Current through Register Vol. XLI, No. 38, September 20, 2024
8.1. The
responding law enforcement officer should arrest the accused whenever arrest is
authorized. A law enforcement officer who does not make an arrest after
investigating a complaint of domestic violence or who arrests two or more
persons for a crime involving domestic violence shall submit in writing on the
required domestic violence incident report pursuant to WV code §
48-27-801 setting forth the
grounds for not arresting or for arresting both parties. Officers shall not
threaten, suggest, or otherwise indicate the possible arrest of all parties, or
threaten to call CPS to discourage requests for intervention by law enforcement
by any party.
8.2. Arrest without a
warrant is authorized in the following circumstances:
8.2.1. When the law enforcement officer has
probable cause to believe that the accused has committed a felony; (See W.Va.
Code §
60A-5-501.)
8.2.2. When the law enforcement officer
observes the commission of a felony or a misdemeanor; (See W.Va. Code §
60A-5-501.)
8.2.3. When the law enforcement officer
observes the violation of a valid protective order, including the presence of
the accused at a location prohibited by the protective order; the officer shall
arrest the accused provided the accused was served with the order or had actual
notice of the order and its contents; (See W.Va. Code §
60A-5-501.)
8.2.4. When the law enforcement officer
observes any violation of a condition of bond, probation, or parole, including
the presence of the accused at the residence of the victim in violation of the
condition set in cases of crimes between family or household members as defined
in W.Va. Code §
48-27-204;
8.2.5. When the accused is alleged to have
committed domestic assault, domestic battery, or a violation of a valid
protective order; a law enforcement officer has authority to arrest when:
8.2.5.a. The law enforcement officer has
observed credible corroborative evidence that the offense has occurred; and
either:
8.2.5.b. The law
enforcement officer has received, from the victim or a witness, an oral or
written allegation of facts constituting a violation of W.Va. Code §
61-2-28; or,
8.2.5.c. The law-enforcement officer has
observed credible evidence that the accused committed the offense.
8.3. When a misdemeanor
or felony not included among those specified in this rule has been committed
and the law enforcement officer or another person obtains or has previously
obtained an arrest warrant; or,
8.4. When a capias has been issued, or when a
circuit judge has signed an attachment order.
8.5. Notwithstanding the issue of violation
of the state law, the crossing or causing the crossing of a state line or
territory or tribal boundary to commit domestic violence is a violation of
federal law and should also be referred to federal authorities.
8.6. The law enforcement officers shall not
consider the following factors in making the arrest decision:
8.6.1. The marital status of the
parties;
8.6.2. The ownership or
tenancy rights of either party;
8.6.3. Verbal assurances that the violence
will stop;
8.6.4. A claim by the
accused that the victim provoked or perpetuated the violence;
8.6.5. Speculation that the victim or
witnesses will not follow through or cooperate with criminal prosecution
(whether based on prior incidents involving the same victim, the victim's
hesitancy about pursuing prosecution, or any other factor);
8.6.6. The disposition of any previous police
calls involving the same victim or accused;
8.6.7. Speculation that the arrest may not
lead to a conviction;
8.6.8. The
existence or nonexistence of a current protective order (except insofar as the
violation of the order requires arrest);
8.6.9. Concern about reprisals against the
victim;
8.6.10. Adverse financial
consequences that might result from the arrest;
8.6.11. That the incident occurred in a
private place; or,
8.6.12. The
racial, cultural, social, political, or professional position or sexual
orientation of either the victim or the accused.
8.6.13. Criminal history of the
victim
8.7. The law
enforcement officer should not consider the victim's opposition to arrest and
should emphasize to the victim, and to the accused as well, that the criminal
action thus initiated is the state's action, not the victim's action. It is the
law enforcement officer's or prosecuting attorney's responsibility to decide
whether an arrest should be made unless the law enforcement officer is required
to make an arrest for violation of a valid protective order or a violation of
the terms and conditions of bond, probation, or parole on a charge of a crime
against a family or household member.
8.8. If the law enforcement officer responds
to a scene involving domestic or family violence from two or more persons
accusing each other of perpetrating violence, the law enforcement officer shall
evaluate each complaint to determine who was the predominant aggressor. If the
law enforcement officer determines that one person was the predominant
aggressor, the law enforcement officer shall arrest the predominant aggressor
only. Dual arrests are discouraged. In determining whether a
person is the predominant aggressor the law enforcement officer should
consider, among other things:
8.8.1. The
presence of highly dangerous/potentially lethal behaviors;
8.8.2. Prior complaints of domestic or family
violence;
8.8.3. The relative
severity of the injuries inflicted on each person in relation to the use of
reasonable force by a person acting in self-defense;
8.8.4. Whether one of the persons using
reasonable force acted in self-defense; and,
8.8.5. The person initiating the first
physical contact does not determine the predominant aggressor.
8.9. Firearms
8.9.1. The law enforcement officer shall
seize all firearms, ammunition, and any other weapons that are alleged to have
been involved or threatened to be used in the commission of domestic
violence.
8.9.2. The law
enforcement officer may seize a weapon that is in plain view of the officer, or
is discovered pursuant to a consensual search, or is necessary for the
protection of the officer or other persons.
8.9.3. The law enforcement officer shall
seize all firearms and ammunition possessed in violation of a protective order
prohibiting possession of a firearm. (See W.Va. Code §
48-27-502.)
8.9.4. Notwithstanding the issue of violation
of the West Virginia Code §
61-7-7, the possession of a
firearm by a person subject to a valid protective order, may also be a
violation of federal law and should be referred to federal
authorities.
