BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              S
                             2013-2014 Regular Session               B

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          SB 127 (Gaines)                                             
          As Amended April 1, 2013 
          Hearing date:  April 30, 2013
          Welfare and Institutions Code
          SM:mc

                THERAPISTS REPORTING PATIENT THREATS TO LAW ENFORCEMENT  


                                       HISTORY

          Source:  Author

          Prior Legislation: AB 302 (Beall) - Chapter 344, Stats. of 2010
                       AB 2696 (Krekorian) - vetoed, 2008
                       AB 3552 (Hauser) - Chapter 1326, Stats. of 1992

          Support: American Association of Marriage and Family Therapy (if  
                   amended); California Chapters of the Brady Campaign to  
                   Prevent Gun Violence; California State Sheriffs'  
                   Association; Orange County Citizens Against Gun  
                   Violence; Law Center to Prevent Gun Violence; several  
                   letters from private citizens

          Opposition:California Right to Carry; California Psychological  
          Association


                                        KEY ISSUES
           
          SHOULD REPORTS BY A LICENSED PSYCHOTHERAPIST TO A LOCAL LAW  
          ENFORCEMENT AGENCY OF THE IDENTITY OF A PERSON WHO HAS COMMUNICATED  
          TO THAT THERAPIST A SERIOUS THREAT OF PHYSICAL VIOLENCE AGAINST A  




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          REASONABLY IDENTIFIABLE VICTIM OR VICTIMS BE REQUIRED TO BE MADE  
          ELECTRONICALLY AND WITHIN 24 HOURS? 

          SHOULD LOCAL LAW ENFORCEMENT AGENCIES, WHEN THEY RECEIVE SUCH  
          REPORTS, BE REQUIRED TO NOTIFY THE DEPARTMENT OF JUSTICE   
          ELECTRONICALLY AND WITHIN 24 HOURS OF RECEIVING THAT REPORT?

                                       PURPOSE

          The purpose of this bill is to (1) require that reports by a  
          licensed psychotherapist to a local law enforcement agency of  
          the identity of a person who has communicated to that therapist  
          a serious threat of physical violence against a reasonably  
          identifiable victim or victims be made electronically within 24  
          hours; and (2) require that local law enforcement agencies, when  
          they receive such reports, notify Department of Justice  
          electronically and within 24 hours of receiving that report.

           Current law  provides that a person shall not have in his or her  
          possession or under his or her custody or control, or purchase  
          or receive, or attempt to purchase or receive, any firearms  
          whatsoever or any other deadly weapon for a period of six months  
          whenever, on or after January 1, 1992, he or she communicates to  
          a licensed psychotherapist, as defined, a serious threat of  
          physical violence against a reasonably identifiable victim or  
          victims.  The six-month period shall commence from the date that  
          the licensed psychotherapist reports to the local law  
          enforcement agency the identity of the person making the  
          communication.  The prohibition provided for in this subdivision  
          shall not apply unless the licensed psychotherapist notifies a  
          local law enforcement agency of the threat by that person.  The  
          person, however, may own, possess, have custody or control over,  
          or receive or purchase any firearm if a superior court, upon  
          petition of the person, has found, by a preponderance of the  
          evidence, that the person is likely to use firearms or other  
          deadly weapons in a safe and lawful manner, as specified.  A  
          violation shall be a public offense, punishable as a felony by  
          16 months, 2 or 3 years in county jail, or as a misdemeanor, by  
          imprisonment in a county jail for not more than one year, by a  
          fine of up to $1,000, or both.  (Welfare and Institutions Code  




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           8100(b), 8100(g).)

           Current law  requires that, upon receipt of a report from the  
          local law enforcement agency regarding a person having made such  
          a threat, the Department of Justice (DOJ) shall notify by  
          certified mail, return receipt requested, a person subject to  
          this subdivision of the following:

                 That he or she is prohibited from possessing, having  
               custody or control over, receiving, or purchasing any  
               firearm or other deadly weapon for a period of six months  
               commencing from the date that the licensed psychotherapist  
               reports to the local law enforcement agency the identity of  
               the person making the communication.  The notice shall  
               state the date when the prohibition commences and ends.

                 That he or she may petition a court, as provided in this  
               subdivision, for an order permitting the person to own,  
               possess, control, receive, or purchase a firearm.  (Welfare  
               and Institutions Code  8100(b).)

           Current law  requires a licensed psychotherapist to immediately  
          report to a local law enforcement agency the identity of a  
          person who has communicated to that therapist a serious threat  
          of physical violence against a reasonably identifiable victim or  
          victims.  Upon receipt of the report, the local law enforcement  
          agency, on a form prescribed by DOJ, shall immediately notify  
          the department of the person who made the threat.  (Welfare and  
          Institutions Code  8105(c).)

