Dispelling Myths about Mandatory Arrest for DV Crimes

When it comes to arrest policies for crimes of domestic violence, there are often as many opinions as there are misunderstandings about the various guidelines at play in North Carolina. In making an arrest decision, law enforcement officers are required to consider state law and internal policy and should consider evidence-based best practices. Unfortunately, sometimes law enforcement may not be fully trained on any or all of these three areas, particularly as these areas are constantly evolving. In addition, to make it more challenging, these three guideposts sometimes conflict with each other, leaving a law enforcement officer struggling to make the best decision possible at the time.

Today's post focuses on one of the most common misconceptions: that the law requires an officer to make an arrest in cases of domestic violence. Sometimes this idea is misstated as "whenever an officer has probable cause to believe that a domestic violence incident has occurred, then they shall arrest." Sometimes it's stated as "whenever an officer sees visible injuries in a domestic violence incident, then they shall arrest." However, law enforcement retains discretion on whether or not to make an arrest, even when they have probable cause, in all cases of domestic violence crimes except for the one instance of violation of a domestic violence protective order (more on this in a future post).

Rather than mandating arrest in cases of domestic violence, North Carolina grants law enforcement broader authority to make arrests, and specifically warrantless arrests, in cases of domestic violence. For most misdemeanor crimes, if the crime occurred outside the presence of law enforcement, then they do not have the authority to make a warrantless arrest. However, our legislature recognized the dangerous nature of domestic violence cases and the need for law enforcement to often take immediate enforcement action. N.C.G.S. 15A-501(b)(2) grants law enforcement the authority to make a warrantless arrest in a myriad of situations, several of which specifically apply to cases of domestic violence.

First of all, 15A-501(b)(2)(d) explicitly authorizes law enforcement to make a warrantless arrest when they have probable cause that an offender has committed 1) simple assault/affray, 2) assault and battery, 3) assault inflicting serious injury, 4) assault with a deadly weapon, 5) assault on a female or 6) assault by pointing a gun and the offender has a "personal relationship" with the victim as defined by N.C.G.S. 50B-1 which includes 1) current or former spouses, 2) persons of the opposite sex who live together or have lived together, 3) are related as parents and children, including others acting in loco parentis to a minor child, or as grandparents and grandchildren, 4) have a child in common, 5) are current or former household members, or 6) are persons of the opposite sex who are in a dating relationship or have been in a dating relationship.

In addition, 15A-501(b)(2)(b)(2) explicitly authorizes law enforcement to make a warrantless arrest when they have probable cause that an offender has committed any misdemeanor and may cause physical injury to self or others, or damage to property unless immediately arrested. In most cases in which law enforcement is investigating a crime committed by one person against their intimate partner, this basis for making a warrantless arrest (danger of injury to self, others, or property) will apply. This is especially important in that 15A-501(b)(2)(d) does not grant law enforcement warrantless arrest authority for offenders who have the committed the above-listed crimes against a same-sex dating partner they don't live with (for instance when a woman commits a simple assault against her girlfriend she doesn't live with) nor for any offender who has committed a crime not included in the specific list against their intimate partner (i.e. when a man communicates a threat to his wife). 

However, 15A-501 does not mandate arrest; rather it grants law enforcement the authority to make a warrantless arrest. The only NC statute which requires law enforcement to make an arrest is N.C.G.S. 50B-4.1(b) for violations of Domestic Violence Protective Orders. Unfortunately many law enforcement have been told that the "law requires" an arrest which can lead to unintended consequences. The law certainly favors arrest when law enforcement has probable cause, and specifically encourages warrantless arrest in order to intervene in dangerous domestic violence situations. Despite the fact that the law does not require arrest for most domestic violence response, many local law enforcement agencies may have internal policies which are written to require law enforcement to make an arrest in domestic violence cases. Nonetheless, it is important that law enforcement understand that there is no legal requirement in most domestic violence cases, allowing them, within the confines of their internal policies, the ability to use their discretion to overcome the presumption of arrest when it is in the best interest of justice or in line with evidence-based practices.

Domestic Violence Awareness Month

October is Domestic Violence Awareness Month. 

In October, there are many agencies who work to promote awareness about domestic violence. This is critical to shine light on an issue that otherwise hides behind closed doors. But why do we have a domestic violence awareness month? Why is this important? 

