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HomeMy WebLinkAbout0320 - DOMESTIC ASSAULT OFP REST ORDERSRed Wing Police Department Policy SUBJECT: POLICY NUMBER • DOMESTIC ASSAULT, STALKING AND 320 PROTECTION/RESTRAINING ORDERS EFFECTIVE DATE February 1, 2016 REFERENCE(S): APPROVED BY: ENACTED: February 2, 2004 CHIEF ROGER D. POHLMAN PURPOSE: The Red Wing Police Department recognizes the danger to victims of domestic abuse and assault. Red Wing Police officers shall be familiar with all Minnesota State Statutes and departmental policies regarding domestic abuse and assault. We will aggressively utilize the arrest powers granted by the State of Minnesota. The purpose of this policy is to protect victims from further assaultive behavior and to establish policy, procedure and guidelines for arrest, and the required notice to victims in domestic abuse and assault cases. We will not act as mediators or as a peacekeeping force in the retrieval of personal belongings, unless acting directly under court order in a support capacity to the Goodhue County Sheriff's Department or without the approval of a Red Wing Police Department administrator or supervisor. Our primary concern is to make an appropriate arrest resolution rather than expose or escalate the potential for violence. The officer's responsibility is to ensure that neither party violates the law. We hope to provide a uniform and effective response to domestic abuse and assault calls. This agency will enforce these laws without bias or prejudice. Several assistance and support programs are available to victims of violence. We will make every effort to work with these programs and shelters to prevent violence and provide the best possible care for victims of domestic abuse and assault. POLICY: It is the policy of the Red Wing Police Department to aggressively utilize the powers granted by the State of Minnesota Legislature in regard to domestic abuse. The principal purpose of this policy is to establish guidelines and procedures to be followed by police officers of the Red Wing Police Department's response to domestic abuse. Additionally, this policy intends: Page 1 of 12 DOMESTIC ASSAULT, STALKING AND PROTECTION/RESTRAINING ORDERS -POLICY 320 1. to prevent future incidents of domestic abuse by establishing arrest rather than mediation as the preferred law enforcement response to domestic abuse; 2. to afford maximum protection and support to victims of domestic abuse cases that are available in other criminal cases; 3. to ensure that the same law enforcement services are available in domestic abuse cases that are available in other criminal cases; 4. to reaffirm peace officers' authority and responsibility to make arrest decisions in accordance with established probable cause standards; 5. to promote peace officer safety by ensuring that they are fully prepared as possible to respond to domestic calls; 6. to complement and coordinate efforts with the development of domestic abuse prosecution plans, so that law enforcement, prosecution and advocacy will be more efficient and successful; 7. to promote law enforcement's accountability to the public in responding to domestic abuse; and 8. to document allegations of domestic abuse so there can be meaningful prosecution and delivery of victim services. 1. DEFINITIONS: For the purposes of this policy, the words and phrases in this section have the meanings given to them, unless another intention clearly appears. A. Domestic Abuse means (1) physical harm, bodily injury, assault, or the affliction of fear of imminent physical harm, bodily injury or assault, between family or household members; or (ii) terroristic threats (M.S. 609.713 subd. 1) or criminal sexual conduct in the first through fourth degree, committed against a family or household member by a family or household member. (M.S. 51813.01, subd. 2(a)). B. Domestic Abuse Program means a public or private intervention project or advocacy program, which provides support and assistance to the victims of domestic abuse. C. Child means a person under the age of 18. D. Family or Household Member means spouses, former spouses, parents and children, persons related by blood, and persons who are presently residing together or who have resided together in the past, persons who Page 2 of 12 DOMESTIC ASSAULT, STALKING AND PROTECTION/RESTRAINING ORDERS -POLICY 320 have a child in common regardless of whether they have been married or have lived together at any time, and persons involved in a significant romantic or sexual relationship. It also includes a man and a woman if the woman is pregnant and the man is alleged to be the father, regardless of whether they have been married or have lived together at any time. E. Domestic Call means a request for assistance to a law enforcement agency regarding domestic abuse or any other crime against a family and or household member. F. Qualified Domestic Violence -Related Offense means a violation or attempted violation of any of the following: Violation of a Domestic Abuse Order for Protection; Violation of a Domestic Abuse No Contact Order; 1 St or 2nd Degree Murder; 1St through 5th Degree Assault; Domestic Assault; Domestic Assault — Strangulation; 1St through 4th Degree Criminal Sexual Conduct; Malicious Punishment of a Child; Terroristic Threats; Violation of a Harassment Restraining Order; Harassment/Stalking; Interference with a 911 Call. 2. RESPONDING TO THE CALLS: A. Driving to the Scene: The peace officers should respond directly and without unreasonable delay to the scene of a domestic call. B. Initial Contact with Occupants: Upon arriving