Arresting, Detaining, and Restraining for Domestic Violence Allegations

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Statutory law and police policies encourage police to arrest in response to allegations of domestic violence. Domestic violence in U.S. state law is typically defined broadly to encompass offenses ranging in criminal seriousness from public order violations to misdemeanors to felonies. In the U.S., police generally cannot make a warrantless arrest for non-felony crimes that they do not witness. Police generally have considerable discretion in whether to make an arrest. However, most U.S. states have enacted broader arrest authority  and required less police discretion in police response to allegations of domestic violence. Arrests for domestic violence commonly occur without warrants and under mandatory arrest policies.

The specifics of warrantless arrest and mandatory arrest for domestic violence vary by state. Arizona law declares:

A peace officer, with or without a warrant, may arrest a person if the officer has probable cause to believe that domestic violence has been committed and the officer has probable cause to believe that the person to be arrested has committed the offense, whether the offense is a felony or a misdemeanor and whether the offense was committed within or without the presence of the peace officer. (Ariz. Rev. Stat. 13-3601(B))

Oregon law specifies warrantless, mandatory arrest even for non-felony domestic violence that the peace officer does not witness:

Notwithstanding the provisions of subsection (1) of this section {describing the issuing of criminal citations for misdemeanors}, 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. (Oregon Rev. Statutes 133.055(2)(a))

Under ORS 107.705, “family or household members” of a given person include everyone with whom that person has had sex within the past two years. If a car driver and a passenger have had sex in the past two years and the driver drives the car in a way that causes a passenger to fear “imminent serious physical injury,” that’s a domestic violence offense under Oregon law. Moreover, under Oregon law, the peace offer “shall arrest and take into custody” the driver if that offenses comes to the attention of the police.

State statutes mandating arrest for domestic violence are common. In the year 2000, twenty-three U.S. states and the District of Columbia had passed special domestic-violence statutes mandating that the police with probable cause make a warrantless arrest for particular domestic violence offenses (mandatory arrest). Another six states had statutory provisions encouraging arrest.^ At least fourteen of those mandatory-arrest jurisdictions required mandatory arrest for misdemeanor domestic violence offenses.^ As of the year 2000, thirty-three states had statutory provision mandating arrest for violation of a domestic-violence restraining order.^ Categorizing and counting mandatory arrest statutes has a considerable margin of discretion because such statutes are complex and not readily understandable.^ Because domestic-violence statutes are continually augmented over time, the scope of mandatory arrest statutes tends to broaden over time. Addressing allegations of domestic violence is the leading edge of expansive coercive control through criminalization.

Many jurisdictions routinely impose no-contact criminal restraining orders as a condition of pre-trial release after arrest for domestic violence. Determinations of pre-trial release typically involve case-specific determination of reasons for detaining a person against her will. Sensationalized depictions of domestic violence have commonly eliminated these legal judgments. For example, Rhode Island state law requires that a restraining order be imposed as a condition of pre-trial release following an arrest for domestic violence, irrespective of any consideration of specific circumstances:

Because of the likelihood of repeated violence directed at those who have been victims of domestic violence in the past, when a person is charged with or arrested for a crime involving domestic violence, that person may not be released from custody on bail or personal recognizance before arraignment without first appearing before the court or bail commissioner. The court or bail commissioner authorizing release shall issue a no-contact order prohibiting the person charged or arrested from having contact with the victim. (R.I. General Laws §12-29-4(a))

South Dakota law requires that a no-contact order be included in the pre-trial release conditions for any persons arrested for domestic abuse (S.D. Codified Laws §25-10-23). In New York City, no-contact restraining orders are uniformly imposed on persons arrested for domestic violence, including misdemeanor offenses:

Every domestic violence case receives an order of protection at arraignment; the order is renewed at subsequent court appearances, and a final order is usually issued at disposition or sentencing. The ADA {Assistant District Attorney} will generally request a full order of protection whether the complainant wishes it or not; the courts generally issue very few limited orders, particularly in the early stages of the case.^ ^ ^

