BILL ANALYSIS
AB 2139
Page 1
Date of Hearing: April 4, 2006
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
AB 2139 (Garcia) - As Amended: March 27, 2005
SUBJECT : EMERGENCY PROTECTIVE ORDERS
KEY ISSUE : SHOULD A LAW ENFORCEMENT OFFICER RESPONDING TO A
SITUATION THAT MAY WARRANT AN EMERGENCY PROTECTIVE ORDER (EPO)
BE REQUIRED TO (1) TELL THE VICTIM THAT HE OR SHE MAY REQUEST AN
EPO AND (2) SEEK AN EPO WHEN THE OFFICER BELIEVES ONE IS
WARRANTED?
SYNOPSIS
This bill, sponsored by Shelter from the Storm, requires that a
law enforcement officer who responds to a situation in which
domestic violence, child abuse or abduction, elder or dependent
adult abuse, or stalking is involved to let the victim know that
he or she may ask the officer to seek an EPO. The bill also
requires that if the victim requests an EPO and the officer
believes that the victim is in immediate and present danger, the
officer would be required to seek one. According to the author,
this bill is necessary to protect victims of domestic violence,
child abduction, elder or dependent adult abuse or stalking, who
may not be aware that they may request an EPO from a law
enforcement officer to protect themselves and their family. The
Family Law Section of the State Bar argues, in opposition to the
bill, that it somehow removes the discretion of the law
enforcement officer to determine when to request an emergency
protective order from a judge. However, by its very terms, the
bill only requires that the law enforcement officer seek a
protective order when he or she believes one is warranted.
SUMMARY : Requires that law enforcement officers inform victims
about EPOs and seek them when appropriate. Specifically, this
bill :
1)Requires that a law enforcement officer who responds to a
situation involving domestic violence, child abuse, child
abduction, elder or dependent adult abuse or stalking, inform
the victim that he or she may request the officer to seek an
EPO.
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2)Requires an officer to request an EPO if the officer believes
that the person requesting an EPO is in immediate and present
danger.
EXISTING LAW :
1)Allows a judicial officer to issue an EPO, 24 hours a day,
seven days a week, if a law enforcement officer asserts there
are reasonable grounds to believe that any person is in
immediate and present danger of domestic violence or stalking,
a child is in immediate or present danger of abuse or
abduction, or an elder or dependent adult is in immediate and
present danger of abuse. The EPO may only be issued if the
judicial officer makes specified findings. (Family Code
Sections 6240 et seq .; Penal Code Section 646.91.)
2)Provides that an EPO expires either five court days or seven
calendar days after issuance, whichever is shorter. (Family
Code Section 6256; Penal Code Section 646.91.)
3)Requires the law enforcement officer who requests an EPO to
reduce the EPO to writing; sign it; serve the EPO on the
restrained party, if that party can reasonable be located;
provide a copy to the protected party; and file a copy with
the court. (Family Code Sections 6270-71; Penal Code Section
646.91.)
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 fiscal.
COMMENTS : This bill, sponsored by Shelter from the Storm, an
organization that provides comprehensive services to victims of
domestic violence, requires that a law enforcement officer who
responds to a situation in which domestic violence, child abuse
or abduction, elder or dependent adult abuse, or stalking is
involved to let the victim know that he or she may ask the
officer to seek an EPO. The bill also requires that the officer
must request an EPO from a court if the officer believes that
the person requesting the EPO is in immediate and present
danger.
According to the author, this bill is necessary to protect
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victims of domestic violence, child abduction, elder or
dependent adult abuse or stalking, who may not be aware that
they may request an EPO from a law enforcement officer to
protect themselves and their family.
Often times victims of domestic violence, child
abduction, elder or dependant adult abuse, or stalking
are not aware that Emergency Protective Orders (EPO)
exist, that they can request that an officer request
one from a judge on sight and that EPOs act as a
temporary restraining order. As a result victims have
been beaten, in some instances to death, by those that
they would have been legally protected from if they
only had an EPO. EPOs have and will continue to save
lives; this bill will ensure that victims of victims
of domestic violence, child abduction, elder or
dependant adult abuse, or stalking know that they have
the right to request an EPO.
In support of the bill, Shelter from the Storm writes that this
bill could save lives by ensuring that victims are informed
about EPOs and how they can request one. Shelter from the Storm
notes that, according to the U.S. Department of Justice, 22
percent of murders in 2002 were family murders. Additionally,
in 2004, 169 murders in California were caused by intimate
partner violence.
