BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Carole Migden, Chair A
2005-2006 Regular Session B
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AB 2139 (Garcia) 9
As Amended April 18, 2006
Hearing date: June 20, 2006
Family Code
AA:br
EMERGENCY PROTECTIVE ORDERS :
ADVISING VICTIMS
HISTORY
Source: Shelter from the Storm
Prior Legislation: None known
Support: American Association of University Women; Sacramento
County Sheriff's Department; Lambda
Letters Project; Los Angeles County District Attorney's
Office; City of Palm Desert; Office of the San Bernardino County
Sheriff; Junior Leagues of California
State Public Affairs Committee; Family Law Section of the
State Bar (if amended)
Opposition:None known
Assembly Floor Vote: Ayes 76 - Noes 0
KEY ISSUE
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AB 2139 (Garcia)
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SHOULD LAW ENFORCEMENT OFFICERS RESPONDING TO AN INTIMATE
VIOLENCE SITUATION BE REQUIRED TO TELL THE VICTIM THAT THEY MAY
ASK THE OFFICER TO REQUEST AN EMERGENCY PROTECTIVE ORDER, AS
SPECIFIED?
PURPOSE
The purpose of this bill is to require law enforcement officers
who respond to an intimate violence situation to tell the victim
that they may ask the officer to request an emergency protective
order, as specified.
Current law authorizes a judicial officer to issue an ex parte
emergency protective order where a law enforcement officer
asserts reasonable grounds to believe any of the following:
(a) That a person is in immediate and present danger
of domestic violence, based on the person's
allegation of a recent incident of abuse or threat
of abuse by the person against whom the order is
sought.
(b) That a child is in immediate and present danger
of abuse by a family or household member, based on
an allegation of a recent incident of abuse or
threat of abuse by the family or household member.
(c) That a child is in immediate and present danger
of being abducted by a parent or relative, based on
a reasonable belief that a person has an intent to
abduct the child or flee with the child from the
jurisdiction or based on an allegation of a recent
threat to abduct the child or flee with the child
from the jurisdiction.
(d) That an elder or dependent adult is in immediate
and present danger of abuse, as specified, based on
an allegation of a recent incident of abuse or
threat of abuse by the person against whom the
order is sought, except that no emergency
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protective order shall be issued based solely on an
allegation of financial abuse. (Family Code
6250.)
Current law further authorizes a judicial officer to issue an ex
parte emergency protective order where a peace officer, as
defined, asserts reasonable grounds to believe that a person is
in immediate and present danger of stalking, as specified.
(Penal Code 646.91.)
This bill would require law enforcement officers who respond to
an intimate violence situation, as enumerated above, to tell the
victim that they may ask the officer to request an emergency
protective order. Specifically, this bill would require a law
enforcement officer who responds to a situation in which the
officer believes that there may be grounds for the issuance of
an emergency protective order pursuant to the above-enumerated
statutes to "inform 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 the parent or guardian is not
the person against whom the emergency protective order may be
obtained, that he or she may request the officer to request an
emergency protective order," as specified.
This bill additionally would provide that an officer shall
request an emergency protective order if the officer believes
that the person requesting an emergency protective order is in
immediate and present danger, as specified.
COMMENTS
1. Stated Need for This Bill
The author states:
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 an officer
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to 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 domestic violence, child abduction, elder
or dependant adult abuse, or stalking know that they
have the right to request an EPO.
2. What This Bill Would Do
As explained above, this bill would require a law enforcement
officer responding to an intimate violence situation, as
specified, to inform a victim that they can request an emergency
protective order. The bill requires this only if the officer
believes there may be grounds for the issuance of such a
protective order, and includes provisions relevant to minor
victims. The bill also contains language requiring the officer
to request an order if the officer believes that the person
requesting an emergency protective order is in immediate and
present danger.
3. Background
In June of 2005, the California Attorney General's Office
released a report entitled, "Keeping the Promise: Victim Safety
and Batterer Accountability."<1> The report was a product of
the Task Force on Local Criminal Justice Response to Domestic
Violence. The Task Force described the general problem of
domestic violence as follows:
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. Although women and men are at
risk for all types of violent victimization, their
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<1> Available online at http://safestate.org.
