BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 1174 (Furutani) 4
As Amended April 26, 2011
Hearing date: June 21, 2011
Education Code
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DISTURBANCES ON OR NEAR SCHOOL GROUNDS
HISTORY
Source: Civic Voice - Lakewood High School
Prior Legislation: AB 2478 (Mendoza) - 2010, vetoed
Support: American Federation of State, County, and Municipal
Employees (AFL-CIO); California State Sheriffs'
Association; California School Employees Association;
Los Angeles Sheriff's Department; Association of
California School Administrators
Opposition:American Civil Liberties Union (unless amended)
Assembly Floor Vote: Ayes 51 - Noes 25
KEY ISSUE
SHOULD ANY PERSON WHO CREATES A DISRUPTION THAT THREATENS THE
PHYSICAL SAFETY OF SCHOOL CHILDREN WHILE THEY ARE COMING TO, LEAVING
OR ATTENDING SCHOOL BE GUILTY OF A MISDEMEANOR, PUNISHABLE BY A FINE
OF NOT MORE THAN $500?
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PURPOSE
The purpose of this bill is to make it a misdemeanor, with a
maximum fine of $500 and no jail time, to create a disruption
that threatens the physical safety of school children while they
are coming to, leaving or attending school.
Existing constitutional law provides that "true threats" by
which a speaker means to communicate a serious expression of
intent to commit an act of violence to a particular person or
group of persons are not protected by the First Amendment.
(Virginia v. Black (2003) 538 U.S. 343, 359-360.)
Existing law states that any person who willfully disturbs any
public school or any public school meeting is guilty of a
misdemeanor, and shall be punished by a fine of not more than
$500. (Ed. Code � 32210.)
This bill specifically provides that it is a misdemeanor,
punishable by a fine of up to $500, to create a disruption that
threatens the physical safety of school children while they are
coming to, leaving or attending school.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
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federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
State law requires children between the ages of 6 and
18 to attend school. Students at school are a captive
audience, and while considerable attention is placed
on what kids are exposed to in the classroom, there is
little oversight as soon as students are dismissed.
Without the proper tools, school administrators are
unable to maintain a safe learning environment and
ensure students' safety.
There have been numerous incidents in recent years in
which the safe learning environment has been
disturbed. Some examples include:
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In 2002, members of Survivors of the
Abortion Holocaust gathered outside Millikan High
School in Long Beach. The group, located on the
sidewalk directly bordering the high school,
displayed gruesome signs and distributed leaflets
to students during dismissal.
In 2003, at Dodson Middle School in Rancho
Palos Verdes, a group from the Center for Bio
Ethical Reform placed graphic photographs on the
sides of trucks and drove around Dodson Middle
School while students arrived. Several children
reported becoming physically ill, some cried and
many averted their eyes from the photos.
At Lakewood High School in Long Beach
Unified School District, different individuals
have been present during school dismissal to
distribute items such as flyers for a nearby
strip club.
Currently, school arrival and dismissal may be
disrupted, and administrators are unable to intervene
unless the solicitor is physically on school property.
Students' and parents' rights in regards to safety
and what children are exposed to are being
jeopardized. California schools must be able to
provide a safe learning environment for all students.
AB 1174 gives school administrators a tool to ensure
the safety of their students. Existing law makes it a
misdemeanor for a person to disturb a public school or
public school meeting. AB 1174 amends this law to
include a disruption that threatens the physical
safety of school children while they are coming to,
leaving or attending school.
The language is modeled after a footnote in the case
of Center for Bio-Ethical Reform v. Los Angeles County
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Sheriff's Department (2007) 533 F.3rd 780,784. The
court stated in footnote 9 that, "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."
2. Background on Limits on Threatening Speech
Courts have long held that speech concerning public issues is
entitled to great protection under the First Amendment<1>.
(Burson v. Freeman (1992) 504 U.S. 191.) However, a statute
can validly regulate the time, place and manner of speech.
