  

              INCITING IMMINENT VIOLENCE AGAINST 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 ISSUES
           
          SHOULD ENTRY ONTO THE RESIDENTIAL REAL PROPERTY OF AN ACADEMIC  
          RESEARCHER WITH THE INTENT TO CHILL OR INTERFERE WITH THE  




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          RESEARCHER'S ACADEMIC FREEDOM BE A MISDEMEANOR?

                                                               (CONTINUED)



          SHOULD PUBLISHING INFORMATION DESCRIBING OR DEPICTING AN ACADEMIC  
          RESEARCHER, OR HIS OR HER IMMEDIATE FAMILY MEMBER, OR THE LOCATIONS  
          WHERE THEY MAY BE FOUND WITH THE INTENT THAT ANOTHER PERSON  
          IMMINENTLY USE THE INFORMATION TO COMMIT A CRIME INVOLVING VIOLENCE  
          OR A THREAT OF VIOLENCE AGAINST THE RESEARCHER, OR HIS OR HER  
          IMMEDIATE FAMILY MEMBER, AND WHERE THE INFORMATION IS LIKELY TO AID  
          IN THE IMMINENT COMMISSION OF SUCH A CRIME AGAINST THE RESEARCHER,  
          OR HIS OR HER IMMEDIATE FAMILY MEMBER, BE A MISDEMEANOR, PUNISHABLE  
          BY UP TO ONE YEAR IN COUNTY JAIL, A FINE OF UP TO $1000, OR BOTH?

          SHOULD AN ACADEMIC RESEARCHER ABOUT WHOM SUCH INFORMATION IS  
          PUBLISHED BE AUTHORIZED TO SEEK A PRELIMINARY INJUNCTION ENJOINING  
          ANY FURTHER PUBLICATION OF THAT INFORMATION, AS SPECIFIED?


                                      PURPOSE

          The purposes of this bill are to 1) 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; 2) provide that  
          the publishing of information describing or depicting an  
          academic researcher or his or her family, or the location where  
          the researcher or his or her family can be found, with the  
          intent that another person imminently use the information to  
          commit a crime involving violence or the threat of violence  
          against the researcher or his family, is a misdemeanor,  
          punishable by up to one year in county jail, a fine of up to  
          $5000, or both; and 3) provide that an academic researcher  
          about whom such information is published may seek a preliminary  
          injunction enjoining any further publication of that  
          information, as specified.





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          Existing First Amendment Law on Academic Freedom and Threats,  
          and Imminent Incitement of Violence
           
          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 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 law  affords colleges and universities and their  
          faculty protection for academic freedom as a constitutional  
          interest.  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 a university.  (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 Trespass Law
          
           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.)

           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,  




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          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:

                 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 a sign or notice  
               forbidding trespass or hunting;
                 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.  The  
          court may issue a restraining order prohibiting the defendant  




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          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 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 who 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:   
            infraction, punishable by a fine of $250.  (Pen. Code  602.8,  




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            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  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:

           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  




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          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 on Making Credible Threats, Stalking and Related  
          Conduct

           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 an electronic communication device and with the  
          intent that it be taken as a threat; and it appears that that  
          the defendant had the means and intent to carry out the threat  
          such that the victim was placed in sustained fear for his own  
          safety or that of his immediate family.  This crime 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  
          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  




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          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  
          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.)




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           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 law  provides that a court may issue an order enjoining  
          a party from molesting, attacking, striking, stalking,  
          threatening, sexually assaulting, battering, harassing,  
          telephoning, destroying personal property, contacting, either  
          directly or indirectly, by mail or otherwise, coming within a  
          specified distance of, or disturbing the peace of another  
          party, and, in the discretion of the court, on a showing of  
          good cause, of other named family or household members.  (Fam.  
          Code  6320.)  Willful violation of the order is contempt of  
          court, a misdemeanor, punishable by imprisonment in a county  
          jail for not more than one year, by a fine of not more than  
          $1000, or both.  (Pen. Code  166, subd. (c).)
           
           Existing Law on Posting of Information about Reproductive  
          Health Clinic Staff or Employees with Intent that the  
          Information be Used to Cause Harm
           
          Existing civil law  provides that:

                 No person, business, or association shall knowingly  
               publicly post or display on the Internet the home address  
               or telephone number, or image of any provider, employee,  

             -------------------------
          <1>  This law is usually referred to as the anti-SLAPP  
          (strategic lawsuit against public participation) statute.



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               volunteer, or patient of a reproductive health services  
               facility or other individuals residing at the same home  
               address with the intent to do either of the following:

                           Incite a third person to cause imminent  
                    great bodily harm to the person identified in the  
                    posting or display, or to a co-resident of that  
                    person, where the third person is likely to  
                    commit this harm.

