Savage, Frontier Justice in Judging Domestic Violence

face of a prisoner

Certain restraining orders commonly called “emergency protective orders” effectively provide harsh punishment without the legal formalisms of arrest and due process of law. Established at the scene of a domestic violence allegation, an emergency protective order can order the alleged perpetrator to leave her home, to cease communication and association with named persons including her own children, to surrender weapons, and to cede control of personal property. The issuance of emergency protective orders essentially integrates the judge and the law-enforcer with a gun, acting immediately on the scene of an incident. That’s savage, frontier justice.

The issuing of emergency protective orders is under the supervision of judicial officers only in a highly attenuated sense. The law-enforcement officer at the scene of an incident normally makes a telephone call to a judicial officer to get authority for an emergency protective order. Under California law, the “judicial officer” responsible for authorizing the order is a “judge, commissioner, or referee” to whom the presiding superior court judge designates (Family Code Sec. 6241). That “judicial officer” need not have any other publicly affirmed judicial position or any other particular legal qualification. Yet this “judicial officer” makes telephone-call judgments about a person’s fundamental civil liberties.

The role of the “judicial officer” in issuing police-solicited deprivations of fundamental liberties appears to be pro forma. This official judicial position must be staffed around the clock, seven days a week. The California Attorney General’s 2005 Task Force approvingly noted:

the Superior Court there {in Fresno County, California} has adopted a Standing Order that allows law enforcement to issue an EPO {emergency protective order} 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.^

In California from Oct. 1, 2003 to Sept. 30, 2004, emergency protective orders entered into the state-wide retraining order database numbered 25,483. Finding that these emergency protective orders were being under-utilized, the California Attorney General’s Task Force urged as a “minimum standard”:

Law enforcement in each county should adopt policies that strongly encourage officers to request Emergency Protective Orders (EPO); and the Superior Court in each county should adopt policies and procedures that maximize the accessibility and availability of EPOs.^

While incarceration is publicly expensive, restraining orders are low-cost means of extraordinary coercive control. Restraining orders are commonly issued at arraignment following arrest for domestic violence. Emergency protective orders streamline that process by eliminating the need for arrest and arraignment.

In California, authority to administer such justice is not just limited to professional, public police officers. Under the specific part of the California Family Code that provides for emergency protective orders, “law enforcement officer” is specifically defined to include peace officers employed by universities, community colleges, and schools; “a parole officer, probation officer, or deputy probation officer”; and “a peace officer of the Department of Parks and Recreation,” among others (Family Code Sec. 6240). The awesome legal force of an emergency protective order is vested broadly and indiscriminately across persons acting as judicial and law-enforcement officials.

Decisions of “law enforcement officers” to secure an emergency protective order likely has enduring legal effects. In the U.S., an emergency protective order typically formally expires in three to ten days (depending on state law). The issuance of an emergency protective order serves as proof of abuse without the direct testimony of the officer who secured it.^ An initial civil-court restraining order issues ex parte. The existence of an emergency protective order almost surely ensures, without any further examination of the facts, the issuance of an initial civil restraining order. A subsequent restraining order of much longer duration may issue after a hearing scheduled within two or three weeks of issuing the initial restraining order. That hearing is conducted as a short, informal summary judgment. The respondent has no procedural rights to take depositions and to call and cross-examine witnesses. The existence of an emergency protective order, without the direct testimony of the officer who secured it, surely weighs heavily in the issuance of further restraining orders depriving persons of fundamental liberties for years.

The savage, frontier justice of emergency protective orders in California has surprisingly widespread endorsement in civilized society. The U.S. National Council of Juvenile and Family Court Judges’ 1994 Model Code on domestic violence declared:

A court may issue a written or oral emergency order for protection ex parte when a law enforcement officer states to the court in person or by telephone, and the court finds reasonable grounds to believe, that the petitioner is in immediate danger of domestic or family violence based on an allegation of a recent incident of domestic or family violence by a family or household member.^

Under this section, based on nothing more than a telephone call to a 24-hour, 7-day-a-week “court,” the Model Code explicitly provided authority to evict the targeted person from her home, exclude her from “any specified place frequented by the petitioner and any designated family or household member,” deprive her of custody of her children, and deprive her of possession and use of her automobile. Emphasizing the lawless nature of the law, the Model Code also authorized the authority to:

Order such other relief as the court deems necessary to protect and provide for the safety of the petitioner and any designated family or household member

The court makes such a determination without necessarily having any better evidence than what the police office says over the telephone about the allegations that the alleged victim said about a “recent” incident of domestic violence. Such orders formally last for up to three days under the Model Code, but in practice can be extended. At least five U.S. states, from Massachusetts to California, have adopted such emergency protective order law.^

Emergency protective orders indicate fundamental problems in the justice system. Public communication poorly presents and evaluates risks, particularly risks sensationally involving sex and violence. Public communication has widely disseminated exaggerated, grotesquely false claims about domestic violence against women, while domestic violence against men has largely been ignored. The circumstances of domestic-violence calls for state action have been publicly misrepresented. One result is savage, frontier justice across the U.S. today in the legal form of emergency protective orders. That isn’t equal justice under law for men and women.

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