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Penal
Chapter 437: Revamping Clemency Procedures and
Requirements in California
Christina Bucci
Code Sections Affected
Penal Code § 4805 (new), §§ 4801, 4802, 4803, 4806, 4807, 4810,
4812, 4813 (amended).
AB 648 (Block); 2011 STAT. Ch. 437.
I. INTRODUCTION
On June 25, 2010, Esteban Núñez plead guilty to voluntary manslaughter for
his participation in the stabbing death of twenty-two-year-old Luis Santos at San
1
Diego State University. In 2008, Esteban Núñez and three friends were turned
2
away from a fraternity party. Angry and intoxicated, they encountered an
3
unarmed group near the university and picked a fight. During the quarrel, one of
4
Núñez’s cohorts stabbed and killed Luis Santos; Núñez stabbed and seriously
5
injured two others who had been with Santos. Núñez and his friends traveled to
Sacramento that night, burned their blood-soaked clothes, and disposed of a knife
6
in the Sacramento River. Court testimony later revealed that Núñez told a codefendant that his “dad would take care of it and could get them off on self7
defense.” A San Diego judge sentenced Núñez to sixteen years in prison, the
1. Letter from Bonnie M. Dumanis, San Diego Dist. Att’y, to Marty Block, Assembly Member, Cal.
State Assembly (Mar. 4, 2011) [hereinafter Dumanis Letter] (on file with the McGeorge Law Review).
2. Juliet Williams, Political Favor Could Tarnish Schwarzenegger’s Rep, ABC NEWS (Feb. 9, 2011),
http://abcnews.go.com/US/wireStory?id=12876885 (on file with McGeorge Law Review).
3. Id.
4. Marcus Breton, Marcus Breton: Nunez Tells of Remorse, Guilt Over Son’s Crime, SACRAMENTO BEE
(May 18, 2011), http://www.sacbee.com/2011/05/18/v-mobile/3634759/marcos-breton-nunez-tells-of-remorse.
html (on file with the McGeorge Law Review).
5. Complaint at 2, Dumanis v. State, No. 37-2011-00091104-CU-WM-CTL (2011).
6. Breton, supra note 4.
7. Julie Watson, Suit Seeks to Nullify Schwarzenegger Commutation, ABC NEWS (May 12, 2011),
http://abcnews.go.com/US/wireStory?id=13582805#.T10tEYFgrnQ (internal quotations omitted) (on file with
McGeorge Law Review).
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8
maximum for manslaughter and a length the judge “considered appropriate
9
punishment based on the violent nature of the crime.”
Núñez’s father, former Assembly Speaker Fabian Núñez, brought his son’s
“situation” to the attention of his political friend, then-Governor Arnold
10
Schwarzenegger. On the evening of his last full day in office, Governor
11
Schwarzenegger used his constitutionally provided power to commute Esteban
12
Núñez’s sentence, leaving Núñez with seven years of prison time. Neither the
Santos family nor the San Diego District Attorney’s Office were notified prior to
the governor’s decision; both subsequently caught wind of the commutation
13
through media reports.
Assemblyman Block, working closely with the San Diego District Attorney’s
office, proposed Chapter 437 to put into place changes affecting clemency
14
procedures, though most changes specifically affect the commutations. Chapter
437 requires notice to the victims and their families, as well as the prosecuting
15
district attorney, prior to a commutation of sentence. In addition, it allows
victims, their families, and the district attorney the opportunity to provide their
16
recommendations prior to any decision. Finally, Chapter 437 requires the
governor to submit a publicly available, written report to the legislature each
17
session.
II. LEGAL BACKGROUND
A commutation is the “substitution in a particular case of a less severe
18
punishment for a more severe one that has already been judicially imposed.”
8. Williams, supra note 2.
9. Dumanis Letter, supra note 1.
10. See Breton, supra note 4 (“Nunez’s friendship with Schwarzenegger—the perception of cronyism—
stoked anger over the commutation. Nunez said he made Schwarzenegger aware of his son’s situation in a
phone call. When Schwarzenegger asked him how he was doing, Nunez said his emotions poured out.”).
11. CAL. CONST. art. V, § 8(a) (West 1996) (“[T]he Governor, on conditions the Governor deems proper,
may grant a reprieve, pardon, and commutation, after sentence, except in case of impeachment.”).
12. Dumanis Letter, supra note 1.
13. Williams, supra note 2.
14. Dumanis Letter, supra note 1.
15. CAL. PENAL CODE § 4805(a), (c) (enacted by Chapter 437).
16. Id. § 4805(b)–(c) (enacted by Chapter 437).
17. Id. § 4807(a) (amended by Chapter 437).
18. BLACK’S LAW DICTIONARY 274 (7th ed. 1999). Though the bulk of Chapter 437 affects procedures
associated with commutations, it also affects the governor’s responsibilities in cases of pardons and reprieves.
See PENAL § 4807 (amended by Chapter 437) (requiring “communication” in the form of a publicly available
report). A pardon is defined as “[t]he act or an instance of officially nullifying punishment or legal
consequences.” BLACK’S LAW DICTIONARY, supra, at 1137. A reprieve is defined as a “[t]emporary
postponement . . . of a criminal sentence, especially a death sentence.” Id. at 1305.
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The California Constitution grants the governor the power to commute sentences
19
at his or her discretion.
Prior to the enactment of Chapter 437, the California Penal Code only
required the governor to give ten-days notice to the prosecuting district attorney
20
in the case of an application for pardon. The governor could require the
prosecuting district attorney (or the judge of the court where the conviction took
place) to provide a recommendation on an application for pardon or commutation
21
of sentence. For each application for a pardon or reprieve that the governor
granted, the Penal Code required the governor to “communicate to the
22
Legislature” the reason for granting the pardon or reprieve.
III. CHAPTER 437
23
Chapter 437 contains two provisions affecting commutations. First, Chapter
437 creates a notice requirement for an application for a commutation of a
24
sentence. At least ten days prior to any action taken by the governor on a
commutation application, the applicant must provide written notice to the
25
prosecuting district attorney. The district attorney is responsible for making
“reasonable efforts” to notify the victim and the victim’s family of the
26
application. The victim, the victim’s family, and the district attorney have the
opportunity to submit their input, positive or negative, on the prospective change
27
in sentence.
Additionally, Chapter 437 changes reporting requirements for commutations,
28
pardons, and reprieves. The governor must submit a written report to the
legislature that includes each application for commutation, reprieve, or pardon
29
granted during the last legislative session. This report must be publicly available
19. CAL. CONST. art. V, § 8(a) (West 1996).
20. PENAL § 4804 (West 2011).
21. Id. § 4803. Specifically, the governor may require “a summarized statement of the facts proved on
the trial, and of any other facts having reference to the propriety of granting or refusing said application,
together with his or her recommendation for or against the granting of the same and his or her reason for such
recommendation.” Id.
22. Id. § 4807.
23. Id. § 4805 (enacted by Chapter 437); id. § 4807 (amended by Chapter 437).
24. Id. § 4805(a), (c) (enacted by Chapter 437).
25. Id. § 4805(a) (enacted by Chapter 437). Proof of service of the written notice to the prosecuting
district attorney must be furnished to the Governor in a signed affidavit. Id.
26. Id. § 4805(c) (enacted by Chapter 437). The notice requirements for this section as well as for
section 4804 (notice to the prosecuting district attorney in the case of an application for pardon) are waived
when the applicant is in “imminent danger” of death or when the prison term expires within ten days. Id. § 4806
(amended by Chapter 437).
27. Id. § 4805(b)–(c) (enacted by Chapter 437).
28. Id. § 4807(a)–(b) (amended by Chapter 437).
29. Id. § 4807(a) (amended by Chapter 437).
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and include the governor’s reasons for granting the commutation, reprieve, or
30
pardon.
VI. ANALYSIS
A. The Commutation Process in Other States
31
The commutation process differs from state to state. In California, the
32
governor has the power to grant commutations. In other states, such as Georgia,
33
commutations are solely the function of a governing board. In Georgia, the
governor does not have the authority to grant sentence commutations, reprieves,
34
or pardons. Rather, the governor appoints members to a board that is tasked
35
with granting or denying applications for sentence commutations. Like Georgia,
36
Nevada requires a board to decide whether to grant commutation applications.
37
Unlike Georgia, the governor sits on that board.
With the addition of Chapter 437’s notice requirement, California’s process
38
is most similar to North Carolina’s. In North Carolina, the governor has the
39
power to commute sentences. In making his decision, the governor may choose
to follow the recommendations of the Office of Executive Clemency, an
investigatory office that is part of the governor’s office, as well as an advisory
40
board similar to California’s Board of Parole Hearings. When an application is
filed for a commutation, the Office of Executive Clemency must, as part of their
investigation, notify the victims, take their statements, and present that
41
information to the governor.
30. Id. § 4807(b) (amended by Chapter 437). Submittal of the report must comply with California
Government Code section 9795, which specifies the manner and form in which the report is to be submitted and
how the Legislative Counsel may handle public requests for the report. CAL. GOV’T CODE § 9795 (West Supp.
2011); PENAL § 4807(a) (amended by Chapter 437).
31. Linda E. Carter & Mary-Beth Moylan, Clemency in Capital Cases, CAL. COMM’N ON THE FAIR
ADMIN. OF JUSTICE 36, http://www.ccfaj.org/documents/reports/dp/expert/ClemencyReport.pdf (last visited
June 25, 2011) (on file with the McGeorge Law Review) (illustrating different state approaches to clemency by
comparing the procedures of North Carolina, Ohio, Georgia, Texas, and Nevada).
32. CAL. CONST. art. V, § 8(a) (West 1996).
33. Carter & Moylan, supra note 31, at 40.
34. Id.
35. Id.
36. Id. at 41.
37. Id.
38. Id. at 36–37.
39. Id.
40. Id.
41. Id. at 37.
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B. The Impetus for Chapter 437
While the Núñez commutation was particularly newsworthy, sentence
commutations in California are rare: only thirteen have been issued in the past
42
twenty years. Nonetheless, Núñez’s commutation brought to light three
43
potential flaws in the Penal Code governing commutations. In the wake of that
controversy, lawmakers and law enforcers became concerned with the lack of a
provision requiring notice of an application for commutation to district attorneys
and victims, the deprivation of victims’ opportunity to be heard, and the lack of
any public explanation or justification for the granting of commutations, pardons,
44
and reprieves.
C. The Changes Made by Chapter 437
1. The Notice Requirement and Marsy’s Law
At least in part, Chapter 437 was an attempt to codify what the bill’s sponsor,
the Office of the San Diego District Attorney, believes the California
45
Constitution already requires: notice to victims. On May 11, 2011, San Diego
District Attorney Bonnie Dumanis filed a lawsuit on behalf of the People of
46
California and three of the victims of Núñez’s crime, citing Marsy’s Law, as the
47
basis for the claim. The complaint alleges that the governor’s power to
commute sentences is subject to Marcy’s Law, a 2008 constitutional amendment
42. See ASSEMBLY COMMITTEE ON APPROPRIATIONS, COMMITTEE ANALYSIS OF AB 648, at 2 (Apr. 13,
2011) (noting that Governor Schwarzenegger commuted ten sentences, Governor Davis did not commute any,
and Governor Wilson commuted three).
43. See COMMUTATION OF SENTENCES, FACT SHEET: AB 648—ASSEMBLYMAN BLOCK (2011)
[hereinafter FACT SHEET] (on file with the McGeorge Law Review) (“[R]ecently flaws in the statutory
provisions implementing the Governor’s authority came to light when the outgoing Governor commuted a
sentence without input from the district attorney who prosecuted the case or the victim’s family. In fact, they
were unaware that a commutation of sentence was being considered, or that an application had been filed.”).
44. See Letter from John Lovell, Gov’t Relations Mgr., Cal. Police Chiefs Ass’n, to Marty Block,
Assembly Member, Cal. State Assembly (Mar. 16, 2011) [hereinafter Lovell Letter] (on file with the McGeorge
Law Review) (in support of AB 648); Letter from Alan Lanning, President, San Diego Cnty. Police Chiefs’ &
Sheriffs Ass’n, to Marty Block, Assembly Member, Cal. State Assembly (Mar. 4, 2011) (on file with the
McGeorge Law Review) (in support of AB 648); FACT SHEET, supra note 43.
45. Telephone Interview with Laura Tanney, Deputy Dist. Att’y, San Diego Cnty. (June 13, 2011)
[hereinafter Tanney] (notes on file with the McGeorge Law Review).
46. CAL. CONST. art. I, § 28(b)(8) (West Supp. 2011). Passed by California voters in 2008 as Proposition
9, Marsy’s Law is also known as “The Victim’s Bill of Rights Act of 2008: Marsy’s Law.” Complaint, supra
note 5, at 2.
47. Complaint, supra note 5, at 3. Since Chapter 437 does not apply retroactively, the suit seeks to
obtain a judicial determination that the Constitution already required Schwarzenegger to provide notice to the
victims and, because that step was not taken, the Núñez commutation is void. See Tanney, supra note 45
(explaining that the Chapter 437 is prospective only so the lawsuit will still stand and will address whether
commutation of Núñez’s sentence without notification to the victims was constitutional).
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that gives victims of crime and their families the opportunity to be heard
48
regarding a “post-conviction release decision.” Primarily, the suit seeks to void
the commutation based on a requested “judicial determination that the Office of
the Governor was constitutionally obligated to notify the victims of crime of its
49
intent to commute a sentence and provide them an opportunity to be heard.”
Regardless of the constitutional interpretation of Marsy’s Law, Chapter 437
now requires commutation applicants to notify the prosecuting district attorney at
least ten days before the governor acts and for the district attorney to make a
50
reasonable effort to provide notice to the victim. Not only does Chapter 437
bring statutory notice requirements for commutations in line with the
51
requirements for pardons, it goes one step further by requiring notice to victims.
2. Requirement of a Publicly Available, Written Report
Prior to Chapter 437, the law required the governor to communicate to the
52
legislature his reasoning in granting each commutation, pardon, and reprieve. At
the time of Núñez’s commutation, the governor’s reasoning did not need to be
53
publicly available nor was it necessary that his reasoning be in writing. As a
result, then-Governor Schwarzenegger was able to seal the records and the
54
parties were left with questions as to what facts were considered in his decision.
Chapter 437 specifies that the communication must take the form of a publicly
55
available, written report filed with the legislature. Regarding clemency practices
in general, there is some concern that requiring disclosure would establish a
precedent and therefore stifle a governor’s ability to grant commutations,
56
pardons, and reprieves as appropriate. Proponents of Chapter 437 see this
57
additional requirement as an increase in transparency.
48. Complaint, supra note 5, at 6 (quoting CAL. CONST. art. I, § 28(b)(8) (West Supp. 2011)).
49. Id. at 7.
50. CAL. PENAL CODE § 4805(a), (c) (enacted by Chapter 437).
51. Id. § 4805(a)–(c) (enacted by Chapter 437); id. § 4804 (West 2011).
52. Id. § 4807 (West 2011).
53. Id.
54. FACT SHEET, supra note 43; see also Dumanis Letter, supra note 1 (“In the Nunez case the
application has been sealed, thereby denying the public and the Office of the District Attorney a process to
verify the veracity of the statements made by the applicant under perjury of law.”).
55. PENAL § 4807 (amended by Chapter 437). While the notice requirement solely affects the procedures
related to commutations, this public reporting requirement applies to commutations, pardons, and reprieves. Id.
§ 4805(a), (c) (enacted by Chapter 437); id. § 4807 (amended by Chapter 437).
56. Carter & Moylan, supra note 31, at 45.
57. FACT SHEET, supra note 43; see also Letter from Bill Horn, Chairman, Supervisor, Fifth Dist., Cnty.
of San Diego, to Marty Block, Assembly Member, Cal. State Assembly (Mar. 18, 2011) (on file with the
McGeorge Law Review).
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C. Reservations Regarding Chapter 437
The East Bay Community Law Center (the Center), a group initially opposed
58
to Chapter 437, expressed concern regarding the reporting requirement,
59
specifically in cases of a pardon. As introduced, AB 648 would have required
the governor to report to the legislature each application for pardon, reprieve, or
60
commutation. The Center sought an amendment that would only require a
61
publicly available, written report for granted pardon applications. Chapter 437’s
final language reflects those concerns; it requires the governor to include only
62
granted applications in a written report.
Additionally, the Center asserted that the new requirements would prove to
63
be costly and unnecessary. In contrast, the Senate Appropriations Committee
64
expects the fiscal impact of Chapter 437 to be negligible. Taking into account
both the notice and reporting requirements, the Committee reported that costs
would be minor and either state-reimbursable or absorbable by the governor’s
65
office.
V. CONCLUSION
While the power to commute sentences acts as an important check on the
judicial branch of government, the requirements in Chapter 437 provide balance
66
to the governor’s executive power. Sponsors did not introduce Chapter 437 as
an attack on that power, but to provide for additional transparency and
67
accountability. Chapter 437 requires notice to victims, their families, and
district attorneys, and gives those parties the opportunity to submit their
68
recommendations before a decision is rendered on the application. In addition to
58. The East Bay Community Law Center withdrew their opposition after AB 648 was amended to
address some of their concerns. E-mail from Margaret Peña, Capitol Dir. for Cal. Assembly Member Marty
Block, to author (Oct. 12, 2011, 08:22 PST) (on file with the McGeorge Law Review).
