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HomeMy WebLinkAboutSection 5 Chapter 1-Domestic Abuse PLPD RIOR AKE OLICE EPARTMENT PPM OLICY AND ROCEDURE ANUAL DA OMESTIC BUSE DI:J15,2011 RD:UR ATE SSUED UNE ETENTION ATE NTIL ESCINDED S5C1 ECTION HAPTER The City of Prior Lake and the Police Lake Police Department recognize domestic abuse as a serious problem in today’s society. It is the policy of this agency to aggressively utilize the arrest powers granted by the State Legislature. Arrests for domestic abuse, based on probable cause, are expected if any of the following circumstances exist: 1.Signs of injury or impairment 2.Dangerous Weapon involved 3.Alleged assault - no signs of injury 4.Victim alleges to be in fear of immediate bodily harm. In accordance with Minnesota Statute 629.342, it shall be the policy of the Prior Lake Police Department to discourage dual arrests in domestic abuse situations. Officers shall attempt to determine the primary aggressor in domestic assault. The following criteria shall be considered as a guideline: 1.Whether one person in the dispute was acting in self-defense 2.Whether a violation of an Order for Protection or a Conditional Release from Detention Order has occurred. 3.The extent of the injuries, if any, to any person involved. 4.Who initiated the first act of physical violence. 5.The existence of a fear of physical injury, because threats were made. 6.The history of physical violence perpetrated by one party against the other. 7.The physical stature or physical ability of the persons involved. Peace officers will utilize this policy in response to calls where there may be domestic abuse. This policy prescribes courses of action peace officers should take in response to a domestic call. The Prior Lake Police Department will enforce these laws without bias and prejudice based on race, marital status, sexual orientation, social class, age, disability, gender, religion, creed or natural origin. P URPOSE The principle purpose of this policy is to establish guidelines and procedures to be followed by peace officers in law enforcement’s response to domestic abuse. Additionally, this policy intends : 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 through a coordinated program of law enforcement and victim assistance; 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 officer’s authority and responsibility to make arrest decision 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. D EFINITIONS For the purposes of this policy, the words and phrases in this section have the meaning given to them, unless another intention clearly appears. Domestic Abuse Means physical harm, bodily injury, assault, or the affliction of fear of imminent physical harm, bodily injury or assault, between family or household members; or terroristic threats (MN Statutes, Section 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 (MN Statutes, Section 518B.01, subd. 2(a). Domestic Abuse Program Means a public or private intervention project or advocacy program, which provides support and assistance to the victims of domestic abuse. Domestic Call Means a request for assistance to a law enforcement agency regarding domestic abuse or any other crime against a family or household member. Child Means a person under the age of 18. Family or Household Members Means spouses, former spouses, parents and children, persons related by blood, and person who are presently residing together or who have resided together in the past, and persons who have a child in common regardless of whether they have been married or have lived together at any time. 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. Persons involved in a significant romantic or sexual relationship are also included as household members. To determine whether persons are or have been involved in a significant romantic or sexual relationship under this clause, the court shall consider the length of time of the relationship; type of relationship; frequency of interaction between the parties; and, if the relationship has terminated, length of time since the termination. Other Domestic Related Offenses May include, but are not limited to the following:  Interference with 9-1-1 calls  Harassment or Stalking  Violation of an Ex-parte or an OFP  Criminal Damage to Property  Arson  Burglary Qualified domestic violence-related offense (QDVRO) refers to prior convictions for violation of an OFT (Order for Protection) or HRO (Harassment Restraining Order), assault in the first through fifth degree, domestic assault, criminal sexual conduct in the first through fourth degree, malicious punishment, terroristic threats or harassment/stalking. If a person arrested for a domestic crime has a prior QDVRO, the new offense may be chargeable as a higher-level crime. The QDVRO includes violations of similar laws in other states or under federal or tribal law. Order for Protection is a court order that protects a victim from domestic abuse. Any family or household member may ask the court for an order for protection. A protection order may include: stop domestic abuse, no direct or indirect contact with petitioner, no stalking, evicting the respondent, housing for the petitioner when the respondent is the sole owner or lessee, temporary custody of minor children, financial support, and counseling. Restraining Order is a temporary court order to preserve current conditions as they are until a hearing is held at which both parties are present. A restraining order may be issued in a divorce matter to prevent taking a child out of the country or to prohibit one of the parties from selling marital property. Also, a person who is a victim of harassment may seek a restraining order. No Contact Order or Harassment/Stalking Restraining Order is an order issued when a petitioner requests a court order preventing another person from having contact with them or when a criminal charge has been filed with the court for the protection