Examples would include prohibiting the blocking of a sidewalk
or making noise that interferes with school or business. Even
political speech can be regulated by reasonable and even-handed
restrictions on time, place and manner. (Lehman v. City of
Shaker Heights (1974) 418 U.S. 298, 302-303 - plur. opn.)
Expressive conduct intended to intimidate is not protected by
the First Amendment. (Virginia v. Black (2003) 538 U.S. 343.)
These kinds of speech or expressive conduct are called "true
threats." ? A true threat, that is one where a reasonable person
would foresee that the listener will believe he will be
subjected to physical violence upon his 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.)
3. Federal Court Decision Applying the 1st Amendment Right of
Free Speech to the California Law Prohibiting a Disturbance on
or near School Grounds
This bill was largely prompted by the decision in Center for
Bio-Ethical Reform �CBER] v. Los Angeles County Sheriff's
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<1> The California Constitution also protects free speech.
(Cal. Const. Art. I, � 2.)
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Department. (9th Cir. (2008) 533 F.3rd 780.) CBER is "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'.''
(Id, at p. 784.) In the incident from which the case arose,
CBER members drove such a truck around a middle school while
students were arriving. Sheriff's deputies directed the CBER
members to leave because they had violated a statute prohibiting
interference with schools. CBER filed suit in federal court
claiming civil rights violations and seeking damages.
The Ninth Circuit ruled in favor of CBER on First Amendment
grounds. (Id, at p. 799.) The court stated in a footnote: "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." (Id, at p. 790, fn. 9.)
The court gave no guidance as to how the Legislature could
validly draft a statute. The court did stress repeatedly that
the 1st Amendment bars restrictions on speech based on the
reaction of the persons receiving the message. The court
specifically declined to create an exception for laws directed
at protecting children from negative reactions to messages.
(Id, at 790.)
Thus, it could be argued that the court meant that a valid
statute would need to have an element that the defendant
intended to threaten the physical safety of students. In the
incident involving CBER, children viewing enlarged photos of
aborted fetuses became physically ill and some stood in the
street, both of which could be said to harm or threaten the
physical safety of the students. Simply because students could
be harmed by their own reaction to speech does not mean the
message itself is threatening. (Id at 787-791.) Arguably, it
appears that a valid statute school disruption law would clearly
prohibit expressive conduct because of the disruptive manner of
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its expression or the intent to threaten student safety, but not
the reaction of the students to the conduct.
It is doubtful that the Legislature could draft a valid statute
that prohibited speech or expressive conduct based on the size
of enlarged photographs. Large pictures of loaves of bread or
furniture would not likely create a disruption at a school.
Large still photos from the most popular new young singer or
Harry Potter movie could cause a stir with junior high students.
The disruptive force of the photos would flow from content, not
manner of presentation. Drafting a valid law on this subject is
difficult indeed.
4. A 1970 Case on the Predecessor Statute to the Statute Amended
by this Bill found
that the Law Violated the First Amendment
The only published case on the predecessor<2> to the existing
Education Code section on creating a disturbance at a school
found that the law violated the First Amendment. (Castro v.
Superior Court (1970) 9 Cal.App.3d 675, 701-703.) The court
noted that the statute could be applied to prohibit expressive
conduct that was not objectively or intentionally disturbing,
but that disturbed the alleged victim of the crime.
The word "disturb" itself may refer to conduct
objectively disturbing as well as conduct disturbing
to the victim, though objectively placid. The
addition, in the statute, of the word "willfully"
merely implies a purpose or willingness to commit the
act and although it does not require an evil intent,
it implies that the person knows what he is doing ..."
�Citation.] Literally ? the United States Supreme
Court must have "willfully disturbed" the public
schools affected by its holding in Brown v. Board of
Education<3>. (Ibid, internal quotation marks
omitted, italics added.)
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<2> Former Education Code Section 16701.
<3> 347 U.S. 483.
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This bill does not include an element of intent to threaten the
physical safety of school children. Rather, the bill provides
that the defendant is guilty where his disturbing conduct
threatens the safety of children coming and going to school,
regardless of whether or not the defendant's intent was
threatening, benign or was intended to provocatively express
political or other views.