           Current law  provides that all information provided to DOJ  
          pursuant to this section shall be kept confidential, separate  
          and apart from all other records maintained by the department.   
          The information provided to DOJ pursuant to this section shall  
          be used only for any of the following purposes:

                 By the department to determine eligibility of a person  
               to acquire, carry, or possess firearms, destructive  
               devices, or explosives.





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                 For the purposes of the court proceedings to determine  
               the eligibility of the person who is bringing the petition  
               to possess, purchase or receive any firearms.

                 To determine the eligibility of a person to possess  
               firearms, destructive devices, or explosives who is the  
               subject of a criminal investigation, if a part of the  
               criminal investigation involves the acquisition, carrying,  
               or possession of firearms, explosives, or destructive  
               devices by that person.  (Welfare and Institutions Code   
               8105(d).)

           This bill  would require that reports by a licensed  
          psychotherapist to a local law enforcement agency of the  
          identity of a person who has communicated to that therapist a  
          serious threat of physical violence against a reasonably  
          identifiable victim or victims be made electronically and within  
          24 hours.

           This bill  would also require that local law enforcement  
          agencies, when they receive such reports, notify DOJ  
          electronically and within 24 hours of that report.


                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the last several years, severe overcrowding in California's  
          prisons has been the focus of evolving and expensive litigation  
          relating to conditions of confinement.  On May 23, 2011, the  
          United States Supreme Court ordered California to reduce its  
          prison population to 137.5 percent of design capacity within two  
          years from the date of its ruling, subject to the right of the  
          state to seek modifications in appropriate circumstances.   

          Beginning in early 2007, Senate leadership initiated a policy to  
          hold legislative proposals which could further aggravate the  
          prison overcrowding crisis through new or expanded felony  
          prosecutions.  Under the resulting policy known as "ROCA" (which  
          stands for "Receivership/ Overcrowding Crisis Aggravation"), the  
          Committee held measures which created a new felony, expanded the  




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          scope or penalty of an existing felony, or otherwise increased  
          the application of a felony in a manner which could exacerbate  
          the prison overcrowding crisis.  Under these principles, ROCA  
          was applied as a content-neutral, provisional measure necessary  
          to ensure that the Legislature did not erode progress towards  
          reducing prison overcrowding by passing legislation which would  
          increase the prison population.  ROCA necessitated many hard and  
          difficult decisions for the Committee.

          In January of 2013, just over a year after the enactment of the  
          historic Public Safety Realignment Act of 2011, the State of  
          California filed court documents seeking to vacate or modify the  
          federal court order issued by the Three-Judge Court three years  
          earlier to reduce the state's prison population to 137.5 percent  
          of design capacity.  The State submitted in part that the, ". .  
          .  population in the State's 33 prisons has been reduced by over  
          24,000 inmates since October 2011 when public safety realignment  
          went into effect, by more than 36,000 inmates compared to the  
          2008 population . . . , and by nearly 42,000 inmates since 2006  
          . . . ."  Plaintiffs, who opposed the state's motion, argue in  
          part that, "California prisons, which currently average 150% of  
          capacity, and reach as high as 185% of capacity at one prison,  
          continue to deliver health care that is constitutionally  
          deficient."  In an order dated January 29, 2013, the federal  
          court granted the state a six-month extension to achieve the  
          137.5 % prisoner population cap by December 31st of this year.  

          In an order dated April 11, 2013, the Three-Judge Court denied  
          the state's motions, and ordered the state of California to  
          "immediately take all steps necessary to comply with this  
          Court's . . . Order . . . requiring defendants to reduce overall  
          prison population to 137.5% design capacity by December 31,  
          2013."         

          The ongoing litigation indicates that prison capacity and  
          related issues concerning conditions of confinement remain  
          unresolved.  However, in light of the real gains in reducing the  
          prison population that have been made, although even greater  
          reductions are required by the court, the Committee will review  
          each ROCA bill with more flexible consideration.  The following  




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          questions will inform this consideration:

                 whether a measure erodes realignment;
                 whether a measure addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
                 whether a bill corrects a constitutional infirmity or  
               legislative drafting error; 
                 whether a measure proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy; and
                 whether a bill addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy.


                                      COMMENTS

          1.  Proposed Author's Amendment

           The author has informed the Committee that he intends to propose  
          an author's amendment in committee to delete the electronic  
          reporting requirement for licensed psychotherapists and leave it  
          only for law enforcement.
           



           2.  Need for This Bill  

          According to the author:

               Current law requires that licensed psychotherapists  
               "immediately" notify local law enforcement when a  
               person or a person's family member communicates to the  
               therapist a serious threat of physical violence  
               against a reasonably identifiable victim or victims.   
               This threat triggers a six-month ban on firearms  
               possession and purchasing for the person who made the  
               threat.




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               "Immediately" is undefined, and changing the standard  
               to "24 hours" will add certainty and consistency to  
               the reporting process.  By mandating the reporting is  
               done electronically, therapists and local law  
               enforcement will have a more reliable record than if  
               the notification were done by telephone, which is now  
               often the case.