59. Letter from Jessie Warner, Policy Dir., East Bay Cmty. Law Ctr., to Marty Block, Assembly
Member, Cal. State Assembly (Mar. 11, 2011) [hereafter Warner] (on file with the McGeorge Law Review).
60. AB 648, 2011 Leg., 2011–2012 Sess. (Cal. 2011) (as introduced on Feb. 16, 2011).
61. Warner, supra note 59.
62. CAL. PENAL CODE § 4807 (amended by Chapter 437).
63. Warner, supra note 59.
64. SENATE RULES COMMITTEE, COMMITTEE ANALYSIS OF AB 648, at 5 (Aug. 15, 2011).
65. Id.
66. FACT SHEET, supra note 43.
67. See Tanney, supra note 45 (noting that the controversy over Chapter 437 arises out of a
misunderstanding that it “is an impingement on the governor’s power”); FACT SHEET, supra note 43 (explaining
that the governor would still be able to provide pardons, commutations, and reprieves, however, there would be
more accountability because a written report of the action would be available to the public and notification
would be given to the district attorney, victims, and victim families which would allow those persons to provide
input).
68. CAL. PENAL CODE § 4805 (enacted by Chapter 437).
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the notice provisions, Chapter 437 contains stronger reporting requirements
aimed at increasing transparency in the process of granting pardons, reprieves,
69
and commutations.
Governor Schwarzenegger’s commutation of Esteban Núñez’s sentence
raised concerns throughout California, making many cynical of the governor’s
70
power. Though governors exercise the power to modify sentencing
71
infrequently, Chapter 437 has the potential to restore the public’s faith in the
integrity of the governor’s executive power to grant commutations, pardons, and
72
reprieves.
69. FACT SHEET, supra note 43.
70. Williams, supra note 2.
71. See ASSEMBLY COMMITTEE ON APPROPRIATIONS, COMMITTEE ANALYSIS OF AB 648, at 2 (Apr. 13,
2011) (noting that Governor Schwarzenegger commuted ten sentences, Governor Davis did not commute any,
and Governor Wilson commuted three).
72. Lovell, supra note 44.
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Chapter 153: Jailhouse Informants’ Testimony Gets
Scrutiny Commensurate with its Reliability
Peter P. Handy
Code Section Affected
Penal Code § 1111.5 (new).
SB 687 (Leno); 2011 STAT. Ch. 153.
I. INTRODUCTION
At the conclusion of his murder trial in 2000, a California jury found Roy
1
2
Garcia guilty of murder for shooting Deborah Gregg twice in the back. The
physical evidence in the trial was limited, and investigators found little to
3
connect Garcia to the crime. The only evidence linking Garcia to the death of
4
Gregg was a witness, Timothy Villalba, who testified that Garcia had confessed
5
to the murder during a chance encounter with Villalba. At the time of the
encounter, Villalba himself was already in prison, serving twenty-five years to
6
life for killing a man during a robbery. Villalba first came to prosecutors with
knowledge of the confession after receiving notification that he could be eligible
7
for early parole if his conduct improved.
In 2002, after Garcia’s conviction, Villalba testified in an unrelated murder
8
trial. The substance of his testimony was largely the same, that he had heard an
9
admission of guilt by the defendant. However, he refused to answer questions
1. Julie Patel & Fredric N. Tulsky, Convicted Man Acquitted After Eight Years in Custody, SAN JOSE
MERCURY NEWS (Nov. 1, 2006), www.mercurynews.com/taintedtrials/ci_5169385 [hereinafter Patel & Tulsky,
Convicted Man] (on file with the McGeorge Law Review).
2. Fredric N. Tulsky, The Trouble with Jailhouse Informants, SAN JOSE MERCURY NEWS (Sept. 17,
2006), http://www.mercurynews.com/taintedtrials/ci_5169365 [hereinafter Tulsky, The Trouble] (on file with
the McGeorge Law Review).
3. Id.
4. Julie Patel & Fredric N. Tulsky, Disgraced Jailhouse Informant Key to Trial, SAN JOSE MERCURY
NEWS (Oct. 24, 2006), www.mercurynews.com/taintedtrials/ci_5169376 [hereinafter Patel & Tulsky,
Disgraced] (on file with the McGeorge Law Review).
5. Tulsky, The Trouble, supra note 2.
6. Id.
7. Id.
8. Patel & Tulsky, Convicted Man, supra note 1.
9. Id.
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about previous charges filed against him, and the federal judge found Villalba to
10
be “entirely without credibility.”
In regards to using an informant found not credible in a previous trial, the
Chief Deputy District Attorney for Los Angeles County said, “I couldn’t imagine
11
that we’d ever use that informant.” The Los Angeles County prosecutor’s office
reformed its policies concerning in-custody informants after Leslie Vernon White
gained national notoriety in 1988 for the detailed description of his method for
creating a false murder confession that he had used previously in exchange for
12
leniency.
Though that controversy erupted in 1988, Chapter 153 is California’s first
13
legislative response to the issue of in-custody informants. This inaction and
other issues with California’s criminal justice system led the California Senate to
establish the California Commission on the Fair Administration of Justice
(CCFAJ) in 2004 to recommend safeguards to protect against wrongful
14
convictions. The CCFAJ released its own report and recommendations
regarding the use of jailhouse informants in 2008, which included a
recommendation to enact a statute requiring the corroboration of in-custody
15
informants’ testimony.
Chapter 153 is the manifestation of that
16
recommendation.
II. LEGAL BACKGROUND
A. Existing Statutory and Related Case Law
Enacted in response to the 1989 Los Angeles grand jury investigation of the
17
use of jailhouse informants, section 1127a of the California Penal Code requires
a court, upon request, to instruct a jury that “[t]he testimony of an in-custody
18
informant should be viewed with caution and close scrutiny.” The judge must
admonish a jury that, when determining the credibility and weight of the
testimony, the jurors should consider any benefits the informant received in
10. Tulsky, The Trouble, supra note 2.
11. Patel & Tulsky, Disgraced, supra note 4.
12. Ted Rohrlich, Jail Informer First Told of Scam in ‘87, L.A. TIMES, Nov. 3, 1988, § 2, at 1, available
at http://articles.latimes.com/1988-11-03/local/me-801_1_second-informant (on file with the McGeorge Law
Review); see also infra Part IV.B (explaining the policy changes that the Los Angeles County prosecutor’s
office implemented).
13. See SENATE PUBLIC SAFETY COMMITTEE, COMMITTEE ANALYSIS OF SB 687, at 2 (Apr. 5, 2011)
(indicating prior attempts to pass bills similar to Chapter 153).
14. See generally CAL. COMM’N ON THE FAIR ADMIN. OF JUSTICE, FINAL REPORT 5 (Gerald Uelman ed.,
2008) (stating the issues that lead to wrongful convictions and the recommendations made by the CCFAJ).
15. Id.
16. SENATE PUBLIC SAFETY COMMITTEE, COMMITTEE ANALYSIS OF SB 687, at 6 (Apr. 5, 2011).
17. CAL. COMM’N ON THE FAIR ADMIN. OF JUSTICE, supra note 14, at 47.
18. CAL. PENAL CODE § 1127a(b) (West 1995).
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19
exchange for his or her statements. Section 1127a also requires the prosecution
to submit a written statement to the court that includes “any and all consideration
20
promised to, or received by, [an] in-custody informant.” The court must then
21
provide the defendant with the statement before trial.
Section 4001.1 of the California Penal Code limits the amount of money that
a prosecutor may offer, promise, or give in exchange for an in-custody
22
informant’s testimony to fifty dollars. The statute also provides that no law
enforcement agency, or in-custody informant acting as an agent of a law
enforcement agency, may actively elicit incriminating statements from a
23
defendant, codifying a decision by the United States Supreme Court regarding
24
in-custody informant testimony with respect to the Sixth Amendment.
The California Supreme Court has held that jailhouse informant testimony is
25
not “inherently unreliable.” The court has also held that doubtful credibility
26
alone is not prejudicial. The court has ruled that juries “instructed, in
determining the credibility of witnesses, to consider . . . the existence of any bias,
interest, or motive to lie, and their inconsistent statements, if any” and are “well27
equipped” to evaluate a jailhouse informant’s testimony.
B. Accomplice Testimony
Section 1111 of the California Penal Code provides that “[a] conviction cannot
be had upon the testimony of an accomplice unless it be corroborated by such other
evidence as shall tend to connect the defendant with the commission of the
28
offense.”
If a criminal defendant’s accomplice testifies or makes a statement at trial,
section 1111 requires the presiding judge to instruct jurors that they may only convict
the defendant if other evidence either supports the accomplice’s testimony or
29
supports the conviction independent of the accomplice’s testimony. The instruction
19. Id.
20. Id. § 1127a(c).
21. Id.
22. Id. § 4001.1(a).
23. Id. § 4001.1(b).
24. See Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986) (holding that the use of testimony by an incustody informant violates the Sixth Amendment if the informant “took some action, beyond merely listening,
that was designed deliberately to elicit incriminating remarks” from the accused).
25. People v. Jenkins, 22 Cal. 4th 900, 1008, 997 P.2d 1044, 1118 (2000).
26. Id. at 1009, 997 P.2d at 1119 (referring to People v. Cudjo, 6 Cal. 4th 585, 863 P.2d 635 (1993)). A
court has the discretion to exclude evidence that will “create substantial danger of undue prejudice . . . or of
misleading the jury.” CAL. EVID. CODE § 352 (West 2004).
27. People v. Hovarter, 44 Cal. 4th 983, 997–98, 189 P.3d 300, 312 (2008).
28. PENAL § 1111 (West 2004).
29. See THOMAS LUNDY, FORECITE CALIFORNIA: LATEST DEVELOPMENTS IN CALCRIM AND CALJIC
3-105 (James Publishing, Inc. ed. 2006) (explaining the requirement of having other evidence that supports the
accomplice’s testimony).
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also requires that the corroborating evidence tend to connect the defendant to the
30
crime, stating that the corroborating evidence may be slight and does not need to be
31
enough on its own to prove the defendant’s guilt or support every fact. Furthermore,
the instruction informs the jury that another accomplice’s testimony may not provide
32
such supporting evidence. The instruction ends with a warning that the jury should
view accomplice testimony that tends to incriminate a defendant with caution, but
33
not to wholly disregard it.
III. CHAPTER 153
Chapter 153 bars the use of uncorroborated testimony of an in-custody informant
to “convict a defendant, find a special circumstance to be true, or use a fact in
34
aggravation.” Chapter 153 specifies that corroborating evidence must “connect[] the
defendant to the commission of the offense, the special circumstance, or the evidence
35
offered in aggravation.” Such corroborating evidence must show more than “the
commission of the crime itself or the special circumstance or the circumstance in
36
aggravation.” Chapter 153 also prevents an in-custody informant from
corroborating another in-custody informant’s testimony, unless the two informants
37
have not had any prior communication regarding such testimony.
Chapter 153 defines “in-custody informant” as “a person, other than a
codefendant, percipient witness, accomplice, or coconspirator, whose testimony is
based on statements allegedly made by the defendant while both the defendant and
38
the informant were” incarcerated at the same facility.
IV. ANALYSIS
A. The Problems with Jailhouse Informant Testimony
From 1973 to 2004, jailhouse informant testimony was the leading cause of
39
wrongful convictions in United States capital cases. Leslie White, an informant
30. Id.
31. Id.
32. COMM. ON CAL. CRIMINAL JURY INSTRUCTIONS, CALJIC 3.13: ONE ACCOMPLICE MAY NOT
CORROBORATE ANOTHER (2011).
33. LUNDY, supra note 29.
34. CAL. PENAL CODE § 1111.5(a) (enacted by Chapter 153).
35. Id.
36. Id.
37. Id. The lack of communication must be proven by a preponderance of the evidence by the party
calling the witness. Id.
38. Id. § 1111.5(b) (enacted by Chapter 153) (expressly stating that the requirements for corroboration
of accomplice testimony under Penal Code section 1111 remain unaffected).
39. CAL. COMM’N ON THE FAIR ADMIN. OF JUSTICE, supra note 14, at 45 (citing NW. UNIV. SCH. OF L.
CTR. ON WRONGFUL CONVICTIONS, THE SNITCH SYSTEM (2005)).
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himself and considered an expert on jailhouse informants, has stated, “[t]here are
40
too many motivations to lie, and it’s too easy to make up confessions.”
According to White, these motivations vary depending on the particular legal
41
status of an informant. An informant who has a trial pending is usually
motivated by the possibility of reduced charges, a shorter sentence, bail
42
eligibility, or even freedom. For an already-convicted informant, the motivation
for testifying is usually a parole recommendation, better imprisonment
43
conditions, prison facility transfers, or cash payments.
White revealed that, in order to fabricate a false confession, he would call the
district attorney’s office imitating a law enforcement officer and ask questions
that would not be in the news, so that his testimony would be credible to
44
prosecutors. The combination of the increasing availability of information over
the internet and inmate Internet access makes fabricating confessions even easier
45
than ever before.
B. County Efforts and Jury Instructions
After White’s headline-grabbing exposé in 1988, a Los Angeles County
46
Grand Jury convened an investigation of the use of jailhouse informants. The
Grand Jury released its findings, which included several recommendations for
improving the policies of the Los Angeles County District Attorney and the Los
Angeles County Sheriff’s Department in regards to the use of in-custody
47
informants. The CCFAJ adopted the Grand Jury’s findings in its 2008 Final
48
Report, noting that the policies adopted by the Los Angeles County District
Attorney in response to the Grand Jury’s recommendations were exemplary of
49
the best practices for dealing with in-custody informants.
The Los Angeles County District Attorney’s office requires “strong
corroboration,” understood as greater evidence than the informant’s knowledge
40. Tulsky, The Trouble, supra note 2.
41. See ROBERT M. BLOOM, RATTING: THE USE AND ABUSE OF INFORMANTS IN THE AMERICAN JUSTICE
SYSTEM 64 (2002) (explaining the different motivations for informants who have a trial pending and for those
who are already convicted).
42. Id.
43. Id.
44. Rohrlich, supra note 12.
45. See generally Valerie Alter, Jailhouse Informants: A Lesson in E-Snitching, 10 J. TECH. L. & POL’Y
223 (2005) (analyzing utilization of the Internet by jailhouse informant to create false testimony).
46. SENATE PUBLIC SAFETY COMMITTEE, COMMITTEE ANALYSIS OF SB 687, at 4 (Apr. 5, 2011).
47. CAL. COMM’N ON THE FAIR ADMIN. OF JUSTICE, supra note 14, at 46.
48. SENATE PUBLIC SAFETY COMMITTEE, COMMITTEE ANALYSIS OF SB 687, at 4 (Apr. 5, 2011). In
addition to the Los Angeles Grand Jury report, the CCFAJ also relied on additional information provided by
attorneys, law professors, law review articles, and American Bar Association Committee reports. CAL. COMM’N
ON THE FAIR ADMIN. OF JUSTICE, supra note 14, at 44.
49. CAL. COMM’N ON THE FAIR ADMIN. OF JUSTICE, supra note 14, at 46–47.
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of details of the crime, and approval by a special jailhouse informant committee
50
before a prosecutor can use a jailhouse informant’s testimony at trial. The
“District Attorney’s Office offers training sessions to its deputies to acquaint
51
them with the risks and perils of using [jailhouse] informants.” Furthermore, the
District Attorney’s office also requires tape-recording of all interviews with
jailhouse informants and preservation of these recordings, as well as any other
52
records of interaction and use of jailhouse informants. Not all counties have
such policies, however, and most seem to be more lax in their use of in-custody
53
informants. False testimony may be the result of a number of factors, including
a lack of policies to dictate the proper use of jailhouse informants, haste, and
external pressures on prosecutors, such as large caseloads, inadequate funding,
54
and public outcry for swift justice.
While section 1127a of the Penal Code requires a court to give a cautionary
instruction to a jury when considering the testimony of a jailhouse informant,
55
CCFAJ believed instruction alone could not sufficiently prevent injustice. This
is perhaps due to the way jurors evaluate the testimony of in-custody
56
informants. A 2008 study on the effects of jurors’ knowledge of the incentives
given in exchange for an in-custody informant’s testimony revealed that such
57
knowledge does not affect mock jurors when rendering their verdicts.
Correspondingly, the study showed that whether a witness received any sort of
58
incentive made no difference in jurors’ verdicts. The study hypothesized that
jurors’ attributed the witness’ testimony to personal factors, such as guilt or
sympathy for the victim or their family, despite the witness having had an
59
“enormous motivation to fabricate evidence.” The results of the study contradict
50. Id. at 46.
51. Id.
52. Id.
53. See id. at 47 (indicating that of fifty-eight counties in California surveyed about their in-custody
informant policies, only nine replied). Of the nine counties that replied, four have written policies (Orange, San
Bernardino, Santa Clara, and Ventura) and three require supervisory approval (Monterey, Placer, and Solano).
Id. Sacramento County indicated that it had no written policy and Yuba County declined to disclose its
policy. Id.
54. Myrna S. Raeder, See No Evil: Wrongful Convictions and the Prosecutorial Ethics of Offering
Testimony by Jailhouse Informants and Dishonest Experts, 76 FORDHAM L. REV. 1413, 1423–24 (2007).
55. See CAL. COMM’N ON THE FAIR ADMIN. OF JUSTICE, supra note 14, at 47 (recommending that the
legislature take measures to curb the use of jailhouse informants in addition to those existing already, such as
Penal Code section 1127a).
