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 AB 258 Page 2 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 AB 258 Page 3 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. AB 258 Page 4 "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 AB 258 Page 5 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