               Upon receipt of the notification, local law  
               enforcement must then communicate that information to  
               the Department of Justice, again "immediately," which  
               is undefined.  The lack of definition leads to lags in  
               reporting that create gaps where people who are  
               temporarily forbidden from purchasing or possessing  
               handguns may do so.

               More consistent and timely communications between  
               therapists, local law enforcement and the Department  
               of Justice should lead to fewer prohibited persons  
               purchasing or possessing firearms in California and  
               improve public safety.

          3.  Effect of This Bill

           As stated by the author, current law requires any licensed  
          psychotherapist to immediately report to a local law enforcement  
          agency the identity of a person who has communicated to that  
          therapist a serious threat of physical violence against a  
          reasonably identifiable victim or victims.  (Welfare and  
          Institutions Code  8105(c).)  The local law enforcement agency  
          is then required to immediately report that information to DOJ.   
          (Ibid.)  From the time the psychotherapist reports the threat to  
          local law enforcement, the person who made the threat is  
          prohibited from acquiring or possessing any firearm for six  
          month.  (Welfare and Institutions Code  8100(b).)  This bill  
          would amend the notification requirements for both the  
          psychotherapist and the local law enforcement agency by  
          replacing the word "immediately" with "electronically, within 24  
          hours, in a manner prescribed by the Department of Justice." 




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          California law requires all sales, loans, and transfers of  
          firearms to be processed through or by a state-licensed firearms  
          dealer.  (Penal Code  27545.)  Additionally, there is a 10-day  
          waiting period when purchasing a firearm through a firearms  
          dealer during which time DOJ conducts a background check on the  
          putative firearms purchaser.  (Penal Code  26815 and 27540.)   
          The purpose of requiring psychotherapists and local law  
          enforcement agencies to report threats by patients is to alert  
          DOJ that the person making the threat now comes under provisions  
          of law which prohibit that person from possessing firearms for  
          six months.  Once notified, DOJ would know not to approve any  
          firearms purchase by that person.

          Where current law requires that such reports be made  
          "immediately," that requirement lacks a certain degree of  
          specificity both in relation to the reporting method and the  
          time within which the report must be made.  Requiring that such  
          reports are made electronically and within 24 hours may increase  
          the chances that this information would be communicated to DOJ  
          in time to prevent such a person from acquiring a firearm. 























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          Hospitals are currently required to report to DOJ persons who  
          are admitted to a facility because they are deemed to be a  
          danger to themselves or others due to mental illness.  (Welfare  
          and Institutions Code  8103.)  Such persons are also prohibited  
          from acquiring or possessing firearms and that notification  
          requirement serves the same purpose as the notification  
          requirements proposed in this bill.  AB 302 (Beall), Chapter  
          344, Statutes of 2010, specified that those reports must be made  
          electronically.  This bill seeks to address the same issue as  
          that addressed in AB 302, making sure reports of acts that  
          render a person legally prohibited from possessing a firearm  
          reach DOJ in time to prevent such people from actually acquiring  
          firearms. 

          4.  Argument in Support  

          The California Chapters of the Brady Campaign to Prevent Gun  
          Violence state:

               Existing law requires a licensed psychotherapist to  
               immediately report the identity of a person who has  
               communicated a serious threat of physical violence  
               against a reasonably identifiable victim to the local  
               law enforcement agency and to the California  
               Department of Justice (DOJ).  Persons so reported are  
               prohibited from possessing a firearm for a period of 6  
               months.

               The term "immediately" lacks precise definition and in  
               practice, significant delays are taking place.  Senate  
               Bill 127 requires that these reports be made  
               electronically to local law enforcement and to the DOJ  
               within 24 hours.  Timely reporting to the DOJ allows  
               these names to be checked against the database of gun  
               ownership and persons disarmed if found to be in  
               possession of a firearm.  

               Rapid reporting will allow potentially dangerous  
               people subject to these so called "Tarasoff" orders to  




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               be disarmed before they can cause harm.  For this  
               reason, we ask for your AYE vote on SB 127.




          5.  Argument in Opposition

           The California Psychological Association states:

               Current law prohibits a person from possessing a  
               firearm or deadly weapon for a period of six months  
               when the person has communicated a serious threat of  
               physical violence against a reasonably identifiable  
               victim or victims to a licensed Psychotherapist  
               (called a Tarasoff warning).  Current law requires a  
               psychologist to immediately report the identity of the  
               person to a local law-enforcement agency.  This bill  
               would instead require a psychologist to make the  
               report to local law-enforcement electronically, within  
               24 hours.  The information would then be reported to  
               the [Department of Justice] electronically within 24  
               hours, in a manner prescribed by the department.

               While electronic submission of prohibitions is common  
               for patients who have been in our judicial system,  
               this is not the case with Tarasoff reporting.  These  
               prohibitions are often imposed outside a secure  
               facility.  Many of our members are solo practitioners  
               and may not have the computer software to report in a  
               secure fashion.


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