BILL NUMBER: AB 140 CHAPTERED
BILL TEXT
CHAPTER 563
FILED WITH SECRETARY OF STATE SEPTEMBER 29, 1999
APPROVED BY GOVERNOR SEPTEMBER 28, 1999
PASSED THE ASSEMBLY SEPTEMBER 9, 1999
PASSED THE SENATE SEPTEMBER 7, 1999
AMENDED IN SENATE SEPTEMBER 2, 1999
AMENDED IN SENATE AUGUST 17, 1999
AMENDED IN SENATE JULY 7, 1999
AMENDED IN ASSEMBLY APRIL 21, 1999
AMENDED IN ASSEMBLY MARCH 23, 1999
AMENDED IN ASSEMBLY MARCH 9, 1999
AMENDED IN ASSEMBLY FEBRUARY 25, 1999
INTRODUCED BY Assembly Member Hertzberg
(Principal coauthor: Senator Alarcon)
(Coauthors: Assembly Members Battin, Cunneen, Oller, and Zettel)
(Coauthor: Senator Polanco)
JANUARY 11, 1999
An act to add Article 4.6 (commencing with Section 11415) to
Chapter 3 of Title 1 of Part 4 the Penal Code, relating to terrorism.
LEGISLATIVE COUNSEL'S DIGEST
AB 140, Hertzberg. Prevention of terrorism.
Existing law proscribes various acts of terrorism.
This bill would enact the Hertzberg-Alarcon California Prevention
of Terrorism Act to make it a crime for any person, with specified
exceptions, to possess, develop, manufacture, produce, transfer,
acquire, or retain any weapon of mass destruction, as defined. The
bill would also penalize the use of a weapon of mass destruction
against a person, an animal, the food or water supply, crops, or
public natural resources; and the knowing threat to use, with
specified intent, or attempt to develop or use, a weapon of mass
destruction. With specified exceptions, the bill would furthermore
make it a crime to possess restricted biological agents, as defined.
The bill would require a peace officer who encounters any of the
restricted biological agents to immediately notify and consult with a
local public health officer to ensure proper consideration of any
public health risk. By creating new crimes and expanding the duties
of local peace officers and public health officers, this bill would
impose a state-mandated local program.
The bill would also make it a crime, punishable as either a felony
or a misdemeanor, for any person to knowingly threaten to use a
weapon of mass destruction, as specified, and resulting in an
isolation, quarantine, or decontamination effort. By creating a new
crime, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement, including the creation of a State Mandates Claims Fund
to pay the costs of mandates that do not exceed $1,000,000 statewide
and other procedures for claims whose statewide costs exceed
$1,000,000.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Article 4.6 (commencing with Section 11415) is added to
Chapter 3 of Title 1 of Part 4 of the Penal Code, to read:
Article 4.6. The Hertzberg-Alarcon California Prevention of
Terrorism Act
11415. This article shall be known and may be cited as the
Hertzberg-Alarcon California Prevention of Terrorism Act.
11416. The Legislature hereby finds and declares that the threat
of terrorism involving weapons of mass destruction, including, but
not limited to, chemical, biological, nuclear, or radiological
agents, is a significant public safety concern. The Legislature also
recognizes that terrorism involving weapons of mass destruction
could result in an intentional disaster placing residents of
California in great peril. The Legislature also finds it necessary
to sanction the possession, manufacture, use, or threatened use of
chemical, biological, nuclear, or radiological weapons, as well as
the intentional use or threatened use of industrial or commercial
chemicals as weapons against persons or animals.
11417. (a) For the purposes of this article, the following terms
have the following meanings:
(1) "Weapon of mass destruction" includes chemical warfare agents,
weaponized biological or biologic warfare agents, nuclear agents,
radiological agents, or the intentional release of industrial agents
as a weapon.
(2) "Chemical Warfare Agents" includes, but is not limited to, the
following weaponized agents, or any analog of these agents:
(A) Nerve agents, including Tabun (GA), Sarin (GB), Soman (GD),
GF, and VX.
(B) Choking agents, including Phosgene (CG) and Diphosgene (DP).
(C) Blood agents, including Hydrogen Cyanide (AC), Cyanogen
Chloride (CK), and Arsine (SA).
