BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
AB 1787 A
Assembly Member Cohn B
As Amended March 14, 2006
Hearing Date: June 13, 2006 1
Family Code 7
GMO:cjt 8
7
SUBJECT
Emergency Protective Orders: Validity
DESCRIPTION
This bill would clarify that an emergency protective order
is valid only if issued by a judicial officer after making
required findings and pursuant to a request by a law
enforcement officer.
BACKGROUND
An emergency protective order may be requested by a law
enforcement officer when the officer has reason to believe
that there is an immediate danger of domestic violence,
abuse, abduction, or stalking. [Family Code 6250; Penal
Code 646.91.] A judicial officer (judge, commissioner,
or referee) may issue the requested order only if the
judicial officer finds that reasonable grounds have been
asserted by the law enforcement officer that there is
immediate and present danger of domestic violence, abuse,
abduction, or stalking, and that the emergency protective
order is necessary to prevent the alleged activity. An
emergency protective order issued pursuant to Family Code
6250 and Penal Code 646.91 lasts for five to seven days,
and is issued immediately, without prior notice to the
restrained party. [Family Code 6256.]
Apparently, at least one jurisdiction allows a law
(more)
AB 1787 (Cohn)
Page 2
enforcement officer to issue emergency protective orders
pursuant to a "standing order of the court" to issue such
orders. This bill intends to clarify that each case must
be made to the court for the issuance of an emergency
protective order and that an order is valid only if issued
by the court.
CHANGES TO EXISTING LAW
Existing law authorizes a law enforcement officer to seek
an emergency protective order (EPO) from a court at any
time, whether the court is in session or not, 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. [Fam. Code 6240 et seq.] The court
may issue the order orally [Fam. C. 6241], but in all
cases the EPO would be issued only if the judicial officer
finds that reasonable grounds have been asserted that an
immediate and present danger exists, and that an EPO is
necessary to prevent the occurrence or recurrence of
domestic violence, abuse or abduction. [Fam. C. 6251.]
Existing law authorizes a law enforcement officer to seek
an EPO relating to stalking, provided the requirements of
Penal Code 646.91, which are identical to those issued
under Fam. C. 6240 et seq., are met. [Fam. C. 6274.]
This bill would provide that an EPO is valid only if issued
by a judicial officer after making the findings required by
Fam. C. 6251 and pursuant to a specific request by a law
enforcement officer.
COMMENT
1. Stated need for the bill
While the law is clear that an EPO may be issued only if
a court finds that a law enforcement officer has asserted
reasonable grounds for its issuance, the author states
that at least one jurisdiction has a "standing order" for
such EPOs, effectively giving law enforcement officers of
that jurisdiction carte blanche authority to issue orders
without first contacting the court.
AB 1787 (Cohn)
Page 3
This bill would curtail that practice and ensure that
EPOs are valid only if issued by a court after a request
has been made by a law enforcement officer. The author
states that "AB 1787 will ensure that all emergency
protective orders are issued by a judge who has reviewed
the case and deemed it necessary to issue a protective
order, thereby protecting both the victim and complainant
[sic]." The author intended to state that the bill would
better protect both victims and the restrained persons.
2. Only a judicial officer may issue an EPO
This bill would not change the requirements for issuance
of an EPO under existing law, because it would simply
provide that only an EPO issued by a judicial officer
pursuant to a request by a law enforcement officer is
valid. Current law requires the law enforcement officer
to provide the court with sufficient facts for the court
to find that reasonable grounds exist that domestic
violence, abuse, abduction, or stalking would occur or
recur without an EPO.
Because the situations that EPOs are designed to control
are usually volatile, the law requires the presiding
judge of each superior court to designate at least one
judge, commissioner, or referee to be reasonably
available to issue orally, by telephone or otherwise,
EPOs at all times, whether the court is in session or
not. [Fam. C. 6241.] This provision was enacted so
that a law enforcement officer on the scene may request
the issuance of an EPO if the situation calls for it.
Thus, under existing law a law enforcement officer may
make such a request orally, and the court may issue such
an order orally, if the required findings are made. Once
an EPO is issued orally, the officer is required to
reduce the order to writing, sign it, serve the
restrained person with a copy if the person can
reasonably be located, and give a copy to the protected
person or, if the protected person is a minor, to the
parent who is not the restrained person if that person
can reasonably be located. [Fam. C. 6270, 6271.]
Since the law seems to be quite clear that an order has
to be issued by a judge, commissioner, or referee based
AB 1787 (Cohn)
Page 4
on a request from a law enforcement officer, this bill
would add little to existing law. It would, however,
force one lazy and rogue jurisdiction (Fresno County
Superior Court) that has a "standing order" for such
emergency protective orders to do what all other courts
are already doing: perform their judicial duty of taking
each request and making the necessary findings to issue
an EPO for the specific case.
Because of this, the Judicial Council supports the bill
as consistent with the current statutory scheme for the
issuance of EPOs. The Judicial Council also states that
the bill "ensures the proper alignment of judicial and
executive functions," and "protects the exclusive
authority of the court to issue protective orders."
The Los Angeles County District Attorney's Office also
supports this bill, because it would "prohibit a judicial
officer from authorizing the issuance of a protective
order pursuant to a standing order" and clarify that a
law enforcement officer must make a separate request for
each specific case.
Support: Judicial Council; Los Angeles County District
Attorney's Office; Family
Law Section of the State Bar of California
Opposition: None Known
HISTORY
Source: Author
Related Pending Legislation: None Known
Prior Legislation: AB 118 (Cohn) Chapter 465, Statutes of
2005 required a protective order issued by a
criminal court to take precedence and to be
acknowledged by a civil court issuing a
protective order.
AB 115 (Cohn) Chapter 132, Statutes of 2005
provided that an emergency protective order
AB 1787 (Cohn)
Page 5
takes precedence over any other restraining
or protective order.
AB 99 (Cohn) Chapter 125, Statutes of 2005,
extended the duration of protective orders
to five years and authorized the renewal of
those orders, upon request, for an
additional five years.
Prior Vote: Asm. Jud. (Ayes 7, Noes 0) Consent
Asm. Flr. (Ayes 71, Noes 0) Consent
**************