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Law Enforcement Response

Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

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Page 1: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

Law Enforcement Response

Page 2: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

Historically● Beating one’s wife

was not a crime● Police were not

allowed to make arrests in misdemeanor cases -- UNLESS they witnessed the crime

Page 3: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

Police Response in Terms of ArrestDramatically 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

Page 4: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

Grounds for arrest by officer without warrant in Tennessee T.C.A. §40-7-103

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.

Page 5: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

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

Page 6: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

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

Page 7: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

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

Page 8: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

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

Page 9: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

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

Page 10: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

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.

Page 11: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

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

Page 12: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

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.

Page 13: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

Legal Authority to Arrest

Page 14: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

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

Page 15: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

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

Page 16: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

Policy Requirement (T.C.A. § 38-12-106)

● 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.

Page 17: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

Model policy● Review model policy and compare to your

departmental policy.

Page 18: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

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. § 36-3-619 (italics and bold added for emphasis)

Page 19: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

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. § 36-3-618

Page 20: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

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. § 36-3-601 (italics and bold added for emphasis)

Page 21: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

Legal Liability

Page 22: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

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

Page 23: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

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.

Page 24: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

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.

Page 25: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

Police are usually sued under:

1. State tort laws

2. Federal laws – Section 1983 cases

Page 26: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

Fundamentals of State Tort LawThree 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.

Page 27: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

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.

Page 28: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

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

Page 29: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

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

Page 30: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

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

Page 31: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - 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

Page 32: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

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

Page 33: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

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.

Page 34: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

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

Page 35: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

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 14th Amendment violations of equal protection under the law

Page 36: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

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 14th 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

Page 37: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

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.

Page 38: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

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

Page 39: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

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)

Page 40: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

Departmental steps to avoid legal liability

* Know the law* Quality training is essential* Supervision is critical* Documentation is critical* Evaluate and document known problems

Page 41: Law Enforcement Response. Historically ● Beating one’s wife was not a crime ● Police were not allowed to make arrests in misdemeanor cases - - UNLESS

As an individual officer:● Best way to protect yourself:

KNOW THE LAW AND DEPARTMENTAL POLICIES AND ENFORCE THEM