BILL ANALYSIS �
AB 123
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Date of Hearing: March 15, 2011
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 123 (Mendoza) - As Introduced: January 10, 2011
SUMMARY : Expands an existing misdemeanor related to
interference or disruption of school activities and punishable
by up to six months in the county jail to include any person who
willfully or knowingly creates a disruption with the intent to
threaten the immediate physical safety of K-8 pupils arriving
at, attending, or leaving school.
EXISTING LAW :
1)Provides that any person who comes into any school building or
upon any school ground, or street, sidewalk, or public way
adjacent thereto, without lawful business thereon, and whose
presence or acts interfere with the peaceful conduct of the
activities of the school or disrupt the school or its pupils
or school activities, is guilty of a misdemeanor if he or she
does any of the following:
a) Remains there after being asked to leave by the chief
administrative official of that school or his or her
designated representative, or by a person employed as a
member of a security or police department of a school
district pursuant to the Education Code, or a city police
officer, or sheriff or deputy sheriff, or a Department of
the California Highway Patrol peace officer;
b) Reenters or comes upon that place within seven days of
being asked to leave by a person specified in existing law;
c) Has otherwise established a continued pattern of
unauthorized entry; or,
d) This section shall not be utilized to impinge upon the
lawful exercise of constitutionally protected rights of
freedom of speech or assembly. �Penal Code Section
626.8(a)(1) to (3).]
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1)States that punishment for this crime shall be as follows:
a) Upon a first conviction by a fine not exceeding $500, by
imprisonment in a county jail for a period of not more than
six months, or by both that fine and imprisonment.
b) If the defendant has been previously convicted once of a
violation of any offense defined in this chapter or
provision of law related to disturbing the peace, by
imprisonment in a county jail for a period of not less than
10 days or more than six months, or by both imprisonment
and a fine not exceeding $500, and shall not be released on
probation, parole, or any other basis until he or she has
served not less than 10 days.
If the defendant has been previously convicted two or more
times of a violation of any offense defined in this chapter
or provisions related to disturbing the peace, by
imprisonment in a county jail for a period of not less than
90 days or more than six months, or by both imprisonment
and a fine not exceeding $500, and shall not be released on
probation, parole, or any other basis until he or she has
served not less than 90 days. �Penal Code Section
626.8(b)(1) to (3).]
2)Defines the following terms:
a) "Lawful business" is a reason for being present upon
school property which is not otherwise prohibited by
statute, by ordinance, or by any regulation adopted
pursuant to statute or ordinance.
b) "Continued pattern of unauthorized entry" is when on at
least two prior occasions in the same school year the
defendant came into any school building or upon any school
ground, or street, sidewalk, or public way adjacent
thereto, without lawful business thereon, and his or her
presence or acts interfered with the peaceful conduct of
the activities of the school or disrupted the school or its
pupils or school activities, and the defendant was asked to
leave by a person, as specified.
c) "School" is any preschool or public or private school
having Kindergarten or any of Grades 1 to 12, inclusive.
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�Penal Code Section 626.8(c)(1) to (3).]
3)States when a person is directed to leave pursuant to existing
law, the person directing him or her to leave shall inform the
person that if he or she reenters the place within seven days
he or she will be guilty of a crime. �Penal Code Section
626.8(d).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The right to
free expression is protected by the State and Federal
Constitutions. However, the right to free expression is not
absolute, and has been limited within the school context by
reasonable time, manner and place regulations to ensure safety
and to minimize disruption to educational operations.
California schools have the constitutional obligation to
provide safe campuses to students and employees. If school
administrators are unable to rely on Penal Code section 626.8
to address disruptions of schools that may result in physical
harm to students, schools will lose an important tool in
ensuring safe campuses. This is a necessary measure that will
help school administrators ensure student safety without
unduly burdening the right of free expression."
