BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2013-2014 Regular Session B 1 7 6 AB 176 (Campos) As Amended: April 8, 2013 Hearing date: June 18, 2013 Family and Penal Codes AA:jr PROTECTIVE AND RESTRAINING ORDERS: ORDER OF ENFORCEMENT HISTORY Source: Author Prior Legislation: AB 118 (Cohn, Chapter 465, Statutes of 2005) AB 112 (Cohn, Chapter 132, Statutes of 2005) AB 160 (Bates, Chapter 698, Statutes of 2001) AB 356 (Snyder, Chapter 320, Statutes of 1994) Support: Association of Certified Family Law Specialists; California Police Chiefs Association; California Probation, Parole and Correctional Association; California Communities United Institute; National Association of Social Workers - California Chapter; three judges of the Superior Court of California County of Santa Clara; California Coalition Against Sexual Assault; Executive Committee of the Family Law Section of the State Bar of California Opposition:None known Assembly Floor Vote: Ayes 75 - Noes 0 (More) AB 176 (Campos) Page 2 KEY ISSUE SHOULD "NO-CONTACT" ORDERS HAVE ENFORCEMENT PRIORITY OVER OTHER RESTRAINING AND PROTECTIVE ORDERS, AS SPECIFIED? PURPOSE The purpose of this bill is to provide, beginning July 1, 2014, that if more than one restraining order has been issued and one of the orders is a no-contact order, a peace officer must enforce the no-contact order. Existing law authorizes a court to issue a civil or criminal protective order to protect victims of domestic violence, and authorizes a court to issue a no-contact order for the protected party and, in the discretion of the court, for other named family or household members. (Fam. Code Sec. 6320 et seq.; Pen. Code Sec. 136.2.) Existing law generally authorizes courts to grant visitation rights to a parent, and provides that if "visitation is ordered in a case in which domestic violence is alleged and an emergency protective order, protective order, or other restraining order has been issued, the visitation order shall specify the time, day, place, and manner of transfer of the child, so as to limit the child's exposure to potential domestic conflict or violence and to ensure the safety of all family members." (Family Code Sec. 3100) Existing law provides that if "a criminal protective order has been issued pursuant to Section 136.2 of the Penal Code, the visitation order shall make reference to, and acknowledge the precedence of enforcement of, any appropriate criminal protective order." (Id.) (More) AB 176 (Campos) Page 3 This bill would exempt a no-contact order from this provision. Existing law authorizes a law enforcement officer to seek an emergency protective order (EPO) from a court if any person or child is in immediate and present danger of domestic violence, abuse, or stalking, or in imminent danger of abduction by a parent or relative. Existing law allows a court to issue an EPO for up to seven days. (Fam. Code Sec. 6250 et seq.; Pen Code Sec. 646.91.) Existing law provides that if there are multiple civil protective or restraining orders regarding the same parties, the order last entered shall be enforced. If there are both criminal and civil orders, the last criminal order shall be enforced. (Fam. Code Secs. 6383, 6405.) Existing law gives EPOs, whether civil or criminal, precedence in enforcement over any other restraining or protective order, provided that the EPO is more restrictive as to the restrained party than any other orders. (Pen. Code Sec. 136.2(c).) This bill would provide, beginning July 1, 2014, that when there are multiple protective or restraining orders regarding the same parties and one of those orders is a no-contact order, law enforcement is required to enforce the no-contact order. This bill would delete, as of July 1, 2014, the enforcement priority currently given to EPOs over other protective orders involving the same parties. This bill would require the Judicial Council, by July 1, 2014, to update civil and criminal court forms, consistent with the provisions of this bill. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION For the last several years, severe overcrowding in California's prisons has been the focus of evolving and expensive litigation relating to conditions of confinement. On May 23, 2011, the (More) AB 176 (Campos) Page 4 United States Supreme Court ordered California to reduce its prison population to 137.5 percent of design capacity within two years from the date of its ruling, subject to the right of the state to seek modifications in appropriate circumstances. Beginning in early 2007, Senate leadership initiated a policy to hold legislative proposals which could further aggravate the prison overcrowding crisis through new or expanded felony prosecutions. Under the resulting policy known as "ROCA" (which stands for "Receivership/ Overcrowding Crisis Aggravation"), the Committee held measures which created a new felony, expanded the scope or penalty of an existing felony, or otherwise increased the application of a felony in a manner which could exacerbate the prison overcrowding crisis. Under these principles, ROCA was applied as a content-neutral, provisional measure necessary to ensure that the Legislature did not erode progress towards reducing prison overcrowding by passing legislation which would increase the prison population. ROCA necessitated many hard and difficult decisions for the Committee. In January of 2013, just over a year after the enactment of the historic Public Safety Realignment Act of 2011, the State of California filed court documents seeking to vacate or modify the federal court order issued by the Three-Judge Court three years earlier to reduce the state's prison population to 137.5 percent of design capacity. The State submitted in part that the, ". . . population in the State's 33 prisons has been reduced by over 24,000 inmates since October 2011 when public safety realignment went into effect, by more than 36,000 inmates compared to the 2008 population . . . , and by nearly 42,000 inmates since 2006 . . . ." Plaintiffs, who opposed the state's motion, argue in part that, "California prisons, which currently average 150% of