BILL ANALYSIS                                                                                                                                                                                                    Ó




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

          Bill No:    SB 821        Hearing Date:    April 5, 2016     
          
           ----------------------------------------------------------------- 
          |Author:    |Block                                                |
          |-----------+-----------------------------------------------------|
          |Version:   |March 8, 2016                                        |
           ----------------------------------------------------------------- 
           ----------------------------------------------------------------- 
          |Urgency:   |No                     |Fiscal:    |Yes              |
           ----------------------------------------------------------------- 
           ----------------------------------------------------------------- 
          |Consultant:|JM                                                   |
          |           |                                                     |
           ----------------------------------------------------------------- 


                         Subject:  Crimes: Criminal Threats



          HISTORY

          Source:   San Diego County District Attorney

          Prior Legislation:SB 110 (Fuller) 2015 - Vetoed

          SB 456 (Block) 2015 - Vetoed
          Support:  Association of California School Administrators;  
                    Association of Deputy District Attorneys; Association  
                    for Los Angeles County Deputy Sheriffs; Brady  
                    Campaign, California Chapter; California District  
                    Attorneys Association; California State Sheriffs'  
                    Association; Los Angeles Police Protective League;  
                    Peace Officers Research Association of California;  
                    Riverside Sheriffs Association

          Opposition:California Attorneys for Criminal Justice; California  
                    Public Defenders Association; Legal Services for  
                    Prisoners with Children; Pacific Juvenile Defender  
                    Center 

           









          SB 821  (Block )                                           Page  
          2 of ?
          
          
          PURPOSE

          The purpose of this bill is to provide that a threat to cause  
          death or great bodily injury at a location or event is a crime  
          if the threat is made under circumstances where a person  
          perceiving the threat believes it to be unequivocal,  
          unconditional and immediate, thereby causing the evacuation,  
          lockdown or closure of a campus or event, or the cancellation of  
          an event.

          Existing law provides 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, ? is to be taken as a threat, even if there is no  
          intent of actually carrying it out, which ? 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," is guilty  
          of an alternate felony-misdemeanor, punishable by jail  term of  
          up to one year, a fine of up to $1,000, or both, or by  
          imprisonment in the state prison for 16 months, two years or  
          three years.  (Pen. Code § 422)
           
           This bill expands the criminal threats statute to cover  
          circumstances where the perpetrator makes a threat to commit a  
          crime that will result in death or great bodily injury "at a  
          location or event." 

          This bill provides that a criminal threat to cause death or  
          great bodily at a public or private location or event must  
          "convey to a person perceiving the threat a gravity of purpose  
          and an immediate prospect of execution of the threat, thereby  
          caus[ing] the evacuation, lockdown, or closure of a campus, or  
          the cancellation, evacuation, lockdown, or closure of an event."

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past several 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  








          SB 821  (Block )                                           Page  
          3 of ?
          
          
          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 December of 2015 the administration reported that as "of  
          December 9, 2015, 112,510 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.0% of design bed  
          capacity, and 5,264 inmates were housed in out-of-state  
          facilities.  The current population is 1,212 inmates below the  
          final court-ordered population benchmark of 137.5% of design bed  
          capacity, and has been under that benchmark since February  
          2015."  (Defendants' December 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).)  One  
          year ago, 115,826 inmates were housed in the State's 34 adult  
          institutions, which amounted to 140.0% of design bed capacity,  
          and 8,864 inmates were housed in out-of-state facilities.   
          (Defendants' December 2014 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 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;








          SB 821  (Block )                                           Page  
          4 of ?
          
          
              Whether a proposal addresses a major area of public safety  
               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.   Need for This Bill

          According to the author:

               Currently Penal Code Section 422 prohibits a threat to  
               commit a crime that will result in great bodily  
               injury, which is directed at a specific person, and  
               the person suffers sustained fear as a result of the  
               threat. With the increasing availability of software  
               that grants a user's anonymity, there have been  
               [increasing] threats made against locations (i.e.  
               schools and colleges) versus against specific  
               individuals. These threats, together with an increase  
               in actual incidents of mass shootings at events, such  
               as at a work holiday party in San Bernardino, at movie  
               theaters, and at schools throughout the country,  
               instill terror in the public and require that threats  
               directed at locations and events be taken seriously.

