BILL ANALYSIS Ó
SB 606
Page 1
Date of Hearing: June 25, 2013
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 606 (De Leon) - As Amended: June 20, 2013
As Proposed to be Amended in Committee
SUMMARY : Increases the penalties for the intentional harassment
of a child or ward of another person because of that person's
employment, and specifies that conduct occurring during the
recording of the child's image or voice is per se harassment if
specified conditions occur. Specifically, this bill :
1)Increases the maximum jail time for harassment of a child or
ward because of the person's employment from six months in the
county jail to a year in the county jail.
2)Specifies that conduct occurring during the course of
recording a child's image or voice, due to the employment of
the child's parent or guardian, without written consent of the
child's guardian is per se harassment of a child if that
conduct would cause a reasonable child to suffer substantial
emotional stress, and actually causes the child to suffer
substantial emotional distress.
3)Increases the maximum fines for harassment of a child as
follows:
a) Up to ten thousand dollars ($10,000) for a first
offense.
b) Up to twenty thousand dollars ($20,000) for a second
offense.
c) Up to thirty thousand dollars ($30,000) for a third or
subsequent offense.
4)Creates a civil cause of action for the parent or legal
guardian of the child, as specified.
SB 606
Page 2
EXISTING LAW :
1)Provides that it is a misdemeanor for any person to
intentionally harass a child because of the employment status
of the child's parent or parents. The offense is punishable
by a six month jail term, a $1000 fine, or both. A defendant
must serve a jail term of at least five days for a second
conviction, and at least 30 days for a third or subsequent
conviction. [Penal Code Section 11414(a).]
2)Includes the crime of making a credible threat of death or
great bodily injury, which includes the following elements:
The defendant made the threat "verbally," in writing or by
means of an electronic communication device and with the
intent that it be taken as a threat; and it appears that that
the defendant had the means and intent to carry out the threat
such that the victim was placed in sustained fear for his own
safety or that of his immediate family. This crime is an
alternate felony-misdemeanor, punishable by a jail term of up
to one year, a fine of up to $1000, or both, or by
imprisonment in a state prison for 16 months, 2 years or 3
years and a fine of up to $10,000. (Penal Code Section 422.)
3)Defines the crime of "stalking" as repeatedly harassing or
following another person in conjunction with the making of a
credible threat against that person or his or her immediate
family. Stalking is an alternate felony-misdemeanor
punishable by up to one year in the county jail and/or a fine
of up to $1000, or by imprisonment in state prison for 16
months, 2 or 3 years, and/or a fine of up to $10,000. (Penal
Code Section 646.9.)
4)Provides that a person who has "suffered harassment" may seek
a temporary restraining order and an injunction to prevent
such harassment. "Harassment" is defined thus: "[U]nlawful
violence, a credible threat of violence, or a knowing and
willful course of conduct directed at a specific person that
seriously alarms, annoys, or harasses the person, and that
serves no legitimate purpose. The course of conduct must be
such as would cause a reasonable person to suffer substantial
emotional distress, and must actually cause substantial
emotional distress to the plaintiff." (California Code of
Civil Procedure Section 527.6.)
5)Provides that an employer may seek a temporary restraining
SB 606
Page 3
order and injunction on behalf of an employee who has been
harassed at work through unlawful violence or a credible
threat of violence. In the discretion of the court, the order
and injunction can be applied to additional employees and
workplaces of the employer. (California Code of Civil
Procedure Section 527.8.)
6)Provides that willfully violating any court order is the
misdemeanor of criminal contempt punishable up to six months
in the county jail and/or a fine of up to $1000. [Penal Code
Section 166(a)(4).]
7)Provides that a court may issue an order enjoining a party
from molesting, attacking, striking, stalking, threatening,
sexually assaulting, battering, harassing, telephoning,
destroying personal property, contacting, either directly or
indirectly, by mail or otherwise, coming within a specified
distance of, or disturbing the peace of another party, and, in
the discretion of the court, on a showing of good cause of
other named family or household members. (California Family
Code Section 6320.) Willful violation of the order is
contempt of court, a misdemeanor, punishable by imprisonment
in a county jail for not more than one year, by a fine of not
more than $1000, or both. [Penal Code Section 166(c).]