Here's why. Because:

• Domestic violence thrives on silence. Speaking out helps shatter that power
• Despite the statistics of 1 in 4 women and 1 in 7 men being victims of domestic violence in their lifetime we keep thinking "Not my problem."
• People still don’t know what to do when domestic violence happens to them or someone they love
• We still aren't doing enough to prevent domestic violence before it occurs
• We have yet to see a culture shift from “why doesn’t the victim leave?” to the appropriate question of “why does the perpetrator abuse?”
• We still don’t protect all victims of domestic violence equally in North Carolina
• LGBTQ victims of domestic violence don’t have the same legal access to protections as heterosexual victims
• Immigrant victims of domestic violence don’t feel safe in coming forward even when they are being beaten in their homes
• There are too many barriers for victims to navigate the court system
• Victims are still blamed for not protecting themselves, not protecting their children, or not doing it soon enough

Here's what you can commit to do in October and beyond: 

• Educate yourself about the causes of domestic and other forms of violence, and how to work to prevent them: Prevent Violence NC 
• Do your part to foster economic opportunity and employment stability by 1)  employing someone with a criminal record and 2) not taking any adverse employment action against a victim such as firing or demoting simply for being a victim of domestic violence
• If a friend or family member is experiencing domestic violence, learn what you can do:   Help a Friend or Family Member
• Know how to connect survivors to resources: 
• List of DV crisis agencies by county 
• Kiran: Statewide non-profit that serves and empowers South Asian victims of DV
• Equality NC: Statewide non-profit which can help to connect LGBTQ survivors to local LGBTQ-centered services. 
• El Pueblo: Statewide non-profit which can help connect Latinx community to services. 
• National Network to End Domestic Violence: Learn more about domestic violence, technology abuse, and resources for survivors.

If you or someone you love has immediate questions and would like to talk to an attorney about both legal and non-legal options, you can contact Amily for a free consultation at 919-457-1954 or amily@scharfflawfirm.com 

Welcome!

Welcome to my blog page for information regarding domestic violence. The hope is that this blog will serve as a resource for the various folks who need assistance related to domestic violence: survivors, crisis advocates, culturally specific service providers, law enforcement, prosecutors, court personnel, attorneys, and other allied professionals who are all engaged in some way in overcoming or intervening in domestic violence.

I've been working in the anti-domestic violence field for 18 years and have been considering starting a blog for many years now. I have worn many hats over the course of my career. I began like so many advocates do by volunteering at a local DV crisis agency, completing an intensive training program and answering the crisis line. Perhaps less common, I simultaneously volunteered at an abuser treatment program, working with those who perpetrated domestic violence. During my social work masters program I continued to work in these areas and after graduating with my MSW was the director of an abuser treatment program for two years. While I felt the work I was doing was important and valuable, I often was frustrated by my inability to make broader changes and understand the legal system- an inevitable part of so many victims and perpetrators' lives. This drove me to attend law school with the specific goal of continuing to work in the domestic violence field.

Since obtaining my law degree I have continued to dedicate my career to assisting victims of domestic violence and continue to characterize myself as a "social worker with a law degree." I began by prosecuting, focusing as much as I could specifically on domestic violence prosecution. I integrated my social work background into working with victims, focusing on a victim-centered approach to prosecution and utilizing evidence-based techniques to minimize the impact on victims and still hold offenders accountable when necessary. After leaving the District Attorney's Office, I represented victims in their civil protective orders as a Domestic Violence Staff Attorney with Durham Legal Aid. For the last four and a half years I've worked to improve statewide response to domestic violence as the Legal & Policy Director for the NC Coalition Against Domestic Violence. In that role I worked with our state legislators to pass new legislation to strengthen protections for survivors. I trained law enforcement, prosecutors, court personnel, advocates, and allied professionals across the state. Survivors, and those who work with them, called me to have their questions answered.

I am passionate about helping survivors. Currently I am back in a courtroom, in private practice, assisting survivors by representing them in their request for protective orders. However the criminal system also creates barriers for survivors who are oftentimes charged with offenses. These charges can cause additional difficulty in leaving an abusive partner by making it hard to find a job or housing. In addition, research has educated us that economic insecurity is an enormous risk factor for perpetrating violence. Therefore I am excited to be working towards the safety of survivors both by intervening with protective orders as well as through primary prevention by helping survivors and others maintain a clean criminal history when appropriate.

Throughout all of this work, I have seen those who wish to help survivors lack the tools and information to do so effectively. Certainly it's near impossible for survivors to figure out how to navigate both community and legal systems to maximize their protection. In the questions I have received over the years, there have been both common themes and unique inquiries. My hope is that this blog will serve as a place that folks can turn to for answers to best help themselves, loved ones, or survivors whom they encounter through their professional roles. I'll post as time allows on domestic-violence related topics that I hope will be helpful to survivors or those who work with them. I encourage readers who may have a topic or problem that they would like to see covered to message me. I'm happy to try to answer you directly when I can and consider the issue as a blog post topic if others are likely to benefit from it as well.

I've been honored to work with so many courageous survivors over the years. It is because of them, and for them, that I continue to do this work.

Amily