               While some threats may not be credible, many are and  
               have resulted in precautionary measures to ensure that  
               the community remains safe, burdening law enforcement  
               and the entities threatened.  A recent study from the  
               National School Safety and Security Services found  
               that threats made toward a school campus have  
               increased 158% between August and December of 2014; of  
               this increase, 37% of them are being sent  
               electronically.   Approximately 30% of school threats  
               led to the evacuation of the school, while 10%  








          SB 821  (Block )                                           Page  
          5 of ?
          
          
               resulted in a campus closure on the day that the  
               threat.  The study found that California ranked second  
               nationally, with 60 threats made in the first half of  
               the 2014-2015 school year.

               In March 2015, officers responded to threats at ten  
               schools in the San Diego Unified School District, with  
               at least four involving a threat of a shooting.    
               There have been 12 district school shooting threats  
               from July 2015 to January 2016.  In December 2015,  
               after members of the LA Board of Education received  
               threats that mentioned explosive devices, assault  
               rifles, and machine pistols, Los Angeles Unified  
               School District closed all 900 campuses, impacting  
               more than 640,000 students and their families.  
               Superintendent of Public Instruction, Tom Torlakson  
               noted the possibility that the LAUSD might not receive  
               nearly $29 million in average daily attendance funding  
               due to the shut-down.

               A person who communicates a threat such as the one  
               that shut-down all LAUSD schools cannot be charged  
               under current law (Pen. Code§ 422), since the threat  
               did not target a specific individual.  SB 821 amends  
               Section 422 to ensure that a violation is not limited  
               to proof of a specifically targeted individual, or a  
               demonstration of a sustained fear by any one  
               particular person, but can include a threat to commit  
               a crime made against a location or event which will  
               result in death or great bodily harm of a person or  
               persons. This change reflects the present-day nature  
               of criminal threats.  The harm caused by a threat to  
               the public at a location or event is often greater  
               than the harm caused by a threat to an individual.  

          2.   The New Crime Defined by this Bill Would not Require  
            Proof That the Threat Recipient or Perceiver Reasonably  
            Believed the Threat 

          The existing criminal threats statute prohibits threats to  
          cause great bodily injury or death made to a specific  
          person that are so credible that person to whom the threat  
          is made reasonably believes that the threat will be carried  
          out, placing the victim in sustained fear.  Under this  








          SB 821  (Block )                                           Page  
          6 of ?
          
          
          bill, while the person who received or perceived the threat  
          might find it credible, a reasonable person might find the  
          threat to be spurious.  Arguably, where a person can be  
          subject to criminal penalties for making a threat, the  
          decision to evacuate a school or cancel an event should be  
          reasonable, not an over-reaction to a threat of dubious  
          validity.  Further, the persons at apparent risk could be  
          placed in serious fear because of the conduct of the  
          authorities who ordered the evacuation or cancellation, not  
          the nature or credibility of the threat.

          Concerns may be expressed that because authorities cannot  
          afford to take chances with public safety, a reasonableness  
          standard would be too restrictive.  However, a history or  
          pattern of executed threats in the area where the threat  
          was made, or executed threats that occurred in similar  
          circumstances, would establish that the reaction of  
          authorities was reasonable

          SHOULD THE DECISION TO EVACUATE A PLACE OR CANCEL AN EVENT IN  
          RESPONSE TO A THREAT BE REASONABLE BEFORE THE THREAT MAKER CAN  
          BE CHARGED WITH A CRIME?

          3.   The Crime Defined by this Bill Does not Require that  
            the Persons Under Threat be Aware of the Threat

          This bill neither requires that the person or persons who  
          would be injured or killed by the threatened action receive  
          the threat, nor even be aware of the threat.  Essentially,  
          the bill does not require that any person actually be  
          placed in fear by the threat.  In many cases, students at a  
          school or attendees of an event will become aware of the  
          threat when a location is evacuated or an event cancelled.   
          In many cases, the persons who would be harmed by the  
          threatened action would experience serious and sustained  
          fear.  However, there may be numerous cases where the  
          persons at apparent risk would neither be aware of the  
          threat or placed in fear.