8)Defines "harasses" as "knowing and willful conduct directed at
a specific child that seriously alarms, annoys, torments, or
terrorizes the person, and which serves no legitimate purpose.
The conduct must be such as would cause a reasonable child to
suffer substantial emotional distress, and actually cause the
victim to suffer that distress." A child, for purposes of
this crime, is a person under the age of 16 years. [Penal
Code Section 11414(a).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : "Senate Bill 606 expands upon and
improves current law by increasing the penalties for the
intentional harassment of a child because of his or her
parents' employment. In 1994, AB 3592 (Umberg) was passed to
address the increased harassment faced by the children of
health care facility employees where abortion procedures were
performed.
SB 606
Page 4
"The beneficiaries of the law, however, were not solely
healthcare workers. Certainly, the children of many other
categories of workers may become targets of retaliatory
attacks because of the nature of their parents' work.
Undeniably, the children of public figures are often the
victims of fanatical attention and harassment. And those
charged with enforcing our laws-police officers, judges,
attorneys-must daily confront individuals who may harbor
vendettas against not only them, but also their families.
"Although AB 3592 has been on the books for nearly 20 years,
children continue to fall prey to intentional harassment
because the law provided for relatively weak penalties. No
child, regardless of his or her parent's occupation, should be
subjected to such unwarranted and harmful persecution.
"By setting mandatory minimum terms and authorizing fines of
up to $10,000 for repeated violations, SB 606 will have a
significant deterrent effect on those who would consider
tormenting the most vulnerable and defenseless members of our
society."
2)First Amendment Issues : This bill may be challenged on First
Amendment free speech grounds. This bill arguably makes
conduct, whereby a citizen is engaged in a constitutionally
protected act, criminal. The bill specifies explicitly,
conduct occurring during the course of recording a child's
image or voice, due to the employment of the child's parent or
guardian, without written consent of the child's guardian is
per se harassment. This language is arguably
unconstitutionally vague and overbroad as it applies to speech
which is commonly protected under the First Amendment to the
U.S. Constitution. Courts have long held that speech and
expressive conduct concerning public issues and politics are
entitled to great protection under the First Amendment.
(Burson v. Freeman (1992) 504 U.S. 191, Perry Ed. Assn. v.
Perry Local Educators' Assn. (1983) 460 U.S. 37, 45.)
Defendants charged with harassing the children of politicians,
abortion providers and other persons involved in public
affairs or socially sensitive issues could attempt to raise
First Amendment issues. However, the bill and existing law
concern the children of the target of the defendant's conduct,
not the public figure. A person arguably has no protectable
political speech interest in communication with or expressive
SB 606
Page 5
conduct toward the child of a person involved in a public
issue. Further, the United States Supreme Court has held that
expressive conduct intended to intimidate is not protected by
the First Amendment. (Virginia v. Black (2003) 538 U.S. 343.)
3)Credible Threats Felony-Misdemeanor in Penal Code Section 422;
Christopher Dorner Case: The author's background refers to
the recent case of Christopher Dorner, the dismissed police
officer who threatened 50 officers and their families and
murdered four people in Southern California. Dorner wrote a
"manifesto" that included very clear threats to stalk and kill
his targets and their family members. For example, Dorner
wrote: "Suppressing the truth will leave to deadly
consequences for you and your family. There will be an
element of surprise where you work, live, eat, and sleep ?. I
will conduct DA operations to destroy, exploit and seize
designated targets ? I will utilize every bit of small arms
training, demolition, ordnance, and survival training I've
been given."
It appears that Dorner's threats could have been charged as
felonies under Penal Code section 422, an alternate
felony-misdemeanor under current law. Section 422 defines the
crime of making a credible threat to kill or cause great
bodily injury. The crime applies where the person receiving
the threat is placed in sustained fear for his or her own
safety or the safety of immediate family members. The crime
of making a credible threat appears to be significantly more
serious than the crime considered by this bill, which can
involve conduct that seriously "alarms" or "annoys" a child.
