BILL ANALYSIS
SB 1470
Page 1
Date of Hearing: June 9, 1998
Counsel: David Hendren
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Don Perata, Chair
SB 1470 (Thompson) - As Amended: April 14, 1998
SUMMARY : Expands police authority to make a warrantless
misdemeanor arrest where the officer has reasonable cause to
believe the person to be arrested has committed an assault or
battery upon certain enumerated victims of domestic violence as
long as the officer makes the arrest as soon as the reasonable
causes arises. Specifically, this bill :
1) Expands the class of potential domestic violence victims
which authorize the police to make warrantless misdemeanor
arrests for offenses not committed in their presence to
include:
a) A former spouse;
b) A former cohabitant, as defined;
c) A person with whom the suspect is having or has had an
engagement relationship;
d) A person with whom the suspected has parented a child or
is presumed to have parented a child pursuant to the
Uniform Parentage Act (Act);
e) A child of the suspect;
f) A child whose parentage by the suspect is the subject of
an action under the Act;
g) A child of a person in one of the above categories; or,
h) Any other person related to the suspect by consanguinity
or affinity within the second degree.
2) Provides an officer may make a warrantless, misdemeanor
arrest for an offense not committed in his or her presence
where such officer has reasonable cause to believe the
suspect committed an assault or battery upon any of the
above-listed classes of victims, and the officer makes the
arrest as soon as the reasonable causes arises.
EXISTING LAW provides that:
1) A private person may arrest another for: (a) a public
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offense committed or attempted in his or her presence; (b) when
the person arrested has committed a felony, although not in his
or her presence; or (c) when a felony has been, in fact,
committed and he or she has reasonable cause to believe the
person to be arrested to have committed the felony. (Penal
Code Section 837.)
2) With certain exceptions, a peace officer may not make a
warrantless arrest for misdemeanor offenses not occurring
in the officer's presence. (Penal Code Section 836(a)(1).)
3) Notwithstanding the general rule described in Existing Law
#2, a peace officer may make a warrantless arrest for a
misdemeanor if the officer has reasonable cause to believe
that a person committed an assault or battery upon his or
her spouse, upon a person with whom he or she is
cohabiting, or upon the parent of his or her child. (Penal
Code Section 836(d).)
4) An officer may only make a warrantless misdemeanor arrest
in the situation described in #3 if the officer makes the
arrest as soon as the reasonable cause to believe that the
person to be arrested committed the assault or battery
arises. (Penal Code Section 836(d)(2).)
5) The person making the arrest must, on request of the person
he or she is arresting, inform the latter of the offense
for which he or she is being arrested. (Penal Code Section
841.)
6) If a person is granted probation for certain domestic
violence crimes, the conditions of probation must include,
among other things, a criminal court protective order
protecting the victim from further acts of violence,
threats, stalking, sexual abuse, and harassment, and, if
appropriate, containing residence exclusion or stay-away
conditions. (Penal Code Section 1203.097(a)(2).)
7) Existing Law #6 applies to crimes where the victim is a
spouse or former spouse, a cohabitant or former cohabitant,
a person with whom the suspect is having or has had a
dating or engagement relationship, a person with whom the
suspect has had a child, a child of the victim or suspect
or a child who is the subject of an action under the Act
where the presumption applies that the male parent is the
father, or any other person related by consanguinity or
affinity within the second degree. (Penal Code Section
1203.097; Family Code Section 6211.)
COMMENTS :
1) Author's Statement . According to the author, "With arrests
for domestic violence increasing significantly in recent years it
is imperative that the Legislature adopt statutes which
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effectively protect all potential victims of domestic violence.
SB 1470 builds upon past efforts to protect persons who are
assaulted or battered outside the presence of a peace officer.
Under current law, an officer may arrest a person accused of such
a crime only if it is committed against a spouse, a cohabitant,
or the parent of his or her child. [Penal Code 836(d)] This
leaves many would be victims with no recourse but to make a
citizen's arrest or do nothing.
By expanding the class of protected persons listed in Penal
Code 836(d) [to include former spouses and cohabitants,
present and former fiances and fiancees, as well as certain
other persons], victims of domestic violence will no longer
have to decide between endangering their life to make a
citizen's arrest or perpetuating the cycle of violence should
they decide not to involve the police.
Under Penal Code Section 836(c)(1) an officer may make a
warrantless arrest of a person if the officer has reasonable
cause to believe that the person against whom a domestic
violence restraining order has been issued has notice of the
order and has committed an act in violation of the order.
However, the statute does not reference Penal Code Section
1203.097 which requires that the restraining order be issued
as a condition of probation for domestic violence crimes
against a person listed in Family Code Section 6211. SB 1470
closes this loophole by making those people subject to arrest
under Penal Code Section 836(c)(1)."
