DETERMINING THE PRIMARY AGGRESSOR

Transcription

1 DETERMINING THE PRIMARY AGGRESSOR Polly Peshtaz, JD Asst. City Attorney City of Tacoma 8 May 2018 Bradley R. Graham, MS Detective Tacoma Police SAU

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3 Questions? Would you make an arrest? Who would you arrest? What additional questions would you ask if you were the responding officer?

4 MANDATORY ARREST RULE RCW Police officers shall arrest and physically book into jail the primary aggressor whenever there is probable cause to believe that: The suspect is 16 years or older, and That within the preceding four hours has assaulted a family or household member; and The suspect is alleged to have committed: A felonious assault, or An assault that resulted in bodily injury to the victim (meaning physical pain, illness or an impairment of physical condition), whether or not the injury is observable by the responding officer, or Any physical action intended to cause another person to reasonably fear serious bodily injury or death.

5 RECOGNIZING THE PRIMARY AGGRESSOR

6 PRIMARY AGGRESSOR DEFINED RCW In making a primary physical aggressor determination, the officer shall make every reasonable effort to consider all of the following: The intent to protect victims of domestic violence; The comparative extent of injuries inflicted or serious threats creating fear of physical injury; The history of domestic violence of each person involved. including whether the conduct was part of a continuing pattern of abuse.

7 DETERMINING THE PRIMARY AGGRESSOR Domestic violence history between the parties Relative size of involved parties Severity & extent of injuries Statements consistent with & that corroborate the injuries Likelihood of future injury to each Did one act in self-defense (not to retaliate or punish)? Evidence & statements of others Intent of the law to protect Who called the police? Who is afraid of whom? Is anyone on probation for domestic violence?

8 FACTORS THAT SHOULD NOT INFLUENCE DECISIONS Personal knowledge and/or relationship with involved parties Victim unwilling to cooperate and/or assist with prosecution Victim s preference whether or not an arrest is made Marital status Victim s emotional state Verbal assurances that the violence will stop Speculation that the case may not result in conviction

9 ESTABLISHING PROBABLE CAUSE Match the environment with statements Corroborative evidence found Presence of weapons on scene Statements/excited utterances Continuing threats to victim in presence of police Apparent state of mind of victim and children present

10 Establishing PC (cont d) Description of the physical & emotional demeanor of victim Existence of injuries on the suspect consistent with claims of self-defense History of DV Reported and unreported incidents Other vicitms Pattern of conduct

11 History of Violence Known criminal history Dispatched calls to scene history Domestic violence history Protective order/condition of release history Medical treatment history

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13 Questions? Has your initial assessment changed? What do you think her perception was in regards to what would happen? Was the perceived harm actual or imminent? Who was the primary aggressor, and why do you reach that conclusion?

14 SELF-DEFENSE CONSIDERATIONS

15 Lawful Use of Force Use of force is lawful [w]henever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary. RCW 9A (3)

16 Burden re: Self-Defense The prosecution bears the burden of disproving self-defense beyond a reasonable doubt in an assault case. State v. Acosta, 101 Wn.2d 612 (1984)

17 Initial Aggressor Doctrine [T]he right of self-defense cannot be successfully invoked by an aggressor or one who provokes an altercation, unless he or she in good faith first withdraws from the combat at a time and in a manner to let the other person know that he or she is withdrawing or intends to withdraw from further aggressive action. State v. Riley, 137 Wn.2d 904, at 909 (1999)

18 WHAT TO DETERMINE? Did the person claiming self-defense provoke the altercation? What did the victim believe about the harm that would be perpetrated? Was the perceived harm actual or imminent? Was the force reasonable and necessary to prevent harm?

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20 Questions? What is your perception about what is happening or about to happen? Is the threat of harm to you actual or imminent? What amount of force could or would you use in this situation to protect yourself? How would you document your justification for using force in this situation?

21 DOCUMENTATION

22 LAW ENFORCEMENT RESPONSIBILITIES RCW A peace officer responding to a domestic violence call shall take a complete offense report including the officer s disposition of the case. The law enforcement agency shall forward the offense report to the appropriate prosecutor within 10 days of making such report if there is probable cause to believe that an offense has been committed, unless the case is under active investigation.

23 REPORT WRITING

24 CHARACTERISTICS OF A WELL WRITTEN REPORT Accurate Factual Objective Complete, yet concise and clear

25 REPORT CHARACTERISTICS: FACTUAL Includes exact statements Contains excited utterances in quotes Demonstrates emotions by describing the demeanor of those present Contains fact and items that can be verified by one of your five senses Write everything that was seen and heard

26 REPORT CHARACTERISTICS: ACCURATE Time of dispatch, response, incident recorded as precisely as possible Document other important points of time during the incident Correct names, dates of birth, addresses, and identification of all present including children and witnesses (ALWAYS UPDATE INFO)

27 REPORT CHARACTERISTICS: ACCURATE Measurements included are accurate, serial # of weapons noted, detailed description of weapons included, scene accurately described Injuries are carefully noted, described and documented and PHOTOGRAPHED Include names and titles of others responding to the scene, i.e., emergency medical personnel, volunteer fire department, state trooper, etc.

28 damaged furniture

29 Victim had a handprint on her back

30 Victim had a bump on her forehead.

31 Victim had an obvious injury to her elbow.

32 Victim had black eye and bruised cheek

33 SOMETHING TO KEEP IN MIND Write the report in such a way so that someone who wasn t at the scene could read the report and feel as if they had actually responded.

34 WHERE THE REPORT GOES Supervisor Prosecutor Defense Attorney Pre-Sentence Investigation Probation Child Protective Services Rehabilitation Program Batterers Treatment Program Civil Court Advocate Agency Supervised Release Agent Court Jury Media

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36 Questions? What do you think her perception was in regards to what would happen? Was the perceived harm actual or imminent? Who was the primary aggressor? Who would you arrest, and for what crime? Would you make a dual arrest?

37 NO DUAL ARRESTS RCW Officers are not required to, and are discouraged from, arresting both persons. Officers shall arrest the person whom the officer believes to be the primary physical aggressor.

38 Immunity No police officer may be held criminally or civilly liable for making an arrest pursuant to RCW (2) [mandatory DV arrests] if the police officer acts in good faith and without malice. RCW (12)