BILL ANALYSIS
AB 112
Page 1
Date of Hearing: May 3, 2005
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
AB 112 (Cohn) - As Amended: April 18, 2005
SUBJECT : PROTECTIVE ORDERS: ENFORCEMENT PRIORITY
KEY ISSUE :SHOULD AN EMERGENCY PROTECTIVE ORDER (EPO) HAVE
PRECEDENCE IN ENFORCEMENT OVER ANY OTHER CRIMINAL OR CIVIL
PROTECTIVE ORDER OR, SHOULD AN EPO HAVE PRIORITY ONLY TO THE
EXTENT THAT: A) IT IS PROTECTING THE SAME VICTIM; B) IT PROVIDES
GREATER PROTECTION TO THE VICTIM; AND C) THE TERMS OF OTHER
ORDERS, TO THE EXTENT THEY DO NOT CONFLICT WITH THE MORE
RESTRICTIVE TERMS OF THE EPO, HAVE PRECEDENCE AS SET FORTH IN
CURRENT LAW?
SYNOPSIS
This bill would require emergency protective orders (EPOs) to be
enforced ahead of other civil or criminal protective orders.
Current law gives criminal protective orders priority in
enforcement. Given the often dire circumstances necessitating
an emergency protective order, the author feels that these
orders should be enforced first, if the protected party already
has another type of protective order against the same abuser.
Supporters argue that this bill can provide additional
protections to parties who currently only have "peaceful
contact" criminal protective orders. Opponents are concerned,
however, that since EPOs are issued without notice and a hearing
for the restrained party, giving them priority over other
protective orders might be unwise in some situations.
Amendments to clarify that this bill applies only to parties who
are currently protected by other civil or criminal orders and
are seeking additional protections through an EPO would appear
to address many of the opponents' concerns.
SUMMARY : Gives emergency protective orders (EPOs) issued
pursuant to either the Family Code or the Penal Code precedence
in enforcement over any other restraining or protective order.
EXISTING LAW :
1)Authorizes a court to issue a civil or criminal protective
order to protect victims of domestic violence. (Family Code
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Sections 6300 et seq .; Penal Code Section 136.2.)
2)Allows a law enforcement officer to seek an 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.
An EPO is effective for up to seven days. The EPO must be
entered into the California Law Enforcement Telecommunications
System (CLETS). (Family Code Sections 6240 et seq .; 6380.)
3)Allows a law enforcement officer to seek an EPO from a court,
if the officer has reasonable grounds to believe that an
individual is in immediate and present danger of stalking.
(Penal Code Section 646.91.)
4)Gives criminal protective orders precedence over civil orders
involving the same defendant. (Penal Code Section 136.2.)
FISCAL EFFECT : As currently in print, this bill is keyed
non-fiscal.
COMMENTS : This bill would provide that an emergency protective
order shall have precedence in enforcement over other civil or
criminal protective orders. According to the author, this bill
is necessary because:
Currently, Penal Code Section 136.2 requires that criminal
court orders take precedence over civil court orders.
Generally this is not a problem, but in some cases that
criminal court allows there to be peaceful contact between
the defendant and victim.
An Emergency Protective Order (EPO) is civil in nature and
is always issued as a result of some police intervention
which necessitates as stay away/no contact order. The
problem comes in where there is a prior criminal order
allowing contact, it would, under current law, take
precedence over the EPO and jeopardize the victim's safety.
This bill is a solution to this problem for it allows for
the EPO to have precedence in enforcement over all other
protective orders for the short 5 court calendar days that
it is valid.
The bill's supporter, a deputy district attorney in Santa Clara,
argues that this provision would provide additional protections
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to victims who have "peaceful contact" criminal protective
orders in place which would currently have priority over an EPO.
An EPO may be issued by a judge when a law enforcement officer
reports the incident based on the victim's allegation of abuse
or threat of abuse. The standard of proof for an EPO is that
reasonable grounds have been asserted to believe there is an
immediate and present danger of abuse, abduction or stalking.
(Family Code Section 6251.) The order lasts for five to seven
days, and is issued immediately without prior notice to the
restrained party. The EPO is supposed to be entered into CLETS,
but because CLETS data entry is backlogged, the EPO almost
always expires before it is entered into the system.
In contrast, other protective and restraining orders, including
criminal, civil harassment, workplace harassment, domestic
violence and juvenile protective orders are issued after notice
and an opportunity to be heard are provided to the restrained
party. Both parties can present their arguments and evidence in
a hearing prior to the issuance of the order.
Technical Amendment : In order to ensure that EPOs do indeed
have precedence over all other protective orders, subdivision
(b) of Penal Code Section 136.2 should reference subdivision
(e), which currently gives criminal orders priority. This can
be accomplished by adding "Notwithstanding subdivisions (a) and
(e) " to the start of subdivision (b).
ARGUMENTS IN OPPOSITION : The Cooperative Restraining Order
Clinic (CROC), which assists domestic violence and stalking
victims in San Francisco, opposes this bill unless it is amended
to address certain concerns. CROC is specifically worried that,
since EPOs are issued without a hearing based on one person's
version of events, some savvy batterers might seek EPOs against
their victims, possibly excluding a victim from the home and
contact with children. CROC provides examples of several
breastfeeding victims of domestic violence who were restrained
from contact with their babies for a week due to their
batterers' false reports to police. Since other protective
orders require due process and a hearing before a judge, CROC
argues that these orders should not be "trumped" by an EPO with
less procedural safeguards, particularly if the EPO is less
restrictive than the original protective order.
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To address these concerns, CROC suggests that the bill be
amended to clarify that an EPO would only be given priority if:
(1) it is issued to protect an individual who is already a
protected person in another restraining or protective
order, (2) it restrains the individual who is the
restrained person in that other restraining or protective
order, and (3) it contains restrictions which are greater
than those in that other restraining or protective order.
It must also be clear that the more restrictive terms of
the EPO take precedence only over the corresponding terms
in the underlying restraining order and all other terms of
the underlying restraining order remain in effect.
These amendments might be advisable given the concern that an
EPO should be used only to protect legitimately victimized
parties and should not always overshadow other criminal or civil
protective orders.
REGISTERED SUPPORT / OPPOSITION :
Support
One individual
Opposition
Cooperative Restraining Order Clinic (unless amended)
Analysis Prepared by : Leora Gershenzon and Meredith Nixon /
JUD. / (916) 319-2334