at the scene of a domestic call, and being met, the responding officers should identify themselves as peace officers, explain their presence, and request entry into the home. The officers should ask to see the person who is the subject of the call. If the person who called the law enforcement agency is someone other than the subject of the call, the officer should not reveal the caller's name. The officer should check to make sure all of the occupants are safe. C. Entry: • Refused — If refused entry, the officers should be persistent about seeing and speaking alone with the subject of the call. If access to the subject is refused, the officers should request the dispatcher to contact the caller. If entry is refused by one occupant of a residence, even if permitted by another occupant, officers must abide by the refusal and seek alternate means of entry. • Forced Entry — If access is still refused and the officers have reason to believe that someone is in imminent danger, the officers are permitted to force entry. • Search Warrant Entry — If the officers are refused entry and have no legal grounds for forced entry and they have reasonable grounds to believe a crime has been committed, they should contact the appropriate authority to obtain a search warrant. Page 3 of 12 DOMESTIC ASSAULT, STALKING AND PROTECTION/RESTRAINING ORDERS -POLICY 320 D. First Aid After securing the scene, the responding peace officers shall provide the necessary first aid. 3. ARREST DECISIONS: A. Making Arrests After securing the scene and providing any first aid, the peace officers will begin a criminal investigation to determine if there is probable cause to believe that a crime has been committed based on the evidence and not upon the victim's desire to make an arrest. The officers should collect relevant physical evidence, including weapons which may have been used, take photographs of the scene or any injuries and statements from the involved parties and witnesses. Some of the evidence and statements include: • Condition of clothing • Property damage • Excited utterances of the victim and the suspect • Demeanor of the victim and the suspect • Medical records including the victim's statements to paramedics, nurses and doctors • Interviews of witnesses including the children who may have been present • Evidence of any prior domestic abuse — related convictions including dates • Any existing orders for protection or no contact orders. (The jurisdiction [county or origin] of convictions of OFPs should also be noted). NOTE: When determining probable cause, the peace officers should consider their observations and any statements by parties involved and any witnesses. Prior convictions may provide the basis for enhancement to a gross misdemeanor or even felony charges (see 4, below). B. Factors not to be Considered in Making the Arrest Arrests should be made without consideration of: • Marital status, sexual orientation, race, or cultural, social, political, or professional position • Ownership, tenancy rights of either party, or the fact the incident occurred in a private place • Belief that the victim will not cooperate with criminal prosecution or that the arrest may not lead to a conviction • Verbal assurances that the abuse will stop Page 4 of 12 DOMESTIC ASSAULT, STALKING AND PROTECTION/RESTRAINING ORDERS -POLICY 320 • Disposition of previous police calls involving the same victim or suspect • Denial by either party that the abuse occurred, when there is evidence of domestic abuse • Lack of a court order restraining or restricting the suspect • Concern about reprisals against the victim • Adverse financial consequences that might result from the arrest • Chemical dependency or intoxication of the parties C. Primary Aggressor and Dual Arrests: The Red Wing Police Department discourages dual arrests. Where there are allegations that each party assaulted the other, the peace officer shall determine whether there is sufficient evidence to conclude that one of the parties is the primary aggressor based on the following criteria and the officer's judgment • Comparative extent of any injuries inflicted • Fear of physical injury because of past or present threats • Actions taken in self-defense or to protect oneself • The history of domestic abuse perpetrated by one party against the other • Existence or previous existence of an order for protection D. DOMESTIC VIOLENCE BY POLICE OFFICERS: The profession of law enforcement is not immune from members committing domestic violence against their intimate partners and/or family members. The purpose of this section is to establish procedures for the prevention and handling acts of domestic violence committed by police officers. • The department shall, either in response to observed warning signs or at the request of an officer, intimate partner, or other family member, provide non -punitive avenues of assistance before an act of domestic violence occurs. • Officers are encouraged to take personal responsibility in seeking confidential referrals and assistance from the department/city to prevent a problem from escalating to the level of criminal conduct against an intimate partner. • All reports of possible criminal activity implicating police officers in domestic violence situations shall be documented in accordance with the policies governing the handling of reports of domestic violence involving civilians. • The on -scene supervisor, or senior officer if there is not a supervisor on duty, shall forward a copy of the report alleging domestic violence by the officer to the captain. • Officers who engage in the following actions will be subject to discipline up to and including dismissal: 1. Failure to report knowledge of domestic violence involving a law Page 5 of 12 DOMESTIC ASSAULT, STALKING AND PROTECTION/RESTRAINING ORDERS -POLICY 320 enforcement officer. 