Law Enforcement Response

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Law Enforcement Response
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Historically

• Beating ones wife was not a crime
• Police were not allowed to make arrests in
  misdemeanor cases -- UNLESS they witnessed the
  crime

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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

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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.

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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

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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

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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

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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

9
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

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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.

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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

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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.

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• Legal Authority to Arrest

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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

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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

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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.

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Model policy

• Review model policy and compare to your
  departmental policy.

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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)

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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

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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)

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Legal Liability
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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

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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.

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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.

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Police are usually sued under

1. State tort laws
2. Federal laws Section 1983 cases

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Fundamentals of State Tort Law

• Three types
• Intentional torts with extremely dangerous
  actions that are automatically assumed to be
  actionable. Generally do not apply to police
  officers
• Intentional torts with intentional actions that
  lead to injury or damage. Examples include
  wrongful death and false arrest.
• Negligence which is most common.

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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.

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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

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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

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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

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• 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

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The special duty protection does not exist when

• a public official affirmatively undertakes to
  protect the plaintiff and the plaintiff relies
  upon the undertaking
• 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
• a plaintiff alleges a cause of action involving
  intent, malice, or reckless conduct

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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.

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Most common negligence risks for domestic
violence cases

• Failure to Protect
• Failure to Arrest
• Failure to Render Assistance

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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

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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

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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.

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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

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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)

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Departmental steps to avoid legal liability

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

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As an individual officer

• Best way to protect yourself
• KNOW THE LAW AND DEPARTMENTAL POLICIES AND
  ENFORCE THEM