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)