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risk for assault, injury, and death at the hands of
an intimate partner is of special concern. Intimate
partners may include current or former spouses,
current or former dating partners, and same sex
partners. National studies show that 85 percent of
reported cases of victimization by intimate partners
were against women. Intimate partners perpetrate
about 21 percent of all violent crimes against women.
A recent report estimates that women in the U.S.
sustain two million injuries per year as the result
of violent assaults by their intimates. Homicide is
the most serious consequence of violence. The rate
of female-victim intimate partner homicide declined
dramatically in the 1990s, along with other forms of
violent crime, but the number of these homicides is
still unacceptably high. Young women (aged 16 to 34)
are at highest risk for domestic violence. This is
of special concern because women in this age group
are the most likely to have young children at home.
The health consequences of physical and psychological
domestic violence can be significant and long
lasting, for both victims and their children.
The magnitude of the problem in California reflects
the national picture. 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 were 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 home every year.
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California's criminal justice statistics are equally
alarming. In 2003, there were 48,854 arrests for
domestic violence; 80 percent of those arrested were
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. From
1992 to 1999 there was an annual average of 169
female victim intimate partner homicides, and an
annual average of 163 intimate partner-caused violent
injury hospitalizations among women. (citations
omitted.)
With respect to Emergency Protective Orders, the Task Force
found they were underused:
A victim of domestic violence can seek an Emergency
Protective Order (EPO), at any time of day or night,
from a police officer who responds to a call for
assistance. If the officer demonstrates to a judge
(by telephone), pursuant to Family Code 6250(a),
that
a person is in immediate and present danger
of domestic violence, based on the person's
allegation of a recent incident of abuse or
threat of abuse,
the judge, through the officer, can issue an order on
the spot that prohibits firearm possession and
requires no contact or peaceful contact. Though of
short duration (five to seven days), this order can
provide some temporary protection, and serve as
"proof" of abuse if the victim later applies for a
Temporary Restraining Order (TRO) and Order After
Hearing (OAH). It is important to realize that a
victim may need an EPO (and TRO and OAH) even if the
abuser is arrested. If the abuser is released on
bail, as happens frequently, the criminal justice
system can impose no restriction on the abuser until
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the first arraignment, which may not take place for
many weeks.
Despite the importance of EPOs, they are infrequently
issued in most counties. Table 4 (not duplicated in
this analysis) displays the number of EPOs entered
into DVROS that were issued in each county between
October 1, 2003 and September 30, 2004, and then
converts that number into the rate per 1,000
residents. While there is some variation among the
large counties (ranging from 5.15 in Fresno to 0.05
in San Bernardino) and the small counties (ranging
from 3.19 in Mendocino to 0.08 in Yuba), Table 4's
most significant message is that 19 of the 35 large
counties (including five of our core counties -
Humboldt, Sacramento, San Bernardino, San Diego and
Tulare) and 13 of the 23 small counties have rates
less than 1.0. This picture of underuse is
consistent with both the interviews in core counties
and the testimony presented to the Task Force.
Victim advocates in five of the 10 core counties
reported that EPOs were rarely issued, and advocates
in three others reported that the use of EPOs varied
significantly depending on the local law enforcement
agency involved. In addition, a number of testifiers
spoke about law enforcement agencies that have, or
appear to have, a policy of discouraging victims from
requesting EPOs. Fresno County, with the highest
rate of 5.15, is a notable exception to this picture,
in part because the Superior Court there has adopted
a Standing Order that allows law enforcement to issue
an EPO for the court, without having to contact the
court, if the victim reports an act of domestic
violence, has a visible injury, and the officer
believes there is an immediate and present danger to
the victim. If these criteria are not met and the
victim requests an EPO, a judge is called and the
request is made. (emphasis added.)
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4. Family Law Section of the State Bar
The Family Law Section of the State Bar, which supports this
bill if amended, states it:
would support AB 2139 if it were amended to clarify
that the law enforcement officer, if he/she believes
that there are grounds for the issuance of an EPO,
may make such a request independently, and to further
clarify that subdivision (b) stands independently,
and is not linked to or dependent on subdivision (a).
It appears that the current version of the bill addresses this
concern. However, the author and/or the Committee may wish the
Family Law Section of the State Bar to submit suggested language
in this regard.
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