NOT DV but clumsiness -- seriously!

[justalayman]

There is a world of difference between a mandatory arrest and putting a temp NCO in place. If the need for an arrest is not readily apparent there should be a means to issue an NCO on the spot.

The problem is what to do next.

As I said before; not all domestic violence is something that should be prosecuted as it is. Maybe there is a place for an infraction sort of crime or something I can't imagine at the moment where the lives of the parties are not torn apart for something that really does not call for it.

 

[rebeccainak]

I just had to reply- My husband and I are both in Law Enforcement and I am pretty clumsy. I did truly get hit in the eye by a doorknob- was bending over to pick up some stupid lint on the carpet when my husband came through the door and smacked my eye with the doorknob. I ended up with a heckofa shiner and a cracked orbital bone.

In the ER, a local PD came down and interviewed my husband- my husband is federal- the questioning got pretty heated, they even called in the Captain on duty.

Long story, but it shows even if you are a respected Law Enforcement Officer, they still take these incidents pretty seriously.

 

[CdwJava]

There is a world of difference between a mandatory arrest and putting a temp NCO in place. If the need for an arrest is not readily apparent there should be a means to issue an NCO on the spot.

This process may vary by state, but a judge must be involved in any such process. So issuing one "on the spot" may not be possible, but, getting one in short order for certain situations might be possible. Here, there has to be a DV incident (battery or threats) and we have to make a call to an on-call judge. The process can take at least one hour, and then the order is only temporary (here, for a week) giving them time to go to court to apply for a longer term TRO.

As I said before; not all domestic violence is something that should be prosecuted as it is. Maybe there is a place for an infraction sort of crime or something I can't imagine at the moment where the lives of the parties are not torn apart for something that really does not call for it.

It is a balancing act. Clearly, the system failed when discretion was permitted. Perhaps it is now too aggressive. But, we have to recall that it takes more than the mere presence of an injury to create probable cause to make an arrest.

 

[CdwJava]

I just had to reply- My husband and I are both in Law Enforcement and I am pretty clumsy. I did truly get hit in the eye by a doorknob- was bending over to pick up some stupid lint on the carpet when my husband came through the door and smacked my eye with the doorknob. I ended up with a heckofa shiner and a cracked orbital bone.

In the ER, a local PD came down and interviewed my husband- my husband is federal- the questioning got pretty heated, they even called in the Captain on duty.

Long story, but it shows even if you are a respected Law Enforcement Officer, they still take these incidents pretty seriously.

Yep. They even offer training courses for officers and investigators in how to conduct officer-involved DV investigations because of the legal minefield and career ramifications that can be involved.

I have been in the unfortunate position of arresting an officer (federal) for DV and filing on one local officer after a DV incident was alleged by his girlfriend. The investigations are not pleasant, but, neither is DV.

 

[justalayman]

CdwJava;3310612]This process may vary by state, but a judge must be involved in any such process. So issuing one "on the spot" may not be possible, but, getting one in short order for certain situations might be possible. Here, there has to be a DV incident (battery or threats) and we have to make a call to an on-call judge. The process can take at least one hour, and then the order is only temporary (here, for a week) giving them time to go to court to apply for a longer term TRO.

so legislators love making new law and such;

just as we have an exigent circumstances warrantless search, we have an exigent circumstances TNCO. Why not?

It is a balancing act. Clearly, the system failed when discretion was permitted. Perhaps it is now too aggressive. But, we have to recall that it takes more than the mere presence of an injury to create probable cause to make an arrest

Carl, either your state is extremely unusual or something but I know of several arrests where there was no actual injury. An aggressive brush against the spouse in once situation. In another, a guy actually was arrested for damaging his property. He threw something, not at the wife, and put a hole in the wall-off to jail you go.


in my state, not only is injury DV but putting a person in fear of injury qualifies as DV.

and want to guess who decides if anybody was in fear? It isn't the person supposedly in fear if that helps.

