Mandatory Arrest in Domestic Violence Cases: A Criminal Defense Lawyer’s Perspective. Why did Someone Get Arrested for Domestic Violence and Taken to Jail?
If you or a loved one has been arrested for a crime involving Domestic Violence, sometimes it is not so clear why the police officers decided to arrest one party. On “wobblier” cases (cases where the facts do not clearly support arrest or charges), police officers arrest because (1) Washington is a mandatory arrest state where officers have been held civilly liable for not taking action and (2) Washington is a pro victim label state, in statute, politics and law. What this means is if someone is labeled a victim, rightly or wrongly, the system will bend in his or her direction.
Mandatory Arrest
Regardless of what city or town you are in, whether you are in Seattle, Redmond, Everett or Olympia … whether you are a civilian or in any branch of the armed services, it doesn’t matter: Washington state law requires all state police officers to make an arrest and take someone to jail if they believe they have probable cause to determine who was the primary aggressor in an act of domestic violence that involves any physical violence; or, at minimum, fear involving imminent serious bodily injury, and the event happened within the last 4 hours. The law does not require visible injuries, nor does it distinguish between felonies and misdemeanors. RCW 10.31.100(2)(c). In short, whether or not it is fair, if someone is present and police find by probable cause (a surprisingly low standard) they were the primary aggressor in a domestic incident within the last 4 hours, that person is going to jail.
Though the law allows the police or sheriff to arrest both parties involved in an incident, in all of the State of Washington domestic criminal cases our attorneys | lawyers have handled and represented during the investigation stage, we have only seen a police officer do this once and we have read a number of police reports where they arguably should have done so. Unfortunately, there is significant legal and political pressure on police officers to take some action because the law that usually gives them immunity for acting in good faith was pierced for policy reasons in Roy v. Everett, 118 Wn.2d 352, p.2d 1084 (1992). It can be argued that the effect of this case is that now officers are more prone to arresting someone rather than being found liable for failing to protect an alleged victim, even when there are questions as to the victim’s honesty or the facts surrounding the story. An unanticipated problem of this is once an officer arrests someone, it is human nature to write a report substantiating a decision and this can lead to the omission or mischaracterization of facts. Overcoming this presumption in domestic violence cases is complicated as once the arresting officer chooses a “victim”, as any attempt to minimize this label will be characterized as attempting to further “victimize” the victim. We have successfully redirected many cases, but doing so takes patience, a delicate touch and a lot of experience with these kinds of dynamics.
For a deeper discussion of the problems surrounding the arrest and defense of domestic violence cases, read What is Domestic Violence and Self Defense in Domestic Violence Cases.
So what does this all mean?
The consequences of these policies are that a person can be arrested on a quick and/or biased judgment call by police erring on the side of caution based on mandatory arrest laws. Also, in general, reports are written to substantiate the arrest. Whether there was adequate investigation into the facts surrounding the case or other circumstances relevant is not considered at the arrest stage. Our best advice: follow the officer’s advice when he arrests you: “Anything you do or say can be used against you”. Stop talking, you’re not going to talk your way out of it and you run the very real risk of having your words taken out of context. Hold it together till you or your family hires a lawyer and you can speak with him about the Consequences of Arrest in a domestic violence case and what you should do.
The criminal defense lawyers | attorneys in our office have handled an enormous number of complicated cases in the criminal arena over the course of our criminal law careers. We are a unique blend of courtroom experience, knowledge, skills and temperament. Our lawyers know criminal cases are rarely as simple as the police reports claim and our clients hire us because they want staunch and effective counsel who takes the time to make sure their rights are protected. Whether our role is as legal counsel, negotiator, or litigator, we have years of experience fighting and resolving criminal cases with our clients’ best interests in mind.
