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Is There a Right to Have an Accused Abuser Arrested?

By TChris, Section Constitution
Posted on Mon Mar 21, 2005 at 06:28:48 PM EST
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by TChris

At least 23 states have laws that require police officers to arrest a person accused of domestic abuse if they have probable cause to do so. Mandatory arrest laws were enacted to correct a perceived problem -- the willingness of officers to drive an accused abuser around the block to let him "cool off" before returning home, rather than taking him to jail. In practice, the laws often result in arrests that accusers would prefer not to happen. Accusers who call the police hoping that their spouses will be lectured or driven around the block to "cool off" are frequently surprised when they find themselves driving to the police station (or a courthouse) to post bail for the spouse they've inadvertently caused to be arrested.

The value of mandatory arrest laws is debatable, particularly when police aren't required to arrest individuals who probably committed much more serious crimes. The laws put the police in a tough position. A wife who calls the police expecting a "cool him off" response may be shocked to learn that the police, as a result of her call, will cart her husband off to jail, and may beg the police not to make an arrest. The officer then confronts a difficult choice: disregard the law and honor the wife's request, or follow the law and make a bad domestic situation even worse.

The Supreme Court heard argument today in a case that asks whether the police violate the Constitution by disregarding a mandatory arrest law. The facts of the case are horrific. Jessica Gonzalez told the police that her daughters were missing, probably abducted by her estranged husband in violation of a restraining order that barred him from contacting the children. The police took no action.

Shortly after 3 o'clock the next morning, Simon Gonzales drove up to the police station and opened fire with a handgun; the police shot back, killing him. Inside his truck, officers discovered the bodies of the three children.

Jessica's lawsuit against the town of Castle Rock claims that the police violated the Fourteenth Amendment by depriving her of property -- her children -- without due process of law. Putting aside the odd notion of children as "property," the town makes a good point in response to the lawsuit.

If Gonzales wins, the town argues in its brief, thousands of 911 calls could be converted into potential federal cases, and "the expansion in both liability and litigation will have devastating consequences both for the public safety and for municipal governments throughout the nation."

Gonzales' claim is founded on the belief that mandatory arrest laws create an entitlement to an arrest whenever an accusation of abuse rises to the level of probable cause. The notion of an "entitlement" to have an arrest made is dangerous. If Gonzales prevails, police officers will be placed between a rock and a hard place: arrest when probable cause is dubious (e.g., the accusation isn't corroborated by physical evidence of injury) and be subjected to a lawsuit for false arrest, or don't arrest and be subjected to a lawsuit for a due process violation. The Supreme Court should resolve this dilemma by ruling that the Constitution creates no "entitlement" to have any individual arrested.

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    Is There a Right to Have an Accused Abuser Arrested? | 17 comments (17 topical)
    Re: Is There a Right to Have an Accused Abuser Arr (none / 0) (#1)
    by Beck on Mon Mar 21, 2005 at 08:34:44 PM EST
    Another inadvertent result is the couple find themselves facing expenses they cannot afford, including legal bills.

    Re: Is There a Right to Have an Accused Abuser Arr (none / 0) (#2)
    by Talkleft Visitor on Mon Mar 21, 2005 at 11:55:36 PM EST
    I understand your concerns, talkleft, but in a case where there's already a restraining order on the accused and children are missing, I don't think it's outrageous to expect that the police have a duty to actually do something. Otherwise, what's to stop police from ignoring clear criminal activity because of laziness or corruption or racism or...??

    Re: Is There a Right to Have an Accused Abuser Arr (none / 0) (#3)
    by Talkleft Visitor on Tue Mar 22, 2005 at 12:53:59 AM EST
    Mandatory arrest laws, that to me sounds insane, if a guy beats his wife all she got to do is call the cops, 10 years ago or 60 years ago. but with so many people coming into the usa from so many other nation states and cultures were its normal to beat your wife, two to five times a week. it would stand to reason that the law may be needed. because most third world woman with kids would never think of calling a cop. so the mandatory arrest laws maybe needed.

    Re: Is There a Right to Have an Accused Abuser Arr (none / 0) (#4)
    by Talkleft Visitor on Tue Mar 22, 2005 at 04:25:20 AM EST
    What happens to the mandatory arrest clauses in protective orders and criminal restraining orders if the Court decides there is not an entitlement to arrest? In many states these orders are not easy to get, they require court apperance in which they must confront the abuser, testify to the abuse and face cross-examination. To deny these women the protection they gathered up their courage and went to court seeking, seems obscene. To equate a protective order with a domestic violence call is too simplistic, in one the offender and the victim live together and still have a relationship, in the other the victim has moved on and asked the state for protection. Why shouldn't she have a resonable expection of protection, when the courts have granted it?

    Re: Is There a Right to Have an Accused Abuser Arr (none / 0) (#5)
    by Talkleft Visitor on Tue Mar 22, 2005 at 05:31:26 AM EST
    Another unexpected consequence of "mandatory arrest" laws, which I've seen in cases I've been involved with: All the accused assaultor has to do is claim, no matter how implausibly, that his victim hit him, and BOTH sides get carted off to jail.

