The Fourth Amendment was designed to protect citizens from capricious arrest, unless there is “probable cause” of violence. Furthermore, both the Fifth and Fourteenth Amendments command the government to not deprive any person of liberty “without due process of law.” Since the mid-1980s, however, domestic violence arrest policies have undergone a series of extraordinary changes. This transformation, involving both criminal and civil law, is analyzed in the following sections.
In the past, police officers were not allowed to make a criminal arrest for a misdemeanor—most instances of domestic violence being legally classified in this less severe category of crime—unless the officer witnessed the event or had an arrest warrant issued by a judge.
So when law enforcement personnel were summoned for a domestic incident, the most common responses were to mediate the dispute and/or separate the parties. Arrest was relatively uncommon—one early study revealing the suspected offender was arrested in only 20% of cases.5
But domestic violence advocates complained about police leniency. In response, states began to enact laws that allowed for “warrantless” arrests for domestic violence cases. These laws still enjoined upon police officers to establish probable-cause that the suspect had initiated the violence, even though the officer did not actually witness the incident.6
ARREST POLICIES FOR DOMESTIC VIOLENCE
As a rule, probable cause was established based on the existence of visible injuries on the identified victim.
When no visible injury is present, however, ascertainment of probable-cause is fraught with uncertainty. Probable cause suggests more than a suspicion, but less than a certainty. The latitude of the concept renders probable-cause open to a wide range of interpretations.
The Violence Against Women Act of 1994 explicitly endorsed a mandatory arrest policy—a watershed by traditional law enforcement standards. As of 2007, the following 21 jurisdictions had established mandatory arrest policies:7
Alaska, Arizona, Colorado, Connecticut, District of Columbia, Iowa, Kansas, Louisiana, Maine, Mississippi, Nevada, New Jersey, New York, Ohio, Oregon, Rhode Island, South Carolina, South Dakota, Utah, Virginia, and Washington
A review of the language of these statutes reveals most affirm that compulsory detention should be imposed only when the probable-cause standard has been reached.8 But in many cases, over-zealous implementation of these laws appears to have been inconsistent with the legal standard.
A review of domestic violence conviction rates (discussed later in this report) indicates that in probably the majority of cases, the probable-cause requirement was not met. Indeed, numerous anecdotal complaints indicate police officers operating under mandatory arrest detain suspects based only on the existence of a verbal complaint, in apparent contradiction to Fourth Amendment probable-cause protections.
For reasons reviewed later in this Special Report, mandatory arrest policies began to fall out of favor. In 2005, the reauthorization of VAWA shifted from a mandatory to a so- called “pro-arrest” stance.* Pro-arrest policies consider arrest the preferred, but not required action. Arrest is the preferred police response in the following eight states:9
Arkansas, California, Florida, Massachusetts, Michigan, Montana, North Dakota, and Tennessee
In addition to promoting mandatory arrest for assault, VAWA’s Grants to Promote Arrest and Enforce Restraining Orders program had the effect of encouraging states to enact laws that require the arrest of a person who violates a restraining order. The following 33 states have laws that mandate arrest for violation of a restraining order:10
Alaska, California, Colorado, Delaware, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire,
* In FY2005, the enacted amount for Section 102, Grants to Promote Arrest and Enforce Restraining Orders, was $62.6 million.
Please visit saveservice.org for more facts about domestic violence.
Enjoy the rest of your evening!