BILL ANALYSIS
AB 2478
Page 1
Date of Hearing: April 6, 2010
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2478 (Mendoza) - As Amended: April 5, 2010
SUMMARY : Expands an existing misdemeanor related to
interference or disruption of school activities and punishable
by up to six months in the county jail to include any person who
willfully or knowingly creates a disruption with the intent to
threaten the immediate physical safety of K-8 pupils arriving
at, attending, or leaving school.
EXISTING LAW :
1)Provides that any person who comes into any school building or
upon any school ground, or street, sidewalk, or public way
adjacent thereto, without lawful business thereon, and whose
presence or acts interfere with the peaceful conduct of the
activities of the school or disrupt the school or its pupils
or school activities, is guilty of a misdemeanor if he or she
does any of the following:
a) Remains there after being asked to leave by the chief
administrative official of that school or his or her
designated representative, or by a person employed as a
member of a security or police department of a school
district pursuant to the Education Code, or a city police
officer, or sheriff or deputy sheriff, or a Department of
the California Highway Patrol peace officer;
b) Reenters or comes upon that place within seven days of
being asked to leave by a person specified in existing law;
c) Has otherwise established a continued pattern of
unauthorized entry; or,
d) This section shall not be utilized to impinge upon the
lawful exercise of constitutionally protected rights of
freedom of speech or assembly. [Penal Code Section
626.8(a)(1) to (3).]
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2)States that punishment for this crime shall be as follows:
a) Upon a first conviction by a fine not exceeding $500, by
imprisonment in a county jail for a period of not more than
six months, or by both that fine and imprisonment.
b) If the defendant has been previously convicted once of a
violation of any offense defined in this chapter or
provision of law related to disturbing the peace, by
imprisonment in a county jail for a period of not less than
10 days or more than six months, or by both imprisonment
and a fine not exceeding $500, and shall not be released on
probation, parole, or any other basis until he or she has
served not less than 10 days.
If the defendant has been previously convicted two or more
times of a violation of any offense defined in this chapter
or provisions related to disturbing the peace, by
imprisonment in a county jail for a period of not less than
90 days or more than six months, or by both imprisonment
and a fine not exceeding $500, and shall not be released on
probation, parole, or any other basis until he or she has
served not less than 90 days. [Penal Code Section
626.8(b)(1) to (3).]
3)Defines the following terms:
a) "Lawful business" is a reason for being present upon
school property which is not otherwise prohibited by
statute, by ordinance, or by any regulation adopted
pursuant to statute or ordinance.
b) "Continued pattern of unauthorized entry" is when on at
least two prior occasions in the same school year the
defendant came into any school building or upon any school
ground, or street, sidewalk, or public way adjacent
thereto, without lawful business thereon, and his or her
presence or acts interfered with the peaceful conduct of
the activities of the school or disrupted the school or its
pupils or school activities, and the defendant was asked to
leave by a person, as specified.
c) "School" is any preschool or public or private school
having Kindergarten or any of Grades 1 to 12, inclusive.
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[Penal Code Section 626.8(c)(1) to (3).]
4)States when a person is directed to leave pursuant to existing
law, the person directing him or she to leave shall inform the
person that if he or she reenters the place within seven days
he or she will be guilty of a crime. [Penal Code Section
626.8(d).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 2478 would
add language to Penal Code 626.8 addressing disruptive
messages where the disruption threatens the physical safety of
school children in preschool, elementary school, or middle
school while they are coming to, leaving from, or attending
school.
"On March 24, 2003, at approximately 7:30 a.m., two vehicles
driven by two members of the group Center for Bio-Ethical
Reform drove around the perimeter of a middle school as
students were walking and being dropped off for classes. The
two vehicles consisted of a truck displaying billboard-sized,
graphic photographs of aborted fetuses and an escort 'security
vehicle' equipped with a security cage, red and amber flashing
lights, push bars and antennae mounted on the roof.
"Between 7:15 a.m. and 7:45 a.m., all 1,900 students of the
school arrived on campus in the same location; the cul de sac
where the two vehicles were driving. Because of the
disturbing nature of the photographs, some students became
angry, some began to cry, and others stared while standing in
the street and on the sidewalk, creating a traffic safety
hazard. School officials contacted the Los Angeles County
Sheriff's Department. Deputy sheriff's officers arrived,
detained the two drivers of the vehicles and eventually
determined that California Penal Code section 626.8 was in
violation and asked the drivers to leave the area around the
school.
