Family violence statue question

[rgv_cop]

Where does it state an officer shall arrest if there is evidence that family violence has occurred?

I've looked in the family code (chapter 71) and it just gives definitions of what family and dating violence is.

I've even looked in CCP (warrantless arrest section). The closest I could find is the part about preventing further acts of violence, but that just gives the authority to arrest.

My latest quest was calling up my County Attorney and his response was "uhhhhhhhhhh, i don't know. i will get back with u."


I am trying to find it because my dept. currently have deputies and sgts that are chicken to arrest people for assault family violence/dating violence where there are obvious signs an assault took place.

I guess nobody cares about the liability associated with these type of calls.

Thanks.

[icecoldblueyes]

Hmm... only thing I found, which does not state "shall arrest", is in the CCP, Ch 5

Art. 5.01
(b) In any law enforcement, prosecutorial, or judicial response to allegations of family violence, the responding law enforcement or judicial officers shall protect the victim, without regard to the relationship between the alleged offender and victim.

Art. 5.04. DUTIES OF PEACE OFFICERS. (a) The primary duties of a peace officer who investigates a family violence allegation or who responds to a disturbance call that may involve family violence are to protect any potential victim of family violence, enforce the law of this state, enforce a protective order from another jurisdiction as provided by Chapter 88, Family Code, and make lawful arrests of violators.


http://www.statutes.legis.state.tx.u...R/htm/CR.5.htm

[TexasAggieOfc]

The shall arrest provision is only tied in with enforcement of an Emergency Protective Order... as far as D/V offenses otherwise, you only have a duty to prevent further violence. Of course, aside from shooting the perp, the easiest way to do that for the night is lock him up!

[iamacop]

Aggie is correct, you are only required to arrest for violating a magistrate's order. My department's policy requires us to arrest for ABI Family.

[JSD73]

There is no shall arrest provision. The only thing you shall do is make a report of the incident.

Art. 5.05. REPORTS AND RECORDS. (a) A peace officer who investigates a family violence incident or who responds to a disturbance call that may involve family violence shall make a written report, including but not limited to:

(1) the names of the suspect and complainant;

(2) the date, time, and location of the incident;

(3) any visible or reported injuries; and

(4) a description of the incident and a statement of its disposition.

(a-1) In addition to the written report required under Subsection (a), a peace officer who investigates a family violence incident or who responds to a disturbance call that may involve family violence shall make a report to the Department of Family and Protective Services if the location of the incident or call, or the known address of a person involved in the incident or call, matches the address of a current licensed foster home or a verified agency foster home as listed in the Texas Crime Information Center. The report under this subsection may be made orally or electronically and must:

[usmcrob]

Like imacop said, there is no shall arrest for Assault Family Violence. The only shall arrest is for Violation of a Protective Order. Our department has a shall arrest policy as well.

[adeutch]

I'd hate to see the public's response if someone ever commissioned a family violence statue.

Seriously, though, good info on the mandatory arrest. I was always under the impression that it was actually in the law. I think it's a good policy, nonetheless.

[913]

Trust me, you don't want a "shall arrest" situation. It takes common sense out of the equation. There is no gray area, and at times it can be very difficult for Officers to apply common sense to a call. Most states that have shall arrest orders word them so they apply to "any" offense that occurs during a domestic situation. "Any" offense can be something as simple as cussing, spitting, disorderly conduct, criminal mischief (guy gets mad and kicks a wall but doesn't touch his wife), and a variety of offenses that don't amount to a guy kicking his wife's ***, but he can get hooked on (and it's a domestic violence charge regardless). He (I use he, but it of course can be she) then loses his right to hunt, possess a weapon, etc., all because the Officer couldn't apply common sense to a call.

Also, with a shall arrest rule, you are put in a difficult situation of worrying about liability and often pick somone to arrest because you have to arrest someone if an offense occurred. For example, the wife says husband pushed her down. Husband says he did not. It is obvious something happened (maybe signs of a disturbance in the home). Do you hook the male solely on the wife's word? You better hook someone, right? Lawbook says you have to. Do you consider that PC? Can you substantiate PC from conflicting statements? If you are in a shall arrest situation, you are more likely to make an arrest, and "hope" you are making the right decision. If you are not in a shall arrest situation, you are not forced to make an arrest decision because you worry about getting sued or hungup because you don't hook someone.

I'm not against enforcing DV laws, but aggressive DV laws can be too aggressive. You don't want to be forced to allow the lawbook to replace your common sense. Texas has got it right.

[jc3855]

I was not aware that there was a "statue" for DV?? Where is it? Is it made of bronze??? Possibly granite??? Sorry couldn't resist...haha. I am one of the worlds worst spellers and I'm always spell checking myself. Good content though. "Statute" right?? The joke may be on me!!

[adeutch]

I was not aware that there was a "statue" for DV?? Where is it? Is it made of bronze??? Possibly granite??? Sorry couldn't resist...haha. I am one of the worlds worst spellers and I'm always spell checking myself. Good content though. "Statute" right?? The joke may be on me!!

