BILL ANALYSIS Ó SB 110 Page 1 Date of Hearing: June 30, 2015 Counsel: Stella Choe ASSEMBLY COMMITTEE ON PUBLIC SAFETY Bill Quirk, Chair SB 110 (Fuller) - As Amended June 23, 2015 SUMMARY: Makes it an alternate felony-misdemeanor offense for any person to willfully threaten unlawful violence that will result in death or great bodily injury to occur on the grounds of a school, as defined, where the threat creates a disruption at the school. Specifically, this bill: 1)Provides that any person who, by any means, including, but not SB 110 Page 2 limited to, by means of an electronic act, willfully threatens unlawful violence that will result in death or great bodily injury to occur upon the grounds of a school with the specific intent that the statement be taken as a threat, even if there is no intent of carrying it out, and where the threat, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey a gravity of purpose and an immediate prospect of execution of the threat, and that threat creates a disruption at the school, is guilty of a misdemeanor or a county-jail eligible felony. 2)Specifies that this bill does not preclude or prohibit prosecution under any other law. 3)Defines "disruption" as an interference with peaceful activities of the campus or facility. 4)Provides that "electronic act" has the same meaning as is found in relevant sections of the Education Code. 5)Defines "school" to mean a state preschool, a private or public elementary, middle, vocational, junior high, or high school, a community college, a public or private university, or a location where a school-sponsored event is or will be taking place. EXISTING LAW: SB 110 Page 3 1)States 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, 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. (Pen. Code, § 422.) 2)States that any person who knowingly and willingly threatens the life of, or threatens serious bodily harm to, any elected public official, as specified, or the staff or immediate family of any of the specified elected public officials, with the specific intent that the statement is to be taken as a threat, and the apparent ability to carry out that threat by any means, is guilty of a public offense, punishable as either a misdemeanor or felony, as specified. (Pen. Code, § 76.) 3)Provides that any person who knowingly threatens to use a weapon of mass destruction with the specific intent that the statement as defined or a statement made by means of an electronic communication device, is to be taken as a threat, 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, 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 SB 110 Page 4 safety shall be punished by either a misdemeanor or felony, as specified. (Pen. Code, § 11418.5, subd. (a).) FISCAL EFFECT: Unknown. COMMENTS: 1)Author's Statement: According to the author, "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. "SB 110 simply assists law enforcement and the courts by holding those accountable who make violent threats against a school by an electronic act, when those threats interfere with the activities of the campus or facility. SB 110 Page 5 "SB 110 is needed to address a new trend and to update our Penal Code to reflect modern technology. SB 110 will protect our children and hold individuals accountable who have stricken fear and confusion into our classrooms." 2)First Amendment: Restrictions on Threatening Speech: The First Amendment to the United States Constitution states: "Congress shall make no law . . . abridging the freedom of speech . . . ." This fundamental right is applicable to the states through the due process clause of the Fourteenth Amendment. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal. 4th 121, 133-134, citing Gitlow v. People of New York (1925) 268 U.S. 652, 666.) Article I, section 2, subdivision (a) of the California Constitution provides that: "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." While these guarantees are stated in broad terms, "the right to free speech is not absolute." (Aguilar v. Avis Rent A Car System, Inc., supra, 21 Cal. 4th at p. 134, citing Near v. Minnesota (1931) 283 U.S. 697, 708; and Stromberg v. California (1931) 283 U.S. 359.) As the United States Supreme Court has acknowledged: "Many crimes can consist solely of spoken words, such as soliciting a bribe (Pen. Code, § 653f), perjury (Pen. Code, § 118), or making a terrorist threat (Pen. Code, § 422)." In In re M.S. (1995) 10 Cal. 4th 698, 710, the court held that "the state may penalize threats, even those consisting of pure speech, provided the relevant statute singles out for punishment threats falling outside the scope of First Amendment protection." Nonetheless, statutes criminalizing threats must be narrowly directed against only those threats that truly pose a danger to society. (People v. Mirmirani (1981) 30 Cal. 3d 375, 388, fn. 10.) The First Amendment permits states to ban a true threat. (Watts v. United States (1969) 394 U.S. 705, 708.) True threats are "statements where the speaker means to communicate a serious SB 110 Page 6 expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." (Virginia