(D) Blister agents, including mustards (H, HD (sulfur mustard),
HN-1, HN-2, HN-3 (nitrogen mustard)), arsenicals, such as Lewisite
(L), urticants, such as CX; and incapacitating agents, such as BZ.
(3) "Weaponized biological or biologic warfare agents" include
weaponized pathogens, such as bacteria, viruses, rickettsia, yeasts,
fungi, or genetically engineered pathogens, toxins, vectors, and
endogenous biological regulators (EBRs).
(4) "Nuclear or radiological agents" includes any improvised
nuclear device (IND) which is any explosive device designed to cause
a nuclear yield; any radiological dispersal device (RDD) which is any
explosive device utilized to spread radioactive material; or a
simple radiological dispersal device (SRDD) which is any act or
container designed to release radiological material as a weapon
without an explosion.
(5) "Vector" means a living organism or a molecule, including a
recombinant molecule, or a biological product that may be engineered
as a result of biotechnology, that is capable of carrying a
biological agent or toxin to a host.
(6) "Weaponization" is the deliberate processing, preparation,
packaging, or synthesis of any substance for use as a weapon or
munition. "Weaponized agents" are those agents or substances
prepared for dissemination through any explosive, thermal, pneumatic,
or mechanical means.
(b) The intentional release of a dangerous chemical or hazardous
material generally utilized in an industrial or commercial process
shall be considered use of a weapon of mass destruction when a person
knowingly utilizes those agents with the intent to cause harm and
the use places persons or animals at risk of serious injury, illness,
or death, or endangers the environment.
(c) The lawful use of chemicals for legitimate mineral extraction,
industrial, agricultural, or commercial purposes is not proscribed
by this article.
(d) No university, research institution, private company,
individual, or hospital engaged in scientific or public health
research and, as required, registered with the Centers for Disease
Control and Prevention (CDC) pursuant to Part 113 (commencing with
Section 113.1) of Subchapter E of Chapter 1 of Title 9 or pursuant to
Part 72 (commencing with Section 72.1) of Subchapter E of Chapter 1
of Title 42 of the Code of Federal Regulations, or any successor
provisions, shall be subject to this article.
11418. (a) Any person, without lawful authority, who possesses,
develops, manufactures, produces, transfers, acquires, or retains any
weapon of mass destruction, shall be guilty of a felony punishable
in the state prison for 3, 6, or 9 years, provided that any person
who has been previously convicted of Section 11411, 11412, 11413,
11460, 12303.1, 12303.2, or 12303.3 shall be punished by imprisonment
in the state prison for a period of 4, 8, or 12 years.
(b) (1) Any person who uses or directly employs against another
person a weapon of mass destruction in a form that may cause
widespread, disabling illness, or injury in human beings shall be
punished by life in prison.
(2) Any person who uses a weapon of mass destruction in a form
that may cause widespread damage to and disruption of the water or
food supply shall be punished by imprisonment in the state prison for
a term of 4, 8, or 12 years, and a fine of not more than one hundred
thousand dollars ($100,000).
(3) Any person who maliciously uses against animals or crops a
weapon of mass destruction in a form that may cause widespread and
substantial diminution in the value of stock animals or crops shall
be punished by a fine of not more than one hundred thousand dollars
($100,000), imprisonment in the state prison for 4, 8, or 12 years,
or both.
(c) Any person who uses a weapon of mass destruction in a form
that may cause widespread and significant damage to public natural
resources, including coastal waterways and beaches, public parkland,
surface waters, ground water, and wildlife, shall be punished by
imprisonment in the state prison for 3, 4, or 6 years.
(d) Any person who uses recombinant technology or any other
biological advance to create new pathogens or more virulent forms of
existing pathogens for the purposes specified in this section, shall
be punished by imprisonment in a county jail for up to one year or in
the state prison for 3, 6, or 9 years, or by a fine of not more than
two hundred fifty thousand dollars ($250,000), or by both that fine
and imprisonment.
(e) Nothing in this section shall be construed to prevent
punishment instead pursuant to any other provision of law that
imposes a greater or more severe punishment.
11418.5. (a) Any person who knowingly threatens to use a weapon
of mass destruction, 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, 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, which
results in an isolation, quarantine, or decontamination effort, shall
be punished by imprisonment in a county jail for up to one year or
in the state prison for 3, 4, or 6 years, or by a fine of not more
than two hundred fifty thousand dollars ($250,000), or by both that
fine and imprisonment.
