BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 362 (Miller)
As Amended April 28, 2009
Hearing date: June 23, 2009
Penal Code
JM:mc
UNAUTHORIZED THEFT, REUSE OR
MOVING OF POLITICAL SIGNS
HISTORY
Source: Riverside County District Attorney
Prior Legislation: None
Support: Unknown
Opposition:American Civil Liberties Union; California Attorneys
for Criminal Justice
Assembly Floor Vote: Ayes 55 - Noes 7
(NOTE: SEE COMMENT NO. 5 FOR A DESCRIPTION OF AMENDMENTS THAT
ADDRESS THE ISSUES PRESENTED BY THIS BILL.)
KEY ISSUES
SHOULD TAKING, POSSESSING, MOVING OR REUSING A POLITICAL SIGN
WITHOUT AUTHORIZATION FROM THE OWNER OF THE SIGN BE A
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MISDEMEANOR?
(CONTINUED)
SHOULD THIS MISDEMEANOR NOT APPLY TO A LAW ENFORCEMENT OFFICER WHO
IS ACTING WITHIN HIS OR HER OFFICIAL CAPACITY?
SHOULD THIS MISDEMEANOR NOT APPLY TO A PRIVATE PROPERTY OWNER WHO
HAS NOT GIVEN CONSENT TO THE POSTING OF THE SIGN ON HIS OR HER
PROPERTY?
PURPOSE
The purpose of this bill is to provide that taking, possessing,
moving, or reusing a political sign or signs, without the
permission of the owner, is a misdemeanor, punishable by a jail
term of up to six months, a fine of up to $1,000, or both.
Existing law provides that theft occurs where a person does any
of the following:
steals, takes ? or drives away the personal property of
another;
fraudulently appropriates property which has been
entrusted to him or her;
knowingly and designedly, by any false or fraudulent
representation or pretense, defrauds another person of
money, labor or personal or real property; or
causes or procures others to report falsely of his or
her wealth or mercantile character and by thus imposing
upon any person, obtains credit and thereby fraudulently
gets or obtains possession of money, or property or obtains
the labor or service of another. (Penal Code 484.)
Existing law generally provides that theft is a misdemeanor
where the value of the property, labor or services involved in
the theft does not exceed $400. Theft is grand theft - an
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alternate felony-misdemeanor - where the value of the property,
labor, or services involved in the theft exceeds $400.
Specified exceptions, with a lower threshold amount of $100 for
grand theft, apply to certain kinds of property, such as
avocados and shellfish. Theft of a firearm is felony grand
theft. (Penal Code 487-489.)
Existing law provides that the crime of vandalism is committed
where a person defaces, damages or destroys any real or personal
property. (Penal Code 594.) Vandalism is punishable as
follows:
If the amount of defacement, damage, or destruction is
less than $400, vandalism is a misdemeanor, punishable by
imprisonment in a county jail not exceeding one year, or a
fine of not more than $1,000, or by both the fine and
imprisonment.
If the amount of defacement, damage, or destruction is
less than $400 and the person previously has been convicted
of vandalism or other enumerated crimes, the offense is a
misdemeanor, punishable by imprisonment in a county jail
not exceeding one year, or a fine of not more than $5,000,
or by both the fine and imprisonment.
If the amount of defacement, damage, or destruction is
$400 or more, but less than $10,000, the offense is an
alternate felony-misdemeanor, punishable by imprisonment in
the state prison or in a county jail not exceeding one
year, or a fine of not more than $10,000, or both the fine
and imprisonment.
If the amount of defacement, damage, or destruction is
$10,000 or more, the crime is an alternate
felony-misdemeanor, punishable by imprisonment in state
prison or in a county jail not exceeding one year, or a
fine of not more than $50,000, or both the fine and
imprisonment.
This bill makes it a misdemeanor, punishable by up to six months
in county jail and/or a fine of up to $1,000, to take, possess,
damage, reuse, or move any political sign without authorization
from the owner of the sign or signs.
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This bill defines "political sign" as any sign advocating the
election of a specific candidate for official office or
advocating a position relating to a ballot or issues.
This bill states that the crime defined by this bill does not
apply to a law enforcement officer, local government official,
or authorized campaign representative acting within his or her
official capacity, or to a private property owner who has not
given consent to the posting of a political sign on his or her
property.
This bill provides that theft of a political sign may be
prosecuted under any other provision of law, including another
theft statute.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
---------------------------
<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
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Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
Political signs allow citizens to exercise their first
amendment right and to represent their position on a
given issue or candidate. Many times people have a
deep moral, faith-based, financial, familial, and or
strong emotional connection to a particular issue,
causing them to rally and take action either in
----------------------
<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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support or opposition. Regardless of the motive,
intention or position, it is illegal to vandalize and
or infringe upon the property and free speech of
another.
However, there continue to be cases where political
signs are confiscated, covered with other propaganda
and used for opposing campaign purposes. Moreover,
there are situations where major theft or misuse
occurs, but such cases are difficult to prosecute
because existing code is vague in determining whether
or not certain misuses are a crime.
Often criminal motive can be difficult to prove
because of circumstances unique to a political
campaign. This bill would clarify that without
express permission from the campaign, owner of the
sign(s) or without being exempted, it is a crime to
move, take, misuse or damage political signs. The
intent of this bill is to target major theft and
misuse of political signs, which infringes on the
political process and compromises our democracy, not
to target the theft of a yard sign in a neighbor
dispute.
2. First Amendment Issues Generally
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 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
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time, place and manner. In Lehman, the court upheld a ban on
political advertisements on public transit vehicles. (Ibid.)
This bill on its face is drafted in terms of protecting property
rights and related interests. Complications necessarily arise
because the property protected by the bill is the means by which
political speech is communicated. Thus, this bill may create
conflicts between ownership rights and the right to free speech.
These issues are discussed in detail, below.
DOES THIS BILL CREATE FIRST AMENDMENT PROBLEMS BY PROTECTING
OWNERSHIP RIGHTS IN A POLITICAL SIGN OVER THE RIGHT TO FREE
SPEECH?
3. Who is the "Owner" of a Political Sign for Purposes of this
Bill?
General Concepts of Ownership; Ownership of Political
Memorabilia
This bill makes it a misdemeanor to take, alter or reuse a
political sign without the consent of the "owner" of the sign.
The bill does not state who or what is the owner of a political
sign.
It is generally the case that where a person gives another
person property that title and control over the property
rests in the person receiving the property or thing.
Specifically, the Civil Code states:
A gift is a transfer of personal property, made
voluntarily, and without consideration. A verbal gift
is not valid, unless the means of obtaining possession
and control of the thing are given, nor, if it is
capable of delivery, unless there is an actual or
symbolical delivery of the thing to the donee. A
gift, other than a gift in view of impending death,
cannot be revoked by the giver. (Civ. Code
1146-1148.)
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Recently, it appears that campaigns have been selling signs
and other materials as a means of fund raising. Similar to
a completed gift, the sale of an item transfers title or
ownership of the property from the seller to the buyer.
(Civ. Code 1039-1040, 1044.) Generally, the seller may
not control the property after sale. (However, Civil Code
Section 986 provides that upon sale of an item of fine art,
the artist shall be paid 5% of the sales price.)
The Civil Code ( 1739.1) also regulates the sale of
political memorabilia. The Code prohibits a seller from
claiming that a copy of a political item is an original
campaign item. The relevant provisions appear to recognize
that the possessor of the memorabilia, not the campaign,
owns or controls the property:
Ownership of Political Signs for Purposes of this Bill
It appears from the author's statement that the author believes
that the bill will recognize or confirm the campaign's ownership
of a sign except in limited circumstances. However, ownership
of a political sign during a campaign may be a slippery concept,
as political signs are, by nature, intended for wide
distribution, not exclusive possession. Typically, a political
campaign purchases or orders the making of signs and other
campaign paraphernalia. Campaign workers ask supporters to
place signs on their properties. Each campaign worker may
distribute and post dozens of signs. Recently, campaigns have
begun selling campaign material, such as signs, stickers and
buttons as a way to raise money. For example, the Obama
campaign sold great amounts of stickers, shirts and other
materials.
It would appear that a campaign would own a sign until it is
given or sold to another person without condition. It would
also appear that the person who buys or is given the sign would
then become the owner. Presumably, the person who is given a
sign by a campaign or buys a sign from a campaign can do
whatever he or she wants to do with the sign. He or she could
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alter the sign to attack the candidate promoted by the sign.
There have been recent cases, including the most recent
Sacramento mayoral contest, where signs have been altered to
state particularly harsh accusations. Altering signs in this
manner could be seen as particularly effective, as the
candidates own words or appearance would be used against him or
her.
One could perhaps anticipate that if this bill is enacted
campaigns would attempt to claim ownership of a sign after the
sign has been transferred to another person. The campaign could
attempt to give a sign to someone under the condition that the
person not deface it or use it except to promote the candidate.
If such ownership claims were upheld, campaigns could attempt to
control relatively common campaign tactics.
It appears that the intent of this bill is to prevent unfair
campaign tactics. Arguably, the purpose of a political campaign
is to allow candidates and promoters of ballot measures to make
a case to the electorate. Damaging or taking of political signs
could prevent voters from obtaining information about the
candidates and ballot measures. Perhaps the bill could be
amended to include an element that the defendant intended to
prevent the public from seeing the sign or the message conveyed
by the sign.
It would appear that the bill should still include an element
that the act was done without the consent of the owner of the
sign. Without such an element, a person who obtained a sign
from a campaign could be charged with a misdemeanor for altering
his or her own sign. (For example, a campaign sign displays a
picture of the candidate and proclaims "John Doe for
California." A person who does not support Mr. Doe might alter
the sign so as to read: "John Doe, BAD for California." It
could be argued that applying the bill to such cases would
violate the person's First Amendment right to political speech
and would also violate his or her property rights in the sign.