2)Existing law Related to Trespass on School Property : Existing
law punishes a person who comes onto school grounds or is on
any street, sidewalk or public way adjacent to the school,
without permission and where a person's presence interferes
with the peaceful conduct of school activities. Penalties for
trespass on school grounds range from six months in the county
jail and/or a fine of $500 to minimum of 90 days in the county
jail or up to six months in the county jail and/or a fine of
$500 where the defendant has two priors for trespass. �Penal
Code Section 626.8(a) and (b)(1) to (3).]
General "trespass" is defined, inter alia, as entering any
lands, whether unenclosed or enclosed by fence, 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 of
the land, the owner's agent or by the person in lawful
possession. �Penal Code Section 602(k).]
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3)First Amendment : The First Amendment to the United States
Constitution states, "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech or of the press;
or the right of the people peaceably to assemble, and to
petition the government for redress of grievances." (United
States Constitution Amendment 1, Section 1.) The Fourteenth
Amendment subsequently applied most of the bill of rights to
the states, including the First Amendment. �Barron v.
Baltimore (1833) 32 U.S 243.] The California Constitution
also protects free speech. "Every person may freely speak,
write and publish his or her sentiments on all subjects, being
responsible for the abuse of this right. A law may not
restrain or abridge liberty of speech or press." (Cal. Const.
Art. I, � 2.)
The hallmark of protection of free speech under the First
Amendment is to allow for the "free trade in ideas" - even
ideas that the overwhelming majority of people might find
distasteful or discomforting. �Virginia v. Black (2003) 538
U.S. 343; see also Texas v. Johnson (1989) 491 U.S. 397, 414
("If there is a bedrock principle underlying the First
Amendment, it is that the government may not prohibit the
expression of an idea simply because society finds the idea
itself offensive or disagreeable.").] "The very purpose of
the First Amendment is to preserve an uninhibited marketplace
of ideas in which truth will ultimately prevail." �McConnell
v. Federal Election Commission (2003) 540 U.S. 93, 265
(Thomas, J. dissenting).] Thus, the First Amendment
"ordinarily" denies states "the power to prohibit �the]
dissemination of social, economic and political doctrines
which a vast majority of its citizens believe to be false and
fraught with evil consequence." �Whitney v. California (1927)
274 U.S. 357, 374 (Brandeis, J., dissenting).]
The protections afforded by the First Amendment, however, are
not absolute. It has long been recognized that the government
may regulate certain categories of expression consistent with
the Constitution. �See, e.g., Chaplinsky v. New Hampshire
(1942) 315 U.S. 568, 571-572 ("There are certain well-defined
and narrowly limited classes of speech, the prevention and
punishment of which has never been thought to raise any
Constitutional problem").] The First Amendment permits
"restrictions upon the content of speech in a few limited
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areas, which are 'of such slight social value as a step to
truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and
morality'." �R. A. V. v. City of St. Paul, supra, at 382-383
(quoting Chaplinsky v. New Hampshire, supra, at 572).]
One exception to the First Amendment is threats or what is
called "true threats" in First Amendment jurisprudence. "A
threat is an expression of an intention to inflict evil,
injury or damage on another. Alleged threats should be
considered in light of their entire factual context, including
the surrounding events and reactions of the listeners. The
fact that a threat is subtle does not make it less of a
threat. A true threat, that is one where a reasonable person
would foresee that the listener will believe he will be
subjected top physical violence upon his person, is
unprotected by the First Amendment." �Planned Parenthood of
the Columbia/Willamette v. American Coalition of Life
Activists (2002) 290 F.3rd 1058, 1077.] The most famous
example of unprotected speech is the person who "shouts fire
in a crowded theater causing a panic". �Schenck v U.S. (1919)
249 U.S. 47.] Indeed, criminal law punishes speech intended
as a threat as an alternate felony/misdemeanor. (Penal Code
Section 422.) This bill requires intent to threaten the
physical safety of K-8 children, as specified. Given the
intent to threaten, this statute appears to rise to the level
of a true threat.
4)Center for Bio-Ethical Reform v. Los Angeles County Sheriffs
Department : The stated need for this bill arises from the
Ninth Circuit Court of Appeals decision in Center for
Bio-ethical Reform v. Los Angeles County Sheriff's Department.
