Do the Police Have to Make an Arrest After a Domestic Violence Call?
Believe it or not, New York law enforcement officers must make an arrest when they have reasonable cause to believe that a person has committed specific crimes against members of their family or household. Otherwise called “mandatory arrest” laws, these statutes require the police to refrain from asking victims if they want their abuser arrested or want to press charges. In other words, the police get to decide the outcome of the situation — not the victim. As such, most mandatory arrest cases involve arrests against the victims’ wishes. These arrests may not be immediate, but they could happen later on, nonetheless.
While well-intentioned, New York’s mandatory arrest laws can have devastating outcomes for all parties involved. You will often hear about domestic violence allegations in divorces, which are often made by spiteful spouses who want “revenge” for the divorce filing. However, not all domestic violence accusations are false. The bottom line is that when the police suspect that a person has committed domestic violence, a felony, or a protective order violation, they have the right to arrest the suspect regardless of what the victim says unless there is no order of protection in place, or the alleged abuser committed a misdemeanor.
One exception to the NYS mandatory arrest law is when both people are alleged to have committed misdemeanor crimes. If the police believe that both parties have committed misdemeanors, then they must identify and arrest the “primary aggressor.” To determine who the primary aggressor is, the police must consider if either person:
- Caused any injuries to the other, and the type and seriousness of those injuries
- Is threatening or has threatened future harm against the other, or another family or household member
- Has a prior history of committing domestic violence
- Acted in self-defense
Another exception to New York’s mandatory arrest law is violation-level offenses. If an incident involves a violation-level offense such as harassment, which is one level below a misdemeanor, then the police do not have to make a mandatory arrest unless they witness a violation at the scene. However, the police will advise the victim of their right to make a citizen’s arrest instead, meaning the police would physically remove the abuser from the scene but the victim would need to sign the complaint and “arrest” the suspect. Given these circumstances, victims may avoid making a citizen’s arrest and instead file for an order of protection. As such, an order of protection may be filed whether or not an arrest is made.
Types of Protective Orders
An order of protection can be issued in family courts to limit an alleged abuser’s behavior and address various types of safety issues, such as situations involving domestic violence. Generally, orders of protection require the reported offender to avoid injuring, threatening, or harassing the victim or other members listed in the order. Specifically, an order of protection may require the offenders to:
- Stay away: The alleged abuser may be ordered to stay away from the victim, their home, their job, their children, their children’s school, or any other place or person the court finds necessary.
- Refrain from certain acts: The suspect may be ordered to stop abusing or threatening to abuse the reported victim or their children. For example, the order may require the respondent to stop calling the victim at work.
- Collecting belongings: The police may accommodate the victim as they collect their personal belongings at a certain date and time if the victim does not want to return home alone.
- Remove the perpetrator from the home: If the alleged abuser is considered dangerous to the victim or their children, the order of protection may require the suspect to move out of their home while it is in effect, regardless of who’s name the home is under.
- Temporary child support: Depending on the child’s needs, the court may order temporary child support.
- Revoke or suspend firearms: The court can revoke or suspend the alleged abuser’s license to carry firearms or order them to surrender any or all of their firearms.
- 5-year order: While most orders of protection issued by family courts are effective for 2 years, aggravating circumstances may result in a 5-year order of protection. Examples of aggravating circumstances include physical injury, use of a weapon, a history of repeated violations or prior orders of protection, previous criminal convictions, and the presence of danger to other family or household members.
Unlike orders of protection issued in criminal courts, those issued in family courts are part of civil proceedings rather than criminal proceedings. Another difference between protective orders issued in criminal versus family courts is that those issued in family courts protect the following parties:
- Current or former spouses
- Someone with whom you have a child in common
- A family member to whom you are related by blood or marriage
- Someone with whom you have or have had an “intimate relationship”
With this in mind, an order of protection may be temporary or final. A temporary order of protection is issued on the day the victim files and only lasts until the next court hearing. At that court hearing, a judge will typically extend the temporary order until the case is over. At the end of the case, a judge may issue a final order of protection if they find that a family offense was committed, or the respondent agrees to such order. As such, the final order of protection will last for 2 or 5 years and may include:
- Restitution: If the respondent damaged any of the victim’s property (i.e., car, windows, furniture), the court may order the respondent (the suspect) to pay damages called "restitution" up to $10,000. Keep in mind that they will have to prove the value of the damaged property.
- Medical expenses: If any injuries were caused by the abuse, the court may order the respondent to pay for any medical expenses.
- Participation in a program: The court may order the respondent to participate in treatment services, such as a batterer's education program, or refer the respondent to drug or alcohol counseling.
Domestic Violence in Family Law Cases
Domestic violence accusations are common in divorces, as we mentioned before, and it’s important to consult with an attorney to understand your rights and options moving forward. Whether you are a victim or reported suspect, know that you can turn to our Putnam County divorce lawyers for all your family legal needs. We will learn about your situation and determine an effective course of action to help you achieve the best possible solution to your situation.
Schedule your consultation online or at (845) 605-4330!