An EPO may be requested by a law enforcement officer when the
officer has reasonable grounds to believe that 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 abuse. The order lasts
for the shorter of five court days or seven calendar days, and
is issued immediately without prior notice to the restrained
party.
An EPO is designed to provide protection to an individual in
immediate and present danger of domestic violence, child abuse
or abduction, elder and dependent adult abuse or stalking. The
law enforcement officer on the scene can decide, based on the
facts in front of him or her, if there are reasonable grounds
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for seeking an EPO. There is currently no mandate that the
officer seek an EPO. Rather, current law simply lays out when a
judicial officer may issue an EPO and what the officer must do
if one is issued.
This bill does not require that the officer seek an EPO in any
situation where the officer believes one is not warranted.
Rather, this bill simply requires that the officer let the
victim know that the he or she may request an EPO. The officer
then only has to request one if the officer believes that one is
warranted. The law enforcement officer retains the ultimate
discretion to determine whether or not to seek an order from the
court, based on the situation on the ground, as the officer sees
it.
Technical amendments : There are two technical amendments that
would improve the clarity of the bill.
1. Given that some of those who may qualify for an EPO are
children, in the case of child abduction or child abuse, the
officer should be required to provide the required notice to the
parent or guardian of the child, provided that person is not the
one liable to cause the harm.
2. Instead of referring to the various instances that can
result in issuance of an EPO, this bill could simply refer to
the relevant EPO statute.
The following incorporates the suggested amendments:
(a) A law enforcement officer who responds to a
situation in which the officer believes that there may
be grounds for issuance of an emergency protective
order pursuant to Section 6250 or Penal Code section
646.91 shall inform the victim the person for whom an
emergency protective order may be sought or, if that
person is a minor, his or her parent or guardian
provided that parent or guardian is not the one
against whom the EPO may be obtained,
ARGUMENTS IN OPPOSITION : The Family Law Section of the State
Bar (Flexcom) opposes the bill, arguing that it removes the
discretion of the law enforcement officer to decide whether or
not to seek an EPO and instead "places it in the hands of
untrained individuals who are in very emotional situations, and
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who may be making the request [for an EPO] for improper
reasons."
However, this bill, even as proposed to be amended in this
analysis, does not in any way limit the discretion of the
officer to decide whether or not to seek an EPO. The bill
simply lets the victim know that he or she may ask the officer
to seek an EPO. Even when requested by the victim, the
determination about whether or not to seek an EPO rests with the
law enforcement officer alone who must make the determination
about whether one of the individuals at the scene is in
immediate and present danger.
Additionally, Flexcom expresses disdain about EPOs and domestic
violence protective orders in general, arguing that "an EPO is
often based on allegations alone, without proof, and place the
recipient of such an order in a superior legal and parenting
position." (Emphasis in the original.) Such disparagement of
protective orders ignores the very serious problem of domestic
violence. The Attorney General's Task Force on Domestic
Violence reported just last year that:
In recent years, criminal justice and public health
professionals, together with policymakers and
community leaders, have increasingly recognized that
domestic violence is a serious criminal justice and
public health problem. . . . The health consequences
of physical and psychological domestic violence can be
significant and long lasting, for both victims and
their children. . . . A study by the California
Department of Health Services of women's health issues
found that nearly six percent of women, or about
620,000 women per year experienced violence or
physical abuse by their intimate partners. Women
living in households where children are present
experienced domestic violence at much higher rates
than women living in households without children:
domestic violence occurred in more than 436,000
households per year in which children were present,
potentially exposing approximately 916,000 children to
violence in the homes every year.
California's criminal justice statistics are equally
alarming. In 2003, there were 48,854 arrests for
domestic violence, 80 percent of those arrested were
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men. Also in 2003, there were 194,288 telephone calls
for police assistance in a domestic violence incident,
106,731 of these involved a weapon.
(Report to the California Attorney General from the Task Force
on Local Criminal Justice Response to Domestic Violence, Keeping
the Promise: Victim Safety and Batterer Accountability (June
2005) (footnotes omitted).)
REGISTERED SUPPORT / OPPOSITION :
Support
Shelter from the Storm (sponsor)
American Association of University Women
Opposition
Family Law Section of the State Bar
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334