Law Enforcement Response

Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS they witnessed the crime

Police Response in Terms of Arrest Dramatically changed since the 1980s due to: ● Changes in misdemeanor laws allowing for warrantless arrests ● Changing social views and victim advocacy work ● Increasing legal liability ● Research focusing on the impact of arrest

Grounds for arrest by officer without warrant in Tennessee T.C.A. § An officer may, without a warrant, arrest a person: ● For a public offense committed or a breach of the peace threatened in the officer's presence; ● When the person has committed a felony, though not in the officer's presence; ● When a felony has in fact been committed, and the officer has reasonable cause for believing the person arrested has committed the felony; ● On a charge made, upon reasonable cause, of the commission of a felony by the person arrested; ● Who is attempting to commit suicide; ● If a law enforcement officer has probable cause to believe that a person has committed a crime involving domestic abuse, whether the crime is a misdemeanor or felony, or was committed within or without the presence of the officer ● If a law enforcement officer has probable cause to believe that a person has violated one (1) or more of the conditions of release and verifies that the alleged violator received notice of the conditions *This list excludes some provisions in the statute that are unrelated to domestic violence.

Some early evidence of the importance of arrest in domestic violence cases: Kansas City ● Conducted in 1973 and reported that police had been to the home for a domestic violence call at least once in 90% of the cases involving a homicide ● In 50% of the cases, police had been to the home 5 or more times Several other cities have found similar results and several have found that they had reductions in domestic homicide after implementing mandatory arrest polcies – including Knoxville and Nashville

Recall that: ● The majority of domestic violence cases are simple/misdemeanor cases not felonies Thus much of the discussion about arrest and domestic violence has focused on misdemeanor arrest ● Little controversy about the importance or impact of making arrests in felony cases

Studies that emphasize importance of arrest in misdemeanor cases Minneapolis Domestic Violence Experiment ● Officers were instructed to randomly respond to misdemeanor assault cases in one of three ways: arrest the suspect, order the suspect to leave for 8 hours, or mediate/advise the suspect about the behavior. ● Cases were then monitored to determine the effect of these options

Major Finding: Arrest Alone Deters Future Battering Data from Police Reports: ● 19% of those advised ● 24% of those order to leave ● 10% of those arrested committed another assault within 6 months Data from Victim Interviews : ● 37% of those advised ● 33% of those order to leave ● 19% of those arrested committed another assault within 6 months

After Minneapolis ● Six additional studies were funded by the federal government to replicate the Minneapolis study. Omaha, Nebraska Colorado Springs, Colorado Dade County Florida (Miami) Milwaukee, Wisconsin Charlotte, North Carolina Atlanta, Georgia

Studies found: ● Did not find much support for the Minneapolis study. Arrest was not a strong deterrent. ● Many differences in the way the studies were conducted makes it hard to compare them effectively.

Reasons to Continue Active Arrest Policies ● Arrest works no better or NO WORSE than other responses ● No other crime is required to demonstrate that arrest ALONE deters further criminality ● Rest of the system must also be effective ● Demonstrates a commitment to offender accountability ● Identifies to victim, offender and society that domestic violence is a crime; e.g. it reflects social and moral values

Reasons to Continue Active Arrest Policies (cont.) ● Documents the incident ● May be more than one way to measure effectiveness of arrest – e.g. prevention of homicides and protection of children ● Legal liability ● Helps hold the entire criminal justice system accountable.

Legal Authority to Arrest

Types of Arrest Laws/Policies ● Laws/policies that allow for arrest sometimes called Preferred or Pro- Arrest ● Laws/policies that require arrest called Mandatory Arrest

Arrest Practicies ● Legal authority Is established by legislation ● May be extended by policy as long as the policy is not less rigorous than the law ● For example, a state may have a preferred arrest law but an individual department may have a mandatory arrest policy ● However, an individual police department may not have a preferred arrest policy if state law mandates arrest

Policy Requirement (T.C.A. § ) ● All law enforcement agencies with personnel who are likely to encounter situations of domestic violence shall adopt a policy regarding domestic violence and provide initial and continuing education concerning the dynamics of domestic violence, and the handling, investigation and response procedures concerning reports of domestic violence to all law enforcement personnel who are likely to encounter situations of domestic violence.

Model policy ● Review model policy and compare to your departmental policy.

Tennessee Statute ● Has a preferred arrest requirement “If a law enforcement officer has probable cause to believe that a person has committed a crime involving domestic abuse, whether the crime is a misdemeanor or felony, or was committed within or without the presence of the officer, the preferred response of the officer is arrest.” T.C.A. § (italics and bold added for emphasis)

Purpose of Preferred Response: Legislative Intent ● To recognize the seriousness of domestic abuse as a crime and to assure that the law provides a victim of domestic abuse with enhanced protection from domestic abuse. A further purpose is to recognize that in the past law enforcement agencies have treated domestic abuse crimes differently than crimes resulting in the same harm but occurring between strangers. Thus, the general assembly intends that the official response to domestic abuse shall stress enforcing the laws to protect the victim and prevent further harm to the victim, and the official response shall communicate the attitude that violent behavior is not excused or tolerated. T.C.A. §

Preferred response ● Means law enforcement officers shall arrest a person committing domestic abuse unless there is a clear and compelling reason not to arrest. ● Applies only with respect to the primary aggressor. T.C.A. § (italics and bold added for emphasis)

Legal Liability

Incidence and Costs of a Civil Suit ● Increase in the number of successful civil suits filed against police since the 1960s ● Successful suits relatively rare ● There are many negative consequences even if case is won ● Suits serve a function in society

Domestic Violence Liability Cases ● 1970s and early 1980s -- many lawsuits ● Most involved only injunctive relief ● Tracy Thurman case in 1984 was an exception ● Changed the way these cases were dealt with in many instances.