56. See generally Jeffrey S. Neuschatz et al., The Effects of Accomplice Witnesses and Jailhouse
Informants on Jury Decision Making, 32 LAW & HUM. BEHAV. 137 (2008) (discussing how jurors respond to
in-custody informants).
57. Id. at 142.
58. Id. at 146.
59. Id. at 146–47.
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the California Supreme Court’s view that jurors are “well-equipped” to evaluate
60
in-custody informant testimony.
C. The Corroboration Requirement
Prior to the enactment of Chapter 153, section 1111’s corroboration
61
requirement only applied to accomplices, not in-custody informants. Chapter
153 adds in-custody informant testimony to prior existing rules regarding
62
admissibility of accomplice testimony, bringing California in line with other
63
states with similar statutes.
64
The degree of corroboration required by Chapter 153 may vary. In
proposing Chapter 153, the CCFAJ recommended that Chapter 153, like section
1111 regarding accomplice testimony, should not explicitly bar “slight”
corroborating evidence, nor should it explicitly require evidence be “strongly
65
corroborating.” Thus, the CCFAJ did not specify a required degree of
66
corroboration in its proposed statute, and the legislature left out any term of
67
degree for corroboration when it adopted Chapter 153.
Since courts generally assume that the legislature intends any omissions in a
statute, a court applying this provision would be unlikely to hold that the statute
68
requires any particular degree of corroboration. Therefore, if a court sought to
reconcile the meaning of “corroboration” with definitions from similar and
related laws, a court would likely apply the same interpretation as applied to the
60. Compare CAL. COMM’N ON THE FAIR ADMIN. OF JUSTICE, supra note 14, at 47 (indicating a need for
increased safeguards than already exist), and Neuschatz et al., supra note 57, at 146–47 (stating that existing
safeguards will only be effective if jurors can understand the tremendous incentive to fabricate testimony), with
People v. Jenkins, 22 Cal. 4th 900, 1008, 997 P.2d 1044, 1118 (2000) (maintaining that the California Supreme
Court “consistently [has] rejected the contention, made in connection with capital appeals, that informant
testimony is inherently unreliable”), and People v. Hovarter, 44 Cal. 4th 983, 997–98, 189 P.3d 300, 312 (2008)
(“[T]he jury was instructed . . . to consider . . . the existence of any bias, interest, or motive to lie,
and . . . was . . . well-equipped to evaluate [a jailhouse informant]’s testimony.”).
61. CAL. COMM’N ON THE FAIR ADMIN. OF JUSTICE, supra note 14, at 48.
62. See CAL. PENAL CODE § 1111 (West 2004) (stating that the testimony of an accomplice must be
corroborated by other evidence).
63. E.g., TEX. CODE CRIM. PROC. ANN. art. 38.075 (West 2009).
64. See, e.g., CAL. COMM’N ON THE FAIR ADMIN. OF JUSTICE, supra note 14, at 48 (noting Los Angeles
County’s requirement of “strong corroborative evidence”).
65. Id. at 50; see also People v. McLean, 84 Cal. 480, 482, 24 P. 32, 32 (1890) (holding that section
1111 does not include a degree of corroboration).
66. See CAL. COMM’N ON THE FAIR ADMIN. OF JUSTICE, supra note 14, at 50 (lacking a term of degree
of corroboration, though indicating a preference for an instruction).
67. See PENAL § 1111.5(a) (enacted by Chapter 153) (lacking any indication of a corroborative degree
requirement).
68. See Kaiser Steel Corp. v. Cnty. of Solano, 90 Cal. App. 3d 662, 667, 153 Cal. Rptr. 546, 549 (1st
Dist. 1979) (“Where the Legislature omits a particular provision . . . related to the same subject matter, such
deliberate omission indicates a different intention which may not be supplanted in the process of judicial
construction.”).
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term under section 1111, where “evidence is sufficient if it of itself tends to
69
connect the defendant with the commission of the offense.”
D. Consequences of Chapter 153
Chapter 153 may have a significant impact on the number of in-custody
informants that testify, and possibly the number of convictions in certain types of
70
cases, by limiting testimony to corroborated in-custody informants. The
intensity of such an impact will directly relate to the level of corroboration
required to comply with the new statute; a higher burden may reduce the use of
71
in-custody informants. Since jailhouse informants often provide proof of the
72
existence of special circumstances or a fact in aggravation, Chapter 153 could
73
reduce the number of death sentences imposed on defendants.
However, the California District Attorneys Association argues that Chapter
153 will “place[] significant burdens on prosecutors,” that will limit the ability of
74
prosecutors to convict perpetrators that commit crimes in jails or prisons. Since
75
correctional facility personnel rarely witness crimes committed in prison,
opponents of Chapter 153 argue that the only witnesses of the crime will be
76
prisoners that fall within Chapter 153’s definition of an in-custody informant.
However, Chapter 153 specifically states that the limitation on testimony by in77
custody informants does not apply to percipient witnesses. Such percipient
witnesses could also corroborate an in-custody informant’s testimony regarding
78
crimes committed in prisons or jails. This being the case, it seems improbable
69. See McLean, 84 Cal. at 482, 24 P. at 32 (holding corroborating evidence to be “sufficient” under
California Penal Code section 1111 “if it, of itself, tends to connect the defendant with the commission of the
offense, although it is slight, and entitle[d], when standing by itself, to but little consideration”); People v.
Arias, 45 Cal. 4th 169, 177, 195 P.3d 103, 107 (2008) (indicating that if the text of a statute does not indicate
the legislative intent, the court will resolve ambiguities to “harmonize the statute internally and with related
statutes”).
70. See CAL. COMM’N ON THE FAIR ADMIN. OF JUSTICE, supra note 14, at 45–46 (discussing the “high
prevalence of the use of arrested or charged informants in capital cases” and the reduction of annual approvals
of in-custody informant testimony by the Los Angeles County District Attorney’s Office from about six
annually to about three annually).
71. See generally id. at 50 (discussing the Los Angeles County District Attorney’s policy requiring
“strong corroborative evidence” and the effects of that policy).
72. Id. at 45 (restating the opinion of Michael Laurence, Director of the California Habeas Corpus
Resource Center, that jailhouse informants “often provide crucial testimony to prove the alleged special
circumstance which make the defendant eligible for the death penalty”).
73. See id. (stating the commission’s desire to ensure justice in capital cases by having more confidence
in the reliability of testimony made by in-custody informants).
74. SENATE RULES COMMITTEE, SENATE FLOOR ANALYSIS OF SB 687, at 7 (Apr. 12, 2011).
75. Id.
76. Id.
77. CAL. PENAL CODE § 1111.5(b) (enacted by Chapter 153).
78. SENATE RULES COMMITTEE, SENATE FLOOR ANALYSIS OF SB 687, at 7 (Apr. 12, 2011).
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that Chapter 153 will create a significant burden on the prosecution of crimes
79
committed in prisons or jails.
In addition to the impact on the criminal justice system, Chapter 153 has the
80
potential to save the state a significant amount of money. If Chapter 153 meets
its goal of reducing the number of wrongful convictions, the state could
81
potentially save millions of dollars. The automatic appeals, incarceration, and
heightened security costs that accompany death-penalty convictions cost the state
several hundred-thousand dollars per sentence, so while the future economic
impact of Chapter 153 is unknown, it has the potential to greatly decrease those
82
costs.
E. Chapter 153 in Practice
At trial, it is likely that the first invocation of Chapter 153 will be on a
83
motion for judgment of acquittal. The law is not a rule of evidence, and the
defendant cannot quash corroborating evidence as insufficient, as “the strength or
84
credibility of the corroborating evidence is [a question of fact] for the jury.” The
next invocation of Chapter 153 would likely take the form of jury instructions,
which are likely to include the cautionary instruction of section 1127a and an
85
instruction similar to that read for section 1111 on corroboration. While Chapter
79. But see id. (restating the argument made by the California District Attorneys Association that
Chapter 153 will create an additional burden on prosecutors to prove crimes perpetrated in jail or prison).
80. See ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 687, at 9–10 (June
14, 2011) (stating that wrongful convictions based on the false testimony of in-custody informants “have led to
expensive lawsuits against local governments”).
81. See id. (stating that a single lawsuit brought against the City of Long Beach for a wrongful
conviction based largely on in-custody informant testimony settled for eight million dollars); Robert Reinhold,
California Shaken over an Informer, N.Y. TIMES, Feb. 16, 1989, § A, at 1 (reporting that lawyers in California
compiled a list of 225 people convicted of felonies in cases where a jailhouse informant testified during the
1980s); THE INNOCENCE PROJECT, http://www.innocenceproject.org/understand/Snitches-Informant.php (on file
with the McGeorge Law Review) (“In more than 15% of wrongful conviction cases overturned through DNA
testing, an informant [or jailhouse snitch] testified against the defendant.”).
82. See ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 687, at 9–10 (June
14, 2011) (indicating that a single lawsuit brought against a city or county can cost millions of dollars); CAL.
COMM’N ON THE FAIR ADMIN. OF JUSTICE, supra note 14, at 45 (restating the opinion of Michael Laurence,
Director of the California Habeas Corpus Resource Center, that jailhouse informants “often provide crucial
testimony to prove the alleged special circumstance which make[s] the defendant eligible for the death
penalty”); Carol J. Williams, Death Penalty in State Comes with a High Price; Taxpayers Have Spent $308
Million per Execution, Data Show Reforms Urged, L.A. TIMES, June 20, 2011, at 1 (explaining the costs
associated with the death penalty in California).
83. See CAL. PENAL CODE § 1118.1 (West 2004) (requiring an entry of a judgment of acquittal for a lack
of evidence to sustain a conviction); People v. Szeto, 29 Cal. 3d 20, 43, 623 P.2d 213, 217–18 (1981) (citing
People v. Perry, 7 Cal. 3d 756, 774, 499 P.2d 129, 139 (1972)) (indicating that part of the standard of review for
an appellate court is “determin[ing] [whether] the corroborating evidence should not have been admitted or
[whether] it could not reasonably tend to connect a defendant with the commission of a crime”).
84. People v. Barker, 114 Cal. 617, 620, 46 P. 601, 601 (1896).
85. PENAL § 1127a(b) (West 1995); see also LUNDY, supra note 29 (explaining the requirement of
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153 specifies that a jury may not find a special circumstance absent corroborating
evidence, Penal Code section 1385 prevents a trial court from striking a jury’s
86
finding of a special circumstance. Instead, the defendant’s procedural remedy at
trial would be to move for a new trial, asserting that there was “either a physical
impossibility that [the statements given by the witness] are true, or . . . falsity [is]
apparent without resorting to inferences or deductions” so as to fail to sufficiently
87
corroborate the in-custody informant.
Section 1111 also sets out the standard of review on appeal to determine
whether sufficient corroboration supports the verdict: “Unless a reviewing court
determines that the corroborating evidence should not have been admitted or that
it could not reasonably tend to connect a defendant with the commission of a
crime, the finding of the trier of fact on the issue of corroboration may not be
88
disturbed on appeal.” When there is no corroborating evidence, the “court is
89
given no alternative but to set aside the conviction.”
V. CONCLUSION
Roy Garcia went on trial for the same murder of Deborah Gregg again in
90
2006, and the only evidence presented by the district attorney that directly
91
related Garcia to the crime was Villalba’s testimony. At the end of the trial, the
92
State released Garcia after a jury found him not guilty.
In an effort to increase public trust in the criminal justice system and to
prevent injustices such as Garcia’s from occurring in the future, Senator Leno
introduced Chapter 153 as a safeguard against the possibility of perjured or false
93
statements made by in-custody informants. Specifically, Chapter 153 requires
that other evidence corroborate in-custody informant testimony in order to find a
defendant guilty of a crime, a special circumstance to be true, or for the
94
prosecution to use to prove fact in aggravation of a criminal charge. The new
having other evidence that supports the accomplice’s testimony).
86. See People v. Mendoza, 52 Cal. 4th 1056, 1075, 263 P.3d 1, 18 (2011) (holding that a jury finding of
a special circumstance may not be stricken by the trial court).
87. See People v. Simpson, 43 Cal. 2d 553, 562, 275 P.2d 31, 36 (1954) (indicating that, upon a motion
for a new trial, the defendant must show that the jury could not have reasonably found the testimony to be true).
88. Szeto, 29 Cal. 3d at 43, 623 P.2d at 217–18 (1981) (citing Perry, 7 Cal. 3d at 774, 499 P.2d at 139
(1972)).
89. People v. Garrison, 80 Cal. App. 2d 458, 462, 181 P.2d 738, 740 (1st Dist. 1947).
90. The California Supreme Court overturned the prior conviction due to the trial court’s failure to allow
Garcia or his counsel to visit the crime scene along with jurors. Patel & Tulsky, Convicted Man, supra note 1.
91. Patel & Tulsky, Disgraced, supra note 4.
92. Patel & Tulsky, Convicted Man, supra note 1.
93. ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 687, at 7 (June 14, 2011);
see also CAL. COMM’N ON THE FAIR ADMIN. OF JUSTICE, supra note 14, at 45 (proposing a statute very similar
to Chapter 153 to ensure confidence in the reliability of informant testimony).
94. CAL. PENAL CODE § 1111.5(a) (enacted by Chapter 153).
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95
law does not include a specific level of corroborating evidence required. Even if
the required sufficiency of corroboration is only “slight, and entitle[d], when
standing by itself, to but little consideration,” any resulting reduction of the use
96
of in-custody informants will assist in preventing injustice.
95. See id. (lacking a specific level of corroboration required); People v. McLean, 84 Cal. 480, 482, 24
P. 32, 32 (1890) (interpreting Penal Code section 1111, which also does not impose a required minimal degree
of corroboration).
96. See supra text accompanying note 68.
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Chapter 665: Changing the Process for the Administration
of Involuntary Psychotropic Medications to State Inmates
Rebecca Sem
Code Sections Affected
Penal Code § 2602 (new), § 2600 (amended).
AB 1114 (Lowenthal); 2011 STAT. Ch. 665.
I. INTRODUCTION
The recent court battle involving Jared Loughner brought publicity to the
scope and the limit of the government’s power to involuntarily administer
1
2
psychotropic medication to mentally ill persons in its custody. Authorities
accuse Loughner of killing six persons and seriously wounding thirteen others,
3
including Arizona Congresswoman Gabrielle Giffords. According to
4
prosecutors, Loughner, who was, at the time of writing, in federal custody and
suffers from schizophrenia, needs to be forcibly medicated to protect the safety
5
of staff after he “threw chairs in his cell and spat at one of his own attorneys.”
However, Loughner’s lawyers claim that the involuntary administration of
psychotropic medication violates Loughner’s personal liberty and could cause
6
him “irreparable harm.”
1. Chapter 665 does not define psychotropic medication, but prior law defines psychotropic medication
as “drugs or medications used in the treatment of mental disease, mental disorder, or mental defect.” Order
Granting Plaintiff’s Motion for Clarification & Modification of Injunction & Permanent Injunction, Keyhea v.
Rushen, Super. Ct. Solano Cnty. No. 67432, at § I(8), (Oct. 31, 1986), available at http://www.documents.
dgs.ca.gov/oah/forms/KEYHEA-67432.doc (on file with the McGeorge Law Review).
2. Many national newspapers, including The Wall Street Journal, covered the Loughner involuntary
medication trial. John R. Emshwiller & Tamara Audi, Decision to Forcibly Medicate Loughner in Judges’
Hands, WALL ST. J. (July 7, 2011), http://online.wsj.com/article/SB10001424052702303365804576432610274
749394.html (on file with the McGeorge Law Review); Oral Arguments Ordered on Whether Loughner Can Be
Forcibly Medicate [sic], FOX NEWS (July 7, 2011), http://www.foxnews.com/us/2011/07/07/oral-argumentsordered-on-whether-loughner-can-be-forcibly-medicate/#ixzz1SIIjCvFJ [hereinafter Oral Arguments Ordered]
(on file with the McGeorge Law Review).
3. Oral Arguments Ordered, supra note 2.
4. Carol J. Williams, Judges Consider Jared Lee Loughner’s Medication, L.A. TIMES (Aug. 31, 2011),
http://articles.latimes.com/2011/aug/31/nation/la-na-0831-jared-loughner-20110831 (on file with the McGeorge
Law Review).
5. Mary Slosson, Loughner Attorneys Seek Halt to Forced Medication, REUTERS (July 7, 2011),
http://www.reuters.com/article/2011/07/08/us-loughner-medication-idUSTRE7670IP20110708 (on file with the
McGeorge Law Review).
6. Emshwiller & Audi, supra note 2.
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This case highlights a due process issue that transcends the confines of the
federal prison hospital in Missouri where Loughner awaits trial—what is the
extent of the government’s power to involuntarily administer psychotropic
7
medications to persons in state custody?
In 1986, addressing similar due process concerns, the California Court of
Appeals held in Keyhea v. Rushen that California prisoners have a right “to a
judicial determination of . . . competency” before they are subjected to a long8
term involuntary psychotropic medication regimen. In the injunction that
followed its ruling, the court largely modeled its outline for inmates’ due process
9
protections after the process for civil commitments.
