BILL ANALYSIS Ó
SB 110
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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
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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:
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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
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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.
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"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
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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
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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,
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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
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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.,
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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
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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
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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
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