"The Center for Bio-Ethical Reform filed a lawsuit contending
school officials and the sheriff's officers violated their
First and Fourth Amendment rights. The district court granted
summary judgment in favor of the Sheriff's Department and Los
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Angeles Unified School District (Defendants) at which point
the Center for Bio-Ethical Reform (Plaintiffs) appealed. The
Ninth Circuit Court of Appeals held that Penal Code section
626.8 does not, as written, permit school administrators to
contact local law enforcement in the event that a person or
entity conveys disruptive messages on an adjacent street where
the disruption threatens the physical safety of children where
they are coming to, leaving from, or attending school.
"However, in that opinion, the Ninth Circuit acknowledged that
should the California Legislature choose to adopt statutory
language to address this situation, the outcome may be
different.
"California schools have the constitutional obligation to
provide safe campuses to students and employees. The right to
free expression is also protected by the State and Federal
Constitutions. However, the right to free expression is not
absolute, and has been limited within the school context by
reasonable time, manner and place regulations to ensure safety
and to minimize disruption to educational operations.
"If school administrators are unable to rely on Penal Code
section 626.8 to address disruptions of schools that may
result in physical harm to students, schools will lose an
important tool in ensuring safe campuses. This change will
help school administrators ensure student safety without
unduly burdening the right of free expression."
2)Existing law Related to Trespass on School Property : Existing
law punishes a person who comes onto school grounds or is on
any street, sidewalk or public way adjacent to the school,
without permission and where a person's presence interferes
with the peaceful conduct of school activities. Penalties for
trespass on school grounds range from six months in the county
jail and/or a fine of $500 to minimum of 90 days in the county
jail or up to six months in the county jail and/or a fine of
$500 where the defendant has two priors for trespass. [Penal
Code Section 626.8(a) and (b)(1) to (3).]
General "trespass" is defined, inter alia, as entering any
lands, whether unenclosed or enclosed by fence, for the
purpose of injuring any property or property rights or with
the intention of interfering with, obstructing, or injuring
any lawful business or occupation carried on by the owner of
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the land, the owner's agent or by the person in lawful
possession. [Penal Code Section 602(k).]
3)First Amendment : The First Amendment to the United States
Constitution states, "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech or of the press;
or the right of the people peaceably to assemble, and to
petition the government for redress of grievances." (United
States Constitution Amendment 1, Section 1.) The Fourteenth
Amendment subsequently applied most of the bill of rights to
the states, including the First Amendment. [Barron vs.
Baltimore (1833) 32 U.S 243.] The California Constitution
also protects free speech. "Every person may freely speak,
write and publish his or her sentiments on all subjects, being
responsible for the abuse of this right. A law may not
restrain or abridge liberty of speech or press." (Cal. Const.
Art. I, 2.)
The hallmark of protection of free speech under the First
Amendment is to allow for the "free trade in ideas" - even
ideas that the overwhelming majority of people might find
distasteful or discomforting. [Virginia v. Black (2003) 538
U.S. 343; see also Texas v. Johnson (1989) 491 U.S. 397, 414
("If there is a bedrock principle underlying the First
Amendment, it is that the government may not prohibit the
expression of an idea simply because society finds the idea
itself offensive or disagreeable.").] "The very purpose of
the First Amendment is to preserve an uninhibited marketplace
of ideas in which truth will ultimately prevail." [McConnell
vs. Federal Election Commission (2003) 540 U.S. 93, 265
(Thomas, J. dissenting).] Thus, the First Amendment
"ordinarily" denies states "the power to prohibit [the]
dissemination of social, economic and political doctrines
which a vast majority of its citizens believe to be false and
fraught with evil consequence." [Whitney v. California (1927)
274 U.S. 357, 374 (Brandeis, J., dissenting).]
The protections afforded by the First Amendment, however, are
not absolute. It has long been recognized that the government
may regulate certain categories of expression consistent with
the Constitution. [See, e.g., Chaplinsky v. New Hampshire
(1942) 315 U.S. 568, 571-572 ("There are certain well-defined
and narrowly limited classes of speech, the prevention and
punishment of which has never been thought to raise any
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Constitutional problem").] The First Amendment permits
"restrictions upon the content of speech in a few limited
areas, which are 'of such slight social value as a step to
truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and
morality'." [R. A. V. v. City of St. Paul, supra, at 382-383
(quoting Chaplinsky v. New Hampshire, supra, at 572).]
One exception to the First Amendment is threats or what is
called "true threats" in First Amendment jurisprudence. "A
threat is an expression of an intention to inflict evil,
injury or damage on another. Alleged threats should be
considered in light of their entire factual context, including
the surrounding events and reactions of the listeners. The
fact that a threat is subtle does not make it less of a
threat. A true threat, that is one where a reasonable person
would foresee that the listener will believe he will be
subjected top physical violence upon his person, is
unprotected by the First Amendment." [Planned Parenthood of
the Columbia/Willamette vs. American Coalition of Life
Activists (2002) 290 F.3rd 1058, 1077.] The most famous
example of unprotected speech is the person who "shouts fire
in a crowded theater causing a panic". [Schenck vs. U.S.
