BILL ANALYSIS Ó
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
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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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