capacity, and reach as high as 185% of capacity at one prison, continue to deliver health care that is constitutionally deficient." In an order dated January 29, 2013, the federal court granted the state a six-month extension to achieve the 137.5 % prisoner population cap by December 31st of this year. In an order dated April 11, 2013, the Three-Judge Court denied the state's motions, and ordered the state of California to (More) AB 176 (Campos) Page 5 "immediately take all steps necessary to comply with this Court's . . . Order . . . requiring defendants to reduce overall prison population to 137.5% design capacity by December 31, 2013." The ongoing litigation indicates that prison capacity and related issues concerning conditions of confinement remain unresolved. However, in light of the real gains in reducing the prison population that have been made, although even greater reductions are required by the court, the Committee will review each ROCA bill with more flexible consideration. The following questions will inform this consideration (More) whether a measure erodes realignment; whether a measure addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction; whether a bill corrects a constitutional infirmity or legislative drafting error; whether a measure proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy; and whether a bill addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy. COMMENTS 1. Stated Need for This Bill The author states: Domestic violence victims often have multiple restraining orders issued by both civil and criminal courts against their abusers. Restraining orders vary in their level of protection with no-contact orders being the strongest, stay away orders being the second strongest and peaceful contact orders being the third strongest. Given that many victims have multiple protective orders, existing law specifies that the most recent criminal order be enforced over any other order. However, the most recent criminal order may not provide the greatest level of protection for victims. Abusers may very well continue to violate a civil no contact order because he or she knows that the police will not enforce the civil protective order if a criminal order exists. The highest level of protection for domestic violence victims is the no-contact order, which can be issued by either a criminal or civil court. AB 176 ensures that domestic violence victims receive the highest (More) AB 176 (Campos) Page 7 level of court protection by requiring a no-contact order issued by either a criminal or civil court, to be enforced over any other order. 2. What This Bill Would Do Current law provides that where multiple restraining orders have been issued, criminal restraining orders are generally given priority over civil restraining orders. This bill would instead provide that no-contact orders, whether issued by a civil or criminal court, take priority over all other restraining orders. Both civil and criminal courts are able to issue orders prohibiting a person from harassing, assaulting, following, or threatening a protected party and his or her family. Restraining orders can also require a restrained party to vacate a premises, or require that a restrained party stay away from any number of locations including the protected person's home, vehicle, workplace, or school. Many times these orders restrict certain behavior, but allow for "peaceful contact." This is common where parties live together, have children together and must share custody, or where parties work in the same location. Offering even more protection, courts may issue a "no-contact order," which prohibits any contact with the protected party. Unlike civil restraining orders which are issued for up to five years, criminal restraining orders may be issued for up to ten years. Thus, under existing law, criminal restraining orders maintain priority over civil orders for potentially a very long time. In situations where a more restrictive civil restraining order has been issued, that order is null under current law until the criminal order expires. This bill would resolve the problem of conflicting restraining orders by giving no-contact orders priority, regardless of when it was issued, or by which court. 3. Law Enforcement Under existing law, criminal restraining orders generally take priority over civil orders. However, if an emergency protective order (EPO) has been issued, that order is given enforcement AB 176 (Campos) Page 8 priority over all other orders, as long as that EPO is more restrictive on the restrained person. Thus, under the current priority scheme, law enforcement officers may be required to determine which restraining order is the most restrictive. Arguably, if the purpose of the restraining order is to protect a party from harassment or abuse, law enforcement officers should be looking to which order best protects that person, not to when an order was issued, which court issued it, or whether it is the "most restrictive." This bill would remove the priority of an EPO, and instead give priority to no-contact orders, whether civil, criminal, or an EPO. If a no-contact order has not been issued, this bill would otherwise maintain the existing priority scheme. The Association of Certified Family Specialists, in support, writes: This bill strengthens protections for victims of domestic violence, and eliminates dangerous confusion for peace officers who must enforce a protective order when multiple orders may be in effect simultaneously. If this bill is enacted, criminal court protective orders will still take precedence over civil (family) court protective orders, the later issued order will take precedence if multiple orders are issued by criminal courts or by civil courts, and a "no-contact" provision in any order will "trump" the other orders in effect. This eliminates any need for peace officers to interpret existing orders, and assures maximum protection for protected persons at those perilous moments when the courts are not open, and an immediate danger is present and must be confronted by a peace officer. *************** AB 176 (Campos) Page 9