Liability Risk: Domestic Violence ● Liability risk is usually associated with police over-action (pursuit driving, misuse of deadly force, police brutality and excessive force). ● In family violence cases, liability is often the result of police under-action such as failure to arrest, failure to enforce a court order and failure to provide equal protection.

Police are usually sued under: 1. State tort laws 2. Federal laws – Section 1983 cases

Fundamentals of State Tort Law Three types: 1) Intentional torts with extremely dangerous actions that are automatically assumed to be actionable. Generally do not apply to police officers 2) Intentional torts with intentional actions that lead to injury or damage. Examples include wrongful death and false arrest. 3) Negligence which is most common.

Negligence is: ● inadvertent behavior that results in damage or injury. Negligence requires the least awareness of foreseeable injury and has no requirement of intent. It is by definition injury that is a result of inadvertent behavior.

Four Elements of Negligence: ● A legal duty (a law, custom, judicial decision, or departmental policy that establishes a duty) ● A breach of duty (facts that demonstrate a failure to adhere to the legal duty by an action or inaction) ● Proximate cause (asks whether the injury would have occurred in the absence of the police behavior) ● Damage or injury

Public Duty Doctrine Exception ● Legal concept that holds that governmental functions, such as police protection, are owed to the general public and not to individuals and therefore there is no cause of action or subsequent liability for the failure to protect individuals from injuries by a third party ● Translated, police cannot protect every individual in society unless there is some “special relationship” and therefore cannot be sued in most instances where citizens are harmed

In Tennessee: ● All governmental entities are immune from suits for any injuries that result from the activities of governmental entities that are engaged in the exercise and discharge of any of their official functions, UNLESS

● There is a failure to exercise or perform a discretionary function or ● There is an act of false imprisonment, false arrest, malicious prosecution, intentional trespass, abuse of process, libel, slander, deceit, interference with contract rights, infliction of mental anguish, invasion of right of privacy, or civil rights

The special duty protection does not exist when: 1. a public official affirmatively undertakes to protect the plaintiff and the plaintiff relies upon the undertaking; 2. a statute specifically provides for a cause of action against an official or municipality for injuries resulting to a particular class of individuals, of which the plaintiff is a member, from failure to enforce certain laws; or 3. a plaintiff alleges a cause of action involving intent, malice, or reckless conduct

In plain language: If the conduct falls under the special duty exemption and is a substantial factor in bringing about the harm, and the harm could have been reasonably foreseen by a person of ordinary intelligence liability may result.

Most common negligence risks for domestic violence cases: ● Failure to Protect ● Failure to Arrest ● Failure to Render Assistance

Victims also can sue in federal court ● Called Section 1983 cases: refers to The Civil Rights Act of 1871, Title 42, Section 1983 ● Prohibits anyone, under color of law (e.g. police officers) from being deprived of any right under the Constitution or federal law and established legal liability in cases where this occurs ● For domestic violence cases, these cases have focused on 14 th Amendment violations of equal protection under the law

Thurman v Torrington (1984) ● Victim had her neck broken and was repeatedly stabbed in the presence of a police officer ● Department had long and repeated track record of doing nothing despite many calls for service where there was probable cause to have taken action ● Federal court ruled in her favor in a Section 1983 case and found that her 14 th amendment rights had been violated when the police department failed to protect her simply because she was married to her assailant ● Ruling was for about 2 million dollars ● Case had a major impact

Post Thurman – ● Federal cases make it difficult to sue DeShaney child abuse case Gonzales protective order case ● The Court holds generally that there is no legal avenue for a due process claim under Section 1983 cases.

More Risk of Liability at State Level ● Especially true in Tennessee ● As of 2004, Tennessee is one of two states where the Supreme Court has held that there is a special duty to protect when protective orders are involved. ● Matthews v Pickett County

Relationship between Policy and Liability ● Mandatory and preferred arrest policies limit officer discretion in arrest situations ● May help insulate police departments against liability if departments can demonstrate officers were informed about the policies and were trained ● The courts will examine patterns and practices of the department (including the culture)

Departmental steps to avoid legal liability * Know the law * Quality training is essential * Supervision is critical * Documentation is critical * Evaluate and document known problems

As an individual officer: ● Best way to protect yourself: KNOW THE LAW AND DEPARTMENTAL POLICIES AND ENFORCE THEM