BILL ANALYSIS Ó
SB 456
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Date of Hearing: June 16, 2015
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
SB
456 (Block) - As Amended June 9, 2015
As Proposed to be Amended in Committee
SUMMARY: 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. Specifically, this bill:
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1)States that any person who threatens to discharge a firearm
which will result in death or great bodily injury on the
campus of a school, or location where a school-sponsored event
is or will be taking place, with the specific intent that the
statement is to 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, is guilty of a misdemeanor or a
county-jail eligible felony.
2)Provides that a threat to discharge a firearm 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, and social media, and by any other
means.
3)Defines "school" as a state preschool, private or public
elementary school, middle school, vocational school, junior
high school, high school, community college, or public or
private university.
4)Specifies that the provisions of this bill do not preclude or
prohibit prosecution under any other law.
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
safety shall be punished by either a misdemeanor or felony, as
specified. (Pen. Code, § 11418.5, subd. (a).)
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FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "Senate Bill 456
addresses oral, written, or electronically delivered threats
of gun violence on school property - including elementary
schools, community colleges, public and private universities,
and locations where school functions are taking place.
Threats of gun violence are costly to schools and law
enforcement, and result in lost learning time for our
students. These threats also create anxiety and fear for
students, school staff, and parents. SB 456 will provide an
important tool for law enforcement to deter future threats of
gun violence in our schools."
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."
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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
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
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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
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, the 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 pass constitutional muster.
3)Elements Required for Criminal Threat Prosecutions: In order
to convict a person under the current criminal threat statute,
Penal Code section 422, the prosecutor must prove the
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following:
a) that the defendant willfully threatened to commit a
crime which will result in death or great bodily injury to
another person;
b) that the defendant made the threat;
c) that the defendant intended that the statement is to be
taken as a threat, even if there is no intent of actually
carrying it out;
d) that the threat was 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;
e) that the threat actually caused the person threatened to
be in sustained fear for his or her own safety or for his
or her immediate family's safety; and
f) that the threatened person's fear was reasonable under
the circumstances. (Pen. Code, §422; CALCRIM No. 1300.)
The language in the current criminal threats statute was
carefully crafted to avoid constitutional issues. In People v.
Mirmirani, supra, 30 Cal. 3d 375, the California Supreme Court
held that the former Penal Code section 422 was void for
vagueness in violation of the due process clause of the
California constitution. The Court's opinion noted that the
federal circuit court decision in United States v. Kelner,
supra, 534 F.2d 1020, held that a "threat can be penalized
only if, 'the threat ' 'on its face and in the circumstances
in which it is made . . . is so unequivocal, unconditional,
immediate and specific as to the person threatened, as to
convey a gravity of purpose and imminent prospect of execution
. . . .'" (People v. Mirmirani, supra, 30 Cal. 3d at p. 388,
fn. 10, quoting United States v. Kelner, supra, 534 F.2d at p.
1027; see also People v. Toledo (2001) 26 Cal. 4th 221.)
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Following the Court's decision in People v. Mirmirani, the
California Legislature repealed Penal Code section 422 and
replaced it with a new criminal threats statute adopting the
specific language referenced in the case in order to limit the
type of threat covered by the statute.
Penal Code section 422 applies to all criminal threats which
will result in death or great bodily injury regardless of
location or the exact type of violence that is threatened.
This bill creates the specific crime of criminal threats when
the threat is to discharge a firearm on the campus of a school
or where a school-sponsored event is taking place. This bill
incorporates all of the elements from the general criminal
threats statute with the exception of the requirement that the
person threatened must be in sustained fear for his or her own
safety. The sponsor of this bill has expressed that this
element does not fit well into instances of threats of
shootings at schools because often times these threats do not
specify who the target is. Rather, the threat typically
applies to all students or staff at the school.
4)Argument in Support: According to the San Diego County
District Attorney's Office, "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.
"With the increased availability of anonymized software
applications, threats against schools have escalated, and
whether the threats are legitimate or not, they have an
enormous impact on the community. Noted school safety expert,
Kenneth S. Trump, President of National School Safety and
Security Services directed a study of school threats across
the country. Over 812 school threats from August to September
2014 were studied, including 60 in California alone. The
number of threats was up 158% from last year, with 37% of
those threats sent electronically via social media, e-mail,
text messaging and other online resources. Almost 30% of the
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threats analyzed resulted in the evacuation of schools and 10%
resulted in school closures for at least a part of the day.
In the San Diego School District, alone, there have been 138
reported threats in the past year; and in March 2015, officers
responded to threats involving ten different schools. At least
four of those reported in March involved a threat of a school
shooting.
"Significant costs are often associated with threats that target
schools. The costs range from hundreds to hundreds of
thousands of dollars depending on the response. Additionally,
the diversion of law enforcement staff and resources to attend
to the exigencies of some threats are immense. Not only may
officers expend effort penetrating the walls of anonymity to
conduct an effective investigation, but additional resources,
time, and opportunity costs, are often required to insure the
community is safe by shutting down the targeted schools and
sometimes even their surrounding neighborhoods, in order to
avoid a catastrophe in the even the threat is legitimate.
"SB 456 specifically applies to school-shooting 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 is necessary; not
only to hold offenders accountable and to shift the burden of
the costs they create back to them by authorizing the court to
order restitution for the costs of the emergency responses to
the threats, but to deter such conduct as well."
5)Argument in Opposition: According to Public Counsel, "SB 456
is unnecessary and ultimately will not help the safety or
long-term well-being of our students or our state. Students
who make these threats aimed at a school or other youth -
whether by electronic means or otherwise - can be subjected to
discipline, including suspension or expulsion. See Cal. Educ.
Code §§ 48900.4, 48900.7; see also Cal. Educ. Code § 48900(r).
Further, state law already punishes threats of death or other
serious harm that reasonably cause fear and other harassing
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threats, whether at school or otherwise. See Cal. Penal Code
§§ 422, 653m.
"Criminalizing students in addition to punishing them at
school will cause significant and long-lasting harms to our
young people and hurt their ability to develop into productive
adults. Research shows being stopped or arrested actually
increases the chances that a youth will engage in delinquency.
Further, a first-time arrest doubles the chances that a
student will drop out of high school, and a first-time court
appearance quadruples those chances. Studies have also shown
that involvement with the juvenile justice system can limit a
young person's ability to obtain future employment or attend
college."
6)Related Legislation: SB 110 (Fuller) makes it a misdemeanor
offense for any person to threaten unlawful violence to occur
upon the grounds of a school where the threat creates a
disruption at the school. SB 110 is pending hearing by this
Committee.
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
destruction, as specified, and resulting in an isolation,
quarantine, or decontamination effort.
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REGISTERED SUPPORT / OPPOSITION:
Support
San Diego County District Attorney's Office (Sponsor)
Association for Los Angeles Deputy Sheriffs
California Chapters of the Brady Campaign
California District Attorneys Association
California State Sheriffs' Association
Law Center to Prevent Gun Violence
Los Angeles Association of Deputy District Attorneys
Los Angeles County District Attorney's Office
Los Angeles Police Protective League
Peace Officers Research Association of California
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Riverside Sheriffs Association
Opposition
American Civil Liberties Union of California
California Public Defenders Association
Firearms Policy Coalition
Legal Services for Prisoners with Children
Public Counsel
Analysis Prepared by:Stella Choe / PUB. S. / (916)
319-3744
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