The Keyhea ruling came as California’s mentally ill prisoner population was
increasing, largely attributable to the closure of many state-run psychiatric
10
hospitals. As a result, “[a] 2005 state report concluded that ‘jails have become the
11
primary source of treatment for the mentally ill [in California].’” In the twenty-five
years since the Keyhea ruling, the number of mentally ill prisoners has continued to
12
rise. According to the California Department of Corrections and Rehabilitation
(CDCR), currently over thirty thousand inmates in California prisons are seriously
7. While the judges drew a distinction between Loughner, who was a pre-trial detainee, and a convicted
inmate, this case still addresses the issue of personal autonomy versus state interests. See id. (noting the
prosecution argument that prison officials can make a decision about medicating “someone in their custody that
is a danger to himself or others,” and the defense argument that “forced medication ‘is an injury to [Loughner’s]
personal autonomy’”).
8. 178 Cal. App. 3d 526, 542, 223 Cal. Rptr. 746, 755–56 (1st Dist. 1986).
9. SENATE PUBLIC SAFETY COMMITTEE, COMMITTEE ANALYSIS OF AB 1114, at F (June 28, 2011).
10. The increase of mental illness in California prisons is often attributed to the closure of many state
hospitals. See generally CAL. CORR. STANDARDS AUTH. (CSA), JAILS AND THE MENTALLY ILL: ISSUES AND
ANALYSIS 3 (2009), available at http://www.cdcr.ca.gov/COMIO/docs/MENTALLY_ILL_IN_JAILS
_PAPER%20.pdf (on file with the McGeorge Law Review) (providing findings of a study conducted regarding
the mentally ill in custody).
In the 1970s, then-Governor Ronald Reagan closed California’s large mental hospitals in order to
“deinstitutionalize” the mentally ill and encourage their treatment in local communities. Over the
intervening 30-plus years, this well intentioned effort has proven to have serious downside effects.
Communities were not prepared to treat and care for all of the mentally ill in their populations;
families were often left without treatment resources, either locally or at the state level. There was
nowhere to turn for help, except to the one place that MUST accept almost everyone brought to it—
the jail. Rather than deinstitutionalize people with mental illness, California has shifted many of
them from one kind of institution—mental hospitals—to another—its jails and prisons.
Id.
11. W. David Ball, Mentally Ill Prisoners in the California Department of Corrections and
Rehabilitation: Strategies for Improving Treatment and Reducing Recidivism, 24 J. CONTEMP. HEALTH L. &
POL’Y 1, 2 (2007) (quoting CAL. BD. OF CORR. & REHAB., MENTALLY ILL OFFENDERS CRIME REDUCTION
GRANT PROGRAM: OVERVIEW OF STATEWIDE EVALUATION FINDINGS (Mar. 2005), available at
http://www.bdcorr.ca.gov/miocrg/2005_annual_report_presentation.doc).
12. See Jamie Felder, A Corrections Quandary: Mental Illness and Prison Rules, 41 HARV. C.R.-C.L. L.
REV. 391 (2006) (“The number of incarcerated men and women with severe mental illness has grown so
tremendously in the last few decades that prisons may not be the largest mental health providers in the United
States.”).
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13
14
mentally ill, and around sixteen thousand take psychotropic medications. In
accordance with the ruling in Keyhea and the subsequent injunction, over one
15
thousand California inmates currently receive involuntary psychotropic medication.
Under the backdrop of California’s large mentally ill inmate population, Chapter
16
665 changes many of the procedures outlined in Keyhea. Chapter 665’s author
contends that these changes will allow mentally ill inmates to get the treatment they
need more quickly and efficiently while ensuring that their due process rights are
17
18
protected. While few opposed Chapter 665, some disability rights advocates have
raised concerns during the legislative process about the elimination of due process
19
protections. While it is too soon to predict whether Chapter 665 will achieve the
author’s goal of improved treatment for inmates suffering from severe mental
20
illness, the Loughner case illustrates the balance upon which Chapter 665’s
constitutionality rests—an inmate’s right to individual autonomy versus the state’s
21
interests in safety and security. By exceeding the due process protections outlined in
Washington v. Harper, Chapter 665 balances the constitutional rights of mentally ill
22
inmates with the state’s interest of ensuring a safe and secure prison environment.
II. LEGAL BACKGROUND
A. Statutory Backdrop: Section 2600 of the California Penal Code
Prior to Chapter 665 taking effect, section 2600 of the California Penal Code
stated that the state may only deny an inmate’s rights when doing so is
13. See Coleman v. Schwarzenegger, No. CIV S-90-0520 LKK JFM P, 2009 WL 2430820, at 12 (E.D.
Cal. Aug. 4, 2009) (citing statistics compiled by the CDCR).
14. Ball, supra note 11 (citing ALLEN J. BECK & LAURA M. MARUSHACK, BUREAU OF JUSTICE
STATISTICS, U.S. DEP’T OF JUSTICE, MENTAL HEALTH TREATMENT IN STATE PRISONS 6 (2001)).
15. Letter from Mark Gale, Chair of Cal. Gov’t Affairs & Pub. Pol’y Comm., Nat’l Alliance on Mental
Illness (NAMI), to Mike Feuer, Assembly Member, Cal. State Assembly (May 2, 2011) (on file with the
McGeorge Law Review).
16. CAL. PENAL CODE § 2602 (enacted by Chapter 665).
17. ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1114, at 8 (Apr. 12,
2011).
18. E-mail from Allison Ruff, Legis. Dir., Office of Assembly Member Bonnie Lowenthal, to author
(Sept. 14, 2011, 12:42 PST) [hereinafter Ruff E-mail] (on file with the McGeorge Law Review) (stating that the
remaining group in opposition to this bill is “The Citizens Commission on Human Rights (The Church of
Scientology)”).
19. Letter from Margaret Johnson, Advocacy Dir., Disability Rights Cal., to Bonnie Lowenthal,
Assembly Member, Cal. State Assembly (Apr. 19, 2011) (on file with the McGeorge Law Review) (claiming
due process concerns as a reason to oppose this bill, but later withdrew their opposition).
20. See discussion infra Part IV.A.
21. See generally Washington v. Harper, 494 U.S. 210 (1990) (providing the framework to do a
constitutional analysis of Chapter 665); Emshwiller & Audi, supra note 2 (noting the prosecution argument that
prison officials can make a decision about medicating “someone in their custody that is a danger to himself or
others,” and the defense argument that “forced medication ‘is an injury to [Loughner’s] personal autonomy’”).
22. See discussion infra Part IV.B.
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23
“reasonably related to legitimate penological interests.” Prior law under Penal
Code section 2600 prohibited “the involuntary administration of psychotropic
medication unless the process specified in the [Keyhea] injunction . . . has been
24
followed.”
B. California Due Process: Keyhea v. Rushen and the Keyhea Injunction
In Keyhea v. Rushen, the California Court of Appeals held that prisoners
receiving long-term involuntary psychotropic medications were entitled to the
25
same procedural rights as civilly committed patients. The court determined that
26
then-section 2600 of the California Penal Code applied to statutory rights.
Therefore, the statute granting non-prisoners the right to a judicial hearing before
27
being subjected to long-term medication applied to inmates as well. In the
second part of its analysis, the court found that allowing a judicial hearing did not
conflict with penological interests because transporting prisoners to the hearings
28
did not threaten prison security.
In the permanent injunction that followed, the court outlined the process that
California prisons must follow when administering involuntary psychotropic
29
medications to mentally ill inmates. The procedures largely mirrored the
30
requirements “applicable to long term civil commitments of non-inmates.”
23. CAL. PENAL CODE § 2600 (as amended by Chapter 665). Penal Code section 2600 is based on the
Turner constitutional factor test to determine whether a prison regulation is “reasonably related to penological
interests.” Snow v. Woodford, 128 Cal. App. 4th 383, 390, 26 Cal. Rptr. 3d 862, 867 (4th Dist. 2005). The
Turner factors are as follows:
In determining reasonableness, relevant factors include (a) whether there is a “valid, rational
connection” between the regulation and a legitimate and neutral governmental interest put forward to
justify it, which connection cannot be so remote as to render the regulation arbitrary or irrational; (b)
whether there are alternative means of exercising the asserted constitutional right that remain open to
inmates, which alternatives, if they exist, will require a measure of judicial deference to the
corrections officials' expertise; (c) whether and the extent to which accommodation of the asserted
right will have an impact on prison staff, on inmates’ liberty, and on the allocation of limited prison
resources, which impact, if substantial, will require particular deference to corrections officials; and
(d) whether the regulation represents an “exaggerated response” to prison concerns, the existence of
a ready alternative that fully accommodates the prisoner’s rights at de minimis costs to valid
penological interests being evidence of unreasonableness.
Turner v. Safley, 482 U.S. 78, 78–79 (1987). As pointed out in Keyhea v. Rushen, prison security is considered
a penological interest. 178 Cal. App. 3d 526, 542, 223 Cal. Rptr. 746, 755 (1st Dist. 1986).
24. PENAL § 2600 (as amended by Chapter 665).
25. Keyhea, 178 Cal. App. 3d at 542, 223 Cal. Rptr. at 755.
26. Id. at 537, 223 Cal. Rptr. at 752.
27. Id.
28. Id. at 542, 223 Cal. Rptr. at 755.
29. Order Granting Plaintiff’s Motion for Clarification & Modification of Injunction & Permanent
Injunction, supra note 1.
30. SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1114, at I (June 28, 2011).
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Under the Keyhea injunction, the CDCR could administer involuntary
31
psychotropic medication to an inmate for up to twenty-four days, as long as the
CDCR provided the inmate with notice of a certification hearing within seventytwo hours of initiating the administration of involuntary psychotropic
32
medications. The injunction required the CDCR to provide the inmate with a
certification hearing no later than ten days after initiating the administration of
33
involuntary medications. If a hearing officer determines at the certification
hearing that the CDCR has probable cause to believe that the prisoner “is
incompetent to refuse medication,” the CDCR can continue administering the
medication for the full twenty-four day period, which starts upon the initial
34
administration of the medication. The court may grant a temporary order to
allow doctors to continue medicating an inmate involuntarily for twenty-three
35
more days, for a total of forty-seven days. With both the certification and
judicial hearings, the injunction guaranteed the inmate certain procedural rights,
including the right to present and question evidence, the right to attend the
36
hearing, and the right to counsel.
At the judicial hearing, if the administrative law judge (ALJ) determined by
clear and convincing evidence that the inmate posed a threat to others or self, or
37
was gravely disabled, then the CDCR could involuntarily medicate the inmate.
To continue administering involuntary medications for any additional time, the
state needed to file a renewal petition and provide the inmate with a new hearing
38
before the prior order expired.
C. Federal Constitutional Due Process: Washington v. Harper
In Washington v. Harper, the United States Supreme Court considered
whether the process of involuntarily administrating psychotropic medications to
mentally ill inmates in Washington State was constitutional under the Due
39
Process Clause of the Fourteenth Amendment of the United States Constitution.
31. The twenty-four day period includes the twenty-one additional days beyond the initial seventy-two
hour period. Order Granting Plaintiff’s Motion for Clarification & Modification of Injunction & Permanent
Injunction, supra note 1, § II(A)(1).
32. Id. at 2.
33. Id. § II(E).
34. Id. § II(M)(3).
35. Id. § III(H).
36. Id. §§ II(J–L), III (C–D).
37. Id. §§ III(F), III(I).
38. Id. § III(I).
39. 494 U.S. 210 (1990). Under Washington state law, the State can involuntarily medicate a mentally ill
inmate who is a danger to self, others, or gravely disabled. Id. They are entitled to a hearing before a panel
including the inmate’s “nontreating psychiatrist, a psychologist, and the Center’s Associate Superintendent.” Id.
at 217. The state’s procedural due process rights are as follows:
At the hearing, the inmate has the right to attend; to present evidence, including witnesses; to cross-
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In doing so, the Court addressed both substantive and procedural due process
40
concerns.
1. Substantive Due Process
In analyzing substantive due process, the Court acknowledged that under the
Fourteenth Amendment, inmates have a liberty interest to be free of “unwanted
41
administration of antipsychotic drugs . . . .” In order for the state to infringe on
this liberty interest, the challenged statute has to be “reasonably related to
42
legitimate penological interests.” Using the factors test for reasonableness
43
established in Turner v. Safley, the Court reasoned that the Washington statute
was rationally related to the safety and security of inmates and staff to justify the
44
constitutional infringement, given no suitable alternative to treatment. The
Court held that “the Due Process Clause permits the State to treat a prison inmate
who has a serious mental illness with antipsychotic drugs against his will, if the
inmate is dangerous to himself or others and the treatment is in the inmate’s
45
medical interest.”
2. Procedural Due Process
The Court used the factors test from Mathews v. Eldridge to determine
whether the Washington statute conformed to procedural due process
46
requirements.
The Mathews factors test considers private interests,
47
governmental interests, and the “value of procedural requirements in
48
determining what process is due under the Fourteenth Amendment.” In regard
to whether inmates subject to involuntary psychotropic medication had a right to
examine staff witnesses; and to the assistance of a lay adviser who has not been involved in his case
and who understands the psychiatric issues involved. Minutes of the hearing must be kept, and a
copy provided to the inmate. . . . The inmate may seek judicial review of a committee decision in
state court by means of a personal restraint petition or extraordinary writ.
Id. at 215–16.
40. Id. at 220–21.
41. Id. at 222.
42. Id. at 224.
43. See supra note 23.
44. Harper, 494 U.S. at 226.
45. Id. at 227.
46. Id. at 229.
47. The government interests “includ[e] the function involved and the fiscal and administrative burdens
that any additional or substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U.S. 319, 335
(1976).
48. Harper, 494 U.S. at 229 (quoting Hewitt v. Helms, 459 U.S. 460 (1983)) (internal quotation marks
omitted). According to Mathews v. Eldridge, the value component includes “the risk of an erroneous
deprivation of such [private] interest through the procedures used, and the probable value, if any, of additional
or substitute procedural safeguards.” 424 U.S. at 335.
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a judicial hearing, the Court found that while inmates have a substantial interest
in avoiding involuntary psychotropic medication, “judicial hearings will divert
49
scarce prison resources.” The Court also noted that independent medical
decision makers, such as medical personnel, are better suited to make these
50
decisions than judges. The Court determined that given the medical nature of
the hearings, inmates are not entitled to a clear and convincing standard of
51
evidence or to be represented by counsel. Finally, the Court recognized that the
Due Process Clause requires certain protections, including judicial review,
“notice, the right to be present at an adversary hearing, and the right to present
52
and cross-examine witnesses.”
III. CHAPTER 665
Chapter 665 codifies and modifies the process by which the CDCR may
53
administer psychotropic medications to an inmate without the inmate’s consent.
Chapter 665 removes the language from section 2600 that refers to the Keyhea
54
injunction. Section 2602 of the California Penal Code, as enacted by Chapter
55
665, replaces the Keyhea injunction.
Generally, before a psychiatrist can administer psychotropic medication to an
56
inmate in a California prison, the inmate must first give informed consent.
Chapter 665 outlines exceptions to this general rule: a psychiatrist can administer
psychotropic medication to an inmate without his or her consent during an
57
emergency, or when an inmate “refuses or is unable to consent to the
administration of medication,” and the inmate is either gravely disabled or, as a
58
result of a mental illness, is a danger to one’s self or others.
When a psychiatrist administers involuntary psychotropic medications to an
inmate, the inmate must receive a “hearing before an administrative law judge no
49. Harper, 494 U.S. at 231–35.
50. Id.
51. Id. at 235–36.
52. Id. at 235.
53. CAL. PENAL CODE § 2600 (as amended by Chapter 665); id. § 2602 (as enacted by Chapter 665).
54. Order Granting Plaintiff’s Motion for Clarification & Modification of Injunction & Permanent
Injunction, supra note 1.
55. Compare id. (requiring, for example, that an inmate receive a certification review hearing ten days
after the administration of involuntary medications, and that the length of time for an order for danger to self
and others is 180 days), with PENAL § 2602 (enacted by Chapter 665) (discontinuing the requirement for a
certification hearing and extending the order period to one year).
56. PENAL § 2602(a) (enacted by Chapter 665).
57. Id. § 2602(d) (enacted by Chapter 665).
58. Id. § 2602(c) (enacted by Chapter 665). Unlike the Keyhea injunction, these terms are not defined.
According to the author, the definition for grave disability used in the Keyhea injunction was adopted from the
Welfare and Institutions Code. See Ruff E-mail, supra note 18 (indicating the reference to the Welfare and
Institutions Code); see also CAL. WELF. & INST. CODE §§ 5008, 5300 (West 2010) (defining terms in this
section).
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59
more than thirty days” after the CDCR files the notice. The inmate has the right
60
61
to counsel and to “be present at the hearing.” At the hearing, the judge will
62
consider evidence, along with the inmate’s psychiatric history, to determine
whether, “by clear and convincing evidence,” an inmate is a danger to his or her
63
self, others, or is gravely disabled. If the judge reaches such a determination, the
CDCR may continue to administer psychotropic medications without the
64
inmate’s consent for one year.
To renew an existing order, the inmate must lack sufficient insight into his or
her mental condition “to manage his or her own medication and treatment
65
regimen.” The filing deadline for a renewal order is the same as for an initial
66
67
order, and all renewed orders are valid for one year. The inmate is also
“entitled to file one motion for reconsideration following a determination that he
68
or she may receive involuntary medication . . . .”
