When police arrest the victim of domestic violence

Axelrod & Associates, P.A.

Jul 16, 2019

Many of us were told as children that the police are our friends and they are there to protect us. If there is trouble, call the police… most of us were not told that the police might arrest us, beat us, or even kill us if we call them.

Are police there to come to the rescue when we are in trouble? Most of the time, police do not arrive until the trouble is over and the carnage is done. In most cases, their job is not to proactively rescue you from your attacker – it’s to clean up the aftermath, investigate, and arrest whoever is responsible.

When the police do arrive, it’s an unfortunate fact that they are not necessarily arriving to help you. They might see the situation very differently than you. They might be annoyed that they were called and decide to arrest everyone (or worse). They might arrest the victim instead of or along with the attacker…

Those of us who work in the criminal justice system have seen this enough times that we know there is a real possibility that the police will investigate you, arrest you, or shoot you if you call them to your home.

Now, what do we tell our children? Do we tell them to call the police if they need help?

WHEN POLICE ARREST THE VICTIM OF DOMESTIC VIOLENCE

What happens if a domestic violence victim is being attacked in her own home and calls the police for help?

First, you expect them to show up. Second, you expect them to help you – stop the attacker, remove him or her from your home, arrest them, something… In most cases, hopefully, that is what happens. But, in some cases, if the police show up at all, they might arrest the victim or arrest both victim and attacker.

For example, a woman has filed suit against the Horry County Police Department, alleging that police arrested her last year after she called for help when her boyfriend attacked her:

…the woman lived in Horry County and her intoxicated ex-boyfriend returned to their house early in the morning, according to a lawsuit. The woman sent several messages to the boyfriend, telling him not to come home…

When the boyfriend got home, he allegedly pounded on the front door, yelled and created a commotion. When the woman answered the door, the man forced his way inside, where he continued his antics, the lawsuit states. At one point, he reportedly punched the woman, shoved her against the wall and grabbed her by the wrists.

The woman said she had several injuries from the attack and property damage to her home and car.

According to her lawsuit, she called 911, but the calls were dropped. When she was able to get someone on the phone, the dispatcher said an officer would call her back. No one called her. In the morning, she called 911 again.

When police showed up, the morning after the assault, they charged the woman with domestic violence second degree and charged the boyfriend with domestic violence third degree, despite her injuries and damage to her property.

After she was arrested, jailed, and forced to fight her charges, a magistrate found that there was no probable cause at her preliminary hearing and dismissed the charges – meaning the court found there was insufficient evidence to charge her with a crime…

After her charges were dismissed for lack of evidence, the police went back and tried to arrest her again – this time for destruction of property because she threw the boyfriend’s phone into the yard… a judge refused to sign the warrant this time.

So, what do you do if your boyfriend is attacking you, punching you, and throwing you against the wall in the middle of the night? The message police sent in this woman’s case was loud and clear:

Don’t call us.

“Somebody’s Going to Jail…”

In some cases, Horry County Police have shown up to a domestic dispute and informed the caller and attacker that, if they get a domestic violence call, they have to arrest someone…

Is that true? What if they get a domestic violence call but when they arrive there is no evidence of a crime? Do they have to arrest someone? Of course not – if there is no probable cause that a crime has been committed, they cannot arrest anyone.

What if the suspect insists that the caller assaulted them? Or that both committed domestic violence?

The officer must put their thinking cap on and make some decisions. First, if the suspect says the caller attacked them, maybe it’s true. On the other hand, of course they are going to say that – they don’t want to go to jail and, if they are going to jail, they want to hurt the person who called the police on them.

If there is no evidence that the suspect is telling the truth, but ample evidence that the caller is telling the truth, police should charge the person that the evidence points to.

If it appears that both committed assaults, do you arrest both people? Probably not – do we want to discourage victims from calling the police when they are being assaulted? Do domestic violence victims have a right to defend themselves?

This is why SC’s domestic violence laws require police to determine who the primary aggressor was and arrest that person. When police arrest the victim, the clear message is don’t call the police if you are being abused.

Domestic Violence – Who was the Primary Aggressor?

Would police threaten to arrest everyone (or arrest everyone) to discourage domestic violence victims from calling the police? It happens often enough that the legislature had to specifically write a law prohibiting it:

(E) A law enforcement officer must not threaten, suggest, or otherwise indicate the possible arrest of all parties to discourage a party’s requests for intervention by law enforcement.

SC Code Section 16-25-70(D) requires law enforcement to determine who the primary aggressor is and arrest only that person when the suspect claims they were also assaulted:

(D) If a law enforcement officer receives conflicting complaints of domestic or family violence from two or more household members involving an incident of domestic or family violence, the officer must evaluate each complaint separately to determine who was the primary aggressor. If the officer determines that one person was the primary physical aggressor, the officer must not arrest the other person accused of having committed domestic or family violence. In determining whether a person is the primary aggressor, the officer must consider the following factors and any other factors he considers relevant:

(1) prior complaints of domestic or family violence;

(2) the relative severity of the injuries inflicted on each person taking into account injuries alleged which may not be easily visible at the time of the investigation;

(3) the likelihood of future injury to each person;

(4) whether one of the persons acted in self-defense; and

(5) household member accounts regarding the history of domestic violence.

CAN YOU SUE THE POLICE WHEN THEY ARREST THE VICTIM?

If you are a domestic violence victim and the police arrest you and put you in jail, you may have a civil rights lawsuit like the woman in the story above.

If there is no probable cause for your arrest, if the officer lied to get probable cause for your arrest, and if you were not committing any other crimes that you could have been arrested for, you may be able to file an 18 USC Section 1983 claim for violation of your civil rights or a state-court lawsuit under the SC Tort Claims Act.

GOT AXELROD?

If you have been charged with domestic violence after you called the police for help, you need to get an experienced criminal defense attorney on your case immediately, to: