BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair                A
                             2009-2010 Regular Session               B

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          AB 1390 (Blumenfield)                                      0
          As Amended June 1, 2009 
          Hearing date:  July 14, 2009
          Education Code
          SM:mc

                   SCHOOL NOTIFICATION OF LAW ENFORCEMENT REGARDING

                          WEAPONS OR EXPLOSIVES ON CAMPUS  


                                      HISTORY

          Source:  Los Angeles City Attorney's Office

          Prior Legislation: AB 1859 (Papan) - Chap. 492, Stats. 2002 
                       SB 232 (Hughes) - Chap. 205, Stats. 1995 
                       SB 2635 - Chap. 1697, Stats. 1990 

          Support: California District Attorneys Association; Los Angeles  
          Unified School District; Los Angeles School Police Department

          Opposition:California Public Defenders Association

          Assembly Floor Vote:  Ayes  76 - Noes  1



                                         KEY ISSUE
           
          SHOULD A SCHOOL SECURITY DEPARTMENT, OR SCHOOL POLICE DEPARTMENT, AS  
          SPECIFIED, BE REQUIRED TO NOTIFY LAW ENFORCEMENT AUTHORITIES OF ANY  
          ACT COMMITTED ON SCHOOL GROUNDS IN WHICH THE PERSON ALLEGEDLY  




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                                                     AB 1390 (Blumenfield)
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          POSSESSED, OR FURNISHED A FIREARM, AS SPECIFIED, OR POSSESSED AN  
          EXPLOSIVE?



                                      PURPOSE

          The purpose of this bill is to require a school security  
          department, or school police department, as specified, to  
          notify within 24 hours, in electronic format, the appropriate  
          county or city law enforcement authorities having jurisdiction  
          where the incident occurred, of any act committed by a pupil or  
          nonpupil on a schoolsite in which the student allegedly  
          possessed, sold or otherwise furnished a firearm, where this  
          act is verified by an employee of the school district and is  
          not otherwise authorized, as specified, or possessed an  
          explosive.

           Existing law  requires that the principal of a school or the  
          principal's designee, prior to the suspension or expulsion of  
          any pupil, notify the appropriate law enforcement authorities  
          of the county or city in which the school is situated, of any  
          acts of the pupil that may constitute an assault with a deadly  
          weapon or with force likely to produce great bodily injury.   
          (Education Code  48902(a).)  

           Existing law  requires that the principal of a school or the  
          principal's designee shall, within one school day after  
          suspension or expulsion of any pupil, notify, by telephone or  
          any other appropriate method chosen by the school, the  
          appropriate law enforcement authority of the county or the  
          school district in which the school is situated of any acts of  
          the student that involve possession, being under the influence  
          of, or distribution of alcohol, controlled substances or any  
          intoxicant.  (Education Code  48902(b).)  

           Existing law  prohibits possession of a firearm in a place that  
          the person knows, or reasonably should know, is within 1,000  
          feet of a school, as specified, unless it is with the written  
          permission of the school district superintendent, his or her  




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                                                     AB 1390 (Blumenfield)
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          designee, or equivalent school authority, except as specified.   
          (Penal Code  626.9.)

           Existing law  requires that the principal of a school or the  
          principal's designee notify the appropriate law enforcement  
          authorities of the county or city in which the school is  
          located of any acts of a student that may involve the bringing  
          a firearm or other specified weapons on campus.  (Education  
          Code  48902(c).)

           Existing law  specifies that a principal, the principal's  
          designee, or any other person reporting a known or suspected  
          act described herein is not civilly or criminally liable as a  
          result of making any report authorized by this article unless  
          it can be proven that a false report was made and that the  
          person knew the report was false or the report was made with  
          reckless disregard for the truth or falsity of the report.   
          (Education Code  48902(d).)  

           Existing law  provides that the willful failure to make any  
          report required by this section is an infraction punishable by  
          a fine to be paid by the principal or principal's designee who  
          is responsible for the failure of not more than $500.   
          (Education Code  48902(e).) 

           Existing law  requires the principal of a school or the  
          principal's designee reporting a criminal act committed by a  
          school age individual with exceptional needs, as defined, to  
          ensure that copies of the special education and disciplinary  
          records of the pupil are transmitted, as described, for  
          consideration by the appropriate authorities to whom he or she  
          reports the criminal act.  Any copies of the pupil's special  
          education and disciplinary records may be transmitted only to  
          the extent permissible under the federal Family Educational  
          Rights and Privacy Act of 1974.  (Education Code  48902(f).)  


           This bill  requires a school security department, or school  
          police department, as specified, to notify within 24 hours, in  
          electronic format, the appropriate county or city law  




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                                                     AB 1390 (Blumenfield)
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          enforcement authorities having jurisdiction where the incident  
          occurred, of any act committed by a pupil or nonpupil on a  
          schoolsite in which the person allegedly possessed, sold or  
          otherwise furnished a firearm, where this act is verified by an  
          employee of the school district and is not otherwise  
          authorized, as specified, or possessed an explosive.


                    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  
          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,  
               ----------------------
          <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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               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.

               . . .

               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  




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                                                     AB 1390 (Blumenfield)
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               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:

               Under current law (Education Code section 48902  
               (a)-(c)), school principals are required to notify the  
               appropriate law enforcement authorities of the county  
               or city in which the school is located of certain  
               offenses.  In large jurisdictions, where district  
               security/police respond to calls for service on  
               campus, principals often mistake school police as "the  
               appropriate law enforcement authority" within the  
               meaning of Education Code 48902.  As a result, local  
               law enforcement agencies are left out of the loop.

               AB 1390 seeks to clarify and strengthen reporting  
               requirements for school police to notify local law  
               enforcement agencies of serious crime incidents on  
               campus. This, in turn, leads to the identification of  
               patterns and behaviors within the broader context of  
               the community around the school and makes it possible  
               ----------------------
          <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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                                                     AB 1390 (Blumenfield)
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               to more immediately identify opportunities to work  
               collaboratively on effective prevention and  
               intervention strategies.  This bill does not require  
               or trigger prosecution; it is merely a reporting  
               requirement. 

          2.  Existing Reporting Requirements and What This Bill Would Do   

          Currently the principal of a school or the principal's designee  
          must:

                  prior to the suspension or expulsion of any pupil  ,  
               notify the appropriate law enforcement authorities of the  
               county or city in which the school is situated, of any  
               acts of the pupil that may constitute an assault with a  
               deadly weapon or with force likely to produce great bodily  
               injury.  (Education Code  48902(a).); 
                  within one school day after suspension or expulsion of  
               any pupil  , notify, by telephone or any other appropriate  
               method chosen by the school, the appropriate law  
               enforcement authority of the county or the school district  
               in which the school is situated of any acts of the student  
               that involve possession, being under the influence of, or  
               distribution of alcohol, controlled substances or any  
               intoxicant.  (Education Code  48902(b).); and 
                 notify the appropriate law enforcement authorities of  
               the county or city in which the school is located of any  
               acts of a student that may involve the bringing a firearm  
               or other specified weapons on campus.  (Education Code   
               48902(c).)  

          A willful failure to make any of these reports is an infraction  
          punishable by a fine to be paid by the principal or principal's  
          designee who is responsible for the failure of not more than  
          $500.  (Education Code  48902(e).)

          This bill would require that, in addition to the reporting  
          requirements described above which are imposed on the principal  
          or his or her designee, a school security department, or school  
          police department must also, within 24 hours, in electronic  




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                                                     AB 1390 (Blumenfield)
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          format, notify the appropriate county or city law enforcement  
          authorities, of any act committed by any person on a school  
          site in which the person allegedly possessed, sold or otherwise  
          furnished a firearm, where this act is verified by an employee  
          of the school district and is not otherwise authorized, as  
          specified, or possessed an explosive.  

          The author states that this is necessary because, in large  
          jurisdictions, the principal, or their designee, may report the  
          incident to campus police, as opposed to the local municipal  
          police or sheriff's department, believing the campus police to  
          be the "appropriate law enforcement authorities."  This bill  
          would create parallel requirements for both the principal and  
          the campus police to report incidents involving firearms or  
          explosives on campus to the local police or sheriff's  
          department.  




