 

[CdwJava]

so legislators love making new law and such;

just as we have an exigent circumstances warrantless search, we have an exigent circumstances TNCO. Why not?

We call it an Emergency Protective Order. And, still, it must be issues as a result of DV related offense and approved - at least telephonically - by a judge. The police cannot issue a court order.

Carl, either your state is extremely unusual or something but I know of several arrests where there was no actual injury.

I never said there must be an injury. Battery can occur without injury. A guy can throw a punch in the gut and not even leave a mark, but it would still be a crime to do so. I commented on the presence of a visible injury as there was speculation here that merely having an injury was enough to legally condemn the spouse or cohabitant of a person with said visible injury (i.e. bruising). The point is that merely having the injury - absent any other factors - is not sufficient probable cause to make an arrest.

An aggressive brush against the spouse in once situation.

If intentional, depending on that state's law, that can be sufficient for the crime of battery.

In another, a guy actually was arrested for damaging his property. He threw something, not at the wife, and put a hole in the wall-off to jail you go.

Those can be jurisdiction specific. Out here I have heard of some courts viewing property as jointly owned and damaging it without the permission of the other spouse/owner is vandalism of at least half the value. And, if the relationship qualifies as a domestic one, then it can be DV related. However, out here that wouldn't generally be sufficient to allow for an EPO. But, different states and different counties might have different interpretations.

Of course, if the property damages was a phone and it was to prevent the other party from calling the police or for other assistance, that's an all new crime!

in my state, not only is injury DV but putting a person in fear of injury qualifies as DV.

Same here ... but, an EPO here may onle be issued if there is an immediate threat of violence.

Fam§ 6250. Request by Peace Officer
A judicial officer may issue an ex parte emergency protective order where a law enforcement officer asserts reasonable grounds to believe any of the following:

(a) That a person is in immediate and present danger of domestic violence, based on the person's allegation of a recent incident of abuse or threat of abuse by the person against whom the order is sought.
(b) That a child is in immediate and present danger of abuse by a family or household member, based on an allegation of a recent incident of abuse or threat of abuse by the family or household member.
(c) That a child is in immediate and present danger of being abducted by a parent or relative, based on a reasonable belief that a person has an intent to abduct the child or flee with the child from the jurisdiction or based on an allegation of a recent threat to abduct the child or flee with the child from the jurisdiction.
(d) That an elder or dependent adult is in immediate and present danger of abuse as defined in Section 15610.07 of the Welfare and Institutions Code, based on an allegation of a recent incident of abuse or threat of abuse by the person against whom the order is sought, except that no emergency protective order shall be issued based solely on an allegation of financial abuse.​

Merely being involved in a DV related incident (such as vandalism or even a verbal harangue) would not qualify for an EPO here. It can be grounds for the issuance of a DV related TRO before the court, but not an EPO.

and want to guess who decides if anybody was in fear? It isn't the person supposedly in fear if that helps.

Odd ... because that's pretty much how it works here; it is the victim's perspective. Though the fear has to be reasonable, and it is up to the judge to determine if their fear IS reasonable. Posting a rude message on Facebook would not - by itself - lead a reasonable person to believe that they were at risk of physical harm. Grabbing the victim by the hair and slapping her, would.

 

[justalayman]

Odd ... because that's pretty much how it works here; it is the victim's perspective. Though the fear has to be reasonable, and it is up to the judge to determine if their fear IS reasonable. Posting a rude message on Facebook would not - by itself - lead a reasonable person to believe that they were at risk of physical harm. Grabbing the victim by the hair and slapping her, would.

that's how it should work but I feel the system is out of control, at least here. While I understand the state prosecuting the case just like they would any other crime, they seem to have stepped in as babysitter as well and tend to make decisions the injured party should be making.


