BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 123 (Mendoza)
As Introduced January 10, 2011
Hearing date: June 7, 2011
Penal Code
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DISRUPTING SCHOOLS
HISTORY
Source: Los Angeles Unified School District
Prior Legislation: AB 2478 (Mendoza) - 2010, vetoed
Support: American Federation of State, County and Municipal
Employees; California State Sheriffs' Association;
California School Employees Association; Los Angeles
County Sheriff; Ocean View School District; Whittier
School District; Junior League of California
Opposition:None known
Assembly Floor Vote: Ayes 55 - Noes 19
KEY ISSUE
SHOULD A NEW MISDEMEANOR BE DEFINED THAT WOULD BE COMMITTED WHERE A
PERSON CREATES A DISRUPTION AT A SCHOOL OR ADJACENT TO A SCHOOL WITH
THE INTENT TO THREATEN THE IMMEDIATE PHYSICAL SAFETY OF ANY PUPIL
ARRIVING AT, ATTENDING, OR LEAVING A SCHOOL THAT HAS A PRESCHOOL,
KINDERGARTEN OR GRADES ONE THROUGH EIGHT?
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PURPOSE
The purposes of this bill are 1) to define a new misdemeanor
that would be committed where a person creates a disruption at a
school or a site adjacent to a school and the person intends to
threaten the immediate physical safety of a student arriving at,
attending or leaving the school; and 2) provide that the bill
applies to any pupil at a school that has a preschool,
kindergarten or grades one through eight.
Existing law defines a school as any elementary school, junior
high school, four-year high school, senior high school, adult
school, as specified, opportunity school, continuation high
school, regional occupational center, evening high school,
technical school, or any public right-of-way immediately
adjacent to the school property. A school is further defined as
any place where a teacher and one or more pupils are required to
be in connection with assigned school activities. (Pen. Code �
626, subd. (a)(4).)
Existing law includes numerous misdemeanor crimes involving
prohibited entry of a school or improper conduct at a school.
(Pen. Code � 626 et seq.)
Existing law 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 specified acts.
Prohibited acts on school grounds and exceptions:
o The person remains there after being asked to leave by
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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;
o The person reenters or comes upon that place within
seven days of being asked to leave by a person specified in
existing law;
o The person has otherwise established a continued pattern
of unauthorized entry;
o This section shall not be utilized to impinge upon the
lawful exercise of constitutionally protected rights of
freedom of speech or assembly. (Pen. Code � 626.8,
subd.(a)(1) to (3).)
The penalty for unauthorized acts on school are as follows:
o A first conviction is punishable 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.
o 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.
o 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. (Pen. Code � 626.8, subd.
(b)(1)-(3).)
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Existing law defines the following terms:
"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.
"School" is any preschool or public or private school having
kindergarten or any of grades 1 to 12, inclusive. (Pen. Code
� 626.8, subd. (c)(1)-(3).)
Existing law 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. (Pen. Code �
626.8, subd. (d).)
Existing law defines a "safe school zone" as any of the
following locations during regular school hours, or within 60
minutes before or after the school day, or within 60 minutes
before or after a school-sponsored activity:
Within 1,000 feet of a school, "as designated by the
school;"<1> and
Within 100 feet of a school bus stop, including a public
transit stop specifically designated as a school bus stop.
This bill provides that 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 is guilty of a misdemeanor, punishable by a jail term of
up to six months, a fine of up to $500, or both. Upon a second
conviction for this offense, another school interference offense
or disturbing the peace, the punishment is a jail term of not
less than 10 days and not more than six months, or such a jail
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<1> Neither existing law nor this bill prescribe or define how
the zone is designated, or if the designation refers to
designation of a place as a school. Annotated codes and Lexis
case search engines researched by Committee staff include no
appellate decisions discussing the term "designated" in this
context.
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term and a fine of up to $500. For a third conviction, as
specified, the minimum jail term shall be 90 days.