WOULD THIS BILL VIOLATE THE FIRST AMENDMENT RIGHT TO FREE SPEECH
BY DEFINING AN ILLEGAL DISTURBANCE OF A SCHOOL IN TERMS OF THE
REACTION OF THE STUDENTS TO SPEECH OR EXPRESSIVE CONDUCT, RATHER
THAN THE INTENT OR MANNER OF THE SPEECH OR CONDUCT?
5. One of the Incidents Prompting this Bill Involved Commercial
Speech - Flyers
Advertising a Strip Club
Regulation of Commercial Speech Generally
While the incident involving CBER concerned political speech,
the incident in which solicitors handed out flyers promoting a
strip club to students leaving a high school constituted
commercial speech. This incident includes another twist: It
was commercial speech largely directed at minors, but
advertising entertainment that minors could not attend.
Commercial speech is less protected than political speech. In a
case involving the effect of cigarette advertising on minors,
the California Supreme Court noted that commercial speech must
concern lawful activity and not be misleading to be protected by
the 1st Amendment. If the speech concerns a lawful activity and
is not misleading, and the government interest regulating the
speech is substantial, the test is this: 1) Does the regulation
directly advance the government interest; and 2) is the
regulation not more extensive than necessary to advance the
interest? (In re Tobacco Case II (2007) 41 Cal.4th 1257,
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12784-1276.)<4><5>
In the Tobacco II case, the court considered if cigarettes
advertising could be considered aiding and abetting the crime of
selling cigarettes to minors.<6> The court held for the
cigarette companies because charging the companies with crimes
was not necessary to advance the state's interest in
discouraging the use of cigarettes by minors. The court noted
that the state had pursued other reasonable remedies, such as
civil suits to prevent companies from targeting minors,
restrictions on distribution of cigarettes in places where
minors are present and conducting anti-smoking campaigns. (In
re Tobacco Case II, supra, 41 Cal.4th at pp. 1274-1276.)
Application of Commercial Speech Regulation to the Flyers
Incident
The flyers for the strip clubs advertised a legal business. It
appears that the flyers were not explicitly misleading, as there
is nothing in the background on the bill indicating that the
flyers suggested that minors could be admitted to the
establishment. However, even if the flyers did not state or
imply that minors would be admitted, giving the flyers to minors
could be interpreted as encouraging minors to go to the club.
The school district had a legitimate interest in making the exit
of students from the school non-disruptive. Law enforcement and
government officials, including school administrators, would
have an interest in prohibiting minors from entering
establishments open only to adults.
Physical Issue of Student's Safety in the Flyers Incident
It seems quite unlikely that simply handing out flyers to the
students - regardless of the inappropriate content of the flyers
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<4> The California Supreme Court relied upon the decision of the
United States Supreme Court in Central Hudson v. Public Serv.
Comm'n (1980) 447 U.S. 557.
<5> Some high school students are adults.
<6> (Pen. Code � 308.)
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- would be found to threaten the student's physical safety.
Arguably, enacting this bill to address relatively isolated
incidents such as the distribution of flyers for a strip club is
much more extensive than necessary.
Possible Availability of a Nuisance Injunction
Perhaps a better solution for a case involving the distribution
of flyers to students leaving school would be for the school
district to seek an injunction to prohibit the conduct.
Depending on the facts of the incident, the actions of the
advertisers could constitute a form of nuisance, which can be a
misdemeanor. (Pen. Code � 370.) Further, violation of an
injunction in a nuisance action is also a criminal offense.
(Pen. Code � 166, subd. (a)(4).)
WOULD THIS BILL CREATE A REASONABLE AND CONSTITUTIONAL METHOD
FOR PROHIBITING ADVERTISING THAT COULD DISTURB AND THREATEN
STUDENTS LEAVING SCHOOL, OR WOULD THE BILL VIOLATE THE FIRST
AMENDMENT PROTECTION OF FREE SPEECH?