In New Hampshire, the number of restraining orders issued at arraignment following arrest for domestic violence are consistent with the number of arrests for domestic violence. Other jurisdictions similarly impose restraining orders uniformly as a condition of bail.^ ^ ^ ^ Those restraining orders are almost always no-contact orders.^ Making a no-contact order a mandatory condition of pre-trial release following an arrest for domestic violence was a recommendation of the National Council of Juvenile and Family Court Judges in the early 1990s.^ A no-contact order can essentially evict a person from her home and deny her freedom to communication with intimates, family members, and children. Forgoing case-specific judging of the appropriateness of suspending fundamental liberties in judging pre-trial release (bail) can be understood only in the context of domestic-violence emergency law.

No-contact orders have been established by law prior to any judicial action. Utah law imposes a no-contact order before any judgment about pre-trial release:

Upon arrest for domestic violence, and before the person is released on bail, recognizance, or otherwise, the person may not personally contact the alleged victim of domestic violence. (Utah Code §77-36-2.5(1)(a))

Telephoning a family or household member for help is common behavior following arrest. If that family or household member is the alleged domestic-violence victim, in Utah such contact is illegal. That’s true even if the family or household member objected to the arrest. Utah law also requires, irrespective of case-specific circumstances, an alleged perpetrator of domestic-violence to remain in jail for at least one full court day unless a no-contact order is imposed.

Courts have justified uniformly issuing restraining orders at arraignment without the appearance of either party and without any other testimony. A New York State criminal court reasoned:

The great potential for violence and intimidation which is present when both the victim and the perpetrator of domestic violence continue to live under the same roof is self-evident. (People v. Forman, 546 N.Y.S. 2d 755, (Crim. Ct. 1989))

Whether there is in fact a victim and perpetrator of domestic violence, and who they respectively are, isn’t judged at arraignment. After an allegation of domestic violence between intimates has been brought to the attention of the judicial system, the additional risk from them continuing to live under the same roof, if their circumstances or their choices produce that result, is far from self-evident. Evidence of common circumstances of arrests for domestic violence, considered reasonably in relation to other generic risks of public concern, provides no support for this “self-evident” belief. The court invoked emergency law to suppress reasoning beyond its claim of “self-evident” public justification:

the State has an interest in the issuance of the TOP {Temporary Order of Protection, meaning an initial restraining order} at the earliest possible time, since the danger of intimidation and injury to the complainant, if it exists, is an immediate one. In a very real sense, the issuance of such a temporary order of protection as a condition of bail or recognizance at the time a defendant is arraigned is an emergency decision.

Despite the strength of defendant’s constitutional interest, and the evident if unquantifiable risk of error, the emergency nature of the decision, as well as the practical difficulties inherent in convening an immediate evidentiary hearing, mitigate against the imposition of such hearings as constitutionally required before a TOP may first be issued at arraignment. (People v. Forman)

Protecting fundamental liberties under law isn’t a matter of particular administrative difficulties of particular legal procedures. An important legal question is this: do U.S. courts need good case-specific reason for evicting a person from her home, imposing a de facto divorce from her spouse, and depriving her of contact with her children for a week, and often much longer? The current answer: no.^

Procedures in the criminal justice system in Brooklyn underscore the obliteration of fundamental rights in processing of domestic violence arrests. For arrests for domestic violence in Brooklyn, restraining orders are uniformly issued at arraignment. If the prosecutor judges that insufficient evidence exists to get a conviction on even just a violation, the prosecutor nonetheless keeps the case active as long as is legally possible. That’s 30 days. Hence for no substantive reason a person is deprived of fundamental liberties for 30 days. For lack of evidence on a misdemeanor charge, the corresponding restraining duration is 60 days.^ In short, a person can be evicted from her home and denied contact with her children for 30 days or 60 days after arrest in circumstances that a prosecutor judges don’t even provide sufficient evidence for a conviction on a violation or a misdemeanor offense, respectively. That’s a grotesque justice system.

