BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 2478 (Mendoza) 8
As Amended April 5, 2010
Hearing date: June 15, 2010
Penal Code
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CAUSING A DISTURBANCE AT A SCHOOL
HISTORY
Source: Los Angeles Unified School District
Prior Legislation: SB 1666 (Calderon) - Ch. 726, Stats. 2008
Support: California State Sheriffs Association; Peace Officers
Research Association of California
Opposition:None known
Assembly Floor Vote: Ayes 68 - Noes 2
KEY ISSUE
SHOULD A NEW MISDEMEANOR BE DEFINED THAT WOULD BE COMMITTED WHERE A
PERSON CREATES A DISRUPTION AT A SCHOOL OR ADJACENT TO A SCHOOL WITH
THE INTENT TO THREATEN THE IMMEDIATE PHYSICAL SAFETY OF ANY PUPIL
ARRIVING AT, ATTENDING, OR LEAVING A SCHOOL THAT HAS A PRESCHOOL,
KINDERGARTEN OR GRADES ONE THROUGH EIGHT?
PURPOSE
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The purpose of this bill is to define a new misdemeanor that
would be committed where a person creates a disruption at
preschool, kindergarten or grade school with the intent to
threaten the physical safety of a pupil arriving at, attending
or leaving the school.
Existing law defines a school as any elementary school, junior
high school, four-year high school, senior high school, adult
school, as specified, opportunity school, continuation high
school, regional occupational center, evening high school,
technical school, or any public right-of-way immediately
adjacent to the school property. A school is further defined as
any place where a teacher and one or more pupils are required to
be in connection with assigned school activities. (Pen. Code
626, subd. (a)(4).)
Existing law includes numerous misdemeanor crimes involving
prohibited entry of a school or improper conduct at a school.
(Pen. Code 626 et seq.)
Existing law 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 specified acts.
Prohibited acts on school grounds and exceptions:
o The person 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;
o The person reenters or comes upon that place within
seven days of being asked to leave by a person specified in
existing law;
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o The person has otherwise established a continued pattern
of unauthorized entry;
o This section shall not be utilized to impinge upon the
lawful exercise of constitutionally protected rights of
freedom of speech or assembly. (Pen. Code 626.8,
subd.(a)(1) to (3).)
The penalty for unauthorized acts on school are as follows:
o A first conviction is punishable 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.
o 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.
o 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. (Pen. Code 626.8, subd.
(b)(1)-(3).)
Existing law defines the following terms:
"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.
"Continued pattern of unauthorized entry" is when on at least
two prior occasions in the same school year the defendant came
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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.
"School" is any preschool or public or private school having
Kindergarten or any of Grades 1 to 12, inclusive. (Pen. Code
626.8, subd. (c)(1)-(3).)
Existing law states when a person is directed to leave pursuant
to existing law, the person directing him or her 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. (Pen. Code
626.8, subd. (d).)
Existing law defines a "safe school zone" as any of the
following locations during regular school hours, or within 60
minutes before or after the schoolday, or within 60 minutes
before or after a school-sponsored activity:
Within 1,000 feet of a school, "as designated by the
school;"<1> and
Within 100 feet of a school bus stop, including a public
transit stop specifically designated as a school bus stop.
This bill defines, within an existing school trespassing
statute, a new misdemeanor that is committed where a person
"willfully or knowingly creates a disruption with the intent to
threaten the immediate physical safety of any pupil arriving at,
attending, or leaving school."
This bill applies the newly defined misdemeanor apply to acts
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<1> Neither existing law nor this bill prescribe or define how
the zone is designated, or if the designation refers to
designation of a place as a school. Annotated codes and Lexis
case search engines researched by Committee staff include no
appellate decisions discussing the term "designated" in this
context.
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occurring at a school "having kindergarten or any of grades 1 to
8, inclusive."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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,
"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.)
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. . .
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
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.<2>
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.
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<2> 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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This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
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. Case That Prompted Introduction of This Bill
This bill was, in part, prompted by the facts of and decision in
Center for Bio-Ethical Reform v. Los Angeles County Sheriffs
Department. The Center for Bio-ethical Reform (CBER) is
characterized by the decision of 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 v. Los Angeles County Sheriffs Department,
supra, 533 F.3rd at p. 784.)
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One such program, "Reproductive Choice Campaign," consisted of
CBER placing large photographs of first trimester aborted
fetuses on the sides of trucks and then driving the trucks on
surface streets and freeways. 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 many
averted their eyes from the photos. The school administration
called the police and two Los Angeles County sheriff deputies
responded. After the driver was detained for what he later
characterized as an unreasonable amount of time and shown the
text of Penal Code Section 626.8, he 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 p. 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 p. 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 p. 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.)