                           Threaten the person identified in the  
                    posting or display, or a co-resident of that  
                    person, so as to place the person identified or  
                    the co-resident in objectively reasonable fear  
                    for his or her personal safety.

                 A provider, employee, volunteer, or patient of a  
               reproductive health services facility whose home address,  
               home telephone number, or image is made public as a result  
               of a violation of paragraph (1) may do either or both of  
               the following:

                           Bring an action seeking injunctive or  
                    declarative relief in any court of competent  
                    jurisdiction.  If a jury or court finds that a  
                    violation has occurred, it may grant  
                    injunctive or declarative relief and shall  
                    award the successful plaintiff court costs and  
                    reasonable attorney's fees.

                           Bring an action for damages in any  
                    court of competent jurisdiction.  In addition  
                    to any other legal rights or remedies, if a  
                    jury or court finds that a violation has  
                    occurred, it shall award damages to that  
                    individual in an amount up to a maximum of  
                    three times the actual damages, but in no case  
                    less than four thousand dollars ($4000).






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                 No person, business, or association shall publicly post  
               or display on the Internet the home address or home  
               telephone number of any provider, employee, volunteer, or  
               patient of a reproductive health services facility if that  
               person made a written demand of that person, business, or  
               association to not disclose his or her home address or  
               telephone number, as specified.

                 A provider, employee, volunteer, or patient of a  
               reproductive health services facility whose home address  
               or home telephone number is made public as a result of a  
               failure to honor a demand as described above may bring an  
               action seeking injunctive or declarative relief in any  
               court of competent jurisdiction.  If a jury or court finds  
               that a violation has occurred, it may grant injunctive or  
               declarative relief and shall award the successful  
               plaintiff court costs and reasonable attorney's fees.

                 No person, business, or association shall solicit,  
               sell, or trade on the Internet the home address or  
               telephone number, or image of a provider, employee,  
               volunteer, or patient of a reproductive health services  
               facility with the intent to do either of the following:

                           Incite a third person to cause imminent  
                    great bodily harm to the person identified in  
                    the posting or display, or to a co-resident of  
                    that person, where the third person is likely  
                    to commit this harm.

                           Threaten the person identified in the  
                    posting or display, or a co-resident of that  
                    person, in a manner that places the person  
                    identified or the co-resident in objectively  
                    reasonable fear for his or her personal safety.

                 A provider, employee, volunteer, or patient of a  
               reproductive health services facility whose home address  
               or telephone number, or image is illegally solicited,  
               sold, or traded may bring a legal action.  In addition to  




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               any other legal and equitable remedies, if a jury or court  
               finds that a violation has occurred, it shall award  
               damages to that individual in an amount up to a maximum of  
               three times the actual damages, but in no case less than  
               four thousand dollars ($4000).  (Government Code  6218.)
                                         
          Existing Federal Law on Animal Enterprises

           Existing federal law  includes crimes concerning disruption of  
          an animal enterprise.  Any person who causes economic damages  
          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  
          lawful public, governmental or enterprise employee reaction to  
          disclosure of information about an enterprise.  (18 U.S.C.   
          43, (d)-(e).)

          This Bill:  General and Definitional Provisions
          
           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 are unacceptable and should not be tolerated, as  
          specified.
           
          This bill  defines, for purposes of both new Penal Code sections  
          it creates, an "academic researcher" as "any person lawfully  




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          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:  Posting of Information about an Academic Researcher  
          with Intent that the Researcher be Harmed
          
           This bill  would prohibit a person from publishing information  
          describing or depicting an academic researcher, or his or her  
          immediate family member, or the location where they may be  
          found, with the intent that another person imminently use the  
          information to commit a crime involving violence or the threat  
          of violence against the researcher, or his or her family  
          member, and the information is likely to aid in the imminent  
          commission of such a crime.  A violation of this prohibition  
          would be a misdemeanor, punishable by imprisonment in a county  
          jail for not more than one year, a fine of up to $1000, or  
          both.

           This bill  states that for purposes of this crime, "publishes"  
          means making the information available to another person  
          through any medium, including, but not limited to, the  
          Internet, the World Wide Web, or e-mail.

           This bill  states that for purposes of this crime, "information"  
          includes, but is not limited to, an image, film, filmstrip,  
          photograph, negative, slide, photocopy, videotape, video laser  
          disc, or any other computer-generated image.

           This bill  would provide that an academic researcher, about whom  
          such information is published with the specified intent, may  
          seek a preliminary injunction enjoining any further publication  
          of that information.