This bill states that it shall not be interpreted to impinge
upon the lawful exercise of the constitutional rights of
assembly and speech.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). 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 January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
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legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
On the morning of March 24, 2003, two vehicles driven
by members of the Center for Bio-Ethical Reform (CBER)
drove around a middle school perimeter as students
were arriving. The vehicles included a truck
displaying billboard-sized, graphic photographs of
aborted fetuses and an escort security vehicle.
Between 7:15 and 7:45 all 1900 students arrived in the
same location - a cul de sac where the vehicles
driving. Because of the disturbing nature of the
photographs, some students became angry, others cried
and still others stood and stared, creating a traffic
hazard. Los Angeles County Sheriff's deputies
arrived, concluded that the drivers from the CBER had
violated Penal Code Section 628.8 - interfering with a
school - and asked them to leave.
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The CBER filed a lawsuit contending that school
officials and the Sheriff had violated the First and
Fourth amendment rights of the Center. The U.S.
District Court entered summary judgment in favor of
the school district and the Sheriff. However, the 9th
Circuit Court of Appeal held that Penal Code Section
628.8, as written, does not allow school officials to
contact local law enforcement to stop a person from
conveying disrupting messages adjacent to a school
where the person's conduct threatens the physical
safety of the pupils. However, the 9th Circuit did
acknowledge that the Legislature could possibly draft
a constitutionally valid statute to address such
circumstances.
2. Case That Prompted Introduction of This Bill
This bill was prompted by the decision in Center for Bio-Ethical
Reform v. Los Angeles County Sheriff's Department. (9th Cir.
2008) 533 F.3rd 780. The Center for Bio-ethical Reform (CBER)
is "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'."
(Id, at p. 784.) One such program consisted of CBER placing
large photographs of first trimester aborted fetuses on the
sides of trucks and then driving the trucks on surface streets
and freeways.
As noted in the author's statement, this bill was prompted by an
incident in which CBER members drove a truck displaying large
photographs of aborted fetuses around a middle school while
students were arriving. Sheriff's deputies directed the CBER
members to leave because they had violated Penal Code Section
626.8 - a statute prohibiting interference with schools. CBER
filed suit in federal court claiming civil rights violations and
seeking damages.
On appeal, the Ninth Circuit ruled in favor of CBER on the First
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Amendment issue. (Id, at p. 799.) The Court did state in a
footnote: "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." (Id, at p. 790, fn. 9.)
The Court also stated, "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." (Id, at p. 786.)
3. First Amendment Issues - Free Speech and Limits on Threatening
Speech
Courts have long held that speech concerning public issues is
entitled to great protection under the First Amendment. (Burson
v. Freeman (1992) 504 U.S. 191.) The California Constitution
also protects free speech. (Cal. Const. Art. I, � 2.) The
First Amendment protects the free trade in ideas. "�T]he
government may not prohibit the expression of an idea simply
because society finds the idea itself offensive or
disagreeable." (Texas v. Johnson (1989) 491 U.S. 397, 414.)
The First Amendment is not absolute. "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." (Chaplinsky v. New Hampshire
(1942) 315 U.S. 568, 571-572.) The First Amendment permits
"restrictions upon the content of speech in a few limited 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 (1992) 505 U.S. 377, 382-383. quoting
Chaplinsky at p. 572). In particular, expressive conduct
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intended to intimidate is not protected by the First Amendment.
(Virginia v. Black (2003) 538 U.S. 343.)
A specific form of unprotected, intimidating speech 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. ? 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.)
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.
DOES THIS BILL REST ON A VALID EXCEPTION TO FIRST AMENDMENT
RIGHTS, IN THAT THE BILL PROHIBITS DISRUPTIONS AT A GRADE SCHOOL
THAT ARE INTENDED TO THREATEN THE IMMEDIATE PHYSICAL SAFETY OF
PUPILS?
4. Prior Version of This Bill - AB 2478 (Mendoza) was Vetoed in
2010
In 2010, a prior version of this bill - AB 2478 (Mendoza) -
passed this Committee on a vote of
6-1. As amended in this Committee, AB 2478 was effectively
identical to this bill. Governor Schwarzenegger vetoed the
bill. He stated that the bill did not cover high-school
students and that it was partly duplicative of other penal
statutes.
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