          It may be argued that a major harm caused by a threat to  
          cause injury at a location or event is the substantial  
          disruption, inconvenience and costs experienced by those  
          affected by the threat.  Disruptions could include closure  
          of a school or cancellation of a large event.  However,  








          SB 821  (Block )                                           Page  
          7 of ?
          
          
          that is a different kind of harm than the sustained fear  
          suffered by a victim of a crime under the existing threat  
          statute.

          SHOULD THIS BILL REQUIRE THAT THE PERSONS AT A LOCATION OR  
          EVENT WHO ARE SUBJECT TO A CRIMINAL THREAT BE AWARE THE  
          THREAT WAS MADE?

          4.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.)   "[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.)

          However, the First Amendment is not absolute.  Speech or  
          expressive conduct intended to intimidate is not protected by  
          the First Amendment.  (Virginia v. Black (2003) 538 U.S. 343.)   
          "True threats" are a specific form of unprotected, intimidating  
          speech.   Alleged threats should be considered in light of their  
          entire factual context, including the surrounding events and  
          reactions of the listeners.  ? A threat made such that "a  
          reasonable person would foresee that the listener will believe  
          he will be subjected to physical violence? is unprotected by the  
          First Amendment."  (Planned Parenthood of the  
          Columbia/Willamette v. American Coalition of Life Activists  
          (2002) 290 F.3rd 1058, 1077.)

          5.   Federal Court Decisions in Threats Cases - Unresolved  
          Issues

          The United States Supreme Court in Elonis v. United States  
          (2015) 135 S.Ct. 2001, reversed a federal conviction  in a case  
          where the defendant placed threatening statements and misogynist  
          rants on his Facebook page, largely in the form of rap lyrics.   
          The targets were his ex-wife, co-workers, a kindergarten class  
          and law enforcement officials.  Although the defendant wrote  
          some notes that the lyrics were artistic expressions, the  
          threats were often very detailed and specific.









          SB 821  (Block )                                           Page  
          8 of ?
          
          
          It was widely believed that the Court in Elonis would decide  
          whether or not a true threat must include an intent to carry out  
          the threat.  However, the Supreme Court sidestepped the intent  
          issue and reversed Elonis' conviction on grounds that he could  
          have been convicted under a negligence standard, while a  
          criminal conviction requires a more culpable and knowing state  
          of mind.  Commentators have argued that the decision raises more  
          issues than it settles.  It appears that the Court did not  
          specifically rule what mental state is required for a true  
          threats conviction.  Justice Alito's opinion argued that  
          recklessness would suffice, but no other justice agreed.

          Federal District Court decisions appear to hold that federal  
          threat statutes do not require that a threat be made directly to  
          the threatened person.  However, it is not clear what level of  
          connection between the maker and the target of the threat would  
          constitute a criminal threat under federal law.  In one case,  
          the defendant's statements to his insurance adjuster that he  
          wanted to kill a congressman "were held not to be threats  
          because the statements were not made directly to the intended  
          victim, with absolutely no connection between the recipient  
          [insurance adjuster] and the intended victim."  (U.S. v.  
          Schuelier (2015) 2015 U.S. Dist. Lexis 138768, citing and  
          explaining U.S. v. Fenton (W.D. Pa 1998) 30 F.Supp. 2d 520,  
          526.)  Other federal cases have focused on the explicit and  
          certain nature of a threat - not whether it was communicated to  
          the intended victim.  A federal threat conviction will be upheld  
          if the defendant called upon a specific person to take action  
          against the target of the threat.  (U.S. v. Wheeler (10th Cir.  
          2015) 776 F.3d 736, 746.)  Finally, the court in Schuelier  
          stated that the U.S. Supreme Court has not extended special  
          First Amendment protection to threats that arise out of personal  
          disputes, rather than matters of politics and other public  
          interests.  (See, Watts v. U.S. (1969 394 U.S. 705, 708.)

          It is likely that a conviction under this bill, especially for a  
          felony, may be challenged on due process and First Amendment  
          grounds.  The applicable decisional law is not nearly so clear  
          as to suggest the outcome of such litigation.

                                      -- END -


          








          SB 821  (Block )                                           Page  
          9 of ?