BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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3
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AB 2380 (Lowenthal) 0
As Amended March 24, 2010
Hearing date: June 15, 2010
Penal Code
AA:dl
CHILD ABUSE:
MANDATED REPORTING
HISTORY
Source: City Attorney of Los Angeles
Prior Legislation: None
Support: California District Attorneys Association; State Public
Affairs Committee, Junior Leagues of California; Board
of Behavioral Sciences; Crime Victims Action Alliance
Opposition:None known
Assembly Floor Vote: Ayes 74 - Noes 0
KEY ISSUE
SHOULD THE DEFINITION OF "REASONABLE SUSPICION" AS APPLICABLE TO A
MANDATED CHILD ABUSE OR NEGLECT REPORTER BE CLARIFIED TO PROVIDE
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THAT IT DOES NOT REQUIRE CERTAINTY THAT A CHILD HAS BEEN ABUSED, AND
MAY BE BASED ON CREDIBLE INFORMATION FROM OTHER INDIVIDUALS, AS
SPECIFIED?
PURPOSE
The purpose of this bill is to provide that a "reasonable
suspicion" that a child has been a victim of child abuse or
neglect does not require certainty that a child has been abused,
and may be based on credible information from other individuals
for the purpose of making a report under the Child Abuse and
Neglect Reporting ACT (CANRA), as specified.
Current law contains the Child Abuse and Neglect Reporting Act
("CANRA"), which generally is intended to protect children from
abuse and neglect. (Penal Code 11164 et seq.)
Under current law the term "child abuse or neglect" for the
purposes of CANRA "includes physical injury or death inflicted
by other than accidental means upon a child by another person,
sexual abuse . . . , neglect . . . , the willful harming or
injuring of a child or the endangering of the person or health
of a child, . . . and unlawful corporal punishment or injury . .
. . 'Child
abuse or neglect' does not include a mutual affray between
minors. 'Child abuse or neglect' does not include an injury
caused by reasonable and necessary force used by a peace officer
acting within the course and scope of his or her employment as a
peace officer." (Penal Code 11165.6.)
Current law requires a mandated reporter to make a report
"whenever the mandated reporter, in his or her professional
capacity or within the scope of his or her employment, has
knowledge of or observes a child whom the mandated reporter
knows or reasonably suspects has been the victim of child abuse
or neglect. . . ." (Penal Code 11166.)
Current law provides that, "(f)or the purposes of this article,
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"reasonable suspicion" means
that it is objectively reasonable for a person to entertain a
suspicion, based upon facts that could cause a reasonable person
in a like position, drawing, when appropriate, on his or her
training and experience, to suspect child abuse or neglect. For
the purpose of this article, the pregnancy of a minor does not,
in and of itself, constitute a basis for a reasonable suspicion
of sexual abuse." (Penal Code 11166(a)(1).)
This bill would add the following language to the existing
definition of "reasonable suspicion" for purposes of CANRA:
"Reasonable suspicion" does not require certainty that
child abuse or neglect has occurred nor does it
require a specific medical indication of child abuse
or neglect; any "reasonable suspicion" is sufficient.
"Reasonable suspicion" may be based on any information
considered credible by the reporter, including
statements from other individuals.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
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"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
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Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
This bill does not aggravate the prison overcrowding crisis
described above.
COMMENTS
1. Stated Need for This Bill
The author states:
Across all professions who deal with the abuse of
children there appears one constant: there is great
confusion regarding what constitutes "reasonable
suspicion" for purposes of triggering the legal
mandated reporting obligation.
It is clear that while the intent of the law is to
insure that all reasonable suspicions of child abuse
and neglect are reported, the lack of a consistent
understanding of what this phrase means has obviously
inhibited many professionals from reporting abuse in a
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<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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proper and timely fashion. This is particularly
evident among medical professionals who we work with
where reports are often delayed by hours, if not days,
while a specific medical diagnosis is determined.
The delay in reporting can result in the destruction
of crime scene evidence and may ultimately inhibit
efforts of law enforcement personnel to identify
perpetrators and to hold them accountable for their
physical and sexual abuse of children. Not to mention
the obvious fear that continuing and prolonged abuse
of children will go undetected and unreported.
