People are often shocked by the rule that when a law enforcement officer responds to a domestic violence call, someone has to be arrested. Even if the individuals involved don’t want assistance, and everything is back in a peaceful state, someone will be arrested and taken to jail. The arrest most often seems excessive and leads people to be upset not just at the other party, but usually at the police. Which begs the question….
Why Are People Arrested Over Such Minimal Events?
Why is it that law enforcement arrest individuals over the most benign altercations? The short answer is: they have to. By statute, law enforcement officers who respond to a domestic violence call within four hours of the event, and who have probable cause to believe that a crime of domestic violence has occurred, must make an arrest.
The Mandatory Arrest Rule Comes From The Combination Of Two Washington Statutes.
RCW 10.99.030 (6)(a) states “[w]hen a peace officer responds to a domestic violence call and has probable cause to believe that a crime has been committed, the peace officer shall exercise arrest powers with reference to the criteria in RCW 10.31.100.”
RCW 10.31.100 (2) states that “[a] police officer shall arrest and take into custody …a person without a warrant when the officer has probable cause to believe that:
(d) The person is eighteen years or older and within the proceeding four hours has assaulted a family or household member or intimate partner… and the officer believes:
(i) A felonious assault has occurred;
(ii) an assault has occurred which has resulted in bodily injury to the victim, whether or not the injury is observable; or,
(iii) that a physical action has occurred which was intended to cause another person reasonably to fear imminent serious bodily injury or death.
When the officer has probable cause to believe that the individuals involved have assaulted each other, the officer is NOT required to arrest both persons. The officer shall arrest the person whom the officer believes to be the primary physical aggressor.
Why Can’t The Officer Use Discretion?
The law enforcement officers who respond are sometimes in a box. Even though there may be a better solution than arresting a party, they must make an arrest. If officers, using their best judgment and discretion, decides to not arrest an individual, they can get in trouble upon review of the situation by their supervisor.
Knowing They Have To Arrest, How Do They Decide?
The officers try to determine who was the “primary aggressor” or, in other words, the individual who started the altercation or who kept it going. Or, it could come down to the individual who poses the greater threat. This can be a tricky situation because Officers are thrust into a scene with no understanding of the backstory.
Some individuals are just naturally better story tellers, and some clam up when they are confronted with law enforcement. This can be a huge factor. Some people tell wild and fanciful stories, while the other party just keeps their mouth shut. As such, the police only have one avenue to direct their efforts – they usually are directed by the individual who is more vocal.
Can’t That Lead To Error?
Absolutely. People should find it troubling that the police are NOT there to get to the absolute truth of the matter. Law enforcement works under the premise that getting to the ultimate truth isn’t their responsibility. They are there simply to begin the investigation and separate the individuals involved. The idea is that the truth will shake out in the Court process, by investigation and discussion between the prosecution and defense.
The problem with this logic is that often the police report is all the prosecution and defense have to go on. More often than not, there is no other information gathered and heavy reliance upon the law enforcement officer’s report is bolstered because the Judges take them as unquestionably true.
Another Compounding Issue Is The Low Standard Of Probable Cause
Referencing back to the Statute, it doesn’t take a high measure of proof to determine that there is “bodily injury to the victim, whether or not the injury is observable” The standard to arrest is “probable cause”, which is a very low standard, as opposed to “proof beyond a reasonable doubt” which is necessary to convict.
For example, if a law enforcement officer responds to the scene, and an individual simply says “he pushed me down” with nothing more and no visible injury, that is enough for the officer to make a finding of probable cause. And once that P.C. determination is made, an arrest is mandatory. Often these accusations are exaggerations or total fabrications – that does not matter in the probable cause analysis as long as the tall tale meets the elements of a crime.
Collateral Consequences Of The Mandatory Arrest
When the defendant makes his first appearance in Court for the domestic violence charge, the Court will always place a “no-contact order” on the defendant, prohibiting the defendant from contacting the alleged victim. This happens even when the alleged victim comes to court and argues vehemently that the order is not necessary. Astonishingly, the order will even be put in place when the alleged victim tells the Court and prosecutor that the claims he or she made to the officer were a total fabrication. The no contact order requires the defendant to move out of the family home. As you can imagine, the order causes tremendous hardship on both parties, especially if the protected party is now responsible for all child care, bills, upkeep of the house and errands. The contact orders are often devastating to the family, both financially and in the shifting of responsibilities.
What To Do If You Or A Loved One Has A Domestic Violence Charge?
Call the law office of Witt Law Group right away. We have offices in Bremerton, Poulsbo and Gig Harbor for your convenience. If your case is outside of our area, we can always provide a quality referral.