Police handcuffed by DV policy
By Benjamin Barr, a police officer with 28 years of experience in the field.
January 7, 2013
Mandatory and pro-arrest policies pushed by radical feminists and the federal government regarding domestic violence have all but eliminated officer discretion on the matter throughout the country. Fear of the potential consequences for using discretion has our officers in a headlock. Few have the moral courage to exercise it resulting in many unnecessary arrests that consequently damage the American family.
A woman has been drinking adult beverages throughout the evening. Her husband and she argue over finances. She tries to walk to the car and he grabs her by the wrist in order to prevent her from driving. She screams, pulls away and falls twisting her ankle in the driveway while the kids look on. The neighbor calls 911. Upon arrival officers separate the couple and interview them individually. The woman is crying. She has a red mark on her wrist and a swollen ankle consistent with her account of events and those of the neighbor, husband and children. The injuries are minor. She refuses medical attention. There is no history of domestic violence on file between the couple and the “victim” does not want her husband arrested. Despite her protests, he is arrested for domestic battery and the enhancement section – in the presence of children.
This scenario illustrates how unnecessary arrests set in motion a chain of events more damaging than anything that took place prior to law enforcement being called: The husband is arrested in front of his family and neighbors. A No Contact Order (NCO) is issued forbidding him from seeing his kids and wife or contacting them by phone or through a third-party. He has to pay for bond or will miss work. He must spend money living out of the home and even more money for an attorney unless he qualifies for the public defender. He cannot possess a firearm or ammunition while the NCO stands.
Peace officers sometimes seize these items stripping the suspect of his Second Amendment right without Due Process; as if a man is less deadly without a gun. The humiliation, family separation and financial burden stemming from this unnecessary arrest are a strain on the family brought about by overzealous arrest policies. Unnecessary arrests damage the American family and contribute to its further breakup. Not to mention the countless number of otherwise innocent men that are processed through the criminal justice system and who will be forever stained and stigmatized with an arrest record that can affect their employment, future job prospects, and other avenues of advancement.
Pro-arrest policies are adopted by law enforcement administrators out of fear of tort claims, fear of the feds de-funding grants and fear of bad press. Fear is inculcated in officers through yearly in-service training. Arresting for the slightest, explainable injury is fail-safe. Officers pass the buck to prosecutors, placing them in an untenable situation. Many of these cases are resolved by a plea to the lesser charge of disturbing the peace. Sometimes defendants take a plea deal only to expedite the reunification of family, the restoration of rights, and reduce the financial bleeding.
Consider this. In 2003, twenty-one year old Angie Leon of Nampa, Idaho, was murdered by her estranged husband, Abel Leon ─ a known criminal alien. Over a five-year period, Leon had fifty-nine contacts with law enforcement; almost all resulted in arrest. Thirty-five of the fifty-nine concerned domestic violence. Angie told authorities numerous times Leon would kill her. There is no crystal ball. Authorities cannot arrest for something that might happen. After fifty-nine professional police contacts, Angie’s murder was not the result of failed police-prosecutor work, but rather of the failure of Immigration, Customs Enforcement (ICE). Nonetheless, Idaho’s self-insured communities risk management plan (ICRMP) paid out $925,000 to her mother.
Cases like Leon are referenced in domestic violence training poisoning the well of police discretion. In 2011 there were seventeen deaths in Idaho related to domestic violence. Like Angie, domestic violence laws/policies did not save those victims. In fact, there is no way to know if domestic violence laws and pro-arrest policies reduce the number of injuries and deaths or contribute to them ─ by holding victims hostage in their circumstances. Could a victim’s past experiences with overzealous arrest policies make them less likely to call 911 when all she wants is for officers to preserve the peace while she collects her toothbrush and leaves?
The argument in support of domestic violence laws is built on the premise that the existing misdemeanor and felony assault and battery laws are insufficient given the unique psychological aspects of a (female) victim trapped in a cycle of domestic violence. The state wanted more power to intercede and prosecute on behalf of women paralyzed by fear, confusion and control.
Sometimes the state does know best, but few cases prosecuted as domestic battery fit the kinds of controlling abuse that proponents of the law argued it was intended to address. In these mismatched cases what makes matters worse is when the unwilling victim turns hostile and recants saying she lied to police. This makes it more difficult to prosecute in a true or future case because the victim’s credibility is damaged.
In addition, the underlying premise for the law may be flawed. The media ignore studies like Domestic Violence: The Male Perspective, where it states: “Domestic violence is often seen as a female victim/male perpetrator problem, but the evidence demonstrates that this is a false picture.” This and other studies show men are as often the victims of domestic violence as women, but they under report.
Domestic violence laws are redundant, gender biased, overreaching and too often bring unjust outcomes to the families they are purported to protect. Compounding this is the fact that the kinds of injuries considered to distinguish a misdemeanor domestic battery from a felony domestic battery is lower ─ and far more subjective ─ than the kinds of injuries that typically distinguish non-domestic misdemeanor batteries from non-domestic felony (aggravated) batteries.
The co-existing statutes for traditional misdemeanor battery, misdemeanor assault, aggravated battery, aggravated assault, and stalking are sufficient to address the very real issue of domestic violence.
Repealing domestic violence law is unlikely. The alternative? ─ Restoring discretion. The relative autonomy of the Office of Sheriff is pivotal in modeling this change. Yes, the feds could investigate and prosecute under federal domestic violence law. Yes, the DOJ could de-fund grants to Sheriffs who stand by their oath and row against the federally adopted, radical feminist narrative. Yes, the press will spin the move toward discretion casting the Sheriff a neanderthal. So be it.
Discretion is not license for peace officers to be lazy and leave when they should arrest. Until crystal balls are issued to peace officers ─ reason, not fear ─ should steer their actions in our homes.