Friday, November 30, 2018

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.

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