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