The American Bar Association has identified 21 states with mandatory arrest for domestic violence assault (1). On their face, many of the laws appear to be consistent with Fourth Amendment probable-cause requirements. But the actual enforcement of such laws is typically based on a weaker standard than probable-cause:
- Training programs for law enforcement personnel often emphasize the need to “err on the side of caution,” “hold abusers accountable,” and “give first priority to protecting victims,” admonitions that in practice mean, “Always believe the accuser” (2).
- Training programs often use biased terminology, e.g., use the word “victim” instead of “accuser,” and omit the word “alleged” before “abuser” (2).
- Predominant aggressor policies serve to predispose law enforcement personnel to assume the instigator is the male (3).
- In one state, law enforcement officers are instructed to view a man’s statement that “She hit me first” as an “excuse” (4).
In some states, the bias is compounded by statutes that use biased or vague language:
- The Nevada statute twice refers to the suspect with the male pronouns “he” and “his.”
- The Oregon statute requires arrest in the event of “fear of imminent serious physical injury,” a concept that is so ambiguous that it eludes definition.
In addition, some police agencies informally adhere to a mandatory arrest policy, even when not required by state law. Following are the legal citations and summaries of these 21 mandatory arrest laws:
Alaska Stat. § 18.65.530
- Mandatory arrest for crimes involving domestic violence, violation of protective orders, and violation of conditions of release
- “Shall arrest” in case of Domestic Violence; or
- “Shall arrest” in case of violated TRO if they have Probable Cause
Ariz. Rev. Stat. Ann. § 13-3601
- Arrest requires probable cause.
- Arrest is mandatory when:
- Physical injury occurs
- A deadly weapon is present or discharged
Colo. Rev. Stat. Ann. § 18-6-803.6
- Officer does not need to arrest both parties when responding to domestic violence reports.
- Officers do not need to arrest anyone if there is no probable cause to believe a crime/offense was committed.
Conn. Gen. Stat. Ann. § 46b-38b
- Whenever a peace officer determines upon speedy information that a family violence crime, except a family violence crime involving a dating relationship, has been committed within such officer’s jurisdiction, such officer shall arrest the person or persons suspected of its commission and charge such person or persons with the appropriate crime.
District of Columbia
D.C. Code § 16-1031
- A law enforcement officer shall arrest a person if they have probable cause to believe the following:
- Committed an intrafamily offense that results in physical injury (including illness or physical pain), regardless of the officer’s presence
- Committed an intrafamily offense that caused or was intended to cause reasonable fear of imminent serious physical injury or death.
Iowa Code Ann. § 236.12
Section 2.b. – “… a peace officer shall, with or without a warrant, arrest a person… if, upon investigation, including a reasonable inquiry of the alleged victim and other witnesses, if any, the officer has probable cause to believe that a domestic abuse assault has been committed which resulted in the alleged victim’s suffering a bodily injury.”
Kan. Stat. Ann. § 22-2307
(a) All law enforcement agencies of the state shall adopt the written policies regarding domestic violence calls provided in (b).
(b) Such written policies shall include but not be limited to the following:
A statement directing that the officers shall make an arrest when they have probable cause to believe that a crime is being committed or has been committed;
La. Rev. Stat. Ann. § 46:2140
A. Whenever a law enforcement officer has reason to believe that a family or household member or dating partner has been abused, the officer shall use all reasonable means to prevent further abuse, including:
(1) Arresting the abusive party with or without a warrant if probable cause exists to believe that a felony has been committed by that person, whether or not the offense occurred in the officer’s presence.
(2) Arresting the abusive party in case of any misdemeanor crime which endangers the physical safety of the abused person whether or not the offense occurred in the officer’s presence.
Maine Code. Sec. 1.25 MRSA § 2803-B, sub § 1
- Domestic violence law enforcement efforts include a process to evaluate and determine who is the predominant physical aggressor in a domestic violence situation.