IV. ANALYSIS
A. Need for Chapter 665
Chapter 665, according to its author Assembly Member Bonnie Lowenthal,
69
“reflects a carefully crafted agreement between the stakeholders[ ] that is
intended to provide adequate due process protections to inmates, while at the
70
same time streamlining and expediting the Keyhea process.” Assembly Member
Lowenthal contends that the goal of these changes is to “shorten[] the time frame
71
for a prisoner to receive long-term medication to improve their mental health.”
59. PENAL § 2602(c)(5)–(6) (enacted by Chapter 665).
60. See id. § 2602(c)(6) (enacted by Chapter 665) (“The inmate is provided counsel at least 21 days prior
to the hearing.”).
61. Id. § 2602(c)(7)(B) (enacted by Chapter 665).
62. Id. § 2602(c)(9) (enacted by Chapter 665).
63. Id. § 2602(c)(8) (enacted by Chapter 665).
64. Id. § 2602(e) (enacted by Chapter 665).
65. Id. § 2602(g)(4) (enacted by Chapter 665).
66. Id. § 2602(g) (enacted by Chapter 665). For a timeline for an initial order, see supra note 58 and
accompanying text.
67. PENAL § 2602(g)(3) (enacted by Chapter 665).
68. Id. § 2602(c)(10) (enacted by Chapter 665).
69. Stakeholders in this process include Disability Rights CA, CA Psychiatric Association, National
Alliance on Mental Illness (NAMI) California, California Correctional Peace Officers Association, other law
enforcement groups, Prison Law Office, CA Association of Psychiatric Technicians, in-house psychiatric staff
at CDCR, CDCR attorneys, Coleman v. Brown attorneys, ACLU, CA Psychological Association, inmate rights
groups, and others. Ruff E-mail, supra note 18.
70. ASSEMBLY COMMITTEE ON JUDICIARY, COMMITTEE ANALYSIS OF AB 1114, at 1 (May 3, 2011).
71. ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1114, at 7 (Apr. 12,
2011).
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72
As such, Chapter 665’s stakeholders designed many of the major changes
associated with this bill—the elimination of the certification hearing and the
shortening of the time frame before the judicial hearing from no later than fortyseven days after initiation of medication to thirty days after initiation—to help
improve inmate mental health outcomes by “making a long-term treatment plan
73
possible sooner.”
Another goal of Chapter 665’s supporters was to streamline Keyhea
processes because the court adopted many of the procedures from the statutes
74
governing civil commitments, which “include increasingly stringent reviews.”
For example, Assembly Member Lowenthal asserted that the certification hearing
“was of limited utility” to inmates because the proceedings “invariably result[ed]
75
in a finding of probable cause.” Because ALJs approved ninety-nine percent of
76
Keyhea petitions, some felt that the process was “entirely unnecessary” and
77
“waste[d] valuable clinical and clerical resources.”
Prior to Chapter 665, when an ALJ found by clear and convincing evidence
that an inmate was a danger to self or others, the ALJ granted an order to
78
involuntarily administer psychotropic medications for six months. Under
Chapter 665, the court-order period is extended to one year, which matches the
79
length of court order for medicating a gravely disabled inmate. In 2010, the
CDCR filed 1,035 petitions to renew court orders to medicate inmates found to
80
be a danger to self and to others after the initial six months. Judges denied only
seventeen of those requests, an indication that the renewal hearing made little
81
difference in patient outcomes and largely drained resources.
Chapter 665 allows ALJs to consider the relevant psychiatric history of the
inmate when determining if the inmate is a danger to him or herself or others, or
82
is gravely disabled. Under Keyhea, ALJs could not consider past mental health
83
history when making determinations. According to Assembly Member
Lowenthal, authorities use such information in civil commitment hearings, and
ALJs can use this background information to determine whether the inmate’s
72. See supra note 69.
73. ASSEMBLY COMMITTEE ON JUDICIARY, COMMITTEE ANALYSIS OF AB 1114, at 10 (May 3, 2011).
74. SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1114, at F (June 28, 2011).
75. ASSEMBLY COMMITTEE ON JUDICIARY, COMMITTEE ANALYSIS OF AB 1114, at 10 (May 3, 2011).
76. ASSEMBLY COMMITTEE ON JUDICIARY, COMMITTEE ANALYSIS OF AB 1114, at 12 (Apr. 26, 2011).
77. ASSEMBLY COMMITTEE ON JUDICIARY, COMMITTEE ANALYSIS OF AB 1114, at 10 (May 3, 2011).
78. Order Granting Plaintiff’s Motion for Clarification & Modification of Injunction & Permanent
Injunction, supra note 1.
79. CAL. PENAL CODE § 2602(e) (enacted by Chapter 665).
80. ASSEMBLY COMMITTEE ON APPROPRIATIONS, COMMITTEE ANALYSIS OF AB 1114, at 3 (May 18,
2011).
81. Id.
82. PENAL § 2602(c)(9) (enacted by Chapter 665).
83. See Order Granting Plaintiff’s Motion for Clarification & Modification of Injunction & Permanent
Injunction, supra note 1.
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history suggests the patient’s dangerous behavior or grave disability will return
84
upon taking the inmate off of the medication. Such information can prevent
85
inmates from “cycling” on and off of medication, which can be harmful. While
it is too soon to tell whether the sponsors of Chapter 665’s goals of improved
treatment of mentally ill inmates and greater efficiency will be realized, the
86
changes appear to be a step in the right direction.
B. Constitutionality of Chapter 665
Throughout the legislative process, groups opposed to Chapter 665 voiced
87
due process concerns. However, Assembly Member Lowenthal stated that one
of Chapter 665’s main objectives was to preserve the due process rights of
88
inmates. Chapter 665 appears to meet and exceed existing due process
standards, even in absence of the certification hearing and extended renewal
89
period.
1. Substantive Due Process
In Washington v. Harper, the United States Supreme Court outlined the
constitutional substantive due process test in regard to the administration of
involuntary medication to inmates: prison medical authorities cannot override an
inmate’s refusal of medication unless doing so is “reasonably related to
90
penological interests.” Due to the “requirements of the prison environment,” the
Due Process Clause would permit the CDCR to “treat a prison inmate who has a
serious mental illness with antipsychotic drugs against his will if the inmate is
dangerous to himself or others and the treatment is in the inmate’s medical
91
interest.” Under Chapter 665, a psychiatrist can only initiate involuntary
psychotropic medication for an inmate with a serious mental disorder who is
84. Ruff E-mail, supra note 18.
85. Id.
86. See generally ASSEMBLY COMMITTEE ON JUDICIARY, COMMITTEE ANALYSIS OF AB 1114, at 1 (May
3, 2011) (stating goals of Chapter 665).
87. See Ruff E-mail, supra note 18 (stating that the remaining group in opposition to this bill is “The
Citizens Commission on Human Rights (The Church of Scientology)”). Some of the due process concerns were
addressed in amendments. See SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1114, at
N (June 28, 2011) (debating whether to amend the bill to allow inmates the right to request a rehearing, with
Disability Rights California opposing the bill unless amended); see also PENAL § 2602(g)(3) (enacted by
Chapter 665) (showing amendments to bill allowing motion for reconsideration).
88. ASSEMBLY COMMITTEE ON JUDICIARY, COMMITTEE ANALYSIS OF AB 1114, at 5 (May 3, 2011).
89. See id. (stating that Chapter 665 should meet the minimum due process requirements under
Washington v. Harper).
90. 494 U.S. 210, 224 (1990).
91. Id. at 227 (emphasis added).
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92
gravely disabled or is a danger to himself or others. In regard to medical
interest, Chapter 665 provides that a psychiatrist must only prescribe the
93
medication for treatment of an inmate’s mental disorder. Thus, Chapter 665
appears to meet the substantive due process standards outlined in Washington v.
94
Harper.
2. Procedural Due Process
Procedural Due Process requires that individuals be given notice and an
95
opportunity to be heard prior to losing a substantive right. Chapter 665
eliminates the certification hearing and extends the renewal period to an entire
96
year. Either of these changes eliminates two opportunities for a prisoner to be
heard, so the change in the law could conceivably bring the forced-medication
97
process below the minimum threshold required for procedural due process.
However, the government’s interests are also taken into account in the procedural
98
due process analysis. Since the outcomes of the hearings were so rarely in the
99
defendants’ favor, losing such hearings would have little impact on the
100
defendants while substantially advancing the state’s legitimate interests.
Chapter 665 appears to meet or exceed the other procedural due process
101
standards outlined in Harper. Under Chapter 665, inmates are provided a
92. PENAL § 2602(c)(2) (enacted by Chapter 665).
93. Id. § 2602(c)(3) (enacted by Chapter 665).
94. This analysis reaches the same conclusion as the Assembly Committee on Public Safety. See
ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1114, at 11 (Apr. 12, 2011) (finding
that “this bill meet[s], and in some case[s] exceed[s], the requirements in Washington v. Harper”).
95. Harper, 494 U.S. at 235.
96. See ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 114, at 6 (Apr. 12,
2011) (stating that the bill changes the Keyhea process, including the elimination of the certification review
hearing).
97. Id.; see also Harper, 494 U.S. at 229 (noting that the administration of involuntary medication
“represents a substantial interference with that person’s liberty”).
98. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (noting that the government’s interest “includ[e]
the function involved and the fiscal and administrative burdens that any additional or substitute procedural
requirement would entail”).
99. ASSEMBLY COMMITTEE ON JUDICIARY, COMMITTEE ANALYSIS OF AB 1114, at 10 (May 3, 2011);
see also ASSEMBLY COMMITTEE ON JUDICIARY, COMMITTEE ANALYSIS OF AB 1114, at 12 (Apr. 26, 2011)
(“[I]n over 99% of cases the certification review hearing results in a finding of probable cause that the inmate is
gravely disabled or is a danger to self or others and the Keyhea process appropriately moves forward as
specified.”); ASSEMBLY COMMITTEE ON APPROPRIATIONS, COMMITTEE ANALYSIS OF AB 1114, at 3 (May 18,
2011) (noting that in 2010, only seventeen out of 1,035 inmates had their involuntary medication orders
discontinued at the renewal hearing).
100. See generally ASSEMBLY COMMITTEE ON APPROPRIATIONS, COMMITTEE ANALYSIS OF AB 1114, at
10 (May 18, 2011) (stating how the certification hearing is “entirely unnecessary” and a waste of resources); see
also id. at 2 (noting that the CDCR will likely save millions by eliminating the hearings).
101. This analysis reaches the same conclusion as the Assembly Committee on Public Safety. See
ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1114, at 11 (Apr. 12, 2011) (finding
that “this bill meet[s], and in some case[s] exceed[s], the requirements in Washington v. Harper”).
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judicial hearing, likely in acquiescence to the Keyhea v. Rushen ruling that
inmates are entitled to a judicial determination of competency in accordance with
102
Penal Code section 2600. Unlike Harper, Chapter 665 requires that counsel
103
represent the inmates at the judicial hearing. At these hearings, the ALJ must
determine, by clear and convincing evidence, that the inmate is mentally ill, and
this illness makes the inmate gravely disabled, or “a danger to self or others if not
104
medicated.”
Finally, Harper stated that due process in cases involving the involuntary
medication to inmates requires “notice, the right to be present at an adversary
hearing, and the right to present and cross-examine witnesses,” all of which
105
Chapter 665 provides. Additionally, both Harper and Chapter 665 provide
106
inmates with the right to judicial review. Therefore, Chapter 665 appears to
meet and exceed the Harper substantive and procedural due process standards as
the supporters of Chapter 665 suggest, even in absence of the certification
107
hearing and extended renewal period.
C. Financial Impact of Chapter 665
When the California legislature approved the 2011 budget, the State
108
announced $14.6 billion in budget cuts—one billion dollars to the CDCR alone.
Chapter 665 helps mitigate the impact, because the extension of the renewal
hearings from six months to a year will provide the CDCR with annual savings of
109
around two million dollars. Lower legal expenditures and less frequent
110
psychiatric evaluations will bring about many of these savings. In addition, “the
removal of the certification review hearing will result in annual savings of
111
approximately $162,500.” Although the savings are minimal, Assembly
Member Lowenthal said, “Every penny counts. . . . I know that $2 million
112
doesn’t solve our budget problems, but it does move us in the right direction.”
102. Keyhea v. Rushen has been in place for twenty years, and Keyhea ruled that inmates have a
statutory right to a hearing under California Penal Code section 2600. See Keyhea v. Rushen, 178 Cal. App. 3d
526, 534, 223 Cal. Rptr. 746, 750 (1st Dist. 1986) (holding that Penal Code section 2600 gives inmates the
statutory right to a judicial hearing).
103. CAL. PENAL CODE § 2602(c)(6) (enacted by Chapter 665).
104. Id. § 2602(c)(8) (enacted by Chapter 665).
105. Washington v. Harper, 494 U.S. 210, 235 (1990).
106. Id. at 233; PENAL § 2602(c)(10), (g)(4)–(5) (enacted by Chapter 665).
107. ASSEMBLY COMMITTEE ON JUDICIARY, COMMITTEE ANALYSIS OF AB 1114, at 11 (May 3, 2011).
108. Tami Luhby, California Lawmakers Pass Budget with Deep Cuts, CNN (June 29, 2011),
http://money.cnn.com/2011/06/29/news/economy/california_budget/ (on file with the McGeorge Law Review).
109. SENATE APPROPRIATIONS COMMITTEE, COMMITTEE ANALYSIS OF AB 1114, at 2 (Aug. 15, 2011).
110. ASSEMBLY COMMITTEE ON APPROPRIATIONS, COMMITTEE ANALYSIS OF AB 1114, at 2 (May 18,
2011).
111. SENATE APPROPRIATIONS COMMITTEE, COMMITTEE ANALYSIS OF AB 1114, at 2 (Aug. 15, 2011).
112. AB 1114 Expected to Save State $2 Million a Year, SIGNAL TRIBUNE (June 3, 2011),
http://www.signaltribunenewspaper.com/archives/10609 (on file with the McGeorge Law Review).
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V. CONCLUSION
With the passage of Chapter 665, the process by which the CDCR
involuntarily administers psychotropic medications to mentally ill inmates
113
changes considerably. Prior to Chapter 665, the guidelines the CDCR followed
were based on the process for civil commitment hearings and included many of
114
the same due process safeguards. The Keyhea process far exceeded the
minimum due process guidelines for the involuntary administration of
psychotropic medications to mentally ill inmates established in Washington v.
115
Harper. Further, the certification hearing and bi-annual hearing provided for
116
under Keyhea rarely changed the outcome for inmates.
With Chapter 665’s modifications, inmates appear to receive more due
117
process protections than the Constitution provides. The abundant amount of
due process afforded to inmates under the Keyhea process utilized limited state
118
monetary, legal, and clerical resources. Given California’s limited resources
119
and budgetary concerns, all efforts that aid efficiency and cost-cutting helps. In
addition, this legislation is focused on an important goal—better healthcare
120
outcomes for California’s mentally ill inmates. Therefore, Chapter 665 appears
to be a deliberately crafted agreement with input from interested stakeholders,
121
ensuring that inmates’ interests are balanced with competing state interests.
113. SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1114, at G (June 28,
2011).
114. See id. at F (“[T]he court adopted the procedures used when court civilly commits a person as
gravely disabled or a danger to self or others. These procedures include increasingly stringent reviews and
hearings depending on the length of the commitment.”).
115. See ASSEMBLY COMMITTEE ON JUDICIARY, COMMITTEE ANALYSIS OF AB 1114, at 12 (Apr. 26,
2011) (“[T]here is evidence that the procedures set forth in this bill meet, and in some case exceed, the
requirements of [Washington v. Harper].”).
116. See ASSEMBLY COMMITTEE ON APPROPRIATIONS, COMMITTEE ANALYSIS OF AB 1114, at 2 (May
18, 2011) (stating that the ALJs only denied seventeen requests for renewal orders in 2010); ASSEMBLY
COMMITTEE ON JUDICIARY, COMMITTEE ANALYSIS OF AB 1114, at 12 (Apr. 26, 2011) (“[T]he certification
review hearing is entirely unnecessary and therefore wastes valuable clinical and clerical resources.”).
117. See ASSEMBLY COMMITTEE ON JUDICIARY, COMMITTEE ANALYSIS OF AB 1114, at 12 (Apr. 26,
2011) (“[T]here is evidence that the procedures set forth in this bill meet, and in some case exceed, the
requirements of [Washington v. Harper].”).
118. See id. at 12 (“[T]he certification review hearing is entirely unnecessary and therefore wastes
valuable clinical and clerical resources.”).
119. See AB 1114 Expected to Save State $2 Million a Year, supra note 112 (quoting the bill’s author,
Assembly Member Bonnie Lowenthal, as saying “[e]very penny counts,” and that the savings move the state in
the right direction).
120. ASSEMBLY COMMITTEE ON JUDICIARY, COMMITTEE ANALYSIS OF AB 1114, at 10 (May 3, 2011).
121. See Ruff E-mail, supra note 18 (outlining the divergent interest groups involved in the legislative
process of Chapter 665).
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Pandora’s Lock-Box: Is the Legislature Locking Handguns
in a Box, or Unleashing Concealed Weapons?
Hunter Starr
Code Sections Affected
Business & Professions Code §§ 7574.14, 7582.2 (amended); Penal
Code §§ 626.92, 16950, 17040, 17295, 17512, 25590, 26350, 26361,
26362, 26363, 26364, 26365, 26366, 26367, 26368, 26369, 26370,
26371, 26372, 26373, 26374, 26375, 26376, 26377, 26378, 26379,
26380, 26381, 26382, 26383, 26384, 26385, 26386, 26387, 26388,
26389 (new), §§ 16520, 16750, 16850, 25595, 25605 (amended).
