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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