This bill amends Penal Code Section 11166(a)(1) to
clarify the definition of "reasonable suspicion" as
the trigger for the mandating reporting of child abuse
by making it clear that no actual knowledge is
required. The bill would also make clear in the
definition that statements from third parties are an
acceptable source of information when determining
whether or not there is "reasonable suspicion."
Attached is a Pediatrics Journal article which
demonstrates this problem. In addition, the Office of
the City Attorney of Los Angeles, through its
participation in the Inter-Agency Council on Child
Abuse and Neglect (ICAN) has frequently heard from
mandated reporters that they feel the current language
is too vague and that they must have concrete
knowledge before they can make a report, which is not
the case.
2. What This Bill Would Do
As explained above, under current law the trigger for mandated
child abuse and neglect reports is whenever the mandated
reporter, in his or her professional capacity or within the
scope of his or her employment, has knowledge of or observes a
child whom the mandated reporter knows or reasonably suspects
has been the victim of child abuse or neglect. . . ."
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"Reasonable suspicion" is defined to mean that it is objectively
reasonable for a person to entertain a suspicion, based upon
facts that could cause a reasonable person in a like position,
drawing, when appropriate, on his or her training and
experience, to suspect child abuse or neglect.
This bill would clarify and expand the definition of "reasonable
suspicion" applicable to mandatory child abuse and neglect
reporters to expressly provide that reasonable suspicion in this
context: 1) does not require certainty that child abuse or
neglect has occurred; 2) does not require a specific medical
indication of child abuse or neglect; 3) provides that any
"reasonable suspicion" is sufficient; and 4) provides that
"reasonable suspicion" may be based on any information
considered credible by the reporter, including statements from
other individuals.
3. Background - "Reasonable Suspicion"
The Los Angeles County Child Abuse and Neglect Protocol,
prepared by the Inter-Agency Council on Child Abuse and Neglect,
includes the following information about the reasonable
suspicion reporting standard under current law:
Reasonable suspicion means that it is objectively
reasonable for a person to
entertain a suspicion, based upon facts that could
cause a reasonable person in
a like position, drawing, when appropriate, on his or
her training and experience,
to suspect child abuse or neglect. {PC 11166(a)(1)}
[P]rofessionals . . . must evaluate facts known to
them in light of their
training and experience to determine whether they
have an objectively
reasonable suspicion of child abuse. [Citation.]
However, nothing in the
Act requires professionals . . . to obtain
information they would not
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ordinarily obtain in the course of providing care
or treatment. Thus, the
duty to report [to a child protective agency] must
be premised on
information obtained by the [professional] in the
ordinary course of
providing care and treatment according to
standards prevailing in the
medical profession. Whether this information
creates a reasonable
suspicion of reportable child abuse will depend in
many instances on
application of the [professional's] training and
experience, as the act
expressly directs. People ex rel. Eichenberger v.
Stockton Pregnancy
Control Medical Clinic, Inc. (1988) 203 Cal. App.
3d 225, 239-240.<2>
These protocols include an appendix entitled, "Determining
Reasonable Suspicion," which includes the following general
observation:
Because each mandated reporter determines reasonable
suspicion based on his or her own training and
experience, not every factor in this document will
apply to every professional; nor is this document
intended to encourage professionals to exceed their
scope of practice. These guidelines are prepared to be
used in conjunction with the Los Angeles County Child
Abuse Protocol.
The mandated reporter should not conduct an
investigation. Once he or she determines reasonable
suspicion of abuse or neglect exists, the only
obligation is to file a report. It is the job of law
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<2> Protocols available online at
http://ican4kids.org/documents/LACounty_Child_Abuse_and_Neglect_P
rotocol.pdf .
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enforcement, DCFS, and the courts to determine whether
or not child abuse has in fact occurred. When a
well-meaning mandatory reporter seeks more information
than necessary to determine reasonable suspicion, it
can inadvertently impact a future investigation. For
example, repeated detailed questioning of the child
may influence future disclosures or potential
testimony. In addition, such a premature
investigation may signal a parent to make up
explanations or destroy evidence. Any of these
situations could doom the child to future abuse.<3>
WILL THE LANGUAGE IN THIS BILL PROMOTE A BETTER UNDERSTANDING OF
THE TERM "REASONABLE SUSPICION" IN THE CONTEXT OF MANDATORY
CHILD ABUSE AND NEGLECT REPORTING?