2. Failure to cooperate with the investigation of a police officer domestic violence case (except in the case where that officer is the victim.) 3. Interference with cases involving themselves or fellow officers. 4. Intimidation/coercion of witnesses or victims. (i.e., surveillance, harassment, stalking, threatening, or falsely reporting) • Whenever a Red Wing police officer is arrested for domestic violence the supervisor, or senior officer, if a supervisor is not on duty, shall relieve the accused officer of all departmental service weapons. If the officer is not a member of the Red Wing police department, a call shall be placed to the officers respective department asking if they would like their departmental service weapon(s) seized. • Officers who learn they are the subject of a criminal investigation of domestic violence, regardless of jurisdiction, are required to immediately make a report to their supervisor or administration and provide notice of the court dates, times, appearances, and proceedings. Failure to do so may result in discipline up to and including dismissal. • Officers who learn they are the subject of any protective order proceeding, whether or not the order is issued and regardless of jurisdiction, shall immediately notify their supervisor or administration and provide a copy of the order, if issued. If subject to a qualifying protection order, the officer shall surrender all departmental firearms unless department policy allows for possession of their service weapon(s). Failure to do so may result in discipline up to and including dismissal. • If the suspect of a domestic assault is a Red Wing police officer, the case may be investigated by another agency at the time the call is responded to if it is believed to be a conflict of interest. In all cases this decision shall be made by the on duty supervisor or the senior officer if there is not a supervisor on duty. If the Red Wing Police Department does conduct the investigation, the case shall be reviewed by the Chief of Police or their designee the next business day for possible submission to another law enforcement agency for review in order to avoid any perceived conflict of interest. 4. AUTHORITY AND TYPES OF ARREST: A. Warrantless Probable Cause Arrest for Domestic Assault Although the general rule is that officers may not make probable cause arrests for misdemeanors unless the offense occurs in their presence (or a citizen who saw the crime so requests) domestic assault is an exception. A peace officer may arrest a person anywhere without a warrant, including at the person's residence, if the peace officer has probable cause to believe that the person within the preceding 72 hours has assaulted, Page 6 of 12 DOMESTIC ASSAULT, STALKING AND PROTECTION/RESTRAINING ORDERS -POLICY 320 threatened with a dangerous weapon, or placed in fear of immediate bodily harm any person covered by the "family or household members" definition (See DEFINITIONS), even if the assault did not take place in the presence of the peace officer (M.S. 629.341). A peace officer acting in good faith and exercising due care in making an arrest pursuant to this statute is immune from civil liability that might result from the officer's action. NOTE: An arresting officer may not issue a citation in lieu of arrest and detention to an individual charged with stalking, domestic abuse, violation of an order for protection, or violation of a domestic abuse no contact order. (M.S. 629.72). B. Level of Arrest for Assault in the Fifth Degree and Domestic Assault: Misdemeanor, Gross Misdemeanor and Felony Assault in the Fifth Degree and Domestic Assault are typically misdemeanors. However, recent changes in the statutes have greatly increased the potential for arrests for these crimes at the gross misdemeanor and even felony level. 1. Gross Misdemeanors M.S. 609.224, subd. 2(a), Assault in the Fifth Degree, provides for an enhancement to a gross misdemeanor violation when the offense is against the same victim within ten years of a previous qualified domestic violence -related offense conviction or adjudication of delinquency. If the charge is Domestic Assault (M.S. 609.2242), the current victim is a family or household member and the crime occurs within 10 years of a previous qualified domestic violence -related offense conviction or adjudication of delinquency against any family or household member, the same gross misdemeanor enhancement applies. The prior conviction need not be against a member of the same family or household. If there is a prior qualified domestic violence -related conviction against any person within three years, a gross misdemeanor Assault in the Fifth Degree may also be charged. 