Not that I agree with violence in general, the dynamics in especially a marriage, are very different than any other relationship possible. While a slap is always battery, there are times prosecuting it is an overly aggressive stance. There are times my wife has slapped me. I would not have wanted any of them to be prosecuted. I didn't fear a greater harm and the reason really was understandable. Maybe I'm too old fashioned when it comes to this and think there are places the "state" just doesn't belong, at least unless it is a welcomed intrusion but basically, there are physical interactions within a relationship and sometimes they are aggressive but given the long term proximity to each other as well as the burdens upon families, sometimes things do get heated and sometimes they do go beyond an ideal; no offensive touching. While ideally there should be nothing of the sort, just the same, often times the matter is just not something I believe should be prosecuted. I have said before; there is less chance of being prosecuted for beating the daylights out of a guy at a bar than stopping my wife from running out of the house when she is pissed and I think her driving in that condition would be a really bad idea. In the bar it seems as long as neither party wants to prosecute any perceived act the cops will often make no arrests. If I physically stop my wife from running out the door to angrily drive away I am all of a sudden guilty of DV or even criminal confinement.


As well, I think while they are playing babysitter, it has allowed a party (yes, it is generally the female) to use the system to get back at their partner. The state has become so overprotective that they seem to believe every complainant over every defendant. The women have learned that all they have to do is cry and make up a story and there is a good chance the guy is going to jail. No need for physical evidence, just her story.


On top of everything is something I spoke of before; it doesn't appear the system really cares about the relationship involved. All they look at is tossing somebody in the pokey and prosecuting them. They don't care what happens to the relationship between the two parties and often times, that is a long term relationship and often involves children. The system takes that and rips it into two individual parties instantly without any regard to the long term affects of the prosecution. That is why I suggest something other than an outright criminal prosecution. It needs to be something that actually allows for the parties to improve themselves but still allows them to continue the relationship in some way that it is not destroyed over what is often a very limited period of violence. The parties need help, not having one of them, and often that is the breadwinner, removed such that there are now 2 households to maintain. I don't know how to implement such a system nor how to qualify parties for such a treatment but I do know that the system as it is is destroying relationships where proper treatment could heal and even strengthen those relationships.

 

[CdwJava]

that's how it should work but I feel the system is out of control, at least here. While I understand the state prosecuting the case just like they would any other crime, they seem to have stepped in as babysitter as well and tend to make decisions the injured party should be making.

The problem is that the "injured party" is often incapable of making those decisions for a host of socio-economic and psychological reasons. Remember, this is a crime where the victim is often so engaged with their abuser that 75% will recant or even risk jail or prison to protect their abuser. The abusers do not tend to reciprocate this love to their abuser often being perfectly willing to throw their victim under the bus to save their own tail ends.

It's an insidious dynamic at work and why the system has long since removed the discretion from law enforcement and even the victim. When I first got started, we had to ask the victim if they wanted their abuser to be arrested. Most victims feared retaliation or abandonment so they would decline to have their abuser arrested. And, we'd be back again and again ... sometimes for the final time when she was killed. It was insidious and horrible.

Not that I agree with violence in general, the dynamics in especially a marriage, are very different than any other relationship possible.

Precisely why the laws HAD to change.

While a slap is always battery, there are times prosecuting it is an overly aggressive stance.

ANd, prosecution is the discretion of the DA. Most DAs I know of will offer a batterer program to a first time abuser (for a simple DV battery). Sometimes diversion may even be offered to prevent any criminal history.

There are times my wife has slapped me. I would not have wanted any of them to be prosecuted. I didn't fear a greater harm and the reason really was understandable. Maybe I'm too old fashioned when it comes to this and think there are places the "state" just doesn't belong,

In some circumstances, I agree. In a NON DV case, I recall going to a call at a bar some years ago when a drunken fool made some crude comments to a woman that he was trying to hit on, and she slapped him. This had been a perfectly appropriate response back in my day, so I thought nothing of it. But, the "victim" demanded a citizen's arrest so I had to cite her for battery. Fortunately the DA was very old school and did not file. But, I hear what you're saying.

While the police may not have discretion, the DA often has options and they are not mandated by law to prosecute each and every case.