AB 144 (Portantino); 2011 STAT. Ch. 725.
I. INTRODUCTION
On May 2, 1967, armed members of the Black Panther Party for
1
Self-Defense (BPPSD) “forced their way into” the California State Capitol. The
2
group carried loaded pistols, rifles, and shotguns. The Panthers had come to
protest the passing of the Mulford Act, which they saw as a racist attempt to
3
disarm the black community. It would be one of the last times carrying loaded
4
guns like this in public, a central activity to the BPPSD movement, was legal.
5
The BPPSD emerged in California in 1966. The BPPSD believed that
arming their communities was essential to halting white violence against African6
Americans—particularly violence from white police officers. In 1967, carrying a
7
loaded gun in public was legal, even common, throughout California. While
carrying loaded weapons openly was not against the law, police confiscated
weapons from armed African-Americans and charged them with disturbing the
1. Cynthia Deitle Leonardatos, California’s Attempts to Disarm the Black Panthers, 36 SAN DIEGO L.
REV. 947, 970–72 (1999).
2. Id. at 970–71.
3. Id. at 971 (quoting Huey P. Newton).
4. See id. at 948, 976–79 n.180 (noting that California enacted legislation prohibiting carrying concealed
loaded weapons a mere three months later).
5. Id. at 968.
6. See id. at 949–50, 951–64 (providing examples of police brutality and police failure to protect
African-Americans).
7. Id. at 969.
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8
peace. The notion of African-Americans openly displaying guns during a period
9
of tense race relations was frightening to many.
In 1967, the California legislature reacted to the armed African-American
10
movement with the Mulford Act. The act criminalized carrying loaded guns in
11
public. Assembly Member Don Mulford, after whom the act was named,
claimed that the new law aimed to reduce crime, but the BPPSD maintained
12
13
otherwise. The legislature passed the Mulford Act with overwhelming support.
While laws restricting the place and manner in which citizens may carry guns
14
have been in force in California since the early twentieth century, a more
cohesive system of restrictions began in the 1960s after multiple assassinations
15
and the birth of the Black Panther Movement. In the decades since, legislators
have periodically responded to acts of violence and increased criminal activity by
16
tightening gun laws, particularly those dealing with assault rifles and handguns.
In 2011, the legislature passed Chapter 725 that, among other things, criminalizes
17
the open carrying of handguns. Most recently, California saw the emergence of
the Open Carry Movement (OCM), which is dedicated to the open carry of
18
handguns in public and the proliferation of gun-ownership rights. Like the
Black Panthers’ skepticism toward the Mulford Act, OCM members maintain
19
that the legislature passed Chapter 725 to silence their political movement.
Chapter 725’s author, however, has written that Chapter 725 is designed to
8. Id.
9. Id. at 954 (occurring during the Civil Rights Era, a full year before Dr. Martin Luther King, Jr. was
assassinated).
10. Id. at 974–77.
11. See 1967 Cal. Stat. ch. 960, § 1, at 2459–63 (enacting CAL. PENAL CODE § 12031) (repealing a law
that allowed for the open carry of loaded firearms).
12. Jerry Rankin, Black Panthers Stage Bold Act, SUMTER DAILY ITEM, May 3, 1967, at 1, available at
http://news.google.com/newspapers?id=Lo0iAAAAIBAJ&sjid=SKoFAAAAIBAJ&pg=5147,3023339&dq=bla
ck-panther+bill+1967&hl=en (on file with the McGeorge Law Review).
13. Leonardatos, supra note 1, at 976–77 (passing with a twenty-nine to seven vote in the senate and a
unanimous vote in the assembly).
14. See Michael A. Bellesiles, Firearms Regulation: A Historical Overview, 28 CRIME & JUST. 137, 137
(2001) (pointing out that gun control is not a recent phenomenon).
15. See id. at 178 (arguing that the modern gun control controversy began in 1963 with the assassination
of John F. Kennedy).
16. See 1989 Cal. Stat. ch. 19, § 3 (enacting Roberti-Roos Assault Weapons Control Act); see also 2001
Cal. Stat. ch. 942, § 1 (concerning handgun registration).
17. CAL. PENAL CODE § 26350 (enacted by Chapter 725).
18. California’s “Open Carry” Laws Explained by Criminal Defense Lawyers, SHOUSE LAW GROUP,
http://www.shouselaw.com/open-carry.html (last visited Apr. 10, 2012) (on file with the McGeorge Law
Review).
19. Itsdave101, Senate Committee on Public Safety Broadcast (June 7, 2011), available at
http://www.youtube.com/watch?v=FXhCwc6bYkM, at 03:30 [hereinafter Senate Committee on Public Safety
Broadcast] (on file with the McGeorge Law Review).
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reduce public alarm, lower the possibility of accidental lethal police
20
confrontations, and minimize the cost of dispatching police responders.
II. LEGAL BACKGROUND
Prior to Chapter 725 taking effect, there were two major ways to legally
carry a gun in public in California: loaded concealed-carry and unloaded
21
open-carry. The former requires a permit, which is more difficult to obtain, but
22
allows the firearm to be concealed and allows one to carry a loaded handgun.
The latter does not require a permit, but does require that the carrier keep the
23
handgun unloaded and is thus more likely to draw attention to the carrier.
24
Since the 1960s, the history of gun control in California has been turbulent.
25
Gun control legislation has been the response to crime, violence, and accidents.
In 2008, the United States Supreme Court discussed gun control with respect to
26
the Second Amendment in District of Columbia v. Heller. Later, in McDonald
v. Chicago, the Supreme Court held that the Second Amendment applies to the
27
states through the Fourteenth Amendment. Thus, courts apply Heller and
28
McDonald to cases concerning gun control legislation.
A. A Tale of Two Methods: Two Ways to Legally Carry Handguns in Public
1. California Open Carry
Prior law did not prohibit openly carrying an unloaded and holstered
29
30
31
handgun in public. Carrying a firearm openly did not require a permit, and
20. Id. at 01:30.
21. Peruta v. Cnty. of San Diego, 758 F. Supp. 2d 1106, 1110, 1113 (S.D. Cal. 2010).
22. CAL. PENAL CODE § 12050 (West 2009).
23. CAL. OPEN CARRY, http://californiaopencarry.org (last visited Apr. 10, 2012) (on file with the
McGeorge Law Review).
24. See generally Bellesiles, supra note 14 (discussing the push for gun control following the murder of
John F. Kennedy).
25. See infra note 94 and accompanying text.
26. District of Columbia v. Heller, 554 U.S. 570 (2008).
27. McDonald v. City of Chicago, 130 S. Ct. 3020, 3050 (2010).
28. See Senate Committee on Public Safety Broadcast, supra note 19, at 25:25 (showing one individual
arguing that Chapter 725 violates Heller and McDonald and is therefore unconstitutional).
29. A “handgun” is defined as “any device designed to be used as a weapon, from which is expelled a
projectile by the force of any explosion, or other form of combustion, and that has a barrel less than 16 inches in
length” including “any device that has a barrel 16 inches or more in length which is designed to be interchanged
with a barrel less than 16 inches in length” or a “firearm capable of being concealed upon the person.” CAL.
PENAL CODE § 12001(a) (West 2009 & Supp. 2011).
30. See id. § 12025(f) (excluding handguns carried in belt holsters from the category of concealed
weapons).
31. Id. § 12026(b).
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police officers could stop open carriers to make sure that the handgun in the
32
holster was in fact unloaded. Unlike legal open carry, wielding a gun in a
threatening manner or waving it around to cause fear, constitutes an existing
crime commonly called brandishing, a misdemeanor offense punishable by up to
33
a year in jail.
2. California Concealed Carry
Existing law allows one to carry a loaded handgun in public, but doing so
requires the carrier to first obtain a California Concealed Weapons (CCW)
34
permit. In order to obtain a CCW, a citizen must apply for one with the local
35
sheriff’s office, or if in an incorporated city, with that city’s police department.
The applicant must be a resident of the county or city where he or she is
applying, show good moral character, show “that good cause exists for its
36
37
issuance,” and complete a specified training course. The CCW may also
contain specific “restrictions as to the time, place, manner, and circumstances” of
38
carrying the weapon.
39
In practice, the availability of a CCW varies from one county to another.
Some counties, such as Sacramento County, have seen a rapid increase in the
40
number of CCW applications. Some attribute this increase to recent cutbacks in
law enforcement resources, which has induced many to seek concealed carry
41
permits for self-defense. Some counties and cities, however, have failed to
42
comply with the law when issuing of CCW permits. The Los Angeles Police
Department (L.A.P.D.), for instance, was in violation of a 1995 court order that
required them to develop a less arbitrary method of granting permits for more
43
than a decade.
32. Id. § 12031(e).
33. Id. § 417.
34. Id. § 12050.
35. Id.
36. Id. § 12050(a)(1)(A) (refraining from detailing what may constitute “good cause”).
37. Id.
38. Id. § 12050(b).
39. See id. § 12050(a)(1)(A) (leaving determination of good cause up to the office in charge of issuing
permits).
40. See Concealed Weapons Permits Up in Sacramento, KCRA (video broadcast, June 6, 2011),
available at http://www.kcra.com/video/28152873/detail.html (on file with the McGeorge Law Review)
(interviewing gun retailers and Sacramento County Sherriff spokesman Jason Ramos who reported that
Sacramento has never experienced a shooting committed by a CCW permit holder).
41. Id.
42. See generally Memorandum from Michel & Associates, P.C., Summary of Some Significant CCW
Litigation Against the City of Los Angeles (May 13, 2011) (on file with the McGeorge Law Review) (detailing
in a memorandum the history of CCW litigation against the L.A.P.D.).
43. See generally id. (detailing in a memorandum the history of CCW litigation against the L.A.P.D.).
Los Angeles already faced a lawsuit regarding CCW permitting when CBS, Inc. was blocked from examining
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B. A California Tradition: Landmarks in California Gun Control Law
1. Gun Control: A Response to Violent Crime
By the mid-1970s, gun control laws had become an emotional topic for
44
Americans. Advocates for controlling the use, ownership, and proliferation of
45
guns gained momentum. In 1982, proponents of gun control succeeded in
putting Proposition 15, a gun control initiative, onto the California general
46
election ballot. Proposition 15’s proponents argued that it would significantly
47
reduce crime in California. Nevertheless, voters roundly rejected Proposition
48
15, so decisively that supporters conceded defeat only a half hour after polling.
49
In 1989, however, the California legislature passed the Roberti-Roos
50
Assault Weapons Control Act (AWCA). Under the AWCA, the legislature
CCW permitting records in its “investigation of possible abuses by officials in the exercise of their statutorily
delegated discretion to issue licenses for concealed weapons.” CBS Inc. v. Block, 42 Cal. 3d 646, 649, 230 Cal.
Rptr. 362, 363 (1986).
44. E.g., Now Shall We Have Gun Control?, MILWAUKEE J., Feb. 2, 1973, available at http://news.
google.com/newspapers?id=4HokAAAAIBAJ&sjid=5igEAAAAIBAJ&pg=6729,557066&dq=gun+control&hl
=en (on file with the McGeorge Law Review); Louis Harris, Support Strong for Gun Control, MILWAUKEE
SENTINEL, Oct. 27, 1975, available at http://news.google.com/newspapers?id=739QAAAAIBAJ&sjid=
0REEAAAAIBAJ&pg=5025,5442325&dq=gun+control&hl=en (on file with the McGeorge Law Review)
(showing widespread support for gun control laws); Uncle of Victim Wants Gun Law, YOUNGSTOWN
VINDICATOR, Apr. 25, 1975, available at http://news.google.com/newspapers?id=lotJAAAAIBAJ&sjid=
l4QMAAAAIBAJ&pg=3989,3624033&dq=gun+control+emotional&hl=en (on file with the McGeorge Law
Review) (demonstrating the desire of victims and their families to have tougher gun laws); Gun Control
Becomes Senate Rerun Issue, BEAVER CNTY. TIMES, Sep. 15, 1975, available at http://news.google.
com/newspapers?id=GOItAAAAIBAJ&sjid=adsFAAAAIBAJ&pg=898,3264320&dq=gun+control&hl=en (on
file with the McGeorge Law Review) (explaining the political implications of supporting gun control laws).
45. See Bellesiles, supra note 14, at 178–80, and accompanying text.
46. Guns: Initiative Statute, 1982 CALIFORNIA PRIMARY ELECTION VOTER INFORMATION GUIDE 58
(1982) (making it illegal to “[p]ossess an unregistered handgun; . . . [b]uy, sell, or transfer unregistered
handguns; . . . [o]rder handguns by mail; or . . . [f]alsify a handgun registration application”).
47. Peter J. Pitchess, John J. Norton & Cornelius P. Murphy, Argument in Favor of Proposition 15, 1982
CALIFORNIA PRIMARY ELECTION VOTER INFORMATION GUIDE 60 (1982).
48. Californians Roundly Defeat Gun-Control Law, LEWISTON MORNING TRIB., Nov. 3, 1982, available
at
http://news.google.com/newspapers?id=zKpfAAAAIBAJ&sjid=pTIMAAAAIBAJ&pg=4897,567699&dq
=californians+roundly+defeat+gun-control+law&hl=en (on file with the McGeorge Law Review); Irwin
Nowick, The Heller Gun Decision Week 19: Why a Renewal of the 1994 Assault Weapon “Ban” is not
Happening Unless Republicans Vote for It, CAL. PROGRESS REPORT, Nov. 9, 2008, available at
http://www.californiaprogressreport.com/site/node/1285 (on file with the McGeorge Law Review).
49. In 1984, an unemployed security guard named James Oliver Huberty entered a McDonald’s in San
Ysidro, California, armed with, among other weapons, an assault rifle. Jessica Gresko, 20 Years Later, San
Ysidro McDonald’s Massacre Remembered, N. CNTY. TIMES (July 18, 2004), http://www.nctimes.com/news/
local/article_2ba4343e-7009-54ce-98df-79a23ff8d0d7.html (on file with the McGeorge Law Review). There he
commenced a seventy-seven minute long massacre. Id. He killed twenty-one people—men, women, and
children—and injured nineteen more. Id. At the time, it was the largest single-day killing carried out by any one
person in United States history. Id. Even after a sniper’s bullet ended the slaughter, the rampage sparked social
and political change. Id. The McDonald’s was torn down to erect a memorial to the victims, and journalists
periodically remind the public of the anniversary of the carnage. Id.; Janine Zuniga, Bouquets on Memorial
Mark 25th Anniversary of Massacre, SIGNONSANDIEGO.COM (July 19, 2009), http://www.signonsandiego.com
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declared that the proliferation of assault weapons was deleterious to the safety
51
and security of the populace. Feeling that the power to kill human beings with
ease outweighed the recreational uses of assault weapons, the legislature enacted
52
a system of regulations on assault weapons. AWCA made it illegal to
manufacture, purchase, or possess certain types of assault weapons without
53
registering them with the California Department of Justice. The law is still in
54
force today.
A year later, in 1990, the legislature amended section 12071 of the California
55
Penal Code. The amended law required that anyone transferring a firearm do so
56
through a registered dealer. The law also required a mandatory waiting period
57
of fifteen days for customers who purchased or transferred a firearm. As with
earlier pieces of legislation, the legislature cited violent crime as a motivating
58
factor.
2. Gun Control: A Response to Violent Crime on School Campuses
In 1995, California’s legislature amended laws governing the possession and
59
transportation of firearms on and around school campuses. In its new form, the
Gun Free School Zone Act of 1995 (GFSZA) carried with it a possible five-year
60
felony sentence for perpetrators possessing a firearm on a school campus. For
61
those carrying within 1,000 feet of a school, the punishment varied based on the
type of weapon and the status of the offender, but entailed a possible felony
62
sentence of up to five years in prison. The apparent goal of the GFSZA was to
63
remove threats of violence from school campuses.
/news/2009/jul/18/1m18huberty222054-bouquets-memorial-mark-25th-anni (on file with the McGeorge Law
Review).
50. 1989 Cal. Stat. ch. 19, § 3, at 64–70 (enacting Roberti-Roos Assault Weapons Control Act).
51. Id. (enacting CAL. PENAL CODE § 12275.5(a)).
52. Id.
53. Id. (enacting PENAL § 12280); OFFICE OF THE ATTORNEY GENERAL, Assault Weapons Identification
Guide (3d ed. 2001) (containing a number of amendments).
54. 1989 Cal. Stat. ch. 19, § 3 (enacting PENAL §§ 12275–90).
55. 1990 Cal. Stat. ch. 9, § 5 (amending PENAL § 12071).
56. Id.
57. Id. (containing a clause that allowed for the gradual decrease in time to ten days). This meant that
any person who purchased a gun or to whom a gun had been transferred would have to wait for two weeks and a
day to actually possess the firearm. Id.
58. Id.
59. 1995 Cal. Stat. ch. 659, § 1 (amending PENAL § 626.9).
60. Id.
61. Id. Assuming that the school is a single point on a map rather than a schoolyard, the area in which
guns are prohibited would be equal to the radius (1,000 feet) squared (times 1,000 feet) multiplied by π (3.14)
2
(expressed as πr , or 3.14 x (1,000 x 1,000)), which equals approximately 3,140,000 square feet per school.
