BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 456        Hearing Date:    April 14, 2015    
          
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          |Author:    |Block                                                |
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          |Version:   |February 25, 2015                                    |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|LT                                                   |
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                 Subject:  Criminal Threats:  Discharge of a Firearm



          HISTORY

          Source:   San Diego County District Attorney

          Prior Legislation:None known

          Support:      California District Attorneys Association; Peace  
          Officers Research Association of
                    California; California State Sheriffs' Association;  
                    California Chapters of the Brady Campaign to Prevent  
                    Gun Violence; Association for Los Angeles Deputy  
                    Sheriffs; Los Angeles Police Protective League;  
                    Riverside Sheriffs Association; Los Angeles  
                    Association of Deputy District Attorneys

          Opposition:Legal Services for Prisoners with Children

                     
          PURPOSE

          The purpose of this bill is to enact a new misdemeanor  
          prohibiting persons from threatening to discharge a firearm at a  
          school, as specified.

          Existing law provides that "any person who willfully threatens  







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          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" (Penal  
          Code § 422).  
           
          This bill would enact a new crime to provide that "a person who  
          maliciously threatens to discharge a firearm on the campus of a  
          public or private university, community college, school, or  
          location where a school-sponsored event is taking place in the  
          state, and who maliciously causes the report of that threat to  
          be made to law enforcement, is guilty of a misdemeanor."

          This bill would provide that "a threat to discharge a firearm,  
          [as specified], includes a threat that is communicated orally,  
          in writing, by means of an electronic communication device,  
          including but not limited to, a telephone, cellular telephone,  
          computer, video recorder, fax machine, text message, on social  
          media, or by any other means."
           
          This bill would define "'school' to mean a preschool, elementary  
          school, middle school, junior high school, high school, or  
          charter school."

          This bill would provide that "a person convicted of violating  
          its provisions, based upon a report that resulted in an  
          emergency response, is liable to a public agency for the  
          reasonable costs of the emergency response by any public  
          agency."

          This bill would provide that its provisions would "not preclude  
          punishing a person for conduct under any other law providing for  
          greater punishment."
          
                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION








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          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  
          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  








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               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.


          COMMENTS

          1.Stated Need for This Bill
          
          The author states:

               SB 456 criminalizes the making of a threat to commit a  
               school shooting, whether directed to a specific  
               individual, or whether posted on social media for an  
               invited or general viewing population. 

               A recent study of threats from August-December of 2014  
               by the President of National School Safety and  
               Security Services shows some alarming trends. The  
               number of threats in that time period was up 158% from  
               last year, with 37% of those threats sent  
               electronically via social media, e-mail, text  
               messaging and other online resources. Nearly 30% of  
               the threats analyzed resulted in a school evacuation,  
               and 10% resulted in school closures for at least a  
               portion of the day. In the San Diego Unified School  
               District, alone, there have been 138 reported threats  
               in the past year. 

               There are significant costs associated with threats  
               that target schools-both in the initial response  
               required to insure that the community is safe by  
               shutting down the targeted schools, but also in the  
               subsequent investigation that may require substantial  
               time, resources, and opportunity costs.

               SB 456 applies specifically to school-shooting  








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               threats, and does not require proof of a specifically  
               targeted individual, or a demonstration of sustained  
               fear by any one particular person, thus filling the  
               gap left by statutes that proscribe bomb threats and  
               criminal threats, SB 456 holds offenders accountable,  
               deters future conduct, and shifts the burden of costs  
               by authorizing the court to order restitution.
          
          2.  What the Bill Does 
          
          As explained in detail above, this bill will enact a new crime,  
          punishable as a misdemeanor, to threaten to discharge a firearm  
          on the campus of a public or private university, community  
          college, school, or location where a school-sponsored event is  
          taking place.  Under current law it is a crime to make 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 or her own safety or that of his or  
          her 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 or 3 years  
          and a fine of up to $10,000.
          
          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  








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          (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.)

          4. Author's Amendments 

          The author intends to amend this bill in Committee as follows:
               
                 Revise the bill's provisions to remove the word  
               "maliciously," and instead require that a person who  
               threatens to discharge a firearm on the campus of a school,  
               as specified who knew or should have known that the threat  
               could be taken as true, causing others to reasonably  
               believe that a shooting is likely to occur, is guilty of a  
               misdemeanor.

                 Revise the bill's provisions to provide that the fact  
               that precautionary measures were taken by a school or law  
               enforcement agency is evidence of a reasonable belief that  
               a shooting was likely to occur. 

                 Revise the bill's provisions for this new crime to  
               include a minor adjudged to be a delinquent ward of the  
               juvenile court, based upon a violation of this section is  
               liable to a public agency for any reasonable costs of the  
               emergency response to the person's threat by that public  








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               agency. 



          Members may wish to discuss whether these amendments strengthen  
          the bill with respect to the constitutional considerations noted  
          above. 
          
          5.  Background: School Threats 
          
          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 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  








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          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.)

          Based on these reports, it appears current law already addresses  
          the kinds of threats this bill seeks to address.  Members may  
          wish to discuss why current law is not adequate, and how this  
          bill would enhance campus safety against credible threats.

          6.  Related Bill

          SB 110 (Fuller), scheduled to be heard the same day as this  
          bill, similarly addresses threats relating to schools.  That  
          bill is broader, however targeting threats of "unlawful  
          violence," and does not include the more specific "true threat"  
          language proposed by this bill.

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