Miss. Code. Ann. § 99-3-7
(3)(a) “Any law enforcement officer shall arrest a person with or without a warrant when he has probable cause to believe that the person has, within twenty-four (24) hours of such arrest, knowingly committed a misdemeanor which is an act of domestic violence or knowingly violated provisions of an ex parte protective order, protective order after a hearing or court-approved consent agreement entered by a chancery, circuit, county, justice or municipal court pursuant to the Protection from Domestic Abuse Law…”
Nev. Rev. Stat. Ann. § 171.137
1. “…Whether or not a warrant has been issued, a peace officer shall, unless mitigating circumstances exist, arrest a person when he has probable cause to believe that the person to be arrested has, within the preceding 24 hours, committed a battery upon his spouse, former spouse or any other person to whom he is related by blood or marriage…” [emphasis added]
N.J. Stat. Ann. § 2C:25-21
a. “When a person claims to be the victim of domestic violence, and where a law enforcement officer has responding to the incident finds probable cause to believe that domestic violence has occurred, the law enforcement officer shall arrest the person who is alleged to the person who subjected the victim to domestic violence and shall sign a criminal complaint…”
N.Y. Crim. Proc. § 140.10
(c) a misdemeanor constituting a family offense, as described in subdivision one of section 530.11 of this chapter and section eight hundred twelve of the family court act, has been committed by such person against such family or household member, unless the victim requests otherwise.
Ohio Rev. Code. Ann. § 2935.032
(A)(1)(A)(i) Unless the officer has reasonable cause to believe that, during the incident, the offender who committed the felonious assault and one or more other persons committed offenses against each other, the officer shall arrest the offender who committed the felonious assault pursuant to section 2935.03 of the Revised Code and shall detain that offender pursuant to that section until a warrant can be obtained, and the arrest shall be for felonious assault.
Or. Rev. Stat. Ann. § 133.055(2)(A)
(2)(a) Notwithstanding the provisions of subsection (1) of this section, when a peace officer responds to an incident of domestic disturbance and has probable cause to believe that an assault has occurred between family or household members, as defined in ORS 107.705, or to believe that one such person has placed the other in fear of imminent serious physical injury, the officer shall arrest and take into custody the alleged assailant or potential assailant. [emphasis added]
R.I. Gen. Laws § 12-29-3
(b)(1) “When a law enforcement officer responds to a domestic violence situation and has probable cause to believe that a crime has been committed, the officer shall exercise their arrest powers…”
S.C. Code Ann. § 16-25-70
- An officer may make an arrest with or without a warrant in a person’s residence if they have probable cause to believe that a person committed domestic violence.
- (B) “A law enforcement officer must arrest, with or without a warrant, a person at the person’s place of residence or elsewhere if physical manifestations of injury to the alleged victim are present and the officer has probable cause to believe that the person is committing or has freshly committed a misdemeanor or felony under the provisions of [South Carolina’s Domestic Violence Statute]”.
S.D. Codified Laws § 23A-3-2.1
- If the officer has probable cause to believe that spouses, former spouses, or other persons who reside together or formerly resided together 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 predominant physical aggressor.
Utah Code Ann. § 77-36-2.2
(2)(a) “when a peace officer responds to a domestic violence call and has probable cause to believe that an act of domestic violence has been committed, the peace officer shall arrest without a warrant or shall issue a citation to any person that the peace officer has probable cause to believe has committed an act of domestic violence.
(b)(i) If the peace officer has probable cause to believe that there will be continued violence against the alleged victim, or if there is evidence that the perpetrator has either recently caused serious bodily injury or used a dangerous weapon in the domestic violence offense, the officer shall arrest and take the alleged perpetrator into custody, and may not utilize the option of issuing a citation under this section.”
Va. Code Ann. § 19.2-81.3
B. “A law-enforcement officer having probable cause to believe that a violation of [Virginia’s domestic violence law] has occurred shall arrest and take into custody the person he has probable cause to believe, based on the totality of the circumstances, was the predominant physical aggressor unless there are special circumstances which would dictate a course of action other than an arrest.”
Wash. Rev. Code Ann. § 10.99.030
(6)(a) When 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 Washington’s domestic violence statute.
(1) American Bar Association Commission on Domestic Violence. Domestic Violence Arrest Policies by State. Accessed September 15, 2010.
(2) Stop Abusive and Violent Environments. Are DV Education and Training Programs Telling the Truth? Rockville, MD. 2010.
(3) Stop Abusive and Violent Environments. Predominant Aggressor Policies: Leaving the Abuser Unaccountable? Rockville, MD. 2010.
(4) Independent Women’s Forum. Domestic Violence: An In-depth Analysis. Washington, DC. 2005.
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