    Re: Is There a Right to Have an Accused Abuser Arr (none / 0) (#6)
    by Talkleft Visitor on Tue Mar 22, 2005 at 05:36:23 AM EST
    I think the real issue is liability. The woman had a restraining order. The perp in this case had numerous contacts with police prior to the children disappearing and yet police kept telling her call back in a couple of hours. As always, the devil is in the details and no generalization about domestic violence or mandatory arrests really applies in this matter. The real question is whether the police response was adequate and if not, whether they can be held liable. It's interesting to note that the perp in this particular case did show up at a police station and started shooting, continued shooting until he was shot dead. Unfortunately, the children were already dead in his vehicle by that time. The facts of this particular case strongly suggest to me that the police were far less than diligent in responding to this woman's calls to them. Should there be liability? I don't know, maybe yes. Police agencies have a really terrible record with domestic violence. I believe that police officers offend in domestic violence ways more frequently than the general population. It has something to do with the culture of power and authority that brings so many people to the badge. David Brame of Tacoma comes to mind.

    Re: Is There a Right to Have an Accused Abuser Arr (none / 0) (#7)
    by Talkleft Visitor on Tue Mar 22, 2005 at 06:59:22 AM EST
    Remember the reason that mandatory arrest laws came into being: a lot of cops would come by the house on a DV call, see that the woman had been hit, treat it as a pure private matter in which the man had just gotten a bit out of hand, and drive away. So, mandatory arrest laws. Not saying that's the ideal situation, but the alternative at the time was often no action, and a woman getting beaten harder after the cops left.

    Re: Is There a Right to Have an Accused Abuser Arr (none / 0) (#8)
    by Talkleft Visitor on Tue Mar 22, 2005 at 03:38:02 PM EST
    If the case was simply about mandatory arrest laws, then the town may have a point, but the police have an obligation to uphold the court order. Without such an obligation, a restraining order has no teeth and would be pointless.

    Re: Is There a Right to Have an Accused Abuser Arr (none / 0) (#9)
    by Patrick on Tue Mar 22, 2005 at 04:01:46 PM EST
    The police have no obligation to uphold that court order. They were not ordered to do anything, the decedent was ordered to stay away and didn't. The only obligation the police have is to enforce the law. California is a SHALL take state, but as with any arrest, there must be probable cause. The case described in the article seems to indicate there were no eyewitnesses to the "abduction" since it claims he was only the "probable" suspect. This case appears to be, on the face of it, a, "He said-she said." Which isn't to say it doesn't have merit, but there is no indication of what, if any, actions the law enforcement agency did or didn't take. She may have a valid claim if she tried to report the children missing and they did nothing. She may have no claim if they did what was required by law. There is not enough information to make an informed judgement. Hopefully there more for a judge to review, otherwise we could have more bad case law. It's a horrible example of the seriousness of domestic violence.

    Re: Is There a Right to Have an Accused Abuser Arr (none / 0) (#10)
    by Talkleft Visitor on Tue Mar 22, 2005 at 09:14:12 PM EST
    Patrick - are you familiar with the particulars of this case? I think the perp stalked the ex and children. He hid in the garage, he got into the house, he changed the lock on the front door and he had numerous contacts - I think 6 or 7 - in the month or two prior to the events in question. He was supposed to have the children one evening per week PRE-ARRANGED. When he took the children without pre-arrangement he violated the court order. Sounds like breaking laws to me. So what did the police do? Kept telling the frantic mom to call back in a few hours. I believe they did that three different times on the night when the children were missing. The local police probably realized their error when he pulled up at a police station and started shooting at them, but by then it was too late for the children. Police have a pitiful record with responding to domestic violence and part of that reason is the culture of authority and coercion that is shared by many domestic violence perps and many police officers. I guess he clearly started breaking the law when he starting emptying the magazine at the police, but it wasn't too clear before that.

    Re: Is There a Right to Have an Accused Abuser Arr (none / 0) (#11)
    by Talkleft Visitor on Tue Mar 22, 2005 at 09:22:42 PM EST
    She called the police at least three times and went to a station at least once to ask the police to find the ex-husband and enforce the court order. Colorado is a "shall arrest" state for violation of this kind of order. The liability risk is high to all municipalities if Gonzalez prevails, but it may be that the Court can rule that Castle Rock PD's failure to act was more than simple negligence, perhaps gross negligence or willful misconduct. Something that establishes that the police conduct has to be more than simple negligence.

    Re: Is There a Right to Have an Accused Abuser Arr (none / 0) (#12)
    by Talkleft Visitor on Tue Mar 22, 2005 at 09:37:20 PM EST
    In the pleading, the tort charges reckless disregard by the police. Not simple negligence. I think the suit should go forward. It's up to the police at this point to show that they were just stupid or lazy, but not recklessly disregarding their duties.