62. Id.
63. ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 624, at 2 (Apr. 25,
1995).
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3. Gun Control: A Response to the Criminal Market
In 1999, the legislature amended the California Penal Code to require gun
64
dealers to withhold concealable firearms from their purchaser for thirty days.
Even applying for the purchase of more than one concealable weapon under the
65
new law could mean a misdemeanor sentence. According to the author of the
bill, the lack of restrictions on the number of weapons bought per month
66
empowered street dealers. Thus, curtailing the ability to buy these weapons
67
would help disarm criminals.
4. Gun Control: A Response to Crime and Injuries
In an effort to ensure that anyone owning a handgun would understand its
function and safety features, California State Senator Jack Scott introduced
68
Assembly Bill (AB) 52, which passed in 2001. Taking effect on January 1,
2003, AB 52 amended section 12071 of the California Penal Code to require
purchasers of handguns to pass a written test and complete a demonstration of the
69
function and safety features of the handgun they purchased. According to
Senator Scott, the proficiency test would reduce crime and aid in reducing the
70
number of firearm injuries.
C. The Politics of Guns: Gun Control Legislation and the United States
Constitution
1. Heller and McDonald: Gun Control and the Second Amendment
In the 2008 case of District of Columbia v. Heller, the United States Supreme
71
Court explored the constitutional right to keep and bear arms. In Heller, the
Court dealt with two strict gun control laws: a ban on household ownership of
72
guns and a requirement that civilians keep all guns inoperable at all times. The
Court held that the right to keep and bear arms for the purpose of self-defense
73
was an individual right, but affirmed that the government’s inherent police
64. 1999 Cal. Stat. ch. 128, § 1 (amending PENAL § 12071).
65. Id. § 2 (amending PENAL § 12072(a)(9)(A), (g)(5)(C)).
66. SENATE COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 202, at 4 (June 8, 1999).
67. Id.
68. AB 52, 2001 Leg., 2001–2002 Sess. (Cal. 2001) (as introduced).
69. 2001 Cal. Stat. ch. 942, § 2 (amending PENAL § 12071) (requiring a written test and a safe-handing
demonstration).
70. ASSEMBLY COMMITTEE ON PUBLIC SAFETY, COMMITTEE ANALYSIS OF SB 52, at 10 (June 26, 2001).
71. 554 U.S. 570, 592 (2008).
72. Id. at 574.
73. Id. at 635.
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power allows it to restrict the time, place, and manner of the right. For instance,
the Court stated that its decision would not strike down state bans on carrying
75
weapons in government buildings or schools. The Court also held that the gun
control law in question unconstitutionally restricted the individual right to keep
76
and bear arms. In Heller, the Court explicitly rejected the rational basis test as a
means for determining the constitutionality of gun control legislation, but did not
77
specify whether courts should apply strict or intermediate scrutiny. The
decision, however, focused narrowly on the law before it and provides little
guidance regarding the constitutionality of other, different gun-control
78
legislation.
In the aftermath of the Heller decision, courts have sought to apply a rule that
recognizes an individual’s right to keep and bear arms, but that also allows for
79
regulation by the government. In a later decision, McDonald v. City of Chicago,
the Supreme Court held that the Second Amendment applies to the states by
80
virtue of the Fourteenth Amendment.
2. Peruta: Applying Heller to California’s CCW Permitting Scheme
In Peruta v. San Diego, the United States District Court for the Southern
District of California applied the Heller decision to California’s concealed
81
weapon permitting scheme. In Peruta, the district court held that requiring an
applicant for a concealed weapon permit to show good cause for the permit was
82
constitutional. The court focused on the narrow scope of Heller, explaining that
Heller only commented explicitly on the right to keep and bear arms in one’s
83
home for self-defense. In addition, the court stated that the constitutionality of
the CCW permitting scheme directly related to the laws allowing for the open
74. See id. at 626–28 (providing that prohibiting carrying concealed weapons, carrying in certain
locations, and carrying certain types of weapons are all constitutional limits). “Like most rights, the right
secured by the Second Amendment is not unlimited.” Id. at 626.
75. Id. at 626–27 (“Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on
the possession of firearms by felons and the mentally ill, or . . . forbidding the carrying of firearms
in . . . schools and government buildings, or . . . imposing conditions and qualifications on the commercial sale
of arms.”).
76. Id. at 635.
77. Peruta v. Cnty. of San Diego, 758 F. Supp. 2d 1106, 1116 (S.D. Cal. 2010) (“The trend prior to
McDonald was intermediate scrutiny.”).
78. See id. at 635–36 (indicating only that an “absolute prohibition of handguns held and used for
self-defense in the home” would be unconstitutional).
79. E.g., Williams v. Maryland, 10 A.3d 1167 (Md. 2011) (applying Heller to a law forbidding the
carrying of a firearm outside of one’s house without a permit); New York v. Perkins, 880 N.Y.S.2d 209 (App.
Div. 2009) (applying Heller to New York’s firearm permit scheme).
80. McDonald v. City of Chicago, 130 S. Ct. 3020, 3050 (2010).
81. Peruta, 758 F. Supp. 2d at 1116.
82. Id. at 1118.
83. Id. at 1116.
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carry of unloaded handguns. The court reasoned that to the extent that the
concealed weapons statutes may infringe upon the right to carry a weapon, the
85
ability to openly carry a firearm for self-defense purposes mitigate that harm. In
other words, citizens’ ability to carry openly made a more restrictive set of
86
concealed carry laws more permissible.
III. CHAPTER 725
Chapter 725 criminalizes openly carrying an unloaded handgun in public,
87
classifying it as a misdemeanor. Subsequent sections enumerate the twenty-nine
88
exemptions to the new rule. The exemptions to section 26350 include open
carry by police officers, firearms manufacturers or dealers while doing business,
89
military organizations while practicing, and hunters, among others. For each
84. Id. at 1114.
85. Id. at 1114–15.
86. Id.
87. 2011 Cal. Stat. ch. 725, § 14 (enacting CAL. PENAL CODE § 26350).
88. Id. (enacting PENAL §§ 26361–89).
89. Id. While the exceptions do not have any discernible organization scheme, there are four categories
to which the exceptions apply: those pertaining to peace officers, those pertaining to the military, those
pertaining to public entities or areas, and those pertaining to private entities or areas. Those relating to peace
officers include: section 26361 of the California Penal Code (carrying by a peace officer or an honorably retired
police officers), section 26372 (carrying while making lawful arrest), section 26378 (carrying by person
lawfully assisting in a lawful arrest), section 26380 (carrying during officer training), section 2382 (carrying
after having been asked by sheriff or head of department), and section 26385 (carrying as or by permission of
Sergeant at Arms of the Legislature). PENAL §§ 26361, 26372, 26378, 26380, 23682 (enacted by Chapter 725).
Those relating to the military—members of the armed forces of California or the United States—include:
section 26362 of the California Penal Code (carrying as an active member of the military) and section 26364
(carrying while participating in a ceremony, parade, or practicing for one). Id. §§ 26362, 26364 (enacted by
Chapter 725). Those exceptions for public entities or areas include: section 26367 of the California Penal Code
(carrying by a common carrier incident to transportation of the handgun), section 26368 (carrying during
parades or ceremonies by nonprofit organizations chartered by Congress), section 26370 (carrying within a
school zone with proper permission from school officials), section 26379 (carrying pursuant to sections 27560,
27565, 28000, 27850, 31725, 27870, 27875, 27915, 27920, 27925, as they pertain to handguns), section 26381
(carrying while training in order to obtain a permit), section 26386 (carrying in a constitutional officer’s
residence), section 26387 (carrying as transit security officer), and section 26388 (carrying on public land when
specifically authorized by management agency in charge of the land). Id. §§ 26368, 26370, 26379, 26381,
26386–88 (enacted by Chapter 725). Those relating to private entities or areas include: section 26363 of the
California Penal Code (carrying when in the business of manufacture, wholesaling, repairing, or other similar
activities relating to guns), section 26365 (carrying as a member of a chartered club while shooting at targets on
established shooting ranges), section 26366 (carrying while hunting or on return from hunting), section 26369
(carrying within a gun show), sections 26373 and 26374 (carrying while in the business of buying, selling, or
pawning), section 26375 (carrying while making a movie, television show, or entertainment event, when the
gun is used for the production), section 26376 (carrying in order to obtain a distinguishing mark from the
Department of Justice), section 26377 (carrying at an established target range), section 26383 (carrying on
private property with permission), section 26384 (carrying a gun to be auctioned or that has been auctioned at
an auction for a nonprofit organization or mutual benefit corporation), and section 26389 (carrying a gun in a
locked container or in the locked trunk of a car). Id. §§ 26363, 26365–66, 26369, 26373–77, 26383–84, 26389
(enacted by Chapter 725).
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instance of an openly carried handgun, Chapter 725 creates a separate offense.
Furthermore, section 26350 does not explicitly preclude the application of other
91
laws to an instance of openly carrying a handgun in public.
Chapter 725 also makes it a misdemeanor for any driver of any motor vehicle
to knowingly allow a person to violate section 23650 in the vehicle, regardless of
92
whether the owner of the vehicle is present.
IV. ANALYSIS
A. A Place in the Gun Control Pantheon: Chapter 725 as a Response to What?
1. Chapter 725 Policies
The OCM, the National Rifle Association (NRA), and the California Rifle
and Pistol Association (CRPA), all of whom opposed Chapter 725, have
93
generally categorized Chapter 725 as “gun control.” The most salient arguments
in support of gun-control legislation are that gun control reduces crime, violence,
94
or the accidental death of children. Gun-control laws, from their effectiveness to
90. 2011 Cal. Stat. ch. 725 (enacting PENAL § 26350(d)) (“Notwithstanding the fact that the term ‘an
unloaded handgun’ is used in this section, each handgun shall constitute a distinct and separate offense under
this section.”).
91. Id. (enacting PENAL § 26350(c)(2)). The same activity or omission punishable under a different law
in a different way may not be punished under both. Id.
92. Id. § 10 (enacting PENAL § 17512). Section 626.92 directly affects the application of section 626.9 of
GFSZA, which will no longer apply to security guards and honorably retired police officers. See id. § 3
(enacting PENAL § 626.92) (citing PENAL § 696.9) (providing that the GFSZA does not apply to a security guard
or an honorably retired peace officer authorized to carry). The various other changes adopted by Chapter 725 go
largely to referencing the new statute in older statutes, such as the definition of a firearm or the definition of an
openly carried firearm. Id. § 14 (amending CAL. BUS. & PROF. CODE §§ 7574.14, 7582.2); id. §§ 4–5, 12–13
(amending PENAL §§ 16520, 16750, 25595, 25605).
93. See Senate Committee on Public Safety Broadcast, supra note 19, at 08:00–22:40 (Representatives
from these three groups opposed the bill at this hearing.).
94. See Am. Med. Ass’n & Council on Sci. Aff., Firearms Injuries and Deaths: A Critical Public Health
Issue, 104 PUB. HEALTH REP. 111, 111 (1989) (citing gun-related and violent crimes as well as accidental
deaths as part of a national health crisis of gun-related injuries); David McDowall, Colin Loftin & Brian
Wiersema, Easing Concealed Firearms Laws: Effects on Homicide in Three States, 86 J. CRIM. L. &
CRIMINOLOGY 193, 193 (1995) (noting that laws restricting concealed weapons seek to reduce access to guns
for violence); James B. Jacobs & Kimberly A. Potter, Keeping Guns out of the “Wrong” Hands: The Brady
Law and the Limits of Regulation, 86 J. CRIM. L. & CRIMINOLOGY 93, 93 (1995) (contending that the
underlying purpose of the United States’ gun-control policy is keeping guns out of the hands of dangerous and
irresponsible people); Franklin E. Zimring, Kids, Guns, and Homicide: Policy Notes on an Age-Specific
Epidemic, 59 LAW & CONTEMP. PROBS. 25, 30 (1996) (showing that by 1992 “juveniles committing homicide
used guns more often than any other age groups”); Dan M. Kahan, The Secret Ambition of Deterrence, 113
HARV. L. REV. 413, 451 (1999) (framing arguments by gun-control proponents as being in terms of deterring
criminal violence); Anthony A. Braga, Phillip J. Cook, David M. Kennedy & Mark H. Moore, The Illegal
Supply of Firearms, 29 CRIM. & JUST. 319, 320 (2002) (explaining that one of the problems associated with a
large gun-owning population is that violent criminals and youths have a larger pool from which to secure them).
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their constitutionality, are hotly contested. Some sources suggest that violent
96
crime would decrease if citizens are allowed to carry concealed weapons.
Arguments notwithstanding, the historical basis for gun control has been halting
97
or preventing crime, violence, or accidental deaths.
Chapter 725 differs from gun-control legislation of the past forty years in not
98
claiming to deter violent crime or accidental deaths. According to Chapter 725’s
author, Chapter 725 appears to have three motivating factors: reducing public
alarm, preventing possible police officer confusion, and lowering the cost of
99
dispatching police responders. Only the second of these goals appears to have
100
any relation to the historical justifications of gun-control statutes.
Unlike traditional gun-control laws, the first of Chapter 725’s purposes is to
reduce public alarm at the sight of an openly carried, holstered, and unloaded
101
sidearm. Even before Chapter 725, the legislature criminalized certain conduct
102
involving the open carry of firearms. The misdemeanor crime of brandishing is
defined as “draw[ing] or exhibit[ing] any firearm, whether loaded or unloaded, in
a rude, angry, or threatening manner, or . . . unlawfully us[ing] a firearm in any
103
fight or quarrel,” except in cases of self-defense. Prior to Chapter 725, a person
legally openly carrying a handgun would be guilty of a misdemeanor if he or she
subsequently brought out the gun and exhibited it in a rude or threatening
104
manner. Therefore, Chapter 725 does not prohibit wielding an unloaded gun in
public, which was already illegal; it prohibits carrying an unloaded gun in a
105
holster in public.
The second goal of Chapter 725 is to reduce the likelihood that unsuspecting
police officers will use lethal force against a person who openly carries a
106
holstered and unloaded sidearm. In February 2011, the author of Chapter 725
95. See Soyoko Blodgget-Ford, Do Battered Women Have the Right to Bear Arms?, 11 YALE L. &
POL’Y REV. 509, 510 (1993) (arguing that there is a constitutional right to bear arms for self-defense, that
battered women are acutely in need of this protection, and that even common-sense gun-control statutes may be
unconstitutional as applied to battered women); John R. Lott, Jr. & David B. Mustard, Crime, Deterrence, and
Right-to-Carry Concealed Handguns, 26 J. LEGAL STUD. 1, 1 (1997) (arguing from statistical analysis that the
proliferation of concealed weapons prevented over 1,500 murders, 4,000 rapes, 11,000 robberies, 60,000
aggravate assaults, and saved 5.74 billion dollars in 1992).
96. Lott & Mustard, supra note 95, at 1.
97. Id.
98. See SENATE FLOOR, COMMITTEE ANALYSIS OF AB 144, at 13 (June 28, 2011) (lacking any reference
to specific acts of violence, crime, or deaths related to open carry).
99. Id.
100. See infra note 123 and accompanying text (arguing that tense situations could lead to accidents
appears to fit one of the historical purposes: the reduction of accidental deaths).
101. SENATE FLOOR, COMMITTEE ANALYSIS OF AB 144, at 13 (June 28, 2011).
102. See CAL. PENAL CODE § 417 (West 2010).
103. Id.
104. Id.
105. Id. § 26350 (enacted by Chapter 725).
106. SENATE FLOOR, COMMITTEE ANALYSIS OF AB 144, at 13 (June 28, 2011).
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wrote that police are sometimes called to a scene where a person is openly
107
carrying, and that police are often unaware of the intentions of the open carrier.
While Chapter 725’s author has not reported any shootings involving open
carriers, he does emphasize that the encounters can be stressful and potentially
108
dangerous. In posting the contents of numerous police department memoranda
regarding the OCM, the California Open Carry (COC) website confirms its
109
knowledge of the stress that the OCM has placed on police officers.
The COC website includes a list of memoranda and bulletins from police
110
departments and sheriffs’ offices all over California. The documents on the
website explain to readers, presumably police officers, that open carry is legal
111
and not to react rashly upon seeing an openly carried sidearm in public. The
fear expressed by Chapter 725’s author is that a police officer will, in a tense
situation, kill or injure a law abiding citizen, as well as possibly wounding other
112
citizens nearby. Thus, by eliminating the visibility of weapons, Chapter 725
will ostensibly prevent police awareness of armed citizens, theoretically reducing
113
the number of tense situations between armed citizens and officers. The author
did not cite any specific instances where officers had reacted in this manner to
114
open carry. The author did, however, refer generally to instances where
interaction between police and open carriers took place without incident, citing
115
cost of police response in such instances.
Lastly, Chapter 725 is meant to reduce the cost of officers responding to the
116
reports of legal open carry. Now any responses to open carry by civilians will
117
likely lead to arrests. Bill analyses of Chapter 725 do not include findings of
118
specific numerical costs, nor does the bill’s author cite any specific figures.
107. Id.
108. Anthony Portantino, Banning the “Open Carry” of Handguns in California, CAL. PROGRESS
REPORT (Feb. 3, 2011), http://www.californiaprogressreport.com/site/node/8639 (on file with the McGeorge
Law Review).
