BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 110 Hearing Date: April 14, 2015
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|Author: |Fuller |
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|Version: |February 18, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|LT |
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Subject: Threats: Schools
HISTORY
Source: Bakersfield Police Department
Prior Legislation:None known
Support: Kern County District Attorney's Office; Kern County
Superintendent of Schools; California State Sheriffs'
Association; Bakersfield Police Department
Opposition:Legal Services for Prisoners with Children; Public
Counsel; American Civil Liberties Union of California
PURPOSE
The purpose of this bill is to enact a new misdemeanor for
threatening unlawful violence on a school campus which creates
disruption at that school, as specified..
Existing law provides that "any person who willfully threatens
to commit a crime which will result in death or great bodily
injury to another person, with the specific intent that the
statement, made verbally, in writing, or by means of an
electronic communication device, is to be taken as a threat,
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even if there is no intent of actually carrying it out, which,
on its face and under the circumstances in which it is made, is
so unequivocal, unconditional, immediate, and specific as to
convey to the person threatened, a gravity of purpose and an
immediate prospect of execution of the threat, and thereby
causes that person reasonably to be in sustained fear for his or
her own safety or for his or her immediate family's safety,
shall be punished by imprisonment in the county jail not to
exceed one year, or by imprisonment in the state prison."
(Penal Code § 422).
Existing law generally provides that every student or employee
who, after a hearing, has been suspended or dismissed from a
school as specified, and who willfully and knowingly enters upon
the campus or facility to which he or she has been denied access
is guilty of a misdemeanor. (Penal Code § 626.2)
This bill would enact a new crime to provide that "each person
who, by any means, including, but not limited to, by means of an
electronic act, as specified, threatens unlawful violence to
occur upon the grounds of a school and that threat creates a
disruption at the school, shall be punished by imprisonment in a
county jail for a term not exceeding one year."
This bill would define "disruption" to mean an act likely to
interfere with peaceful activities of the campus or facility."
This bill would provide that its provisions "not preclude or
prohibit prosecution under any other law."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
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reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
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COMMENTS
1. Stated Need for This Bill
The author states:
The threat of violence in California schools and
colleges through social media or other electronic
communication is a problem. These threats not only
instill fear and force the cancellation of classes and
building closures, but they can cost school districts
considerable funds. This includes the cost to
investigate and prosecute perpetrators, to hire
additional safety personnel to observe student
activities and websites, and to purchase surveillance
equipment to monitor non-classroom areas. The impact
expands beyond the incidence, and hinders the learning
environment.
Roughly 30% of violent threats made against schools
were delivered through social media, email, text
messaging and other electronic means from August 2013
to January 2014. It is believed this percentage has
increased and will continue to rise. These electronic
threats include school bomb threats, shooting threats,
hoaxes, and acts of violence.
?
There was a death threat made via a social media site
towards Liberty High School [Bakersfield] on October
7, 2014 from a student. This threat resulted in
nearly 1,000 students either leaving early or not
reporting to school. The police department followed
their normal investigative process, located the
student, and obtained a search warrant for the home,
but when it came time to arrest the student they were
only able to hold him on a public nuisance charge.
The reality is that the Penal Code only allows for a
charge to be leveled if the threat is made on the
school campus grounds.
2. Background: School Threats
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Recent media reports have described numerous incidents involving
school threats. For example, in San Diego:
?there were 5 percent more suspensions and expulsions
in San Diego County related to making terrorist
threats in the 2013-14 school year than in the
previous school year, and 35 percent more than in the
2011-12 school year. Threats typically surface on
social media or are made via phone or email. Once
school officials learn of it, police are called in to
investigate, and a school might get locked down, with
everyone on campus kept behind locked doors until the
coast is clear. That could take hours.
Students from high school campuses in Oceanside, San
Diego, El Cajon and San Marcos, have been arrested on
suspicion of using the app to threaten schools.
The CEO, Jonathan Lucas, said recent changes to the
app make it "very clear" that threats of violence and
bullying won't be tolerated. He said users are asked
to carefully consider the contents of their posts and
are even shown their IP addresses. He said the
company has been cooperating with all law enforcement
investigations and has a quick process in place to
help investigators locate users who commit crimes.
(Winkley, Lyndsay, and Pat Maio. "Online Schools
Threats Up; Officials Crack down." U-T San Diego.
N.p., 22 Mar. 2015. Web. 07 Apr. 2015.)
Similarly, in Los Angeles, an 11th grade student was arrested
for making threats through the social media app, Burnbook,
against a Los Angeles county high school. Investigators were
informed that the student had published the threat online and
was taken into custody the following day. He was charged with
making criminal threats after he confessed to threatening to
bring a weapon to school. The student told deputies that he was
making jokes. ("Student Arrested after Social Media Threats
against School." Student Arrested following Threats on Social
Media against Los Angeles County School. The Associated Press,
12 Mar. 2015. Web. 07 Apr. 2015.)
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Based on these reports, it appears current law already addresses
these kinds of threats. Members may wish to discuss why current
law is not adequate, and how this bill would enhance campus
safety against credible threats.
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
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.)
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WOULD THIS BILL BE CONSTITUTIONAL?
4. Related Bill
SB 456 (Block), also scheduled to be heard on the same hearing
date as this bill, similarly addresses school threats
(pertaining to gun violence specifically) and raises concerns
about 1st Amendment rights. The author of SB 456 is proposing
amendments in Committee to tighten that bill's language with
respect to what would constitute a criminal threat.
The author and Committee members may wish to discuss whether the
"true threat" language being amended into SB 456 might be
appropriate for this bill.
In addition, members may wish to discuss how the provisions of
this bill, which would apply to any threat of unlawful violence,
would relate to SB 456, which applies to a more narrow threat,
and how these measures could be harmonized.
5. Opposition
Public Counsel, which opposes this bill, states in part:
? SB 110 as written is overly broad and vague. The
bill criminalizes threats that "creates a disruption
at school," and clarifies only that disruption is "an
act likely to interfere with peaceful activities of
the campus or facility." This definition does not
provide meaningful guidance or notice of the
prohibited conduct, and does not require that there
have been any actual interference with school
activities, only that such a result is "likely."
Further, although the bill's impetus is to address
threats made through social media or other electronic
communications, it instead broadly encompasses actions
taken through, "any means, including but not limited
to, by means of an electronic act."
-- END -
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