BILL ANALYSIS
AB 1787
Page 1
Date of Hearing: March 21, 2006
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
AB 1787 (Cohn) - As Amended: March 14, 2005
PROPOSED CONSENT
SUBJECT : EMERGENCY PROTECTIVE ORDERS
KEY ISSUE : SHOULD THE LAW BE CLARIFIED TO ENSURE THAT AN
EMERGENCY PROTECTIVE ORDER CAN ONLY BE ISSUED BY A JUDICIAL
OFFICER AFTER CONSIDERATION OF A PARTICULAR REQUEST FROM A LAW
ENFORCEMENT OFFICER?
SYNOPSIS
This bill seeks to ensure that only emergency protective orders
issued by judicial officers after making the required findings
based on the specific facts presented are valid. According to
the author, at least one jurisdiction is allowing law
enforcement officers to issue emergency protective orders
pursuant to a standing order of the court. Any such orders are
clearly invalid: They fail to comply with the existing
requirement that only judicial officers may issue emergency
protective orders after making case-specific findings. This
bill seeks to clarify existing law to ensure that only emergency
protective orders issued by a judicial officer are valid. The
author believes this bill is necessary to ensure emergency
protective orders are recognized as valid and enforced as such.
There is no known opposition to the bill.
SUMMARY : Requires emergency protective orders (EPOs) to be
issued by a court, as specified. Specifically, this bill
provides that an EPO is valid only if issued by a judicial
officer after making required findings pursuant to a specific
request by a law enforcement officer.
EXISTING LAW :
1)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.
The EPO may only be issued if the judicial officer makes
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specified findings. An EPO is effective for up to seven days.
(Family Code Sections 6240 et seq .)
2)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.)
3)Requires a law enforcement officer who requests an EPO to
reduce the order to writing; sign it; serve the order on the
restrained party, if that person can be located; give a copy
to the protected party; and file a copy with the court as soon
as practicable. (Family Code Sections 6270-71.)
4)Gives emergency protective orders precedence over other
protective orders, as specified. (Penal Code Section 136.2.)
FISCAL EFFECT : The bill as currently in print is keyed
non-fiscal.
COMMENTS : An EPO 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 the victim's allegation of
abuse or threat of abuse, abduction or stalking. A judicial
officer, defined as a judge, commissioner or referee, may issue
the 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 such abuse. The order
lasts for five to seven days, and is issued immediately without
prior notice to the restrained party.
This bill clarifies that emergency protective orders must be
issued by judicial officers based on specific facts of each
case. Under the bill, an EPO is not valid unless it is issued
by a judicial officer after the judicial officer has determined
that there are reasonable grounds to believe that there is
immediate and present danger of domestic violence, abuse,
abduction or stalking.
According to the author, this bill is necessary to prevent
certain jurisdictions from allowing law enforcement officers to
issue emergency protective orders without consulting the court
with the specifics of each case:
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In Fresno County, law enforcement agencies are allowed
to issue emergency protective orders when they observe
visible signs of traumatic injury or believe that the
injured party is in immediate danger of domestic
violence. In these circumstances, the EPO is used by
Fresno to prevent future acts of domestic violence.
Fresno County indicates that in these situations, law
enforcement need not contact a judge or commissioner
to issue the EPO as it would be issued in favor of the
alleged victim.
The author correctly states that an EPO, like any order of the
court, is only valid when issued by the court after the court
has considered the evidence before it. "Deciding upon the
necessity of an emergency protective order is a judge's
responsibility. The validity of an emergency protective order
is undermined when the responsibility of issuing the EPO is
placed in the hands of law enforcement staff without the
approval of a judge. . . . Technically speaking, any protective
order not issued by a judge is invalid. This bill seeks to
clarify that a law enforcement officer must make a specific
request of a judge in order to obtain an emergency protective
order for any case where such an order is perceived as
necessary."
The author asserts that ensuring EPOs are correctly issued by
courts, as opposed to incorrectly by law enforcement officers,
will help ensure that EPOs are recognized as enforceable and
better protect the victims they are meant to protect.
Current law requires that a court may only issue an emergency
protective order 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 abuse. It is certainly impossible
for the judicial officer to make such findings without
considering the evidence submitted for each particular EPO
request. No standing order of the court can avoid this required
case-by-case consideration. This bill simply clarifies that.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file.
AB 1787
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Opposition
None on file.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334