BILL ANALYSIS
AB 258
Page 1
Date of Hearing: March 17, 2009
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 258 (Ma) - As Introduced: February 11, 2009
SUMMARY : Alters provisions relating to mutual protective
orders by replacing the term "primary aggressor" with "dominant
aggressor."
EXISTING LAW :
1)States when a peace officer is responding to a call alleging a
violation of a domestic violence protective or restraining
order, as specified, or of a domestic violence protective or
restraining order issued by the court of another state, tribe,
or territory and the peace officer has probable cause to
believe that the person against whom the order is issued has
notice of the order and has committed an act in violation of
the order, the officer shall, make a lawful arrest of the
person without a warrant and take that person into custody
whether or not the violation occurred in the presence of the
arresting officer. [Penal Code Section 836(c)(1).]
2)Provides that the person against whom a protective order has
been issued shall be deemed to have notice of the order if the
victim presents to the officer proof of service of the order,
the officer confirms with the appropriate authorities that a
true copy of the proof of service is on file, or the person
against whom the protective order was issued was present at
the protective order hearing or was informed by a peace
officer of the contents of the protective order. [Penal Code
Section 836(c)(2).]
3)States in situations where mutual protective orders have been
issued, as specified, liability for arrest under this
subdivision applies only to those persons who are reasonably
believed to have been the primary aggressor. In those
situations, prior to making an arrest under this subdivision,
the peace officer shall make reasonable efforts to identify,
and may arrest, the primary aggressor involved in the
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incident. The primary aggressor is the person determined to
be the most significant, rather than the first, aggressor. In
identifying the primary aggressor, an officer shall consider:
the intent of the law to protect victims of domestic violence
from continuing abuse, the threats creating fear of physical
injury, the history of domestic violence between the persons
involved, and whether either person involved acted in
self-defense.
4)States every law enforcement agency in California shall
develop, adopt, and implement written policies and standards
for officers' responses to domestic violence calls by January
1, 1986. These policies shall reflect that domestic violence
is alleged criminal conduct. Further, these policies shall
reflect existing policy that a request for assistance in a
situation involving domestic violence is the same as any other
request for assistance where violence has occurred. [Penal
Code Section 13701(a).]
5)Requires the written policies shall encourage the arrest of
domestic violence offenders if there is probable cause that an
offense has been committed. These policies also shall require
the arrest of an offender, absent exigent circumstances, if
there is probable cause that a protective order has issued or
by a court of any other state, a commonwealth, territory, or
insular possession subject to the jurisdiction of the United
States, a military tribunal, or a tribe has been violated.
These policies shall discourage, when appropriate, but not
prohibit, dual arrests. Peace officers shall make reasonable
efforts to identify the dominant aggressor in any incident.
The dominant aggressor is the person determined to be the most
significant, rather than the first, aggressor. In identifying
the dominant aggressor, an officer shall consider the intent
of the law to protect victims of domestic violence from
continuing abuse, the threats creating fear of physical
injury, the history of domestic violence between the persons
involved, and whether either person acted in self-defense.
These arrest policies shall be developed, adopted, and
implemented by July 1, 1996. [Penal Code Section 13701(b).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Penal Code
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Section 836 was not amended at the time other code section was
changed. Penal Code Section 836 concerns arrest procedures
when mutual protective orders exist (both parties are
protected from the other with court orders). The language in
Penal Code Section 836 provides that the most significant, not
the first, aggressor should be arrested. However, the section
labels that to be the primary aggressor instead of the
dominant aggressor. Changing all references from primary
aggressor to dominant aggressor is important for police
understanding and to clear up the confusion of two different
labels."
2)Dominant vs. Primary Aggressor : In 2000, SB 1944 (Solis),
Chapter 1001, Statutes of 2000, amended Penal Code Section
13701 to include the term "dominant aggressor" rather than
"primary aggressor" in an effort to discourage police from
making a dual arrest at the scene of a domestic violence. In
the alternative, officers are provided guidance to determine
which person was the aggressor and, hence, which person must
be arrested. The author of SB 1944 stated:
"The bill [also] clarifies that at the scene of a domestic
violence incident, law enforcement should identify who is the
dominant aggressor, that is the person who is the most
significant, and not the first aggressor. Current statute
requires law enforcement to identify the 'primary aggressor.'
