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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