BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 238 (Gomez)
As Amended March 20, 2013
Hearing date: May 14, 2013
Family and Penal Codes
AA:mc
EMERGENCY PROTECTIVE ORDERS:
ENTRY INTO STATEWIDE DATABASE
HISTORY
Source: Los Angeles County Sheriff's Department
Prior Legislation: None
Support: American Federation of State County and Municipal
Employees (AFSCME), AFL-CIO; Association of Orange
County Deputy Sheriffs; California Fraternal Order of
Police; Long Beach Police Officers Association; Los
Angeles County Professional Peace Officers Association;
Sacramento County Deputy Sheriffs Association; Santa
Ana Police Officers Association; Peace Officers
Research Association of California; San Bernardino
County Sheriff; California Communities United
Institute; Child Abuse Prevention Center; Crime Victims
United of California
Opposition:Unknown
Assembly Floor Vote: Ayes 76 - Noes 0
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KEY ISSUE
SHOULD LAW ENFORCEMENT BE REQUIRED TO ENTER A DOMESTIC VIOLENCE
EMERGENCY PROTECTIVE ORDER INTO THE CALIFORNIA RESTRAINING AND
PROTECTIVE ORDER SYSTEM, AS SPECIFIED?
PURPOSE
The purpose of this bill is to require that all emergency
protective orders be entered into the California Restraining and
Protective Order System within two hours of issuance, as
specified.
Current law allows a law enforcement officer to seek an
emergency protective order ("EPO") from a court, 24 hours a day,
seven days a week, if any person or child is in immediate and
present danger of domestic violence or abuse, or in imminent
danger of abduction by a parent or relative, or stalking. The
EPO may only be issued if the judicial officer makes specified
findings. (Family Code �� 6240 et seq.; Penal Code � 646.91.)
Current law provides that an EPO expires in either five court
days or seven calendar days after issuance, whichever is
shorter. (Family Code � 6256; Penal Code � 646.91.)
Current law requires the law enforcement officer who requests an
EPO to serve the EPO on the restrained party, if that party can
reasonably be located; provide a copy to the protected party;
file a copy with the court as soon as practicable after
issuance; and carry a copy of the order while on duty. (Family
Code �� 6271, 6273; Penal Code � 646.91.)
Current law requires whenever a protective order or restraining
order are issued, as provided, specified information about the
order be entered into the Department of Justice's Domestic
Violence Restraining Order System within one business day by any
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law enforcement officer who served the protective order and by
the clerk of the court if someone other than an officer served
the order. (Family Code � 6380.)
This bill , for both civil and criminal EPOs, would:
1) require that the professional staff of the law
enforcement agency employing the law enforcement officer
requesting an EPO enter the order into the California
Restraining and Protective Order System within two hours of
its issuance; and
2) delete the requirement that the officer who requests the
EPO carry copies of the order while on duty.
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
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
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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
"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:
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;
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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
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1. Stated Need for This Bill; Author's Amendments
The author states:
Under current law, Family Code Section 6273 states
that a law enforcement officer who requests an
Emergency Protective Order (EPO) shall carry copies of
the order while on duty.
In many cases, officers who request an EPO on behalf
of a victim are unable to serve the suspect with the
EPO because the suspect has left the scene prior to
the arrival of the officer. Under current law (as
stated above), it requires the officer to carry around
a copy of the EPO to serve the suspect if the officer
encounters the suspect at a later time. This
procedure is not workable because when the officer is
off, what happens to those orders?
A better process that will serve the interests of
public safety and protect victims is to have the
information entered into the California Restraining
and Protective Order System (CARPOS). This will make
the information available to all officers with access
to the automated system. In this case, if any officer
encounters the suspect, that officer can advise/serve
the suspect regarding the order verbally.
The author intends to amend this bill to delete the bill's
two-hour requirement.
2. Background
Emergency Protective Orders ("EPOs") are intended to protect
victims of domestic violence in emergency situations. They may
be requested by a law enforcement officer when the officer has
reasonable grounds to believe that there is immediate danger of
abuse, based on a victim's allegation of abuse or threat of
abuse, abduction or stalking. A judicial officer may issue the
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requested EPO only if the judicial officer finds that reasonable
grounds have been asserted by the law enforcement officer that
there is an immediate and present danger of abuse and that the
EPO is necessary to prevent the abuse. After the order is
issued, the requesting officer is required to serve the EPO on
the restrained party, if that party can reasonably be located;
provide a copy to the protected party; file a copy with the
court as soon as practicable after issuance; and carry a copy of
the order while on duty. The order lasts for the lesser of five
court days or seven calendar days, and is issued immediately
without prior notice to the restrained party.
Restraining orders are required to be entered into a statewide
database of protective orders, known as the California
Restraining and Protective Order System (CARPOS), so that the
orders can more easily be tracked and enforced. CARPOS, which
is part of California Law Enforcement Telecommunications System
(CLETS), is maintained by the Department of Justice. Current
law requires that information contained in a civil or criminal
domestic violence protective order must be entered into CARPOS
(previously known as the Domestic Violence Restraining Order
System). The information must be added to CARPOS within one
business day by any law enforcement officer who serves a covered
protective order. If the protective order is served by someone
other than a police officer, the information must be added to
CARPOS within one business day by the court clerk that receives
proof of service of the order.
EPOs have not been required to be entered into CARPOS. It is
believed that this is because order information is not always
entered into CARPOS in a timely manner and given the very short
life of an EPO, the order could well be expired before it is
even entered into the system. Instead the police officer who
sought the EPO was required to provide a copy of the order to
the victim, serve the order on the restrained person, assuming
that person could be located, and carry a copy of the order
while on duty. This bill would require that instead of the
requesting officer carrying around a copy of the order, the
order be entered into CARPOS within two hours of issuance by the
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professional staff at the law enforcement agency employing the
requesting officer.
According to the author, this bill is necessary because the
current procedure, where the requesting officer carries around
the order is simply not workable: "This procedure is not
workable because when the officer is off duty, what happens to
those orders?"
The Judicial Council has been developing its own protective
order registry, known as the California Courts Protective Order
Registry (CCPOR), which has now been deployed to 21 courts.
CCPOR is a statewide repository of restraining orders available
to judicial officers and law enforcement. It provides courts
with an easier way to enter information into CARPOS. It also
allows for greater accessibility of information by providing not
just data fields, but access to the entire protective order.
However, this system is not yet installed in all courts and, in
any event, is not meant as a replacement for CARPOS.
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