In law enforcement trainings, it has been confusing referring
to primary aggressor because this is being interpreted to mean
the first person who hit."
This confusion often results in dual arrests. Ms. Catherine
Popham-Durant, University of Southern California, Review of
Law and Women Studies, posited, "States [have] struggled to
enact language to discourage dual arrest, and many have
included language stating that only the primary aggressor
should be arrested. How to define the 'primary aggressor',
however, remains an obstacle. Some define 'primary aggressor'
as the party who is not acting in self-defense. This creates
a problem, however, because some victims' violence may be
reactive without meeting the legal standard of self-defense.
Other states and the old standard in California defined the
'primary aggressor' as 'the person determined to be the most
significant, rather than the first, aggressor' and came up
with some criteria to help the officers decide who was the
most significant.
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"California law, for example explained: 'In identifying the
primary aggressor, an officer shall consider the intent of the
law to protect victims of domestic violence from continuing
abuse, the threats creating fear of physical injury, the
history of domestic violence between the persons involved, and
whether either person acted in self defense.'
"Although the legislators included these criteria, they were
concerned that forcing police officers to make arrests would
lead to confusion regarding whom to arrest. This influenced
them to elect a pro-arrest rather than a mandatory arrest
policy when amending California Penal Code Section 13701. As
predicted by the legislature, officers in law enforcement
training reported that they did not understand how to
interpret the statute and continued, despite the statutory
standards, to define the 'primary aggressor' as the person who
hit first. Responding to officers' suggestions of what
language would clarify their responsibilities, the legislature
again amended California Penal Code Section 13701 in 2000.
Keeping all of the definitions and explanations the same, they
replaced the words 'primary aggressor' with 'dominant
aggressor'." [Popham-Durant, When To Arrest: What Influences
Police Determination To Arrest When There Is A Report Of
Domestic Violence?, (2003) 12 S. Cal. Rev. L. & Women's Stud.
301, 311.]
3)Argument in Support : According to the California Partnership
to End Domestic Violence states, "California Penal Code 13701
was amended in 2000 to require police officers to arrest the
dominant aggressor, instead of the primary aggressor, in
domestic violence cases. At the scene of a domestic violence
incident, law enforcement is required to identify who the
dominant aggressor is; or the person who is the most
significant, not necessarily the first aggressor. Before this
amendment, the Code section required law enforcement to
identify the primary aggressor. It proved to be confusing in
law enforcement training to refer to the primary aggressor,
because this was interpreted to mean the first person who
assaulted their partner. One of the underlying purposes of
using the term dominant aggressor was to reduce the number of
dual arrests and have police officers arrest the most
significant aggressor in light of domestic violence mandatory
arrest laws. In response, the legislature passed laws that
changed primary aggressor to dominant aggressor in Penal Code
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Section 13701. Existing California law, Penal Code Section
836, provides that the most significant, not the first
aggressor should be arrested. However, the section is
mislabeled and the term 'primary' aggressor is listed instead
of 'dominant aggressor'. AB 258 in a minor technical clean-up
bill that will not change anything in current practice. This
bill will align the Penal Code Sections and ensure there is no
confusion for law enforcement when interpreting the law."
4)Related Legislation : AB 1082 (Torrico) establishes the
Domestic Violence Prevention Fund and the Domestic Abuser
Surveillance Fund by imposing a sales and use tax on harmful
matter. AB 1082 is pending referral by the Assembly Rules
Committee.
5)Prior Legislation : SB 1944 (Solis), Chapter 1001, Statutes of
2000, provided that peace officers shall make reasonable
efforts to identify the "dominant" aggressor, rather than the
"primary" aggressor, regarding the arrest of domestic violence
offenders.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
California Partnership to End Domestic Violence
Legal Services for Prisoners of Children
Opposition
None received
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744