Don't worry, I made the same corny joke two posts up. I even thought about speculating as to what the statue might depict. I think a good place for the statue would be right outside the courthouse.

[iamacop]

Trust me, you don't want a "shall arrest" situation. It takes common sense out of the equation. There is no gray area, and at times it can be very difficult for Officers to apply common sense to a call. Most states that have shall arrest orders word them so they apply to "any" offense that occurs during a domestic situation. "Any" offense can be something as simple as cussing, spitting, disorderly conduct, criminal mischief (guy gets mad and kicks a wall but doesn't touch his wife), and a variety of offenses that don't amount to a guy kicking his wife's ***, but he can get hooked on (and it's a domestic violence charge regardless). Maybe in the midwest, but not here. I've never heard of Criminal Mischief (Family Violence.) He (I use he, but it of course can be she) then loses his right to hunt, possess a weapon, etc., all because the Officer couldn't apply common sense to a call.

Also, with a shall arrest rule, you are put in a difficult situation of worrying about liability and often pick somone to arrest because you have to arrest someone if an offense occurred. For example, the wife says husband pushed her down. Husband says he did not. It is obvious something happened (maybe signs of a disturbance in the home). Do you hook the male solely on the wife's word? You better hook someone, right? Lawbook says you have to. No, lawbook says we may, department policy says shall. All you have on a push is an assault by contact. I'll just issue a citation, and they can go to municipal court. Do you consider that PC? Can you substantiate PC from conflicting statements? Yes, you look for evidence and/or witnesses. If you are in a shall arrest situation, you are more likely to make an arrest, and "hope" you are making the right decision. If I don't have probable cause, I don't make an arrest. I've never made an arrest and "hoped" I had probable case. Either I do, or I don't. If you are not in a shall arrest situation, you are not forced to make an arrest decision because you worry about getting sued or hungup because you don't hook someone. I don't make an arrest unless I'm pretty damned sure, ie: the definition of probable cause. If there is an injury, but I question it, I write it up and it goes to a Detective. I think you're overanalyzing our posts. Don't read too hard into it, it's a very simple rule..

I'm not against enforcing DV laws, but aggressive DV laws can be too aggressive. You don't want to be forced to allow the lawbook to replace your common sense. Texas has got it right.

Were you busted for Domestic Violence or something?

[fencipede]

Also, with a shall arrest rule, you are put in a difficult situation of worrying about liability and often pick somone to arrest because you have to arrest someone if an offense occurred....

...You better hook someone, right? Lawbook says you have to....

If what you're describing is routine in your state, your legislators need to get to work revising some things.

Arrests are based on probable cause. Even our 'shall arrest' provision for protective orders specifies that we 'shall arrest' for violations in our view.

'He said, she said' is not probable cause.

Even in a hypothetical 'shall arrest' situation, you don't randomly hook somebody up and cart them off to jail unless all the elements are there.

[JSD73]

funny how a simple question such as where does it state you shall arrest in terms of family violence can be taken all over the map as evidenced in this thread.

In terms of 'family violence' the only thing one shall do is document the incident, i.e., write a report.

[913]

If what you're describing is routine in your state, your legislators need to get to work revising some things.
Arrests are based on probable cause. Even our 'shall arrest' provision for protective orders specifies that we 'shall arrest' for violations in our view.
'He said, she said' is not probable cause.
Even in a hypothetical 'shall arrest' situation, you don't randomly hook somebody up and cart them off to jail unless all the elements are there.

What I am saying is, if you are in a "shall arrest" situation like some states have, and you have PC to believe ANY offense occurred during/as a result of a domestic dispute, you MUST arrest. That can suck at times. You have no discretion in the matter. Sometimes an action can be pretty insignificant, but if it technically constitutes an offense, you must arrest. Trust me, you don't want to be in that type of a situation as an investigating Officer.

I agree he said/she said is not PC. However, generally, the definition of PC is something along the lines of "the reasonable belief that a specific crime has been committed and that the defendant committed the crime". I will be the first to write that I can't substantiate PC solely due to a verbal allegation without witnesses or evidence, but there are many I work with who will hook someone up because they don't want to get hammered for not making the hook, and the definition arguably allows them to establish PC if they want. If a woman claims the man pushed her down, and there is no further witnesses or evidence, you can either decide you believe the woman (decided to develop PC based on her statements alone) and make the hook, or do what I do, is write it up, separate them, and clear the report, not being able to substantiate a crime occurred. Somes of our guys make the hook to cover their ***es, and have the attitude of "The DA will toss it if they don't like it.". I don't agree with this mentality.

I think shall arrest laws are generally too aggressive, which was the point of my post. Sorry if it caused confusion. Again, Texas has it right.

[JSD73]

Well the good, or bad thing, about Harris County is that you have to run it down by the DA and if they accept it, the monkey is not on your back anymore. In my county, we don't call the DA for misdemeanors ... so we have to decide whether an arrest is warranted and then live by it.