Household Dispute v Qualified Immunity – Law Officer

The holiday season is supposed to be the happiest time of the year. Time off from school and work, holiday parties, and friends and family gatherings to ring in the New Year. According to FBI crime statistics data, warmer months show increasing crime rates, but December also indicates a trend in increased violent crimes. (Sipes, 2023) Additionally, for the law enforcement community, this time of year becomes even more dangerous due to an increase in 9-1-1 calls, family disputes, and drunken holiday parties, as emotions run high with, on many occasions, deadly results. Situational awareness regarding household disputes during this time of year is extremely important for the law enforcement community.

The proper tactical advantage is imperative during any dispute, but especially so when it involves domestic violence. Another significant advantage the law enforcement community should deploy as one of their most valuable tools is having a robust knowledge of the legal requirements of Probable Cause (PC) during these types of incidents when an arrest is mandatory and when using their discretion is an option.

Probable Cause (PC) is often misunderstood or not applied appropriately during family and domestic disputes. Probable Cause to make an arrest is defined as a reasonable cause when a reasonably prudent person believes that a crime has been committed and that the person about to be arrested has committed that crime. (NYS CPL 140.10 (1)(a)(b))

Each state sets its legal requirements, and nearly all states have a mandatory arrest policy regarding domestic violence. (Buckner, & Bender, 2023) For example, New York State has a mandatory arrest policy for domestic violence cases, and an arrest must be made during a household dispute when (a) a felony is committed, (b) a household member disobeys an Order of Protection, (OP) by making contact when there is a stay away order issued; or (c) a household member or person disobeys an order of protection by committing a family offense crime. This policy outlines the legal requirements for Probable Cause, leaving very little discretion to be applied by the responding officer. An OP is PC issued by the court, and if the household member violates that OP, that automatically becomes a mandatory arrest. In mandatory arrest cases, even if the other household member asks the law enforcement officer not to make an arrest, they are not allowed to use their discretion and must make the arrest. (NYS CPL 140.10 (4)(a)(b)(i)(ii))

When the officer is confronted with a household dispute that involves no OP or felony, in most cases, it will involve a misdemeanor crime, and police do not have to arrest the other household member unless the victim requests them to be arrested. The law enforcement officer (LEO) shall neither question whether the victim seeks an arrest of the other household member nor threaten the arrest of any person to discourage any further police involvement. (NYS CPL 140.10 (4)(ii)(c))

A law enforcement officer may affect an arrest when they have Reasonable Cause to believe that more than one family or household member has committed a misdemeanor. However, this is when the LEO must do their due diligence and apply their knowledge of the legal requirements to determine PC. The first course of action is that the LEOs should try to ascertain whether there is any prior history of domestic violence (DV) and if any possible future threats of harm will continue.

The LEOs should interview each complainant separately to identify and determine the primary physical aggressor and compare any injuries inflicted by and between the parties involved to determine whether any parties acted defensively to protect themselves from harm. After conducting the proper investigation, determine if an arrest is legal and warranted before placing the individual in custody.

The other issue LEOs need to be aware of when involved in these disputes is qualified immunity. When engaged in these household disputes, following the proper procedures guidelines and conducting a proper investigation is necessary to avoid wrongfully arresting an individual. Some in the LE community believe that the DV laws and qualified immunity prevent them from making mistakes and that they will not be held personally responsible.

Their most common comments are, “We do not have discretion, which is why you are under arrest.” However, the law enforcement community must be knowledgeable and trained to understand that the Supreme Court has employed a two-part test to determine whether qualified immunity applies to them. 1. Did the officer violate a constitutional right? 2. Did they know their actions violated an established right? If the answer to these two questions is yes, the officer is not entitled to immunity. (Novak, 2023) With the outlined requirements above coupled with the current public’s sentiment towards qualified immunity, the law enforcement community must follow the 4th Amendment correctly or face possible litigation.

As any articulate attorney will and should ask the LEO, did you properly investigate the facts and circumstances and verify the victim’s statements before making the arrest? The old saying from President Ronald Reagan, “Trust, but verify” (Massie,n.d.), should be applied by every LEO to ensure that you did not violate the individual’s 4th Amendment rights of unreasonable search and seizure as qualified immunity may not be guaranteed.

References:

Buckner, S., & Bender, M. (2023, July 11). State domestic violence laws https://www.findlaw.com/family/domestic-violence/state-domestic-violence-legislation.html

Massie, S. (n.d.). The Reagan Years 1984-88. Suzanne Massie during the Reagan Years. https://www.suzannemassie.com/reaganYears.html

Novak, W. K. (2023, February 21). Policing the Police: Qualified Immunity and Considerations for Congress. https://crsreports.congress.gov/product/pdf/LSB/LSB10492

NYS open legislation. NYS Open Legislation | NYSenate.gov. (2023, June 30). https://www.nysenate.gov/legislation/laws/CPL/140.10

NYS open legislation. NYS Open Legislation | NYSenate.gov. (2020, March 20). https://www.nysenate.gov/legislation/laws/FCT/812

Sipes, L. A. (2023, December 4). The time of day for violent and property crimes. Crime in America.Net. https://www.crimeinamerica.net/the-time-of-day-for-violent-and-property-crimes/