BILL ANALYSIS Ó SB 456 Page 1 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: SB 456 Page 2 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: SB 456 Page 3 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).) SB 456 Page 4 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." SB 456 Page 5 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 SB 456 Page 6 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 SB 456 Page 7 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.) SB 456 Page 8 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 SB 456 Page 9 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 SB 456 Page 10 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. SB 456 Page 11 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 SB 456 Page 12 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 SB 456 Page 13