6. This Bill Defines a Misdemeanor for which a Jail Term is not
Specified
This bill provides that a person who creates a disturbance at a
school that threatens the physical safety of students is guilty
of a misdemeanor, punishable by a fine of up to $500. The bill
does not provide for a jail punishment.
The statutory definition of a misdemeanor is a crime for which
the defendant cannot be sentenced to prison and for which the
maximum jail term is one year. In the absence of a more
specific penalty, the punishment for a misdemeanor is a jail
term of up to six months and a fine of up to $1,000. A
defendant charged with a misdemeanor is entitled to a jury trial
at which proof of guilt must be established beyond a reasonable
doubt. An indigent misdemeanor defendant is entitled to an
attorney at state expense.
In contrast with a misdemeanor, a defendant convicted of an
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infraction cannot be sentenced to jail, but only required to pay
a fine. An infraction defendant is neither entitled to a jury
trial nor counsel at public expense.
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SHOULD THE SCHOOL DISRUPTION OFFENSE DEFINED BY THIS BILL BE
DEEMED TO BE AN INFRACTION BECAUSE THE ONLY AUTHORIZED
PUNISHMENT IS A FINE?
CONSISTENT WITH THE STATUTORY DEFINITION OF A MISDEMEANOR,
SHOULD THE OFFENSE DEFINED BY THIS BILL INCLUDE A JAIL TERM
PUNISHMENT PROVISION?
7. This Bill does not Define the Terms "School" and "School
Children;" and the Statute the Bill Amends Applies only to
Public Schools
This bill amends a section of the Education Code (� 32210) that
makes it a misdemeanor to willfully disturb any public school or
public school meeting. In particular, this bill extends Section
32210 to disturbing the "physical safety of school children"
while the children are entering, leaving or attending school.
The bill does not define the terms "school" and "school
children."<7> However, it appears likely that the author intends
the bill to apply to students in kindergarten, and in grades 1
through 12. Similar school disruption provisions in the Penal
Code define a "school" to mean "any preschool or public or
private school having kindergarten or any of grades 1 to 12."
Arguably this bill is vague in not defining the terms "school"
and "school children." A public school could include a college
or university. It is suggested that the bill be amended to
state the definition of a school for purposes of the bill.
It would appear that the author may desire that this bill also
apply to private school students. However, the Education Code
Section amended by this bill explicitly applies only to public
schools. If the author intends the bill to also apply to
private schools, the bill should be amended to specify that it
also applies to private schools if the author intends that
private schools be covered by the bill.
SHOULD THE BILL BE AMENDED TO DEFINE THE TERMS "SCHOOL" AND
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<7> Ed. Code � 32210 does not define the term "public school."
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"SCHOOL CHILDREN" AND TO PROVIDE THAT THE BILL APPLIES TO
PRIVATE SCHOOL STUDENTS?
8. Related Bill - AB 123 (Mendoza) Includes an Element of Intent
to Threaten Safety
of Children
On June 7, 2011, this Committee approved AB 123 (Mendoza) on a
vote of 5-1. AB 123 provides that it is a misdemeanor to create
a disruption with the intent to threaten the physical safety of
pupils in preschool, kindergarten or grades 1 through 8. AB 123
is pending in Senate Appropriations. The inclusion in AB 123 of
element that the defendant intended to threaten the safety of
the students arguably obviates the First Amendment concerns
discussed above.
This bill and AB 123 address the same subject and were prompted
by the same, or similar, incidents. However, this bill amends
an Education Code section and AB 123 amends a Penal Code
Section. If both bills are enacted, defendants who committed
virtually identical acts could be acquitted under one statute
and convicted under the other. Further, confusing and
conflicting trial court and appellate decisions on the
constitutionality of the bills would be very likely.
TO AVOID CONFUSION, INCONSISTENT VERDICTS AND CONFLICTING
FIRST AMENDMENT COURT DECISIONS, SHOULD THIS BILL AND AB 123 BE
CONFORMED?
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