In Brooklyn, prosecutors also apparently participate in video-taped questioning of domestic violence suspects prior to those suspects being legally informed of the charges against them. After booking the suspect but prior to arraignment, the arresting officer brings the suspect in leg shackles and handcuffs to a screening room.^ In the screening room, an Assistant District Attorney questions the unrepresented suspect on charges not yet legally filed:

To begin the interview, the video camera starts recording and the screener {an Assistant District Attorney} Mirandizes the defendant {who at this point is formally still just a suspect}. If the defendant asks for an attorney and/or refuses to make a statement, the interview is concluded and the camera stops recording. If the defendant agrees to make a statement, recording continues and the screener asks the defendant to describe the incident that led to the arrest. … Most defendants will make a substantive statement, particularly those arrested and questioned within a few hours of the incident. In Brooklyn, about 80% of defendants made a substantive statement. Defendants who were injured and those who were facing {yet unfiled} charges that were more serious were especially likely to make a substantive statement. The questioning strategy used by the Annex screeners {Assistant District Attorneys} was persistent, low-key, and probing, and often produced valuable admissions.^

A injured domestic-violence defendant, in shock at being arrested, unsure about what charges he’s facing, and having had little opportunity to consult with anyone, isn’t likely to respond reasonably to a Miranda warning. That questioning regime, not surprisingly, increases conviction rates.^ Because video-taped pre-arraignment questioning by prosecutors is limited by the working hours and capacity of the video room, whether domestic violence defendants are subject to this interrogation regime depends systematically on extra-legal factors.^ So too then does the probability of conviction.

In the U.S., arrests for domestic violence account for the majority of arrests for interpersonal violence. About a million arrests for domestic violence occur in the U.S. per year. Domestic violence warrantless arrest and mandatory arrest laws and policies contribute significantly to the predominance of domestic violence arrests among arrests for interpersonal violence. Laws and policies that encourage the imposition of restraining orders as a condition of pre-trial release following arrest for domestic violence increase the scope of justice system control with little expenditure of time and resources in administering justice. Moreover, initial restraining orders cursorily issued without normal due process of law are routinely renewed during the pendency of a criminal trial.^ An initial restraining order can thus effectively endure for months. Violation of a restraining order is a relatively easily proved criminal charge. The criminal justice system’s handling of domestic violence allegations greatly reduces the costs of generating mass incarceration through mundane justice system processing separate from due process of law.

Across U.S. states, the passage of mandatory arrest laws for domestic violence has been associated with a significant increase in domestic violence homicides. Published, peer-reviewed econometric analysis of cross-section/time-series yearly data on aggregate intimate-partner homicides and the year of passage of mandatory arrest laws indicates that mandatory arrest laws increased intimate homicides per capita by roughly 50%.^ That’s plausible: mandatory arrest laws and the issuing of restraining orders at arraignment for domestic violence can transform a minor conflict into one party being evicted from her home and deprived of custody of her children.^ The latter are clearly traumatic events that could even lead to homicide and suicide. However, relative to arrest for domestic violence (about a million per year), intimate-partner homicide is a very rare event (about 2000 per year in 1995, the median year of passage for the mandatory arrest laws included in the analysis). Most incidents of domestic violence that come to the attention of the police do not involve behavior that would otherwise be regarded as criminally serious. The econometric analysis did not explore the sensitivity of its findings to alternative categorizations of mandatory arrest laws.^ Whether the econometric analysis truly extracted a causal signal of very low probability in an analysis of aggregate data seems questionable. More significantly, the published work didn’t consider whether the injustice of the state response to domestic violence might contribute to the retaliatory homicidal effect it claimed to have found. In contrast, the article declared in conclusion, “mandating arrest is insufficient to deter abusers from killing their victims.”^ The beatings will increase until morale improves.

Police procedures in making arrests and court procedures in determining pre-trial release represent the most common public face of the criminal justice system in action. Trust is crucial for human flourishing. Family law is constitutional law in ordinary life. Highly misleading public discussion of domestic violence and harsh, extraordinary justice system action addressing claims of domestic violence provides good cause for persons to fear each other and doubt the justice of the justice system.

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