of someone. These orders generally prohibit all contact of any kind (including, but not limited to, phone calls, letters, e-mail and contact through a third party) and may limit the respondent’s ability to come within a certain distance of someone’s home, work or school. A no contact order can be issued by the court even if the people involved want to have contact and object to the order. This type of order can be issued no matter what the relationship between the individuals involved. Violating these orders is a crime. Harassing means to engage in intentional conduct which the actor knows or has reason to know would cause the victim under the circumstances to feel frightened, threatened, oppressed, persecuted or intimidated AND cause this reaction on the part of the victim. Stalking is a crime of harassment. Generally, a person commits the offense of stalking if he or she makes a credible threat to another person and, in connection with the threat, repeatedly follows that person or repeatedly communicates or attempts to communicate with that person or a member of that person’s immediate family, whether or not a conversation occurs. DC ISPATCHING THE ALLS Receiving the Domestic Call Upon receiving a domestic call, the dispatcher will assign the call a high priority. The dispatcher should assign at least two officers to a domestic call. If only one officer is available, all reasonable attempts should be made to obtain another officer to assist the officer who was initially dispatched. Information to be Obtained The dispatcher receiving a domestic call should attempt to elicit from the caller and should communicate to the responding peace officers as much of the following information as possible:  The nature of the incident  The address of the incident, including apartment number, etc.  The telephone numbers where the caller can be reached and an alternative telephone number  Whether weapons are involved or present in the dwelling  Whether someone is injured and the nature of the injury  Information about the suspect including whether the suspect is present, description, direction of flight, mode of travel, etc.  Relations between the caller and the suspect  Whether there has been prior abuse or prior calls involving these individuals  Whether there is an order for protection  Whether children are present at the scene  Whether there are non-English speaking people, or people with mobility impairments or hearing impairments If the caller is the victim, the dispatcher should attempt to keep the caller on the telephone as long as possible and should tell the caller that help is on the way, and when the caller can expect the peace officers to arrive. If the caller is a witness to an incident in progress, the dispatcher should attempt to keep the caller on the phone and should relay ongoing information provided by the caller to the responding peace officer. If the responding peace officers are some distance away, and the dispatcher cannot remain on the telephone with the caller/victim, the dispatcher should attempt to call back periodically to check on the progress of events, and call again when the officers arrive at the scene. If the dispatcher finds that a victim/caller who was recently available suddenly cannot be reached by phone or there is a persistent busy signal, the dispatcher should relay that information to the officers. CC ANCELED ALLS In determining the appropriate course of action in domestic abuse cases, the primary concern of the officer is the protection of all from further acts of violence. In the event that a request for cancellation of a domestic related call is received from a citizen, Prior Lake Officers will not cancel the call. The assigned squad will continue to the scene and handle the situation in accordance with department policies and procedures. RC ESPONDING TO THE ALLS Driving to the Scene The peace officer(s) shall respond directly and without unreasonable delay to the scene of a domestic call. 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 premises. The officers shall ask to see the person who is the subject of the call. If the person who called is someone other than the subject of the call, the officer(s) should not reveal the caller’s name. The officer(s) shall check to make sure all of the occupants are safe. Entry  Refused - If refused entry, the officer(s) should be persistent about seeing and speaking alone with the subject of the call. If access to the subject is refused, the officer(s) should request the dispatcher to contact the caller.  Forced Entry - If access is still refused and the officer(s) have reason to believe that someone is in imminent danger, the officer(s) are permitted to force entry.  Search Warrant Entry - If the officer(s) 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 a supervisor and request permission to obtain a search warrant. First Aid After securing the scene, the responding officers shall provide the necessary first aid. AD RREST ECISIONS Making Arrests After securing the scene and providing any necessary first aid, officer(s) shall 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 solely upon the victim’s desire to have an arrest made. Officer(s) should collect relevant physical evidence, including any weapon which may have been used, take photographs of the scene or any injuries and attempt to obtain statements from the involved parties and witnesses. Factors not to be Considered in Making the Arrest 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. 