v. Black (2003) 538 U.S. 343, 359, citing Watts v. United States, supra, 394 U.S. at 708.) Recently, the Supreme Court again reviewed criminal threats and the mental state required. (Elonis v. United States, No. 13-983, 2015 U.S. LEXIS 3719 (2015).) Elonis was convicted of making criminal threats against his soon-to-be ex-wife and others after he posted several rap lyrics that included graphically violent language and imagery on his Facebook page. There were added disclaimers that the lyrics were "fictitious" and his writings were "therapeutic" and helped him "deal with the pain." (Id. at *6-7.) At trial, the court instructed the jury that Elonis could be found guilty if a reasonable person would foresee that his statements would be interpreted as a threat. (Id. at *1.) The prosecution's closing argument also emphasized that it was irrelevant whether Elonis intended the Facebook postings to be threats. (Id. at *13.) The appellate court held that the prosecution only had to show that Elonis intentionally made the communication, not that he intended to make a threat. The Supreme Court reversed that decision and overturned Elonis' conviction finding that the prosecution failed to make a showing of Elonis' subjective intent. Elonis' conviction was based on how his Facebook posts would be understood by a reasonable person, rather than his subjective intent. The Court rejected the use of this standard, asserting that "[h]aving liability turn on whether a 'reasonable person' regards the communication as a threat-regardless of what the defendant thinks- 'reduces culpability on the all-important element of the crime to negligence,' and we 'have long been reluctant to infer that a negligence standard was intended in criminal statutes.' Under these principles, 'what [Elonis] thinks' does matter." (Elonis v. United States, 2015 U.S. LEXIS 3719, at *22-23.) This bill requires a showing of specific intent on the part of the person communicating the threat, rather than negligence or SB 110 Page 7 even recklessness. This is the highest level of culpability required for a crime, which satisfies the Supreme Court's ruling in both Elonis v. United States, supra, and Virginia v. Black, supra. Additionally, this bill requires that the threat 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. This language is contained in current statutes punishing true threats and has been accepted by the California Supreme Court. (People v. Mirmirani, supra, 30 Cal. 3d at p. 388, fn. 10, quoting United States v. Kelner, (1976 2nd Cir.) 534 F.2d 1020.) Thus, it appears that the provisions in this bill would likely pass constitutional muster. 3)Threats Made by Electronic Communications May be Prosecuted Under Existing Law: This bill creates a new alternate felony-misdemeanor offense for any person, by any means, including by means of an electronic act, to threaten unlawful violence to occur upon the grounds of a school where the threat creates a disruption at the school. However, this conduct may already be prosecuted either as a misdemeanor or a felony under existing Penal Code Section 422. That section specifies that the threat may be made "verbally, in writing, or by means of an electronic communication device." (Pen. Code, § 422, subd. (a).) "Electronic communication" is defined broadly to include "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce" with a few limited exceptions. (Pen. Code, § 422, subd. (c), referencing 18 U.S.C. § 2510.) An example illustrating the existing law's application to threats of violence on school grounds made by means of an electronic act, such as social media, can be found in an appellate court's recent ruling. (In re L.F. (June 3, 2015, A142296) [nonpub. opn.]; Egelko, Smiling Emojis Aside, SB 110 Page 8 Student's Threats Were Serious, Court Says, San Francisco Chronicle, (June 4, 2015) < http://www.sfgate.com/crime/article/Smiling-emojis-aside-stude nt-s-threats-were-6307626.php > [as of June 8, 2015].) The adjudged minor was a Fairfield High School student who posted on her Twitter account that she planned to bring a gun to school and shoot people. While she did note specified areas of the school and one of the campus monitors by name in some of her posts, her Tweets were generally targeted at all of the students and staff at the school. The petition filed against the minor alleged that the minor had made criminal threats against "Fairfield High School students and staff" instead of listing specific persons. (Id. at p. 4.) The appellate court affirmed the juvenile court's ruling that the minor had violated Penal Code Section 422, and found that the minor intended her comments to be taken as threats, even though she contended that she was only joking. (In re L.F., supra, A142296. at p. 8.) This bill creates a specific statute where it appears that the general statute already applies. As illustrated by the case above, the current law already applies to criminal threats made through electronic acts, such as Twitter or Facebook, to occur on school campuses. 