(1919) 249 U.S. 47.] Indeed, criminal law punishes speech
intended as a threat as an alternate felony/misdemeanor.
(Penal Code Section 422.) This bill requires intent to
threaten the physical safety of K-8 children, as specified.
Given the intent to threaten, this statute appears to rise to
the level of a true threat.
4)Center for Bio-Ethical Reform vs. Los Angeles County Sheriffs
Department : The stated need for this bill arises from the
Ninth Circuit Court of Appeals decision in Center for
Bio-ethical Reform vs. Los Angeles County Sheriffs Department.
The Center for Bio-ethical Reform (CBER) is characterized by
the Court as "a non-profit organization whose main purpose is
to 'promote pre-natal justice and the right to life for the
unborn, the disabled, the infirm, the aged and all vulnerable
people through education and development of innovative
educational programs'.'' (Center for Bio-Ethical Reform vs.
Los Angeles County Sheriffs Department 533 F.3rd 780, 784.)
One such program, "Reproductive Choice Campaign", consisted of
CBER placing huge photographs of first trimester aborted
fetuses on the sides of trucks and then driving the trucks on
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surface streets and freeways. Because CBER claims an
educational agenda, middle and high school students are common
targets. In this case, CBER drove around Dodson Middle School
in Rancho Palos Verdes, in Los Angeles County, while the
students were arriving at school. Several children reported
becoming physically ill, some cried and most averted their
eyes from the photos. The school administration called the
police and two Los Angeles County sheriff deputies responded.
After detaining the driver for what he later characterized as
an unreasonable amount of time and shown the text of Penal
Code Section 626.8, the driver left the scene. CBER filed
suit in federal court claiming civil rights violations and
seeking damages.
On appeal, the Ninth Circuit ruled in favor of CBER on the First
Amendment issue [Center for Bio-ethical Reform at 799]. The
Court concluded that Penal Code Section 626.8 should not have
been applied to the driver of the truck as he was not guilty
of that statute and, hence, the government had no other
significant interest that justified restricting CBER's speech
(Center for Bio-ethical Reform at 793.) The Court does state
in Footnote 9: "The California Legislature may elect to draft
a statute prohibiting disruptive messages outside school
buildings where the disruption threatens the physical safety
of school children while they are coming to, leaving, or
attending school. We do not have before us, and therefore do
not decide the constitutionality of such a statute." (Center
for Bio-ethical Reform at 790, fn. 9.) The Court also states,
"We have serious concerns about the constitutionality of the
statute as applied. We need not decide, however, whether the
statute as applied is unconstitutional because we conclude
that the California courts would construe the statute narrowly
so as not to apply to Plaintiffs' conduct." (Center for
Bio-ethical Reform at 786.)
5)Arguments in Support : According to the Los Angeles Unified
School District , " This legislative proposal stems from an
incident at one of the District's middle schools, in which a
truck, displaying billboard-sized, graphic photos of aborted
fetuses, drove around the perimeter of a school during the
time she entire student body was arriving at the school gate.
Traffic hazards were created by stunned students stopping in
the middle of the street, a group of angry students had to be
prevented from rock throwing and some students began to cry.
The county sheriff's office was called and the drivers of the
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truck and an accompanying vehicle were detained. A security
search of the vehicles was administered and the individuals
were read Penal Code section 626.8 and asked to leave.
"A lawsuit was field by the group, and alleging violations of
the First and Fourth Amendments. The Ninth Circuit Court of
Appeals held that Penal Code section 626.8 does not, as
written, permit school administrators to contact local law
enforcement in the event that a person or entity conveys
disruptive messages on an adjacent street, where the
disruption threatens the physical safety of children where
they are coming to, leaving from, or attending school.
However, in that opinion, the Ninth Circuit acknowledged that,
should the California Legislature choose to adopt statutory
language to address this situation, the outcome may be
different.
"This proposed legislation does not unduly burden the right of
free expression, but rather, would ensure that, while
individuals are free to express themselves, such expression
will not result in threats to the physical safety of children
by causing disruption if it takes place outside of areas
already identified in the statute. This bill clarifies the
statute, thereby enabling schools to better ensure the safety
and well-being of the students in their care.
"If school administrators are unable to rely on Penal Code
section 626.8 to address disruptions at schools that may
result in physical harm to students, schools will lose an
important tool in ensuring safe campuses. For this reason, we
ask for your support this important measure."
REGISTERED SUPPORT / OPPOSITION :
Support
California State Sheriffs Association
Los Angeles Unified School District
Peace Officers Research Association of California
Opposition
None
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Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744