2. Felonies If a person commits Assault in the Fifth Degree against the same victim within 10 years of the first of any combination of two or more previous qualified domestic violence -related offense convictions or adjudications of delinquency, Assault 5 becomes a felony. The same enhancement applies to Assault 5 against any victim occurring within three years of the first of two or more of these convictions. Page 7 of 12 DOMESTIC ASSAULT, STALKING AND PROTECTION/RESTRAINING ORDERS -POLICY 320 Domestic Assault (against a family or household member) is also enhanceable if the offense occurs within 10 years of the first of any combination of two or more previous qualified domestic violence - related offense convictions or adjudications of delinquency. C. STALKING (M.S. 609.749)- In 2010, the legislature amended 609.749 and the statute is now entitled Stalking. The term harassment has been dropped from the statute entirely. Stalking offenses are typically cumulative in nature, meaning they often involve repeated conduct, rather than a single incident. The investigating officer should, therefore, obtain a complete history of domestic abuse from the victim. M.S. 609.749, subd. 1 defines "stalking" as meaning "to engage in conduct which (1) the actor knows or has reason to know would cause the victim under the circumstances to feel frightened, threatened, oppressed, persecuted or intimidated; and (2) causes this reaction on the part of the victim regardless of the relationship between the actor and victim. The stalking statute does not require the State to prove the actor intended to cause the victim to feel frightened, threatened, oppressed, persecuted or intimidated. M.S. 609.749, subd. 1 a. 1. Gross Misdemeanors Current law makes it a gross misdemeanor to stalk another person by committing any of the following acts. A person who: • Directly or indirectly manifests a purpose or intent to injure the person, property, or rights of another by the commission of an unlawful act; • Stalks, follows or pursues another; • Returns to the property of another if the actor is without claim of right to the property or consent of one with authority to consent; • Repeatedly makes telephone calls, or induces a victim to make telephone calls to the actor, whether or not conversation ensues; • Makes or causes the telephone of another repeatedly or continuously to ring; • Repeatedly mails or delivers or causes the delivery of letters, telegrams, messages, packages, or other objects; or 2. Eelony Enhancement Gross misdemeanor Stalking is enhanceable to a felony if committed within 10 years of a prior qualified domestic violence - related conviction or adjudication of delinquency OR if committed against a person under the age of 18 and the actor is more than 36 months older than the victim OR if committed while possessing a dangerous weapon OR because of the victim's or another's actual Page 8 of 12 DOMESTIC ASSAULT, STALKING AND PROTECTION/RESTRAINING ORDERS -POLICY 320 or perceived race, color, religion, sex, sexual orientation, disability, or national origin OR by falsely impersonating another OR in connection with a judicial proceeding. 3. Pattern of Harassing Conduct In addition, it is a felony to engage "in a pattern of harassing conduct with respect to a single victim or one or more members of a single household which the actor knows or has reason to know would cause a reasonable person under the circumstances to feel terrorized or to fear bodily harm and which does cause this reaction" in the victim. M.S. 609.749, subd. 5. A "pattern of harassing conduct" means 2 or more acts (convictions are not necessary) within a 5 year period that constitute any of the following offenses: murder, manslaughter, stalking, , terroristic threats, domestic assault, assault, violation of an order for protection or harassment order, trespass, obscene or harassing phone calls or harassment by opening mail, burglary, interference with an emergency call, criminal damage to property, criminal sexual conduct, or criminal defamation. 4. Probable Cause Warrantless Arrest The domestic abuse arrest statute (M.S. 629.72) has been amended to provide, as was already the case for domestic assault arrests, that the officer may not issue a citation in lieu of arrest in gross misdemeanor -level harassment/stalking cases. An officer may also make a warrantless probable cause arrest for stalking even if the offense did not occur in the officer's presence. M.S. 629.34, subd. 1 (c)(5) 5. Probable Cause Felony Arrests for Other Crimes At a domestic call, peace officers shall consider whether other felonies have been committed including but not limited to: burglary, felony, assault, terroristic threats, kidnapping, false imprisonment and witness tampering. NOTE: A Domestic Assault or Assault in the Fifth Degree may be chargeable as burglary in the first degree even if the home is also the offender's, if the entry is made without consent of the victim and in violation of an OFP, HRO, or Domestic Abuse No Contact Order barring the offender from the premises. D. Violation of Court Orders The peace officer shall verify whether any of the following orders exist before or during an arrest. This verification may be made by the peace officer or someone acting at the officer's direction. Methods of verification include personally seeing a copy of the order or obtaining verification from the court or law enforcement agency which has the actual order. Page 9 of 12 DOMESTIC ASSAULT, STALKING AND PROTECTION/RESTRAINING ORDERS -POLICY 320 The police report shall include identifying information of the specific court order violated, including county of origin, the file number and the provision allegedly violated. 1. Order for Protection A peace officer shall arrest and take into custody without a warrant, a person who the peace officer has probable cause to believe has violated the restraint or exclusion section of an order for protection granted pursuant to M.S. 51813.01, subds. 