COULD A POLITICAL CAMPAIGN ATTEMPT TO CLAIM OWNERSHIP OF A SIGN
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AFTER THAT SIGN HAS BEEN TRANSFERRED TO ANOTHER PERSON?
SHOULD THE BILL INCLUDE AN ELEMENT THAT THE DEFENDANT INTENDED
TO PREVENT THE PUBLIC FROM SEEING THE SIGN OR THE MESSAGE
CONVEYED BY THE SIGN?
4. Issue of Whether or not the Bill Should be Limited to Cases
where the Defendant Took or Damaged a Political Sign that was
Placed on Private Property by the Owner of the Property
This bill would be relatively easy to apply in a case where
someone takes or damages a sign that was placed on private
property by a supporter of the candidate, measure or position
promoted by the sign. The bill would also be relatively easy to
apply where the owner of the property gave express permission to
the campaign or a campaign supporter to place the sign on his or
her property.
Complications would arise where the owner, possessor or manager
of the property did not give permission for the placing of the
sign. In many cases the owner, possessor or manager of the
property may be unaware that the signs were placed there. This
may be particularly common where land is vacant, perhaps pending
development. In other cases, the owner, manager or possessor of
the land may not object to the placement of signs on the
property, although the placement of the signs was not expressly
authorized. Where signs are defaced at or taken from such a
place, the campaign or a person who placed the sign on the
property could quite conceivably claim that the defacement or
taking of the sign violated the ownership interest recognized by
this bill. A defendant charged under this crime would likely
claim that the campaign no longer owned the sign, because it
abandoned control of the sign.
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Perhaps the bill should be limited to circumstances where the
defendant took, damaged or defaced a sign that was placed on
private property by the owner of the property or where the sign
was placed on private property through the express permission of
the owner.
SHOULD THIS BILL BE LIMITED TO CIRCUMSTANCES WHERE THE POLITICAL
SIGN THAT WAS TAKEN OR DAMAGED WAS PLACED ON THE PROPERTY BY THE
OWNER OF THE PROPERTY OR OTHER PERSON WITH POSSESSORY INTEREST
IN THE PROPERTY?
5. Amendments to Address the Issues Presented by this Bill (AB
362) and AB 491 (Garrick)
The authors of AB 362 and AB 491 and their staffs, the sponsor
of AB 362 and Committee staff have been in discussions for the
past two weeks on possible amendments that would address and
resolve issues presented by the bills. Assembly Member Garrick
has agreed to drop his bill and become a joint author of
Assembly Member Miller's AB 362.
The substantive amendments to AB 362 are as follows:
The bill will define an infraction-misdemeanor for a
first offense. The prosecutor would have discretion to
charge the offense as either a misdemeanor or an
infraction. The court could reduce the offense to an
infraction in an appropriate case. A second offense would
be a misdemeanor, with a maximum jail term of one year and
a maximum fine of $2,000.
The crime will apply through the day of an election.
(As the crime applies to a sign promoting a candidate for a
particular office or a particular ballot measure, the
beginning of the period when the crime applies will depend
on the particular campaign. It has been noted that the
political campaigns have become longer and longer of the
past decades.)
The bill will include an element that the defendant
intended to prevent, substantially alter, or substantially
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obscure the communication of the sign.
The bill will include a definition of an "owner" of a
sign to include the campaign, a person who bought the sign
or received it as a gift, or a person who agreed to allow
the display of the sign on property he or she owns or
lawfully possesses (such as pursuant to a lease).
The amendments read as follows:
490.2. (a) A person who takes, possesses, damages,
reuses, or moves any political sign or signs, without
authorization from the owner of the sign or signs and
with the intent to prevent, substantially alter or
substantially obscure the communication of the sign,
is guilty of an infraction or a misdemeanor. Upon a
second or subsequent conviction of a person under this
Section, the person shall be guilty of a misdemeanor,
punishable by imprisonment in a county jail for up to
one year, a fine of up to $2,000, or both.
(b) For purposes of this Section, a "political sign"
is any sign displayed through the day of an election
that advocates the election of a specific candidate
for official office or advocating a position regarding
a ballot issue or issues.
(c) For purposes of this Section, an "owner" is the
campaign for which the sign was created, a purchaser
of a sign, a person who received a sign as a gift, a
person who has given permission for the placement of a
sign on his or her property, or a person in lawful
possession of property who has given permission for
the placement of a sign on property.
(d) The prohibition in subdivision (a) does not apply
to a law enforcement officer, local government
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official, or authorized representative of the campaign
for whom the sign was created acting within his or her
official capacity, a private property owner who has
not given consent to the placement of a political sign
on his or her property, or to a person in lawful
possession of property who has not given permission
for the placement of the sign on the property.
(e) Nothing in this section shall preclude
prosecution and punishment under any other provision
of law, including, but not limited to, theft and
vandalism.
SHOULD THESE AMENDMENTS BE ADOPTED?
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