    Re: Is There a Right to Have an Accused Abuser Arr (none / 0) (#13)
    by Talkleft Visitor on Tue Mar 22, 2005 at 09:40:15 PM EST
    link to case

    Re: Is There a Right to Have an Accused Abuser Arr (none / 0) (#14)
    by Talkleft Visitor on Tue Mar 22, 2005 at 09:43:35 PM EST
    More directly from the opinion: The Colorado courts have stated unambiguously that in Colorado statutes, "shall" does in fact mean "shall." "The word 'shall,' when used in a statute, involves a 'mandatory connotation' and hence is the antithesis of discretion or choice." Colorado v. Guenther, 740 P.2d 971, 975 (Colo. 1987); see also Allison v. Indus. Claim Appeals Office, 884 P.2d 1113, 1119-20 (Colo. 1994); Hernendez v. District Court, 814 P.2d 379, 381 (Colo. 1991). Moreover, the legislative history of the statute at issue clearly indicates that the legislature intended to impose a mandatory obligation on the police as well as on others involved in the criminal justice system who deal with domestic abuse. First of all, . . . the entire criminal justice system must act in a consistent manner, which does not now occur. The police must make probable cause arrests.

    Re: Is There a Right to Have an Accused Abuser Arr (none / 0) (#15)
    by Patrick on Wed Mar 23, 2005 at 07:41:37 AM EST
    are you familiar with the particulars of this case? Obviously not, based on the statement I made in my previous post. You obviosuly have information that is not in the article. I think the perp stalked the ex and children. He hid in the garage, he got into the house, he changed the lock on the front door and he had numerous contacts - I think 6 or 7 - in the month or two prior to the events in question. What it doesn't say is were these allegations before or after there was a TRO. They seem like a good basis for one, but absent intent to stalk, they do not amount to a crime. Many people have multiple police contacts during messy divorces and child custody disputes, should we arrest them all as possible mass-murderers? First of all, . . . the entire criminal justice system must act in a consistent manner, which does not now occur. The police must make probable cause arrests. And it never will until we take the humans out of it, and the police MUST have probable cause to make a mandatory arrest. Police have a pitiful record with responding to domestic violence and part of that reason is the culture of authority and coercion that is shared by many domestic violence perps and many police officers. I shouldn't even address this ignorant remark because you will certainly cite some study that says cops are more likely to be domestic abusers than average. Even if those numbers are exactly accurate, this statement by you still amounts to misinformation and bias. So tell me, what in my previous post was not true?

    Re: Is There a Right to Have an Accused Abuser Arr (none / 0) (#16)
    by Patrick on Wed Mar 23, 2005 at 07:47:55 AM EST
    This is essentially a zero tolerance policy, do you support these types of policies? If you do, here's a scenario for you. Man and woeman with a TRO betweeen them. The female being the protected party. She calls the man to her house to talk. Things don't go the way she wanted them to go and their exchanged becomes heated. She calls the police, the man is arrested for the TRO violation. Fair? OR another, same situation, man shows up at a local grocery store to shop for food for his children. Female is present and calls the police to have him arrested because when they got to the same isle he was closer than 50 feet to her. Fair? MY point being there is a fair share of manipulation of these must arrest DV TRO's. And the family court system is not tilted in favor of the male of the species.

    Agree and Disagree (none / 0) (#17)
    by richn on Mon Dec 03, 2007 at 01:47:03 AM EST
    I read through the posts here, and after reading the Supreme Court decision a few times, i'd say their decision was right on.
    We all feel for this family. What happened should not have taken place. We need to remember when looking at law, personal feelings can't interfere when deciding how the law opperated in certain cases. The question I thought of was regarding ot the departments duties. She had been given the run around. When they mentioned someone would come out and the mother relied on that as being truthful, that then should change the entitlement the officers had to assist her. If they weren't going to, or had other processes they had to complete prior too, that should have been mentioned.
    The problem we have with mandatory arrest laws is our government misconceiving their power to control personal behaviors. I counsel individuals quite often who have been involved in seriously abusive relationships (burning bed), and our government is wasting too much time on petty offences or standard family arguments instead of focusing on bigger issues. I recently spoke to a lady who's been threatened, and psycholically, her ex is a very dangerous individual. It's been 5 years since they split, but she still has to fear him. They moved to another city, her name had been changed, and she lives every day in fear. Reason being TRO's won't do anything, the police won't unless a crime is comitted, and if he finds her to attack, it will be a very planned out attack and the police won't have time to respond prior to the completion of his act.
    Many times the abusers they are worried about have psychotic thoughts and personalities. These personalities aren't developed in an instant during a small argument. This person we've all posted about who killed his children, knew before he picked them up how their day would being and end. These guys plan, it's very pre-meditated, without impulse. This person I wrote about who would undoubtably attack his ex, now has 5 years of anger toward her that has built up. I wouldn't doubt it if he had notes written out with exactly how he plan on doing it in different situations.

    Is There a Right to Have an Accused Abuser Arrested? | 17 comments (17 topical)