4)Criminal Prosecutions for Harassment and Civil Injunctions to
Prevent Harassment : No reported appellate case has been found
interpreting or applying the existing statute defining the
misdemeanor for harassment of a child because of the
employment of the child's parent or guardian. As the offense
is a misdemeanor, appeals of convictions would be heard by the
appellate division of the superior court, not the Court of
Appeal, and these decisions are not often published.
There are many cases considering the application of Code of
Civil Procedure 527.6, which authorizes a person who is being
harassed to obtain an injunction against his or her harasser.
A 1997 decision explained:
SB 606
Page 6
Section 527.6 was enacted to provide an expedited
procedure for preventing "harassment" as defined. The
motivation for the statute was the experience of a
young woman who was hounded by a male admirer who
followed her, incessantly telephoned her, etc. The
statute was designed to provide a quick and simple
procedure by which this type of wholly unjustifiable
conduct, having no proper purpose, could be enjoined.
The statute is limited to protecting only those who
have suffered "substantial emotional distress" caused
by conduct "which serves no legitimate purpose." (§
527.6, subd. (b), defining "harassment.") Nothing in
the statute indicates that it was intended to supplant
normal injunctive procedures applicable to cases
concerning issues other than "harassment" as
statutorily defined. (Byers v. Cathcart (1997) 57
Cal.App.4th 805, 811, citations omitted.)
5)Argument in Support : According to the California State
Sheriffs' Association , "We are pleased to support SB 606,
which would make it a crime for any person who intentionally
harasses the child or ward of any other person because of that
person's employment, or attempts to record a child's image or
voice, or both, without the written consent of the child's
parent or legal guardian, by following the child's activities
or lying in wait.
"Unfortunately, children of law enforcement officers have been
targeted for harassment and threats of violence due to the
employment of their parents. We are pleased to support this
measure that increases the protection of those children."
6)Argument in Opposition: According to the National Press
Photographers Association , "We believe the increased penalties
and liabilities related to such actions improperly abridges
first Amendment protected activity occurring in traditional
public forums and other places where a person normally has no
reasonable expectation of privacy. We are also extremely
concerned that the bill as it pertains to photography and
recording is overly broad and vague and infringes upon
otherwise protected forms of speech and expression.
"The definitions used such as 'harassment,' annoys and
alarms,' 'no legitimate purpose' and 'reasonable child' are
themselves vague and susceptible to subjective interpretation.
SB 606
Page 7
As noted by the U.S. Supreme Court vagueness or absence of
scienter may be cause for invalidating a law that abridges
first Amendment protected activity. 'stricter standards of
permissible statutory vagueness may be applied to a statute
having a potentially inhibiting effect on speech?" Smith v.
California, 361 U.S. 147 (1959) quoting Winters v. New York,
333 U.S., 507 (1948). We also believe harassment concerns are
properly addressed by current California law and that
additional criminal penalties, enhanced civil liability and
disproportionate fines will further chill free speech and
create uncertainty."
7)Prior Legislation : AB 2479 (Bass), Chapter 685, Statutes of
2010, provided that a person who commits "false imprisonment"
with the intent to capture any type of visual image, sound
recording, or other physical impression of a plaintiff is
subject to liability under the civil invasion of privacy
statute and, as such, liable for damages and remedies
available pursuant to that statute, as specified.
REGISTERED SUPPORT / OPPOSITION :
Support
California Medical Association
California Police Chiefs Association
California Psychological Association
California State Sheriff's Association
Crime Victims United
Los Angeles County Sheriff's Office
Los Angeles District Attorney's Office
National Organization for Women, California
One private individual.
Opposition
California Broadcasters Association
California Newspaper Publishers Association
Motion Picture Association
National Press Photographers Association
Taxpayers for Improving Public Safety
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
SB 606
Page 8
319-3744