How do police determine whom to arrest in a domestic violence situation?

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Category: Justice
Published: Thursday, 15 February 2024 16:37
Written by Lawrence A Robinson

When responding to a domestic violence situation, for instance, law enforcement officers are expected to arrest any person who commits a crime related to domestic violence as defined by law, unless there is a clear and compelling reason not to arrest, such as self-defense or lack of probable cause, after a comprehensive investigation to identify the predominant aggressor. 

The International Association of Chiefs of Police (IACP) defines “predominant aggressor” as “the individual who poses the most serious, ongoing threat, which may not necessarily be the initial aggressor in a specific incident”. 

To determine the predominant aggressor, police officers may evaluate each person individually and consider a number of factors such as who uses threats and intimidation in the relationship, who has a history of violence, who has caused the most damage, and who has the most to gain from the incident. 

Mandatory arrest laws, while originally-well intentioned, resulted in a greater number of arrested women in domestic violence cases. Victims may utilize violence to pre-emptively avert an attack from the aggressor or in self-defense. However, law enforcement may improperly assess or document these situations, or even allow incidents to go unacknowledged. 

Batterers may try to convince the police that the violence was mutual or that they are the victim. One study found that in the 3,078 incidents surveyed, there were 2,090 total arrests and 416 dual arrests. The same study found that in states with primary aggressor laws, 8.6 percent of incidents ended with a dual arrest, compared to 19 percent in states without primary aggressor laws.

Here are some responsibilities of the police.

I’m not a lawyer, but I can offer some general observations based on some real cases. It’s important to consult with a legal professional for advice specific to your situation.

    1. Trespassing and Restricted Areas:
    • You have the right to designate areas of your home as restricted. And anyone knowingly entering these restricted areas after being told not to, it could be considered trespassing.
    • As the homeowner, you have the authority to enforce these restrictions and take legal action if necessary.
    1. Use of Force:
    • You have the right, under trespassing laws, to use reasonable force to protect your home. It’s essential to avoid physical altercations whenever possible and physical force should be a last resort.
    1. Police Involvement:
    • Law enforcement officers are often trained to prioritize de-escalation and maintaining peace. Their primary goal is to prevent further harm or violence. They will turn over their findings to the State Attorney's Office to evaluate and press charges if deemed warranted.
    • Legal matters can be complex, and consulting with a legal professional to get accurate advice tailored to your specific circumstances is highly recommended. However, here are some general insights:
    1. Police Perspective:
    • Law enforcement officers are often trained to prioritize de-escalation and maintaining peace. Their primary goal is to prevent further harm or violence.
    • When responding to incidents, they may not always assess culpability immediately. Instead, they focus on diffusing the situation and ensuring safety.
    1. Battery Charges:
    • Battery charges can be filed based on the perception of harm or physical contact. Even if you believe your actions were justified, the legal system will evaluate the evidence and circumstances.
    • It’s essential to remember that filing charges doesn’t necessarily mean guilt. The justice system allows anyone to file charges, but the court will ultimately determine the outcome.
    1. Trespassing and Self-Defense:
    • While trespassing laws grant you the right to protect your property, the use of force must be reasonable and proportionate.
    • If you believe your actions were self-defense, consult an attorney to present your case effectively.
    1. Legal Process:
    • The justice system allows individuals to file charges, and it’s up to the court to assess the evidence, hear both sides, and make a judgment.

Be careful of what you say to the police. It may be considered aggressive talk.

Uttering “fighting words,” to an officer is not a constitutional right. The U.S. Supreme Court has defined “fighting words” as words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace” and are words that are “likely to cause an average addressee to fight”.

However, the First Amendment to the U.S. Constitution protects your right to freely express yourself to police officers, including speech that is profane, rude, insulting, or verbally abusive. Nevertheless, thousands of people in the United States are arrested and charged with a crime every year simply for the words they say to police.

Law enforcement officers are prohibited from using any type of physical force to induce a confession or elicit answers to their questions. When communicating with the police, it is important to remain calm and respectful, and to avoid using language that could be perceived as threatening or violent.

However, apart from these obvious prohibitions, law enforcement officers have a great deal of flexibility in the interrogation of a suspect. Some questioning by police can be benign. Other types of interrogation can involve intense questioning of suspects. This is to weather down the suspect’s defenses and to get them to start conversing with the police, many times to their detriment.

Law enforcement officers have many different strategies they use to interrogate a suspect. For example, a classic interrogation strategy, is the “good-cop, bad-cop” strategy. The “bad-cop” hostilely questions the suspect, by stating that they know the suspect is guilty and nothing the suspect could say would change that.

The “good-cop” is more mellow and placates the suspect into thinking that the cops understand why the suspect committed the crime and that the cops could help if the suspect talks to them. An individual – in this situation or in any of the other strategies law enforcement uses to interrogate individuals – starts to feel it is in their best interest to speak to the law enforcement officers. Other individuals cave to the stress and anxiety of being questioned by the police.

It is also important to understand that many things that seem like they are violations of one’s right are not violations at all. Law enforcement officers can lie to a suspect to elicit a confession. 

Remember that legal proceedings involve multiple factors, including evidence, intent, and context. Seek professional legal advice to navigate your situation effectively.