BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 1787|
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CONSENT
Bill No: AB 1787
Author: Cohn (D)
Amended: 3/14/06 in Assembly
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-0, 6/13/06
AYES: Dunn, Morrow, Escutia, Harman, Kuehl
ASSEMBLY FLOOR : 71-0, 3/30/06 (Consent) - See last page
for vote
SUBJECT : Emergency protective orders: validity
SOURCE : Author
DIGEST : This bill clarifies 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.
ANALYSIS : 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. [Section 6240 et seq.
of the Family Code] The court may issue the order orally
(Section 6241 of the Family Code), 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
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present danger exists, and that an EPO is necessary to
prevent the occurrence or recurrence of domestic violence,
abuse or abduction. [Section 6251 of the Family Code]
Existing law authorizes a law enforcement officer to seek
an EPO relating to stalking, provided the requirements of
Section 646.91 of the Penal Code, which are identical to
those issued under Section 6240 et seq. of the Family Code,
are met. [Section 6274 of the Family Code]
This bill provides that an EPO is valid only if issued by a
judicial officer after making the findings required by
Section 6251 of the Family Code and pursuant to a specific
request by a law enforcement officer.
Background
An EPO 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. [Section 6250 of the Family Code, Section 646.91
of the Penal Code] 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 EPO is
necessary to prevent the alleged activity. An EPO issued
pursuant to Section 6250 of the Family Code and Section
646.91 of the Penal Code lasts for five to seven days, and
is issued immediately, without prior notice to the
restrained party. [Section 6256 of the Family Code]
Apparently, at least one jurisdiction allows a law
enforcement officer to issue EPOs 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 EPO and that an order is valid only
if issued by the court.
Prior Legislation
AB 118 (Cohn), Chapter 465, Statutes of 2005, required a
protective order issued by a criminal court to take
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precedence and to be acknowledged by a civil court issuing
a protective order. The bill passed the Senate with a vote
of 40-0 (Consent) on 9/7/05.
AB 115 (Cohn), Chapter 132, Statutes of 2005, provided that
an EPO 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/15/06)
Family Law Section of the State Bar of California
Judicial Council of California
Los Angeles County District Attorney's Office
ARGUMENTS IN SUPPORT : According to the author's office,
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, 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.
This bill curtails that practice and ensures 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.
ASSEMBLY FLOOR :
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AYES: Arambula, Baca, Benoit, Berg, Bermudez, Blakeslee,
Bogh, Calderon, Canciamilla, Chan, Chavez, Chu, Cogdill,
Coto, Daucher, De La Torre, DeVore, Evans, Frommer,
Garcia, Goldberg, Hancock, Haynes, Jerome Horton, Shirley
Horton, Houston, Huff, Jones, Karnette, Keene, Klehs,
Koretz, La Malfa, La Suer, Laird, Leno, Leslie, Levine,
Lieu, Matthews, Maze, McCarthy, Montanez, Mountjoy,
Mullin, Nakanishi, Nation, Nava, Negrete McLeod, Niello,
Oropeza, Parra, Pavley, Plescia, Richman, Sharon Runner,
Ruskin, Saldana, Salinas, Spitzer, Strickland, Torrico,
Tran, Umberg, Vargas, Villines, Walters, Wolk, Wyland,
Yee, Nunez
NO VOTE RECORDED: Aghazarian, Bass, Cohn, Dymally,
Emmerson, Harman, Lieber, Liu, Ridley-Thomas
RJG:mel 6/15/06 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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