6, 7, and 9. Such an arrest shall be made even if the violation of the order did not take place in the presence of the peace officer, if the existence of the order can be verified by the officer. NOTE: There are three key points related to the Order for Protection: (1) The law requires an arrest regardless of whether or not the excluded party was invited back to the residence. (2) There is no hour limitation for a warrantless arrest for a violation of an Order for Protection. (3) If there is evidence that an individual has violated another provision of an Order for Protection, other than the restraint or exclusion clauses, a police report should be submitted to the prosecutor indicating specifically how the order was violated. A violation of an Order for Protection is a misdemeanor but is enhanceable to a gross misdemeanor if the offense occurs within 10 years of a previous qualified domestic violence -related offense conviction or adjudication of delinquency. The violation is enhanceable as a felony if it occurs within 10 years of the first of 2 or more such convictions or if the suspect possesses a dangerous weapon during the commission of the offense. As of January 5, 1998, a statewide law enforcement computer verification system for domestic abuse orders for protection was put on line including the phone number of the controlling agency (the law enforcement agency with a copy of the actual OFP). The new system also makes it possible to identify respondents against whom an OFP has been issued but not served and even, by obtaining a fax of the order, to make service of the order. 2. Harassment Restraining Order A peace officer shall arrest and take into custody a person who the peace officer has probable cause to believe has violated a harassment restraining order pursuant to M.S. 609.748, subds. 4 and 5, if the existence of the order can be verified by the officer. NOTE: A person who violates a harassment restraining order is guilty of a misdemeanor if the violator knows of the order. This Page 10 of 12 DOMESTIC ASSAULT, STALKING AND PROTECTION/RESTRAINING ORDERS -POLICY 320 offense is enhanceable of a gross misdemeanor if it occurs within 10 years of a previous qualified domestic violence -related offense conviction or adjudication of delinquency. It is enhanceable to a felony if it occurs within 10 years of the first of two or more previous qualified domestic -violence related convictions or adjudications of delinquency. 3. Domestic Abuse No Contact Order An officer may arrest without a warrant any person who s/he has probable cause to believe has violated the provisions of a domestic abuse no contact order (DANCO).. M.S. 629.75, subd. 3. In many jurisdictions, pretrial DANCOs are routinely issued in domestic abuse cases and are valid until final disposition of the case (sentencing or dismissal). The pretrial DANCO is frequently replaced at the time of sentencing with a new DANCO issued as a condition of probation. This DANCO may be valid for the full probationary period indicated in the order. Any DANCO may be rescinded by the court at any time. However, the production from the victim of a copy of an apparently valid court order, absent contrary evidence, provides prima facie basis for arrest whenever there is probable cause to believe a violation of the order has occurred. E.. OTHER MISDEMEANORS: At a domestic call, the peace officer shall consider whether other crimes have been committed including but not limited to: trespassing, criminal damage to property, disorderly conduct, witness tampering or assault. F. DETENTION OF SUSPECT: Any person arrested for domestic abuse, violating an order for protection or harassment restraining order or stalking, shall be brought immediately to the Goodhue County Law Enforcement Center to be processed into the detention center. Officers placing a person arrested for domestic assault in the custody of the Goodhue County Sheriff's Correctional personnel shall provide the following information prior to leaving the detention center: 1. The victim's address and telephone number; 2. The victim's place of employment and telephone number, and 3. As nearly as possible, when and where the victim can be reached at any time by telephone or in person. Page 11 of 12 DOMESTIC ASSAULT, STALKING AND PROTECTION/RESTRAINING ORDERS -POLICY 320 This information is necessary so that the Goodhue County Sheriff's Correctional personnel can comply with Minnesota Statute 629.72 (2) and 629.72(6). 5. ASSISTANCE, STAYING AT THE SCENE, CRIME VICTIM RIGHTS, AND SERVICES A. Staving at the Scene If an arrest does not occur, peace officers should remain at the scene of the disturbance until they believe that the likelihood of further imminent abuse has been eliminated. If a domestic abuse intervention program is available, the peace officer should make contact for immediate intervention. NOTE: M.S. 629.342 provides that when a peace officer does not make an arrest, the peace officer must provide immediate assistance to the victim including obtaining necessary medical treatment and providing the victim with the notice of rights pursuant to M.S. 629.341, subd. 3. B. Assistance to Non-English Speaking Victims or Victims with Communication Disabilities: The peace officer shall use the resource list established by the law enforcement agency to contact a person to assist in those cases where the participants in the domestic call, including the witnesses, are non- English speaking, are hearing-impaired, or have other communication disabilities. The officer should avoid the use of friends, family or neighbors serving as the primary interpreter for the investigation. C. Notice of Crime Victims Riahts: The peace officer shall supply the victim of a domestic call a copy of the agency's crime victim notification form. Page 12 of 12 DOMESTIC ASSAULT, STALKING AND PROTECTION/RESTRAINING ORDERS -POLICY 320