As well, I think while they are playing babysitter, it has allowed a party (yes, it is generally the female) to use the system to get back at their partner.

Yes, that happens. Children also make up accusations against parents, teachers, and other adults in order to manipulate things their way. Not just DV, but any criminal allegation can falsely be made. But, probable cause must still exist before an arrest can be made. That isn't to say that a convincing statement or other circumstances might not result in an arrest of an innocent party, but, it is rarely the mere word of one party over the other that will result in an arrest.

The system continues to evolve. And, even today, DV victims are still very often under the thumb of their abuser. So, it is unlikely that the laws will change any time soon.

 

[stealth2]

We call it an Emergency Protective Order. And, still, it must be issues as a result of DV related offense and approved - at least telephonically - by a judge. The police cannot issue a court order.


I never said there must be an injury. Battery can occur without injury. A guy can throw a punch in the gut and not even leave a mark, but it would still be a crime to do so. I commented on the presence of a visible injury as there was speculation here that merely having an injury was enough to legally condemn the spouse or cohabitant of a person with said visible injury (i.e. bruising). The point is that merely having the injury - absent any other factors - is not sufficient probable cause to make an arrest.


If intentional, depending on that state's law, that can be sufficient for the crime of battery.


Those can be jurisdiction specific. Out here I have heard of some courts viewing property as jointly owned and damaging it without the permission of the other spouse/owner is vandalism of at least half the value. And, if the relationship qualifies as a domestic one, then it can be DV related. However, out here that wouldn't generally be sufficient to allow for an EPO. But, different states and different counties might have different interpretations.

Of course, if the property damages was a phone and it was to prevent the other party from calling the police or for other assistance, that's an all new crime!


Same here ... but, an EPO here may onle be issued if there is an immediate threat of violence.

Fam§ 6250. Request by Peace Officer
A judicial officer may issue an ex parte emergency protective order where a law enforcement officer asserts reasonable grounds to believe any of the following:

(a) That a person is in immediate and present danger of domestic violence, based on the person's allegation of a recent incident of abuse or threat of abuse by the person against whom the order is sought.
(b) That a child is in immediate and present danger of abuse by a family or household member, based on an allegation of a recent incident of abuse or threat of abuse by the family or household member.
(c) That a child is in immediate and present danger of being abducted by a parent or relative, based on a reasonable belief that a person has an intent to abduct the child or flee with the child from the jurisdiction or based on an allegation of a recent threat to abduct the child or flee with the child from the jurisdiction.
(d) That an elder or dependent adult is in immediate and present danger of abuse as defined in Section 15610.07 of the Welfare and Institutions Code, based on an allegation of a recent incident of abuse or threat of abuse by the person against whom the order is sought, except that no emergency protective order shall be issued based solely on an allegation of financial abuse.​

Merely being involved in a DV related incident (such as vandalism or even a verbal harangue) would not qualify for an EPO here. It can be grounds for the issuance of a DV related TRO before the court, but not an EPO.


Odd ... because that's pretty much how it works here; it is the victim's perspective. Though the fear has to be reasonable, and it is up to the judge to determine if their fear IS reasonable. Posting a rude message on Facebook would not - by itself - lead a reasonable person to believe that they were at risk of physical harm. Grabbing the victim by the hair and slapping her, would.

Curious - if the judge him/herself has admitted/been convicted of DV?

 

[CdwJava]

Curious - if the judge him/herself has admitted/been convicted of DV?

I would hope that he would be investigated and prosecuted as anyone else would be. I do not have any first or even second-hand info on a judge ever being so much as accused of DV, so I can't way with any anecdotal experience what might happen.

 

[stealth2]

I would hope that he would be investigated and prosecuted as anyone else would be. I do not have any first or even second-hand info on a judge ever being so much as accused of DV, so I can't way with any anecdotal experience what might happen.

