BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 821 Hearing Date: April 5, 2016
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|Author: |Block |
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|Version: |March 8, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JM |
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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
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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
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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;
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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%
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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
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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,
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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.
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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.
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