4)Argument in Support: According to the Kern County Office of the District Attorney, "Over the last year, the Juvenile Division of the Kern County District Attorney's Office reviewed several instances of electronically transmitted threats. Many of these threats were communication from suspects directly to victims via text messages or Facebook. These types of threats could typically be addressed utilizing the provisions of the Penal Code section 422. However, our office has also reviewed a new category of electronic threats that are communicated from suspects to a broad audience via social media. These communications typically threaten mass school violence. Unfortunately, there is currently no statute on the books that specifically addresses this type of SB 110 Page 9 behavior. We believe that as technology evolves, it is important for the law enforcement community to evolve along with it, in order to ensure that every reasonable effort is expended to safeguard our communities." 5)Argument in Opposition: According to the Pacific Juvenile Defender Center, "Instead of arresting them and placing them in the juvenile justice system, we can better serve youth by investing in alternative programs that hold them accountable and also have been shown to increase school safety. For example, schools, including those within our state, have achieved great success in using Restorative Justice, an alternative framework for handling student misbehaviors, conflicts or victim-offender incidents in schools that addresses root causes of student misbehavior through listening, accountability, and healing. Restorative Justice demands that the offenders 'make right' the harm they have caused by accepting responsibility for their actions and making restitution for the losses incurred by the victims, school, and community. When Restorative Justice was implemented at a middle school in West Oakland, violence and expulsions were eliminated and the suspension rate was reduced by more than 75%. Further, a district-wide study in Oakland found that ninth grade reading levels more than doubled in high schools using restorative justice, compared to an increase of just 11% in other high schools. Research also shows that Restorative Justice is significantly more effective at reducing repeat offending than conventional criminal justice approaches. [Footnotes omitted.] "SB 110 also presents serious First Amendment free speech concerns. '[U]nder the First Amendment the State can punish threatening expression ? only if the "speaker means to communicate a serious expression of an intent to communicate an act of unlawful violence to a particular individual or group of individuals."' United States v. Bagdasarian, 652 F.3d 1113, 1116 (9th Cir. 2008) (quoting Virginia v. Black, 538 U.S. 343, 359 (2003)); see also United States v. Havelock, 664 F.3d 1284, 1305 (9th Cir. 2011) (en banc) (Reinhardt, J., SB 110 Page 10 concurring) (stating that the relevant document did not contain a threat because it does not 'identif[y] any particular individual or group of individuals as the intended objects of a threat'). Contrary to these principles, SB 110 seeks to criminalize general statements that do not specifically target any particular individuals or group of individuals. "Further, 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 'interference with peaceful activities of the campus or facility.' This definition does not provide meaningful guidance or notice of the prohibited conduct. 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." 6)Related Legislation: SB 456 (Block) provides that any person who threatens to discharge a firearm on the campus of a school, as defined, or location where a school-sponsored event is or will be taking place, is guilty of an alternate felony-misdemeanor. SB 456 is pending hearing by the Assembly Committee on Appropriations. 7)Prior Legislation: a) AB 2355 (Aghazarian), of the 2007-2008 Legislative Session, would have removed the requirement that a threat made against a public official must cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family. AB 2355 was held in the Committee on Appropriations' suspense file. b) AB 140 (Hertzberg), Chapter 563, Statutes of 1999, among other provisions related to terrorism, made it a crime for any person to knowingly threaten to use a weapon of mass SB 110 Page 11 destruction, as specified, and resulting in an isolation, quarantine, or decontamination effort. REGISTERED SUPPORT / OPPOSITION: Support California State Sheriffs' Association Crime Victims Action Alliance Kern County Office of the District Attorney Kern County Superintendent of Schools Los Angeles Unified School District Police Chief, City of Bakersfield Opposition American Civil Liberties Union of California SB 110 Page 12 Black Parallel School Board California Attorneys for Criminal Justice California Gay-Straight Alliance California Public Defenders Association Legal Services for Prisoners with Children National Center for Youth Law Pacific Juvenile Defender Center Public Advocates Public Counsel Youth Law Center Analysis Prepared by:Stella Choe / PUB. S. / (916) 319-3744 SB 110 Page 13