           This bill  would provide that these provisions shall not  
          preclude prosecution under any other provision of law.

           This bill  would provide that these provisions shall not apply  




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          to lawful labor union activities, as specified.

          This Bill's Trespass Provisions
          
           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 "academic freedom" as "the lawful  
          performance, dissemination, or publication of academic research  
          or instruction."

           This bill  additionally states in uncodified findings 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  provides that those provisions do not apply to any  
          person who is lawfully engaged in labor union activities that  
          are protected under state or federal law.

           This bill  provides that these provisions shall not preclude  
          prosecution under any other provision of 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  
          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  
              --------------------
          <2>  Analysis of the 2007-08 Budget Bill:  Judicial and  
          Criminal Justice, Legislative Analyst's Office (February 21,  
          2007); see also, court orders, infra.



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              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  
              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  

              --------------------
          <3>  California's Criminal Justice System:  A Primer.   
          Legislative Analyst's Office (January 2007).



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              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.

          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  


            ---------------------
          <4>  Analysis 2007-08 Budget Bill, supra, fn. 1.



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            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:

            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).)





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           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  
            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  




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            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.'"

            The trespass provisions of this 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.

            The provisions prohibiting publishing of information  
            about an academic researcher with intent that another  
            person use the information to commit violence or the  
            threat of violence against the researcher will help law  
            enforcement and universities prevent attacks against  
            researchers.  Internet postings and hard-copy posters  
            that incite hate are typically the first link in the  
            chain that results in violence against a researcher.




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          2.  Defining Academic Freedom and Academic Researchers

           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 #6 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.

          3.  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.





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          4.  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  
          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.





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          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  
          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?




          5.  Related Statute and Bill Concerning the Posting of  
            Information with the Intent that Another Person Suffer Harm -  
            Application to Academic Researchers  





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          AB 534 (Smyth), a bill that prohibits the posting of  
          information about a child with the intent that the information  
          be used to imminently commit a crime against the child, is  
          pending in Assembly Public Safety.  It was referred to the  
          Committee from the Assembly Floor because the bill was gutted  
          and amended in the Senate.

          Existing law includes a civil cause of action for the posting  
          of information about reproductive health care providers with  
          the intent that another person use the information to cause  
          harm.  This cause of action was created in AB 2251 (Evans),  
          Chapter 468, Statutes of 2006.  The analysis of AB 2251  
          described numerous instances where anti-abortion activists  
          posted the names, home addresses and other personal information  
          of clinic doctors, nurses and other employees.  Some of these  
          postings were made in the form of Old-West wanted posters.   
          Clinic staff members were harassed and threatened at home.

          This bill (AB 2296) was prompted by a series of incidents in  
          which activist animal research opponents have posted the home  
          addresses and telephone numbers of university animal  
          researchers.  The postings have included disparaging  
          descriptions of the research conducted on animals.  The  
          postings condemn the researchers.  It appears that some  
          postings have advocated or condoned the use of violence against  
          researchers and destruction of their property.  These postings  
          have been done electronically and through hard-copy posters.   
          The text of hard-copy posters has been reprinted on Web sites.

          Recently, the home of one researcher and the vehicle of another  
          were bombed in Santa Cruz.  It appears that posters about these  
          researchers had appeared on the streets of Santa Cruz prior to  
          the bombings.  Similar postings and attacks have occurred in  
          Berkeley.  It appears that violence against researchers has  
          increased in recent months.

          This bill would create a crime for the posting of information  
          about an academic researcher with the intent that the  
          information be used to imminently commit a crime against an  
          academic researcher and under circumstances that the  




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          information would be used to imminently commit such a crime.   
          This crime would apply regardless of the subject matter of an  
          academic researcher's work.

          SHOULD IT BE A MISDEMEANOR TO POST INFORMATION ABOUT AN  
          ACADEMIC RESEARCHER WITH THE INTENT THAT ANOTHER PERSON USE THE  
          INFORMATION TO IMMINENTLY COMMIT A CRIME INVOLVING VIOLENCE OR  
          THE THREAT OF VIOLENCE AGAINST THE RESEARCHER?





          6.  First Amendment Issues  

          Both major provisions of this bill may be challenged on First  
          Amendment free speech grounds.  Courts have long stated that  
          political speech and speech concerning public issues are  
          entitled to great protection under the First 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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          In addition, 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 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.)

          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.  (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.)  In deciding  
          First Amendment issues raised by this bill, reviewing courts  




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          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.

          7.  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.  These provisions were modeled on Government Code  
          Section 6218, a law that concerns the posting of information  
          about employees and patients of reproductive health facilities.

          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.

          8.  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.












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          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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