The Center for Bio-ethical Reform (CBER) is characterized by
the Court as "a non-profit organization whose main purpose is
to 'promote pre-natal justice and the right to life for the
unborn, the disabled, the infirm, the aged and all vulnerable
people through education and development of innovative
educational programs'.'' (Center for Bio-Ethical Reform v.
Los Angeles County Sheriff's Department 533 F.3rd 780, 784.)
One such program, "Reproductive Choice Campaign", consisted of
CBER placing huge photographs of first trimester aborted
fetuses on the sides of trucks and then driving the trucks on
surface streets and freeways. Because CBER claims an
educational agenda, middle and high school students are common
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targets. In this case, CBER drove around Dodson Middle School
in Rancho Palos Verdes, in Los Angeles County, while the
students were arriving at school. Several children reported
becoming physically ill, some cried and most averted their
eyes from the photos. The school administration called the
police and two Los Angeles County sheriff deputies responded.
After detaining the driver for what he later characterized as
an unreasonable amount of time and shown the text of Penal
Code Section 626.8, the driver left the scene. CBER filed
suit in federal court claiming civil rights violations and
seeking damages.
On appeal, the Ninth Circuit Court ruled in favor of CBER on the
First Amendment issue. (Center for Bio-ethical Reform at
799.) The court concluded that Penal Code Section 626.8
should not have been applied to the driver of the truck as he
was not guilty of that statute and, hence, the government had
no other significant interest that justified restricting
CBER's speech. (Center for Bio-ethical Reform at 793.) The
Court does state in Footnote 9, "The California Legislature
may elect to draft a statute prohibiting disruptive messages
outside school buildings where the disruption threatens the
physical safety of school children while they are coming to,
leaving, or attending school. We do not have before us, and
therefore do not decide the constitutionality of such a
statute." (Center for Bio-ethical Reform at 790, fn. 9.) The
Court also states, "We have serious concerns about the
constitutionality of the statute as applied. We need not
decide, however, whether the statute as applied is
unconstitutional because we conclude that the California
courts would construe the statute narrowly so as not to apply
to Plaintiffs' conduct." (Center for Bio-ethical Reform at
786.)
5)Veto Message of AB 2478 (Mendoza) of the 2009-10 Legislative
Session : AB 2478 was identical to this bill and was vetoed.
The Governor stated, "I believe it is important to ensure the
physical safety of all students, but the protection provisions
of this bill do not include students in grades 9 through 12.
I am also concerned that the provisions of this bill would
likely be ineffective, limited to situations where the person
charged with interfering with the peaceful conduct of a school
would have to have the specific intent to physically harm
students rather than causing a disruption that causes physical
harm. Since this bill is too narrowly drawn and otherwise
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duplicates existing law governing the crime of making criminal
threats, I am unable to sign this measure."
6)Arguments in Support : According to the Los Angeles County
Sheriff's Department , "Under current law, any person who comes
into any school building or upon any school ground, or
adjacent street, sidewalk, or public way, whose presence or
acts interfere with or disrupts a school activity, without
lawful business, or who remains after having been asked to
leave, is guilty of a public offense. 'School' for this
section defined to mean any preschool or public or private
school having kindergarten or any grades 1 to 12. This bill
would expand this provision to apply to any person who comes
into any school building or upon any school ground, or
adjacent street, sidewalk, or public way, and willfully or
knowingly creates a disruption with the intent to threaten the
immediate physical safety of any pupil in preschool,
kindergarten, or any grades 1 to 8 arriving at, attending, or
leaving school. It is government's duty and responsibility to
protect our children and ensure their total scholarship
experience is safe and free from harmful situations. This
bill will help ensure that our most precious members of
society are protected.
7)Arguments in Opposition : None submitted.
8)Prior Legislation : AB 2478 was identical to this bill and
vetoed.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
California State Sheriffs' Association
California School Employees Association
Los Angeles Sheriff's Department
Opposition
None
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
AB 123
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