(b) For the purposes of this section, "sustained fear" can be
established by, but is not limited to, conduct such as evacuation of
any building by any occupant, evacuation of any school by any
employee or student, evacuation of any home by any resident or
occupant, or any other action taken in direct response to the threat
to use a weapon of mass destruction.
(c) The fact that the person who allegedly violated this section
did not actually possess a biological agent, toxin, or chemical
weapon does not constitute a defense to the crime specified in this
section.
(d) Nothing in this section shall be construed to prevent
punishment instead pursuant to any other provision of law that
imposes a greater or more severe punishment.
11419. (a) Any person or entity possessing any of the restricted
biological agents enumerated in subdivision (b) shall be punished by
a fine of not more than two hundred fifty thousand dollars
($250,000), imprisonment in the state prison for 4, 8, or 12 years,
or by both that fine and imprisonment.
(b) For the purposes of this section, "restricted biological
agents" means the following:
(1) Viruses: Crimean-Congo hemorrhagic fever virus, eastern
equine encephalitis virus, ebola viruses, equine morbilli virus,
lassa fever virus, marburg virus, Rift Valley fever virus, South
African hemorrhagic fever viruses (Junin, Machupo, Sabia, Flexal,
Guanarito), tick-borne encephalitis complex viruses, variola major
virus (smallpox virus), Venezuelan equine encephalitis virus, viruses
causing hantavirus pulmonary syndrome, yellow fever virus.
(2) Bacteria: bacillus anthracis (commonly known as anthrax),
brucella abortus, brucella melitensis, brucella suis, burkholderia
(pseudomonas) mallei, burkholderia (pseudomonas) pseudomallei,
clostridium botulinum, francisella tularensis, yersinia pestis
(commonly known as plague).
(3) Rickettsiae: coxiella burnetii, rickettsia prowazekii,
rickettsia rickettsii.
(4) Fungi: coccidioides immitis.
(5) Toxins: abrin, aflatoxins, botulinum toxins, clostridium
perfringens epsilon toxin, conotoxins, diacetoxyscirpenol, ricin,
saxitoxin, shigatoxin, staphylococcal enterotoxins, tetrodotoxin, T-2
toxin.
(c) (1) This section shall not apply to any physician,
veterinarian, pharmacist, or licensed medical practitioner authorized
to dispense a prescription under Section 11026 of the Health and
Safety Code, or universities, research institutions, or
pharmaceutical corporations, or any person possessing the agents
pursuant to a lawful prescription issued by a person defined in
Section 11026 of the Health and Safety Code, if the person possesses
vaccine strains of the viral agents Junin virus strain #1, Rift
Valley fever virus strain MP-12, Venezuelan equine encephalitis virus
strain TC-83 and yellow fever virus strain 17-D; any vaccine strain
described in Section 78.1 of Subpart A of Part 78 of Subchapter C of
Chapter 1 of Title 9 of the Code of Federal Regulations, or any
successor provisions, and any toxin for medical use, inactivated for
use as vaccines, or toxin preparation for biomedical research use at
a median lethal dose for vertebrates of more than 100 ng/kg, as well
as any national standard toxin required for biologic potency testing
as described in Part 113 (commencing with Section 113.1) of
Subchapter E of Chapter 1 of Title 9 of the Code of Federal
Regulations, or any successor provisions.
(2) For the purposes of this section, no person shall be deemed to
be in possession of an agent if the person is naturally exposed to,
or innocently infected or contaminated with, the agent.
(d) Any peace officer who encounters any of the restricted agents
mentioned above shall immediately notify and consult with a local
public health officer to ensure proper consideration of any public
health risk.
(e) Nothing in this section shall be construed to prevent
punishment instead pursuant to any other provision of law that
imposes a greater or more severe punishment.
SEC. 2. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution for certain
costs that may be incurred by a local agency or school district
because in that regard this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.
However, notwithstanding Section 17610 of the Government Code, if
the Commission on State Mandates determines that this act contains
other costs mandated by the state, reimbursement to local agencies
and school districts for those costs shall be made pursuant to Part 7
(commencing with Section 17500) of Division 4 of Title 2 of the
Government Code. If the statewide cost of the claim for
reimbursement does not exceed one million dollars ($1,000,000),
reimbursement shall be made from the State Mandates Claims Fund.