This bill would expressly state that, "reasonable suspicion" may
be based on any information considered credible by the reporter,
including statements from other individuals." The author and/or
members of the Committee may wish to consider whether the
addition of this language may inadvertently lead mandated
reporters to believe that they should conduct witness interviews
on their own, which is counter to the protocols noted above.
4. Background: The Child Abuse Central Index; Ongoing Concerns
The Department of Justice ("DOJ") maintains the Child Abuse
Central Index ("CACI"), which is a "statewide reference file"<4>
intended to refer authorized individuals or entities to
underlying child abuse investigative reports maintained at the
reporting agency.
In 2007, DOJ indicated that CACI contained the following
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<3> Id.
<4> California Code of Regulations ("CCR"), tit. 11, 900.
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aggregate information:
Number of Reports in CACI =773,473
Number of Suspects in CACI =816,468
Number of Victims in CACI =995,612
CACI was created in 1965 as a centralized system for collecting
reports of suspected child abuse from law enforcement agencies,
physicians, teachers and others. Access to CACI initially was
limited to official investigations of open child abuse cases, but
in 1986 the Legislature expanded access to allow the Department
of Social Services (DSS) to use the information for running
background checks on applications for licenses, adoptions, and
employment in child care and related services positions. DOJ
provides the following summary of CACI on its current Web site:
The Attorney General's Child Protection Program
administers the Child Abuse Central Index, which was
created by the Legislature in 1965 as a tool for state
and local agencies to help protect the health and
safety of California's children.
Each year, child abuse investigations are reported to
the Child Abuse Central Index. These reports pertain
to investigations of alleged physical abuse, sexual
abuse, mental/emotional abuse, and/or severe neglect
of a child. The reports are submitted by police,
sheriff's, county welfare and probation departments.
To aid law enforcement investigations and
prosecutions, the Child Protection Program makes
information from the Child Abuse Central Index
available, including notices of new child abuse
investigation reports involving the same reported
suspects and/or victims. Information also is provided
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to designated social welfare agencies to help screen
applicants for licensing or employment in child care
facilities and foster homes, and to aid in background
checks for other possible child placements, and
adoptions. Dissemination of Index information is
restricted and controlled by the Penal Code.
Information on file in the Child Abuse Central Index
include:
Names and personal descriptors of the suspects and
victims listed on reports;
Reporting agency that investigated the incident;
The name and/or number assigned to the case by the
investigating agency;
Type(s) of abuse investigated; and
The findings of the investigation for the incident,
which is either substantiated or inconclusive.
It is important to note that the effectiveness of the
index is only as good as the quality of the
information reported. Each reporting agency is
required by law to forward to DOJ a summary of every
child abuse incident it investigates, unless the
incident is determined to be unfounded or general
neglect. Each reporting agency is responsible for the
accuracy, completeness and retention of reports
submitted.<5>
As illustrated above, CACI is set up to be a directory that
tells investigators where they can obtain source information
about child abuse reports, rather than providing the information
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<5> See http://ag..ca.gov/childabuse.
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itself.<6>
The use, utility and fairness of CACI has been the subject of
discussion, debate and litigation for over a decade. While this
bill does not directly raise the issues surrounding CACI, the
analysis of another bill prepared by the Assembly Committee on
Public Safety provides useful background on these issues,
including the following information:
CANRA states that DOJ shall make the information in
the Computer Aided Dispatch (CAD) available to a broad
range of third parties for a variety of purposes. For
example, the information in the CAD is made available
"to the State Department of Social Services [(DSS)],
or to any county licensing agency that has contracted
with the state for the performance of licensing duties
. . . concerning any person who is an applicant for
licensure or any adult who resides or is employed in
the home of an applicant for licensure or who is an
applicant for employment in a position having
supervisorial or disciplinary power over a child or
children, or who will provide 24-hour care for a child
or children in a residential home or facility. . . . "
[Penal Code Section 11170(b)(4).] The information
is also provided to persons "making inquiries for
purposes of pre-employment background
investigations for peace officers, child care
licensing or employment, adoption or child placement."