2) Misdemeanor Arrests for Offenses Not Occurring in an
Officer's Presence Typically Require a Warrant . With several
exceptions, current law requires that a peace officer must
obtain a warrant prior to making a misdemeanor arrest for an
offense that did not occur in the officer's presence. This
means that even if the officer has probable cause for the
arrest and is given ironclad information about who committed
the offense and how the offense was committed, the officer
cannot make the misdemeanor arrest without a warrant.
Some exceptions include: (a) certain domestic violence
situations [Penal Code Section 836 (d)]; (b) certain
driving-under-the-influence situations (Penal Code Section
40300.5); (c) where the offense is for carrying a loaded
weapon in a car or on someone's person [Penal Code Section
12031(a)(4)]; (d) when an assault is committed on school
property during school hours when school activities are
taking place (Penal Code Section 243.5); and (e) an assault
on an emergency medical technician, firefighter or paramedic
who is on duty (Penal Code Section 836.1.).
3) An Officer Can Take Custody of A Person Against Whom a
Citizen's Arrest Has Been Made . An officer must accept
custody of a person against whom a citizen's arrest has been
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made. In fact, any time a peace officer is on a domestic
call, it is mandatory that the officer make a good faith
effort to inform the victim of his or her right to make a
citizen's arrest, including advising the victim how to safely
execute the arrest. [Penal Code Section 836(b).]
Thus, where a domestic violence victim is willing to make a
citizen's arrest against the perpetrator, an officer must
take custody of that perpetrator without the officer's having
to make an arrest. However, since domestic violence victims
are frequently living with, or financially dependent upon,
the persons who abuse them, such victims are frequently
unwilling to make such arrests because they fear retaliation.
This bill allows an officer to make a warrantless arrest in
certain additional domestic violence situations, even if the
victim does not want to make a citizen's arrest. The Los
Angeles County District Attorney's Office states that
"[w]arrantless arrests allow immediate action to be taken to
intervene to stop the violence. It will have the effect of
eliminating the requirement of [a] citizen's arrest for [a]
misdemeanor offense which occurs outside the officer's
presence....[U]nlike stranger violence where the victim most
likely has no reason to come into contact with the
perpetrator again, victims of family violence most likely
will have continuing contact with the perpetrator and thus
may be reluctant to make a citizen's arrest."
4) The Warrantless Arrest Exception Where The Victim is
Protected by A Restraining Order . One exception to the
general rule requiring a warrant for misdemeanor arrests not
occurring in the officer's presence is where a peace officer
is "responding to a call alleging a violation of a domestic
violence protective or restraining order issued under the
Family Code...and the peace officer has reasonable cause to
believe that the person against whom the order is issued has
notice of the order and has committed an act in violation of
the order....". [Penal Code Section 836(c)(1).] In such
circumstances, the Penal Code allows for an officer to make a
warrantless misdemeanor arrest.
The Penal Code also provides that where certain enumerated
classes of persons are victims of domestic violence crimes,
if the defendant is given probation, the terms of probation
must include a criminal court restraining order against
protecting such a victim against the defendant. [Penal Code
Section 1203.097(a).]
This bill conforms the warrantless misdemeanor arrest
authorization section [Penal Code Section 836(c)(1)] with the
Penal Code provision requiring a restraining order for
persons convicted of domestic violence offenses. [Penal Code
Section 1203.097(a).] That is, this bill specifically
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provides that where an officer responds to a violation of a
restraining order issued pursuant to Penal Code Section
1203.097(a) [in addition to restraining orders issued
pursuant to the Family Code], an officer can also make a
warrantless misdemeanor arrest upon probable cause to believe
the suspect has notice of such order and violated it.
5) The Warrantless Arrest Exception for Assaults Against
Defendant's Spouse, Cohabitant or the Parent of His or Her
Child . Notwithstanding the general rule described above,
current domestic violence law also provides a peace officer
may make a warrantless misdemeanor arrest for an offense not
occurring in the officer's presence if the officer has
reasonable cause to believe that a person committed an
assault or battery upon his or her spouse, upon a person with
whom he or she is cohabiting, or upon the parent of his or
her child. [Penal Code Section 836(d).]
6) This Bill's Expansion of Warrantless Arrest Authority to
Former Spouses, Cohabitants and Others . Under current law,
an officer can make a warrantless misdemeanor arrest for an
offense not occurring in his or her presence if the officer
has reasonable cause to believe the suspect has committed an
assault or battery upon the suspect's spouse, a person with
whom the defendant is cohabiting, or the parent of the
suspect's child. [Penal Code Section 836(d)(1).]