109. CAL. OPEN CARRY, supra note 23.
110. Id.
111. E.g., Memorandum from Paul R. Coble, Esq., Attorney with the Law Firm Jones & Mayer to All
Police Chiefs and Sheriffs (Dec. 4, 2008) (on file with the McGeorge Law Review) (explaining to officers the
law of open carry and how to approach people who carry openly); Training Bulletin, Orange Cnty. Sheriff’s
Dep’t (on file with the McGeorge Law Review) (explaining the law surrounding open carry and providing
examples of other police encounters with people openly carrying); One Minute Brief, L.A. CNTY. DIST.
ATTORNEY’S OFF. (Dec. 23, 2009) (explaining the law surrounding open carry) (on file with the McGeorge Law
Review).
112. SENATE FLOOR, COMMITTEE ANALYSIS OF AB 144, at 13 (June 28, 2011).
113. Id.
114. Id.
115. Id.
116. Id.
117. Id.
118. Id.
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B. Chapter 725 and the Sphinx: Thinking Through the Problems and
Constitutional Implications of Chapter 725
1. Chapter 725 and the Economic Approach: Other Side of the Safety
Coin?
In its goal to save an unspecified amount of police time and resources,
Chapter 725 implicitly accepts that public safety entities are under constant
119
economic strain. With state-wide and federal budget reductions, and with a
large shift of the prison population into local law enforcement custody, police
departments and sheriffs’ offices will no doubt need all the resources they can
120
muster. Shrinking or less well-funded police forces, however, will lead at least
some to believe that the public entities will not be able to police the same volume
121
of criminal activity, leading to a lower degree of public safety. Chapter 725
makes it less likely that overburdened police forces will have to respond to the
122
occasional call regarding an open-carry situation. But if carrying a weapon
openly does protect the carrier from becoming the victim of a crime, Chapter 725
123
removes this protection when police forces are least able to protect them.
2. Chapter 725 and Self-Defense: A Second Amendment Infringement?
Opposing Chapter 725, the National Rifle Association (NRA) and the
California Rifle and Pistol Association (CRPA) claim that Chapter 725
unconstitutionally abridges the Second Amendment right to keep and bear
124
arms. The United States Supreme Court has established that states posses the
125
126
power to restrict rights, even those guaranteed in the Bill of Rights.
119. Id.; see also Senate Committee on Public Safety Broadcast, supra note 19, at 03:30 (explaining that
local authorities are under strain from tough economic times).
120. See Larry Gerston, San Jose Voters: The Canary in the Coal Mine, NBC L.A. (July 28, 2011),
http://www.nbclosangeles.com/blogs/prop-zero/San-Jose-Voters-The-Canary-in-the-Mine-126334823.html (on
file with the McGeorge Law Review) (“Hundreds of police and fire fighters have been laid off. At the same
time, the city faces the highest number of homicides in years.”); Chris Levister, Budget Cuts to Law
Enforcement Draw Ire, BLACKVOICENEWS.COM (July 7, 2011), http://www.blackvoicenews.com/news/
46450-budget-cuts-to-law-enforcement-draw-ire.html (on file with the McGeorge Law Review) (juxtaposing
racist gang violence against African-Americans with large cuts to public safety budgets); Sean Longoria, Law
Enforcement, Community Try to Connect through Food and Talk at NAACP Forum, RECORD SEARCHLIGHT
(July 12, 2011), http://www.redding.com/news/2011/jul/12/law-enforcement-community-try-to-connectthrough/ (on file with the McGeorge Law Review) (noting that budget cuts have halted police hiring and citing
Redding’s police chief who told community members that individuals must now contribute to their own safety).
121. See Levister, supra note 120.
122. SENATE FLOOR, COMMITTEE ANALYSIS OF AB 144, at 13 (June 28, 2011).
123. See Senate Committee on Public Safety Broadcast, supra note 19 (showing two children who came
to the committee hearing to protest Chapter 725’s passage on the basis that their parents will no longer be able
to protect them).
124. U.S. CONST. amend. II; SENATE FLOOR, COMMITTEE ANALYSIS OF AB 144, at 13 (June 28, 2011).
125. See District of Columbia v. Heller, 554 U.S. 570, 626 (2008) (“Like most rights, the right secured
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Specifically, the 2008 decision District of Columbia v. Heller, held that the
127
government has the power to restrict firearms under the Second Amendment.
McDonald v. City of Chicago further established that the Second Amendment
128
applies through the Fourteenth Amendment to the individual states, but the
129
extent to which the states can regulate has largely been left an open question. In
fact, the Court explicitly states in the Heller decision that it did not mean to
130
overturn laws prohibiting gun ownership by felons or the mentally ill. Courts
have therefore largely upheld laws prohibiting certain groups, such as illegal
131
immigrants and felons, from owning firearms.
The Heller decision also addressed the prohibition of carrying firearms in
132
certain locations. Unlike Chapter 725, which bans openly carrying handguns in
public, the Heller decision explicitly referenced schools and government
buildings, meaning that Chapter 725 is at least more restrictive than those kinds
133
of regulations Heller specifically affirmed were constitutional. On the other
hand, Heller did not specifically restrict bans on possessing firearms to schools
134
and government buildings. Because Heller explicitly rejected the suggestion
that it was overturning many existing gun-control laws, courts have applied its
135
holding narrowly. Nonetheless, Heller has expressly rejected the rational basis
level of scrutiny for laws that restrict the time, place, and manner of gun
by the Second Amendment is not unlimited. From Blackstone through the nineteenth-century cases,
commentators and courts routinely explained that the right was not a right to keep and carry any weapon
whatsoever in any manner whatsoever and for whatever purpose.”).
126. There is a possibility that Chapter 725 may face a First Amendment challenge. Underlying the
history and goals of Chapter 725 is its relationship with the OCM. In 2010, the author of AB 1934, the previous
version of an open-carry ban that did not pass, argued that a ban on the open-carry of handguns in public was
needed as a response to the OCM. The author of Chapter 725 explicitly indicated Chapter 725’s continuity with
A.B. 1934. As its name suggests, the OCM is united by a single activity: the open-carry of handguns in public.
Also, their underlying purpose is to broaden Second Amendment rights and inform the public about guns
through the activity of openly carrying. Chapter 725, then, directly targets the manner in which the OCM has
chosen to make its political statements: a possible First Amendment concern. See ASSEMBLY COMMITTEE ON
PUBLIC SAFETY, COMMITTEE ANALYSIS OF AB 1934, at L (June 22, 2010) (“As part of a growing ‘open carry
movement’ in California, gun enthusiasts have been openly carrying unloaded handguns in public places like
coffee shops and restaurants, and at political rallies. Open carry advocates seek to normalize the carrying of
firearms in public places.”).
127. Heller, 554 U.S. at 620.
128. McDonald v. City of Chicago, 130 S. Ct. 3020, 3050 (2010).
129. Heller, 554 U.S. at 626.
130. Id.
131. E.g., United States v. Yanez-Vasquez, 2010 WL 411112 (Dist. Ct. Kan. 2010) (unpublished)
(holding that the Second Amendment does not apply to illegal immigrants, regardless of the Heller decision);
United States v. Gieswein, 346 Fed. Appx. 293 (Dist. Ct. Me. 2008) (unpublished) (noting that Heller
specifically refused to overturn laws prohibiting felons from owning firearms).
132. Heller, 554 U.S. at 626.
133. Id.
134. Id.
135. See supra note 79 and accompanying text (explaining the types of gun-control laws that have been
held constitutional).
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ownership and use. While it is uncertain what level of scrutiny the United
States Supreme Court prefers, Chapter 725 will, if challenged, undergo some
137
greater level of scrutiny than rational basis. The survival of Chapter 725, then,
138
will likely turn on the level of scrutiny a court applies.
In Heller, the Court based its decision largely on the relationship between
139
firearms and self-defense. Unlike California’s law on brandishing a weapon,
140
Chapter 725 does not have an exception for self-defense. Furthermore, while
Heller suggests that certain methods of restricting gun use and possession are
presumptively constitutional, the Court explicitly stated that self-defense, at least
141
within the home, was the basis of the individual Second Amendment right.
Furthermore, the goals underlying Chapter 725 are weak when considered
142
with the impetus for past gun-control legislation. Courts will consider factors
including the fact that Chapter 725 only applies to handguns, the numerous
exceptions to Chapter 725, and whether the ability to carry a concealed weapon
143
mitigates the law’s other restrictions. Therefore, while Chapter 725 appears to
be rationally related to legitimate governmental concerns, the lack of a
self-defense provision combined with comparatively weak governmental
concerns may allow it to be one of the first laws to be struck down by a court
144
applying Heller.
136. Heller, 554 U.S. at 629 n.27.
137. See generally Peruta v. Cnty. of San Diego, 758 F. Supp. 2d 1106 (S.D. Cal. 2010) (explaining that
Heller requires more than rational basis).
138. See id. at 1116 (discussing which level of scrutiny should apply).
139. Heller, 554 U.S. at 628.
140. See CAL. PENAL CODE § 417 (West 2010) (specifying that brandishing a weapon for self-defense is
not an offense under the statute). But see 2011 Cal. Stat. ch. 725, § 14 (lacking any exception for self-defense).
141. See Heller, 554 U.S. at 636 (holding that the District of Columbia could not prevent carrying of
guns in the home). The United States Supreme Court has not explored the constitutional right to carry a gun
outside the home. See id. at 626 (exploring only whether laws restricting carry of weapons inside the home was
constitutional).
142. Compare Bellesiles, supra note 14 (detailing the history of gun-control legislation in California),
with SENATE FLOOR, COMMITTEE ANALYSIS OF AB 144 (June 28, 2011) (discussing Chapter 725’s goals and
purposes).
143. See Peruta, 758 F. Supp. 2d at 1114–15 (bringing up the significance of open carry on the issue of
concealed weapons permits independently from the pleadings of the parties).
144. See Heller, 554 U.S. at 628 (“[T]he inherent right of self-defense has been central to the Second
Amendment right.”). Also, in what may be considered dicta, the Heller Court enumerated the self-defense
benefits of handguns, those targeted by Chapter 725, as opposed to long guns (handguns are easily stored for
emergencies, easier to control than long guns, especially by weaker holders, and frees up one hand to dial the
police). Id. at 629.
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3. Chapter 725 and Concealed Carry: An Unintended Consequence?
If Chapter 725 does not fail a constitutional test, it may affect courts’ future
145
decisions on California concealed weapons laws and regulations.
In
criminalizing the open carry of handguns, Chapter 725 undermines restrictions
146
on the concealed carry of handguns. In Peruta, a federal district court held that
the ability for a person to openly carry a firearm mitigated any infringement on
147
the Second Amendment by CCW permitting laws. Chapter 725 will, in
removing the ability to openly carry a firearm, remove the mitigating factor that
148
supported a restrictive CCW permitting scheme. It seems logical, then, that
courts will take the loss of this mitigating effect into account the next time a
149
defendant challenges the CCW permitting scheme. The NRA has indicated that
Chapter 725 opens the door to a successful challenge to the CCW permitting
scheme, which would result in more Californians carrying concealed and loaded
150
handguns in public.
In the 2011 calendar year, the Sacramento County Sherriff’s Department
151
issued 1,342 CCW permits. The increase was so enormous and so fast that the
Sacramento Sherriff’s Office had to put a hold on granting any more applications
152
until they could sort through all the ones they had. If courts ordered these kind
of relaxed standards throughout the state, a similar increase in CCW holders
153
might follow. El Dorado County, for instance, issued approximately 850 CCW
permits during 2011 after instituting more relaxed standards, an increase of 275%
154
from 2010.
145. See infra note 167 and accompanying text.
146. Peruta, 758 F. Supp. 2d at 1115.
147. Id.
148. Id.; 2011 Cal. Stat. ch. 725 (enacting CAL. PENAL CODE § 26350).
149. See Peruta, 758 F. Supp. 2d at 1114–15 (reasoning that open carry was a mitigating factor).
150. Senate Committee on Public Safety Broadcast, supra note 19. It should be noted that the Peruta
decision may be of some help to gun advocates, as it represents the conclusion of a single district court in
Southern California.
151. News10, Soaring Concealed Weapons Permit Applications Overload Sacramento Sheriff’s
Department, (video broadcast, Feb. 2, 2012), available at http://origin.news10.net/news/local/article/17
6415/2/Concealed-weapons-permits-on-hold-in-Sacramento-County (on file with the McGeorge Law Review)
(stating that the Sheriff’s Office received applications at a rate of forty to fifty per week).
152. Id. (reporting that the office had a back-log of nearly 2,000 CCW permit applications).
153. Id. (stating that El Dorado County also had a very large increase since instituting more relaxed
standards for CCW permits).
154. Id.; see also Garth Stapley, Packing Heat: Stanislaus County Gun Permits Rise Sharply After 2010
Pledge By Sheriff, MODESTO BEE (June 11, 2012), http://www.modbee.com/2012/06/10/2235065/stanislaus
-gun-permits-rise-sharply.html (on file with the McGeorge Law Review) (stating that Stanislaus County
underwent similar changes upon relaxing the standards for granting CCW permits).
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V. CONCLUSION
A. Mission Accomplished: Chapter 725 Ends Open Carry
In terms of accomplishing its intended goals, Chapter 725 will likely be
155
successful. Since conspicuousness is the hallmark of open carry, police
enforcement of Chapter 725 will likely be easier than enforcing laws against
156
brandishing, which actually involve rude or threatening behavior by the carrier.
Given the expressed willingness of open-carry proponents to comply with a law
that they might otherwise disagree with, Chapter 725 will likely not require much
157
enforcement at all. Also, because open-carry was not a popular method of
carrying guns prior to Chapter 725, and previous open carriers will likely comply
with Chapter 725, there will probably be little or no increase in the number of
158
open-carry-related crimes. Thus, Chapter 725 will likely be effective in
159
accomplishing its goals.
B. Pandora’s Lockbox: Closing the Lid on Open Carry with Uncertain
Consequences
Chapter 725’s goals are simple, and it will probably accomplish those goals
160
effectively. When placed against the historical backdrop of California gun
161
control, however, Chapter 725 appears out of place. The first goal of Chapter
725, to reduce public alarm at seeing guns carried—not brandished—and
avoiding tense situations with police, falls short of the noble goal of ending gun
162
violence on school playgrounds. Chapter 725 also loses luster when its
163
economic benefits are examined closely, and no specific dollar amounts
164
support the economic argument.
155. See infra notes 156–158 and accompanying text.
156. CAL. PENAL CODE § 417 (West 2010).
157. See What Is Open Carry?, CAL. OPEN CARRY, http://californiaopencarry.org/faq.html (last visited
Apr. 10, 2012) (on file with the McGeorge Law Review) (containing information about open carry laws so that
open carriers can do so legally).
158. CAL. OPEN CARRY, supra note 23. It is possible, however, that district attorneys will substitute
concealed weapons charges, which may be harder to prove, with this misdemeanor offense, and so convictions
based on possession may occur, but under the lesser offense.
159. See supra note 156–158 and accompanying text (discussing why Chapter 725 will probably be
effective).
160. Id.
161. See supra note 142 and accompanying text (discussing the differences between previous legislative
purposes and goals and those of Chapter 725).
162. See 1995 Cal. Stat. ch. 659 (enacting the Gun Free School Zone Act of 1995).
163. See ASSEMBLY COMMITTEE ON APPROPRIATIONS, COMMITTEE ANALYSIS OF AB 144, at 1 (May 4,
2011) (lacking any specifics on the amount of money it will save).
164. See supra notes 119–123 (discussing how Chapter 725 may not be cost effective and may even
create more public safety problems).
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Chapter 725 seems secure against a direct Second Amendment challenge, but
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not invulnerable. Chapter 725 will have to survive a higher level of scrutiny
166
than rational basis, making a successful challenge more likely.
Even assuming Chapter 725 withstands both constitutional attacks, its
existence may reopen the Second Amendment challenge to current restrictions on
167
CCW permitting. As the Peruta court stated, the ability of Californians to
openly carry handguns mitigated the constitutionality concerns over CCW
168
permitting schemes. Now, Chapter 725 eliminates the mitigating factor of open
carry, making it likely that courts will reconsider the Second Amendment
169
concerns regarding concealed-carry law. In light of the court ordering the
L.A.P.D. to develop less arbitrary CCW permitting requirements, it seems that
the elimination of that mitigating factor will increase pressure on other California
170
courts to mandate greater access to CCW permits. If Chapter 725 survives
constitutional challenges, a proliferation of CCW permits in California may
171
result.
165. SENATE FLOOR, COMMITTEE ANALYSIS OF AB 144, at R–S (June 28, 2011) (stating that because
Heller allowed for regulation of the Second Amendment, Chapter 725 was constitutional).
166. See District of Columbia v. Heller, 554 U.S. 570, 629 n.27 (2008) (holding that rational basis was
not the level of scrutiny to be used for gun control laws).
167. See Peruta v. Cnty. of San Diego, 758 F. Supp. 2d 1106, 1114–15 (S.D. Cal. 2010) (linking open
carry as constitutionally relevant to concealed carry).
168. Id.
169. See Memorandum from Michael & Associates, P.C., supra note 42 (indicating that California
courts have ordered the L.A.P.D. to develop a less arbitrary standard of “good cause” for issuing CCW permits).
170. Id.
171. Senate Committee on Public Safety Broadcast, supra note 19.
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