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. Chemical dependency or intoxication of the parties. Victim Request not to Prosecute If the officer(s) find probable cause to believe a domestic abuse offense has been committed and intends to arrest but the victim requests no arrest or prosecution, the officer should inform the victim that the decision to arrest is the officer’s and the decision to prosecute lies with the prosecutor. ATA UTHORITY AND YPES OF RRESTS Warrantless Probable cause Arrest for Fifth Degree Assault or Domestic Assault 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 24 hours has assaulted, threatened with a dangerous weapon, or placed in fear of immediate bodily harm any person covered by the “family or household member” definition, even if the assault did not take place in the presence of the peace officer (MN Statutes, Section 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 assaulting the individual’s spouse or other individual with whom the charged person resides (MN Statutes, Section 629.72). th Level of Arrest for 5 Degree Assault and Domestic Assault th Assault in the 5 degree and domestic assault are deemed misdemeanor offenses. However, statutory changes have greatly increased the potential for arrests for these crimes a the gross misdemeanor and felony level. th A. Gross Misdemeanor Assault in the 5 Degree, provides for an enhancement to a gross misdemeanor violation when the offense is against the same victim within five years of discharge from sentence for a previous conviction for assault, criminal sexual conduct in the first through fourth degree, or terroristic threats in Minnesota, or any law of another state \[MN Statutes, Section 609.224, subd. 2(a)\]. If the charge is Domestic Assault (MN Statutes, Section 609.2242) and the current victim is a family or household member and the crime occurs within 5 years of discharge from sentence for conviction of any of the above offenses 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 conviction for assault or terroristic threats against any person within two years, a gross misdemeanor may be charged. th B. Felony If a person commits Assault in the 5 degree within 5 years of discharge from sentence for the first of two or more convictions of assault, criminal sexual conduct th in the first through fourth degree or terroristic threats against the same victim, 5 degree th assault becomes a felony. The same enhancement applies to 5 degree assault against any victim occurring within two years of the first of two or more of these conviction. Domestic Assault (against a family or household member) is also enhanceable under the same circumstances except that the prior conviction may be against any family or household member. Harassment/Stalking A. Gross Misdemeanor It is a gross misdemeanor to harass another person by committing any of the following acts: 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 engages in any other harassing conduct that interferes with another person or intrudes on the person’s privacy or liberty. MN Statutes, Section 609.749, subd. 1, defines “harass” as meaning to engage in intentional 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. In stalking/harassment prosecutions, the State doe not have to prove the actor intended to cause the victim to feel frightened, threatened, oppressed, persecuted or intimidated. B. Felony Enhancement Any of the above gross misdemeanors is enhanceable to a felony if committed within 10 years of discharge from sentence for a prior conviction for harassment, assault (any degree), violation of an OFP or harassment order or terroristic threats or if committed against a juvenile or if committed while possessing a dangerous weapon. C. 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. 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: harassment, terroristic threats, assault, violation of an order for protection or harassment order, trespass, harassing phone calls, or mail, or criminal defamation. NOTE: It is important to document not just the facts of the current call, but also the history of abuse or harassment. Probable Cause Warrantless Arrest A peace officer may make a warrantless probable cause arrest for harassment even if the offense did not occur in the officer’s presence \[MN Statutes, Section 629.34, subd. 1 (c)(5)\]. The officer may not issue a citation in lieu of arrest in harassment/stalking cases (MN Statutes, Section 629.72). Probable Cause Felony Arrests for Other Crimes At a domestic call, officers shall consider whether other felonies have been committed including but not limited to burglary, felony assault, terroristic threats, kidnapping, false th imprisonment, and witness tampering. For example: Assault in the 5 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 barring the offender from the premises. Violation of Court Orders Officers shall determine if any of the following orders exist before or during an arrest. 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. A. 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 MN Statues, Section 518B.01, subds. 6, 7, and 9. Such an arrest shall be made even if the violation did not take place in the presence of the peace officer, if the officer can verify the existence of the order. 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 5 years of discharge from sentence for conviction of violation of an OFP or (effective for crimes occurring on and after 8/1/94) for any conviction of assault, terroristic threats, violation of a harassment order or harassment/stalking. It is enhanceable as a felony if it occurs within 5 years of discharge of the first of two or more such convictions. B. 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 MN Statutes, Section 609.748, subds. 4 and 5, if the officer can verify the existence of the order. NOTE: A person who violates a harassment restraining order is guilty of a misdemeanor if the violator knows of the order. This offense is enhanceable to a gross misdemeanor if it occurs within 5 years of discharge from sentence for a previous conviction for violation of a harassment order or an OFP or any assault, harassment/stalking or terroristic threats conviction. It is enhanceable to a felony if it occurs within 5 years of discharge of the first of two or more such convictions. C. No Contact Order An officer may arrest without a warrant any person who he/she has probable cause to believe has violated the provisions of a no contact or restraining order issued by a court \[MN Statutes, Section 629.34, subd. 1(6).\] Other Misdemeanors At a domestic call, officers shall consider whether other crimes have been committed including but not limited to trespassing, criminal damage to property, disorderly conduct, witness tampering, or assault. A,SS,CVR,S SSISTANCE TAYING AT THE CENE RIME ICTIM IGHTS AND ERVICES Staying at the Scene If an arrest does not occur, peace officers should remain at the scene of the disturbance, when possible, until they believe that the likelihood of further imminent abuse has been eliminated. If a domestic abuse intervention program is available, the peace officer may make contact for immediate intervention. Note: Minnesota State Statute 629.342 provides THAT when a peace officer does not make an arrest, the peace officer must provided immediate assistance to the victim including obtaining necessary medical treatment and providing the victim with the notice of rights pursuant to Minnesota State Statute 629.341 subd. 3. Assistance to Non-English Speaking Victims or Victims with Communication Disabilities Officers shall attempt 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 use of friends, family or neighbors as the primary interpreter for the investigation should be avoided. Domestic Abuse Incidents Involving an Arrest, or Other Domestic Related Offenses Involving Potential Danger to the Victim If an officer responds to a report of domestic abuse, alleged domestic abuse, or any other domestic related offense, and the officer believes the victim may be in danger either directly or indirectly from the subject of the report, or if the officer makes an arrest as a result of the incident, the officer will provide notification to the Southern Valley Alliance for Battered Women by calling them, as soon as practical, and giving them the following information: 1.Officer’s name, badge number and department; 2.Victim’s name, address, home phone number, work or next day phone number; 3.Assailant’s name and relationship to the victim; 4.Whether or not the assailant was jailed and what the charge is; 5.A brief summary of what occurred. The Officer will also complete a Minnesota Domestic Abuse Case Law enforcement Data Collection Form. This form will be faxed to the Southern Valley Alliance as soon as possible on the first business day following the incident. VIN The Victim will be provided with the Scott County ictim nformation & otification EVINE veryday () pamphlet which includes a statement of victim’s rights, as well as with the pamphlet from Southern Valley Alliance for Battered Women. Domestic Abuse Incidents, No Arrest or Apparent Danger to Victim If an officer responds to a report of a domestic abuse or alleged domestic abuse where there is no apparent continuing danger to the victim, and no arrest of the subject of the complaint occurs, the officer will complete a Minnesota Domestic Abuse Case Law Enforcement Data Collection Form. This form will be faxed to the Southern Valley Alliance as soon as practical on the first business day following the incident. In some of the incidents the officer may encourage the victim to contact Southern Valley Alliance for Battered women for support and ADVICE. VIN The victim will be provided with the Scott County ictim nformation & otification EVINE veryday () pamphlet which includes a statement of victim’s rights, as well as with the pamphlet from Southern Valley Alliance for battered women. C HILDREN Child Victims If a child is present at the scene of a domestic call or is the victim of domestic abuse, the peace officer should determine whether the child has been subjected to physical abuse, sexual abuse, or neglect, and comply with the requirements of Minnesota Statute 626.556, Reporting of Maltreatment of Minor. The officer shall also attempt to verify whether there has been an Order for Protection (Minnesota Statute 260.133). If the child has been physically injured, the officer should escort the child to the nearest hospital for treatment. Child Present and Care If the legal parent or guardian of a child can longer provide care (for example, when the victim is hospitalized), the officer should consult with the legal guardian on determining the disposition of the child and should make a good faith attempt to follow the request of the legal guardian or parent. If the officer reasonable believes that the child’s immediate surroundings or conditions endanger the child’s health and welfare, the officer may take the child into immediate custody pursuant to Minnesota State Statute 260.165 Subd.1 (c)(2). RF EPORTS AND ORMS Written Report Whether there is an arrest or not, Prior Lake officers shall make a report after responding to a domestic call. If the officer did not arrest or seek an arrest warrant even though arrest was authorized, a detailed explanation of the reasons for the officer’s decision not to arrest must be documented. The report should include the following: Detailed statements from the victim; suspect and witness; description of injuries; information about past abuse; description of the scene; primary aggressor; existence of language barriers; presence of elderly victims or those with disabilities; and documentation of evidence. FI URTHER NVESTIGATION As part of the follow-up investigation of a domestic abuse case involving an arrest, the investigating officer shall determine the defendants’ criminal record, and if there is evidence of a previous conviction, the officer should advise the prosecutors of any enhanced criminal sanctions which may be applicable. Notwithstanding the fact that the officer has decided not to arrest one of the participants in the domestic call, the officer shall thoroughly document all relevant information in the report and shall refer the report to the appropriate prosecutor for review and consideration of criminal charges.