There's a big story out of Alabama regarding a Federal Judge. Look up Mark Fuller - there are plenty of articles. I find it hard to believe that he is the first/only to have this.... problem. Same as in any walk of life. But.... One must wonder if they should be permitted to sit in judgment of others' misdeeds. Just as I wonder if cops with this problem should be permitted to enforce laws if they cannot follow them. (And this is way different than getting a speeding ticket, IMO...)

Sadly, I've run into the blind eye of law enforcement when it comes to DV myself. It has certainly colored my view of the police.

 

[CdwJava]

There's a big story out of Alabama regarding a Federal Judge. Look up Mark Fuller - there are plenty of articles. I find it hard to believe that he is the first/only to have this.... problem. Same as in any walk of life.

Oh, I am sure it happens, it's just not all that common. Of course, there are not all that many judges out there so the number of potential offenders are few.

But.... One must wonder if they should be permitted to sit in judgment of others' misdeeds. Just as I wonder if cops with this problem should be permitted to enforce laws if they cannot follow them. (And this is way different than getting a speeding ticket, IMO...)

Every state has rules that allow for a defendant to challenge or dismiss a judge presiding over their case. I suspect that if a defendant is aware that he has a judge who has been tried and found guilty of DV he can ask that the matter be heard by another judge. An accusation may not be so easy.

Sadly, I've run into the blind eye of law enforcement when it comes to DV myself. It has certainly colored my view of the police.

Sorry to hear that.

 

[stealth2]

Every state has rules that allow for a defendant to challenge or dismiss a judge presiding over their case. I suspect that if a defendant is aware that he has a judge who has been tried and found guilty of DV he can ask that the matter be heard by another judge. An accusation may not be so easy.

I suspect a defendant may not be too upset about having an abuser sitting in judgment. The victim on the other hand...

 

[single317dad]

that's how it should work but I feel the system is out of control, at least here. While I understand the state prosecuting the case just like they would any other crime, they seem to have stepped in as babysitter as well and tend to make decisions the injured party should be making.

The state also steps in all too often and becomes the enabler and protector of a criminal. That it's even possible for a "victim" to use the DV system to legally rob the person who was kind enough to take them in, shelter them, clothe them, feed them, provide for their medical care and transportation, then use a police escort to empty the house of everything of value which they had no legal claim to otherwise... that's overstepping. It's one thing to provide for a battered person to get to a safe place and prosecute the aggressor; it's an entirely different thing to send someone to financial and social ruin over a completely unsubstantiated claim in a 10 minute ex parte hearing.

There was mention earlier in this thread that the pendulum had swung too far in both directions, and would eventually settle in a more reasonable place. I certainly hope so.

 

[justalayman]

single317dad;3310661]The state also steps in all too often and becomes the enabler and protector of a criminal. That it's even possible for a "victim" to use the DV system to legally rob the person who was kind enough to take them in, shelter them, clothe them, feed them, provide for their medical care and transportation, then use a police escort to empty the house of everything of value which they had no legal claim to otherwise... that's overstepping. It's one thing to provide for a battered person to get to a safe place and prosecute the aggressor; it's an entirely different thing to send someone to financial and social ruin over a completely unsubstantiated claim in a 10 minute ex parte hearing.

I suspect rape counseling may be beneficial for you. There are a lot of similarities between a rape victim and you being a victim of the system (yes, the system rather than the other party). My sympathies to you.


You are an example of what the laws as currently enforced allow. I see it is the result of an extreme prosecution complex the police and prosecutors currently exhibit. They like to prosecute anything and everything they can, even if they have to fudge the facts to make it stick. (or outright lie in some cases and yes, I have seen exactly that). It is not about protecting anybody. It is about their careers and the numbers the prosecutions represent. It looks good when they apply for federal money.

If it was truly about protecting people, there would be a concern for the improvement of situations rather than what I see is an intent to terminate any relationship where even the most minimal DV exists.

There was mention earlier in this thread that the pendulum had swung too far in both directions, and would eventually settle in a more reasonable place. I certainly hope so.

most certainly agreed