[Id. at subd. (b)(8).] The "Court
Appointed Special Advocate program that is conducting
a background investigation of an applicant seeking
employment with the program or a volunteer position as
a Court Appointed Special Advocate" also has access to
CACI information. [Id. at subd.
(b)(5).]
The scope of CANRA is not limited to California
institutions. CANRA makes the CACI information
available "to an out-of-state agency, for purposes of
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<6> California Code of Regulations ("CCR"), tit. 11, 902
states: "The purpose of (CACI) is to serve as the index of
investigated reports of suspected child abuse and severe
neglect maintained by DOJ pursuant to Penal Code Section 11170
(a). The (CACI) consists only of those reports of child abuse
and severe neglect that meet the criteria specified in the
Child Abuse and Neglect Reporting Act (Penal Code 11164, et
seq.) and that are complete as specified by these regulations.
The (CACI) is a reference file and is used to refer authorized
individuals or entities to the underlying child abuse
investigative report maintained at the reporting agency. It is
the responsibility of authorized individuals or entities to
obtain and review the underlying investigative report and make
their own assessment of the merits of the child abuse report.
They shall not act solely upon (CACI) information." See also 11
CCR 904: "all submissions received by DOJ staff are reviewed
to determine that they meet the definition of a report in these
regulations. DOJ staff verifies only that the information
entered into (CACI) is consistent with the information as
reported by the CPA. The DOJ presumes that the substance of
the information provided is accurate and does not conduct a
separate investigation to verify the accuracy of the CPA's
investigation." (emphasis added)
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approving a prospective foster or adoptive parent or
relative caregiver for placement of a child" so long
as "the out-of-state statute or interstate compact
provision that requires that the information received
in response to the inquiry shall be disclosed and used
for no purpose other than conducting background checks
in foster or adoptive cases." [Id. at subd. (e)(1).]
Some state agencies are required to consult the CACI
prior to issuing a variety of state-issued licenses or
other benefits. . . .
California Welfare and Institutions Code Section 361.4
similarly requires that "[w]henever a child may be
placed in the home of a relative, or a prospective
guardian or other person who is not a licensed or
certified foster parent, the county social worker
shall cause a check of the [CACI] . . . to be
requested from the [CA DOJ]. . .
. . . (I)t is apparent that the CACI listing plays
an integral role in obtaining many
rights under California law, including employment,
licenses, volunteer opportunities, and even child
custody.
. . .
CANRA offers no procedure for challenging a current
listing on the CACI. CANRA does provide, however,
that "[i]f a report has previously been filed which
subsequently proves to be unfounded, [DOJ] shall be
notified in writing of that fact and shall not retain
the report." . . . The statute does not describe who
must notify DOJ of that fact or how the determination
that a report has "subsequently
prove[d] to be unfounded" is to be made. CANRA also
provides that the CACI "shall be continually updated
by the department and shall not contain any reports
that are determined to be unfounded." [Penal Code
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Section 11170(a)(1).]
Only the submitting agency can decide if a report has
proved unfounded. CANRA provides that "[t]he
submitting agencies are responsible for the accuracy,
completeness, and retention of the reports," thus
suggesting that the submitting agencies are also
responsible for removing reports that are determined
to be unfounded. [Id. at subd.(a)(2).] Furthermore,
as explained above, CANRA defines an "unfounded
report" as "a report that is determined by the
investigator who conducted the investigation to be
false, to be inherently improbable, to involve an
accidental injury, or not to constitute child abuse or
neglect." [Penal Code Section
11165.12(a) and (b) . . .] Thus, the investigator
and agency that conducted the investigation are
responsible for making, and correcting,
the determination that a report is unfounded.
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Although CANRA itself provides no procedure for an
individual to challenge a CACI listing, nothing in the
statute prevents a submitting agency from enacting
some procedure to allow an individual to challenge
their listing or seek to have a determination made
that a report is "unfounded." . . . CANRA also
contemplates that DOJ "may adopt rules
governing recordkeeping and reporting," which may
allow DOJ to enact some procedure beyond that provided
by CANRA. . . .
However, there are no regulations that provide
additional regulatory procedures for challenging a
listing on the CACI or the validity of the underlying
report.
. . . In Humphries v. County of L.A . (2009) 554 F.3d
1170, plaintiff parents were accused of abuse by their
child. The parents were arrested, and had their other
children taken away from them. When a doctor
confirmed that the abuse charges could not be true,
the State dismissed the criminal case against them.
The parents then petitioned the criminal court, which
found them "factually innocent" of the charges for
which they had been arrested and ordered the arrest
records sealed and destroyed. Similarly,
the juvenile court dismissed all counts of the
dependency petition as "not true." Nevertheless, the
parents were identified as substantiated child abusers
and placed on CACI. The parents thereafter attempted
to be removed from CACI, but found that
California offers no procedure to remove their
listing.
Hence, the parents instituted a claim alleging that
the County of Los Angeles violated their Fourteenth
Amendment right to procedural due process by listing
and continuing to list them on the CACI without any
available process to challenge that listing. The
Ninth Circuit Court of Appeals ruled in favor of
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the parents. The court found that the
resultant stigma, plus the various statutory
consequences of being listed on CACI, affected their
liberty interests. The lack of any meaningful,
guaranteed procedural safeguards before the initial
placement on CACI combined with the lack of any
effective process for removal from CACI violated the
parents' due process rights.
While the court found that the Act did not provide any
procedural safeguards for those listed in the CACI,
the court also concluded that nothing in the CANRA
prevented the sheriff's department, as the reporting
agency, from developing a procedure to allow the
Humphries to challenge their listing. The court
stated, "Nothing we have said here infringes on the
ability of the police, or other agencies, to conduct a
full investigation into allegations of child abuse.
The need for such investigations--which, we
acknowledge, are intrusive and difficult to
conduct--is obvious. Nor does anything we have said
undermine the ability of appropriate law enforcement
agencies to maintain records on such investigations,
even if the investigations do not result in formal
charges or convictions . . . What California has done
is not just maintain a central investigatory file, but
attach legal consequences to the mere listing in such
files. Once California effectively required agencies
to consult the CACI before issuing licenses, the CACI
ceased to be a mere investigatory tool. The fact of
listing on the CACI became, in substance, a judgment
against those listed." (citation.)
Beyond declaring that California's procedural
protections are "constitutionally inadequate," the
court refused to spell out precisely what kind of
procedure the State must create. . . . "The state has
a great deal of flexibility in fashioning its
procedures, and it should have the full range of
options open to it. We do not hold that California
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must necessarily create some hearing prior to listing
individuals on CACI. At the very least, however,
California must promptly notify a suspected
child abuser that his name is on the CACI and provide
'some kind of hearing' by which he can challenge his
inclusion." (citation.)
. . . Under Humphries , such agencies should provide
procedures to allow persons to challenge their CACI
listing to protect Due Process Rights. To date, there
has been no statutory change in the CACI removal
procedures.<7>
5. Third-Party Statements
This bill would provide that for purposes of mandated child
abuse and neglect reports, "reasonable suspicion" may be based
on any information considered credible by the reporter,
including statements from other individuals.
The author and/or members of the Committee may wish to consider
whether this bill's language about statements from other
individuals would require mandated reporters, for whom there is
absolute immunity, to make reports based purely on gossip from
third parties. Currently, the standard is the reporter ' s
knowledge or observation; this bill arguably would expand th is
personal knowledge/observation requirement to include anything a
third party says to them - statements which would be hearsay in
court, but under CANRA would trigger an investigation and,
potentially, inclusion of the subject of the allegations in the
CACI . The reasonableness standard in current law thus would
appear to be abrogated by a new standard : so long as the
reporter thinks the third party ' s statement is " credible ," they
would have to report.
SHOULD THIS LANGUAGE BE DELETED FROM THE BILL?
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<7> Analysis of AB 2339 prepared by the Assembly Committee on
Public Safety (April 13, 2010).
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