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. §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.
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:
Data from Victim Interviews :
● 19% of those advised
● 37% of those advised
● 24% of those order to
● 33% of those order to
leave
● 10% of those arrested
leave
● 19% of those arrested
committed another assault
within 6 months
committed another assault
within 6 months
After Minneapolis
● Six additional studies were funded by the federal
government to replicate the Minneapolis study.
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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 ProArrest
● 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. § 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.
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. § 36-3-619 (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. § 36-3-618
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)
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 14th Amendment violations of equal
protection under the law
Thurman v Torrington (1984)
● Victim had her neck broken and was repeatedly stabbed
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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
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
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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