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          One issue this bill raises is that confusion could result when  
          both the principal and someone from campus police report the  
          same incident to the local police or sheriff, who would then  
          have to determine whether there were two incidents or simply  
          one incident being reported twice by two different school  
          officials.  Another issue raised by the approach taken in this  
          bill is the possibility for further confusion by its failure to  
          specify an individual on the campus police department  
          responsible for making this report.  Is it the agency chief or  
          the officer responding to the incident?  Or could this duty be  
          delegated to someone else?  

          Another issue raised by the bill is that, while the bill  
          creates a duty for the campus police to report these incidents,  
          there appears to be no sanction for any failure to comply.  The  
          $500 fine that exists under current law applies only to "the  
          principal or principal's designee who is responsible for the  
          failure [to file the report.]"  The bill does not extend this  
          sanction to campus police who fail to file a required report.

          The problem this bill attempts to address appears to stem from  
          the ambiguous language of the existing statute, that is, its  
          failure to specify what the "appropriate law enforcement  
          authorities" are to whom the principle must report.  Members  
          may wish to consider whether, rather than set up a dual  
          reporting requirement for the same incident on campus, with all  
          the attendant possibilities for confusion, it would be more  
          appropriate to amend the existing statute to clarify the  
          reporting requirement.  

          COULD CREATING DUAL REPORTING REQUIREMENTS CAUSE CONFUSION AS  
          WELL AS DUPLICATION OF EFFORT?

          IS THE GOAL OF GREATER COMPLIANCE AND ACCOUNTABILITY BETTER  
          REACHED BY MAKING ONE PERSON RESPONSIBLE FOR REPORTING THESE  
          INCIDENTS TO POLICE?  

          WOULD CLARIFYING WHO IS THE "APPROPRIATE LAW ENFORCEMENT  
          AUTHORITY" WITH WHICH THE REPORT IS TO BE FILED HELP INCREASE  




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                                                     AB 1390 (Blumenfield)
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          COMPLIANCE AND ACCOUNTABILITY?

          3.  Suggested Amendment  

          Members may wish to consider amending the current language in  
          subdivisions (a) - (c) of Education Code section 48902, which  
          directs the principal or his or her designee to report  
          specified incidents on campus to "appropriate law enforcement  
          authorities of the county or city in which the school is  
          located" to read instead that the principal or his or her  
          designee shall report these same incidents to "the local police  
          or sheriff's department with jurisdiction in the county or city  
          in which the school is located."

          SHOULD THE BILL BE SO AMENDED?

          4.  Argument in Support   

          The Los Angeles City Attorney's Office states: 

               Prompt, accurate and transparent reporting of school  
               related crimes is a critical first step toward the  
               development of effective early warning, prevention and  
               intervention strategies for at-risk youth.  This is  
               particularly important in large urban settings where  
               school police and city police departments share some  
               concurrent responsibilities and one or both may be  
               involved in the investigation of a school incident  
               depending on the nature of the crime.  To effectively  
               address school crime, districts must first acknowledge  
               it exists (transparency) and principals and school  
               police must cross report all serious crime to local  
               law enforcement at the earliest possible stage to  
               assist in early intervention strategies.  

               In large jurisdictions, where district security/police  
               respond to calls for service on campus and have  
               investigative and arrest powers, principals often  
               mistake school police as the appropriate law  
               enforcement authority within the meaning of Education  












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               Code 48902.  Frequently, this is not the case and  
               local law enforcement agencies are left out of the  
               loop.  

               Clarifying and strengthening mandates for school  
               police to report serious crime to local law  
               enforcement agencies allows for immediate analysis of  
               crime data by both the school police and county or  
               municipal law enforcement agencies.  This would lead  
               to immediate identification of patterns and behaviors  
               and identity opportunities to work collaboratively on  
               effective prevention and intervention strategies.

          5.  Argument in Opposition  

          The California Public Defenders Association states: 

               Requiring a report when a firearm is either seized or  
               surrendered might indeed discourage students from  
               surrendering or reporting the presence of a firearm at  
               school.  Schools already have the discretion, in  
               appropriate situations, to contact law enforcement.   
               In fact, research shows that the drastic limitation on  
               the school officials' discretion to respond to  
               incidents -'zero-tolerance policies' -have done damage  
               to youth and contributed to 'the school to prison  
               pipeline.' 


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