3. First Amendment Issues - Free Speech and Limits on Threatening
Speech
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Courts have long stated that political speech and speech
concerning public issues are entitled to great protection under
the First Amendment. (Burson v. Freeman (1992) 504 U.S. 191;
Perry Ed. Assn. v. Perry Local Educators' Assn. (1983) 460 U.S.
37, 45.) The courts have long recognized a right to distribute
pamphlets and other material door-to-door. (Martin v. City of
Struthers (1943) 319 U.S. 141, 145-146.) The Fourteenth
Amendment applies the First Amendment to state laws. (Barron v.
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 core purpose of the guarantee of free speech 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.) The high court has
succinctly stated: "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." (Texas v. Johnson (1989) 491
U.S. 397, 414.)
The place where speech takes place and the manner in which it
is made are important in determining the amount of protection
given the speech. (Aguilar v. Avis (1999) 21 Cal.4th 121,
156.) "[T]he nature of the forum and the conflicting interests
involved have remained important in determining the degree of
protection afforded by the [First] Amendment to the speech in
question." (Lehman v. City of Shaker Heights (1974) 418 U.S.
298, 302-303 - plur. opn.) Even speech about a campaign for
elective office can be regulated by reasonable and even-handed
restrictions on time, place and manner. In Lehman, the court
upheld a ban on political advertisements on public transit
vehicles. (Ibid.)
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The cases of Hamburg v. Wal-Mart (2004) 116 Cal.App.4th 497 and
Robins v. Pruneyard (1979) 23 Cal.3d 899 consider the rights of
citizens to engage in political speech and activity on private
property. The properties involved in these cases were
commercial enterprises. The court in Pruneyard held: "In this
appeal from a judgment denying an injunction we hold that the
soliciting at a shopping center of signatures for a petition to
the government is an activity protected by the California
Constitution." The court noted that large-scale shopping
centers are public forums akin to public squares. (Pruneyard,
at p. 902.)
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. "There are certain well-defined and narrowly
limited classes of speech, the prevention and punishment of
which has never been thought to raise any Constitutional
problem." (Chaplinsky v. New Hampshire (1942) 315 U.S. 568,
571-572.) 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
(1992) 505 U.S. 377, 382-383. quoting Chaplinsky at p. 572).
In particular, the United States Supreme Court has held that
expressive conduct intended to intimidate is not protected by
the First Amendment. (Virginia v. Black (2003) 538 U.S. 343.)
A specific form of unprotected, intimidating speech 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
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person, is unprotected by the First Amendment." (Planned
Parenthood of the Columbia/Willamette v. 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 v. U.S. (1919) 249
U.S. 47.) A particular example of a valid law criminalizing
intimidating or threatening speech is found in Penal Code
Section 422. Section 422 defines an alternate
felony-misdemeanor that is committed where the defendant made a
threat that the victim would reasonably believe that the
defendant intended and had the ability to make good.
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.
DOES THIS BILL REST ON A VALID EXCEPTION TO FIRST AMENDMENT
RIGHTS, IN THAT THE BILL PROHIBITS DISRUPTIONS AT A GRADE SCHOOL
THAT ARE INTENDED TO THREATEN THE IMMEDIATE PHYSICAL SAFETY OF
PUPILS?
4. Amendments to Clarify the Scope of the Crime Defined by this
Bill
In previous discussions, the sponsor (LAUSD), the American Civil
Liberties Union (ACLU) and the author agreed that the bill
should be drafted to apply only to pupils in preschool,
kindergarten or any of grades 1-8. However, it appears that the
bill would apply where any pupil, regardless of grade, is
disturbed at school, if the school includes a preschool,
kindergarten or any of grades 1 to 8. The crime is not defined
in terms of the grade of the pupil targeted in the disturbance.
That is, the bill could be interpreted to apply even where the
targeted pupil was a high-school student, as long as the school
contained any a preschool, kindergarten or any of grades 1 to 8.
Such a school could include a combined junior-senior high
school, a continuation high school or an adult school. The
sponsor, the Los Angeles Unified School District, operates "span
schools" that serve K-12 students.
To realize the intent of the author and the sponsor, and to
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address the concerns raised by the ACLU, it is suggested that
the bill be amended as shown in the following mockup. The
amendments are in bold typeface:
(a) 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:
?(4) Willfully or knowingly creates a disruption with
the intent to threaten the immediate physical safety
of any pupil in preschool, kindergarten, or any of
grades 1 through 8, arriving at, attending, or leaving
school.
(5) For the purposes of this subdivision, "school"
means any preschool or public or private school having
kindergarten or any of grades 1 to 8, inclusive.
?(c)(3) "School" Except as provided in paragraph (4)
of subdivision (a), "school" means any preschool or
public or private school having kindergarten or any of
grades 1 to 12, inclusive.
SHOULD THESE AMENDMENTS BE ADOPTED?
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