This bill expands Penal Code Section 836(d), authorizing a
peace officer to make warrantless misdemeanor domestic
violence arrests, to include assaults or batteries committed
upon former spouses and cohabitants, current or former
fiances or fiancees, a person with whom the suspect is having
or has had an engagement relationship, a person with whom the
suspect has parented a child or is presumed to have parented
a child, a child of the suspect or victim, or any other
person related to the suspect by consanguinity or affinity
within the second degree.
7) Inequity in Treatment . Family Code Section 6211 lists all
the different classes of victims of domestic violence. Penal
Code Section 13700, et seq., mandates actions by officers
when a domestic violence crime is committed against any
person described in Family Code Section 6211. However, under
current law, the police are only permitted to make
misdemeanor warrantless arrests against the perpetrators of
some of those crimes depending upon the particular domestic
violence victim. This confusion can result in civil lawsuits
for false arrests.
8) Domestic Violence Data . The Department of Justice reports
that there were a total of 227,899 domestic violence-related
calls for assistance in 1996. Of those, 159,075 calls
involved weapons.
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9) Related Legislation .
a) AB 1767 (Havice) , currently pending before the Senate
Public Safety Committee, among other things expands police
authority to make a warrantless misdemeanor domestic violence
arrest where the officer has reasonable cause to believe the
person to be arrested has committed an assault or battery
upon a fiance, fiancee, or a person with whom the defendant
currently has, or has previously had, a dating or engagement
relationship, as long as the officer makes the arrest as soon
as the reasonable causes arises.
b) AB 247 (Scott) , pending before the Senate Public Safety
Committee, authorizes a peace officer to make a warrantless
arrest for the offense of carrying a concealed firearm, as
specified.
10) Arguments in Support .
a) California Alliance Against Domestic Violence (CAADV) .
According to the CAADV, "Protecting victims with whom the
alleged batterer has had prior relationships is extremely
important given that research shows that 75% of reported
domestic violence occurs after separation of the parties.
Thus, ex-spouses and ex-boyfriends are even more likely to
assault the victim than current spouses and boyfriends.
These victims need even more protection than the victims
currently protected by existing law; SB 1470 extends critical
protection to these victims."
b) Los Angeles County District Attorney's Office LADA) .
According to the LADA's Office, "SB 1470 expands the types of
relationship violence subject to a warrantless misdemeanor
arrest to cover former spouses and cohabitants, dating
partners and specified related persons. These individuals
are just as endangered by family violence, than those
currently covered by the law.
"Warrantless arrests allows immediate action to be taken
to intervene to stop the violence. It will have the
effect of eliminating the requirement of citizen's arrest
for misdemeanor offense which occurs outside the officer's
presence.
"SB 1470 is also appropriate because, unlike stranger
violence where the victim most likely has no reason to
come in contact with the perpetrator again, victims of
family violence most likely will have continuing contact
with the perpetrator and thus may be reluctant to make a
citizen's arrest."
c) California National Organization for Women (NOW) .
According to the California NOW, "The need for expansion of
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the classes of persons covered by the warrantless arrest
provisions is great. The incidents of domestic violence are
on the rise, and more people are involved in domestic
relationships that are not of the classes covered by existing
law. This gap in coverage by existing law effectively ties
the hands of police as they try to deal with these incidents
of domestic violence. This makes it harder for police to
stop offenders, and places the police in dangerous situations
more often than is necessary by creating situations in which
the police cannot remove the offender and so have to
repeatedly deal with violent offenders."
11) Arguments in Opposition . California Attorneys for Criminal
Justice CACJ) . According to the CACJ, "The law barring law
enforcement officers from making a warrantless arrest for a
misdemeanor where the officer was not present during commission
of the crime is an important protection keeping citizens from
being arrested on unsubstantiated allegations, where the crime is
not so serious as to require immediate action.
The law permitting warrantless arrests for misdemeanor
domestic violence assaults is a narrow one, intended to
protect the victims of a specific type of assault. Amending
that law to allow warrantless arrests in any case of assault
or battery on a person with whom the defendant has any of the
relationships set forth in Family Code Section 6211 goes far
beyond these specific situations. SB 1470 would allow
warrantless arrests where, for example, two relatives or
former roommates got into a fight. This is a significant
erosion of the protections provided by requiring a warrant,
and we therefore oppose SB 1470."
REGISTERED SUPPORT/OPPOSITION
Support
California Alliance Against Domestic Violence
California Child, Youth and Family Coalition
California District Attorneys Association
California National Organization for Women
California Peace Officers' Association
California Police Chiefs' Association
California State Sheriffs' Association
Los Angeles County District Attorney's Office
Napa County District Attorney's Office (sponsor)
Solano County Board of Supervisors
Opposition
California Attorneys for Criminal Justice
Analysis prepared by : David Hendren / apubs / (916) 319-3744