BILL ANALYSIS
AB 412
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Date of Hearing: April 22, 2009
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Kevin De Leon, Chair
AB 412 (Carter) - As Amended: March 23, 2009
Policy Committee: Public
SafetyVote: 7-0
Urgency: No State Mandated Local Program:
Yes Reimbursable: No
SUMMARY
Makes it a misdemeanor, punishable by up to one year in county
jail and/or a fine of up to $5,000 to hang a noose, knowing it
to be a symbol representing a threat to life, on the private
property of another for the purpose of terrorizing the owner or
occupant of that property or in reckless disregard of the risk
of terrorizing the owner or occupant of that property, or to
hang a noose, knowing it to be a symbol representing a threat to
life, on the property of a school, college, public park or place
of employment for the purpose of terrorizing any person who
attends or works at the school, park or place of employment.
A repeat offense is punishable by up to one year in county jail
and/or a fine of up to $15,000.
FISCAL EFFECT
1)Non-reimbursable local law enforcement and incarceration
costs, offset to a degree by increased fine revenue.
2)Unknown, likely less than $150,000, increase in annual state
trial court costs to the extent this bill results in
additional criminal trials, at a cost of about $3,000 per day.
COMMENTS
1)Rationale. According to the author, current law does not
provide an explicit deterrent to hanging a noose, a well known
symbol that represents a terroristic threat to life and
safety. This bill enhances current law to discourage potential
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noose hangers from threatening, or carrying out, an act of
murder by noose hanging.
The author states, "At the request of the California State
Conference of the National Association for the Advancement of
Colored People (NAACP), I have introduced this bill in
response to recent incidents of noose hangings at college
campuses and other public venues in our state. One hundred
years ago, the NAACP was founded in response to a then common
practice of murdering African-Americans by noose hangings.
Just as they were in the past, the recent noose hangings in
California are directly correlated with racial hatred and
murder. This kind of act represents a real threat to life and
safety, and it has terrorized many college students and
residents of our state. Hanging a noose is simply
unimaginable, intolerable and a threat to public safety."
2)Current Law.
a) Makes it a misdemeanor, punishable by up to one year in
county jail and/or a fine of up to $5,000 to display a
sign, mark, symbol, emblem, or other physical impression,
including, but not limited to, a Nazi swastika on the
private property of another for the purpose of terrorizing
the owner or occupant of that property or in reckless
disregard of the risk of terrorizing the owner or occupant
of that private property. A repeat offense is punishable by
up to one year in county jail and/or a fine of up to
$15,000.
b) Makes it an alternate felony/misdemeanor, punishable by
16 months, two, or three years in state prison and/or a
fine of up to $10,000, to engage in a pattern of conduct
for the purpose of terrorizing the owner or occupant of
private property or in reckless disregard of terrorizing
the owner or occupant of that property, by placing or
displaying a sign, mark, symbol, emblem, or other physical
impression, including, but not limited to, a Nazi swastika,
on the property of another on two or more occasions.
c) Makes it an alternate felony/misdemeanor, punishable by
16 months, two, or three years in state prison and/or a
fine of up to $10,000, to burn or desecrate a cross or
other religious symbol, knowing it to be a religious
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symbol, on the private property of another for the purpose
of terrorizing the owner or occupant of that property or in
reckless disregard of the risk of terrorizing the owner or
occupant of that property, or to burn, or desecrate a cross
or other religious symbol, knowing it to be a religious
symbol, on the property of a K-12 school, for the purpose
of terrorizing any person who attends or works at the
school or who is otherwise associated with the school.
3)First Amendment free speech issues . As the U.S. 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."
As speech strays further from the values of persuasion,
dialogue and free exchange of ideas and moves toward willful
threats to perform illegal acts, the state has greater
latitude to regulate expression. [Shackelford v. Shirley (5th
Cir. 1991) 948 F.2d at p. 938.]
For a review of free speech issues related to AB 412, see the
Assembly Public Safety Committee analysis.
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081