H. Michael Steinberg has 36 years of experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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The “Dual Arrest” Problem in Colorado Domestic Violence Cases – the Terrible Impact

The “Dual Arrest” Problem in Colorado Domestic Violence Cases - the Terrible Impact

By H. Michael Steinberg Colorado Criminal Defense Lawyer

Introduction – What Is A Dual Arrest in a Colorado Domestic Violence Case?

The term “dual arrest” means the police, in investigating a domestic violence case, means arresting both (or more than two) parties at the scene. This occurs most often in Colorado domestic violence cases where it is difficult to identify the “primary aggressor” (the person responsible for starting the altercation usually striking the first blow) and both parties have been injured.

This is not a minor problem, approximately 7 percent of all domestic violence incidents result in dual arrests.

Not all dual arrests are a mistake. Dual arrests are meant to hold the right people accountable when both parties are combatants in an episode of domestic violence or when it is difficult, or even impossible, to identify the clear aggressor.

This article posits that the problem of dual arrests could at least be lessened if the police are trained and are inclined to more clearly identify the primary aggressor.

Colorado, like most “mandatory arrest” states, does not provide any guidance in the state’s domestic violence laws regarding dual arrests. There is no explicit instruction of law or legislatively enacted policy about whether making a dual arrest is, or is not, an acceptable response by the police.

In many dual arrests, the actual victims of domestic violence are arrested along with their abusers. The lasting damage to that victim can be lifelong. Another consequence of dual arrests is that if arrested with their abuser, there may never be another call for “help” from law enforcement by that victim of violence.

The additional trauma from the arrest alone can be unprecedented in the life of the arrest of that innocent victim.

Understandable, but not Acceptable – Dual Arrests

There is no question that police called to the scene of domestic violence, have a very difficult job to do. Trying to sort out domestic violence cases can be notoriously dangerous and frustrating. High tensions, sometimes fueled by drugs or alcohol, facts and evidence may be scarce and conflicting.

States, such as Colorado, do not place a high bar on the police at the scene of a domestic violence incident.  That makes sense when the police can be the target of violence. “Dual arrests” are common in incidents of domestic assault because they end the controversy quickly.

For many decades police have been accused of failing to properly handle domestic violence incidents. About 30 years ago, ten years into my career then as a prosecutor, that changed with the enactment of mandatory arrest laws in domestic violence.

When there is some victim assaultive behavior which may have begun as a defensive act, but then escalated beyond what is reasonable self-defense the conflict has escalated into a “mutual assault” and both sides are arrested.

The Arrest Decision -Three Approaches to Making Arrests in Domestic Violence Cases

The three approaches to making arrests in domestic violence cases are:

1. Mandatory Arrest,
2. Pro-arrest, and
3. Permissive Arrest.

Many decades ago, Colorado shifted from a permissive arrest state to a mandatory arrest state.

Mandatory Arrest Laws – Such as Colorado

A mandatory arrest law in domestic violence cases requires that where the police are investigating an incident of domestic assault, the law forces them to make an arrest if they find that “probable cause” exists that an act of domestic violence occurred.

Following the passage of Colorado’s mandatory arrest laws, there was a  corresponding significant increase in dual arrests.

While Colorado’s law includes “primary aggressor” language in its mandatory arrest statutes, there is no statutory requirement that law enforcement provides written justification for a dual arrest.

The proponents of mandatory arrest laws argue that giving the police discretion to decide whether or not an arrest is necessary is the wrong approach. Others argue that the police continue to have broad discretion in deciding if probable cause exists. I disagree with the latter argument.

Police officers at the scene routinely repeat these words “we have to arrest someone.” They clearly believe that if they find probable cause “someone is going to jail.”  They believe they have no discretion at all.

Pro-Arrest Policy – (but not mandatory arrest)

Twenty-five states have pro-arrest laws that encourage arrest as the appropriate response in domestic violence incidents – but the laws do not require an arrest.

These laws leave a degree of discretion to the arresting officer in his or her decision to arrest or not to arrest even when they determine they have probable cause that an act of domestic violence has occurred.

Permissive Arrest Policy – (but not mandatory arrest)

The permissive arrest approach mandates the police respond to domestic violence incidents, and like the pro-arrest approach, they also are not required to arrest the suspect, even when they find evidence of probable cause.

This approach provides the most discretion in arrests and is considered an outdated policy reminiscent of the “bad old days.”

The Terrible Impact of Dual Arrests on the Victims of Domestic Violence and Their Families

Dual arrests in Colorado domestic violence cases have short and long-term consequences not only for the victims, their families, but they also negatively impact the Colorado criminal justice system.

The research demonstrates that approximately forty percent of women arrested in dual arrest scenarios were previously victimized in a domestic violence incident.

Dual arrests take a tremendous toll on the victims of domestic violence. They victimize the person suffering historic patterns of abuse by now placing on them a new form of humiliation, not only from he trauma of the arrest, but such financial burdens as the cost of hiring a lawyer, and the terrible prospect of a criminal record that may destroy their ability to earn a living.

Victims of domestic violence who are arrested along with their abusers because they fought back during the course of an assault have a new jaded view of a criminal justice system… a system that is not there to help them. After having the courage to reach out for help, and fighting back against their abuser, they now feel even less safe.

Children who witness a dual arrest are also traumatized.  After suffering the trauma of the abuse, they now may lose faith in and have a deep-seated distrust of the criminal justice system. They know what is happening in their families. Children know which parent is the victim and which parent is the aggressor.

The financial consequences of dual arrests are very real and can have a major impact on the people involved. Even where the right thing happens and a case is eventually and ultimately dismissed, the trauma lives on and the parties are left to pick up the pieces of their damaged lives.

The police defend dual arrests in some cases with the explanation that the victim’s assaultive behavior may have been defensive at the start, but then escalated beyond what the police at the scene felt was necessary for self-defense. In some cases, I am sure that it is true that a conflict involving mutual assault presents multiple levels of complexity and on-scene analysis.

Colorado Domestic Violence Cases – Applying Predominant Aggressor Analysis May be Used to End Dual Arrests

Colorado’s domestic violence laws require the police to determine which party is the predominant aggressor – and who initiated the domestic violence.

The law is intended to prevent the arrest of the wrong person in domestic violence situations, and to discourage officers from arresting victims just because they exercise their right to self-defense.

If used properly, the research has demonstrated that primary aggressor laws can lower dual arrests. A National Institute of Justice study on dual arrests found that those states that have added “primary or predominant aggressor laws” have many fewer dual arrests in domestic cases.

While the highest number of dual arrests occur in jurisdictions with mandatory arrest laws, states that have coupled their mandatory arrest laws with primary aggressor sections, and where the police have been properly trained, have one-fourth of the other states where they have not been enacted.

There is a clear need in Colorado to train police officers to recognize patterns of abuse and to identify, if possible, the primary aggressor. When the police receive competing complaints from opposing parties, they need tools to critically analyze which party was the predominant aggressor.

Rather than just throw up their hands in frustration and make the dual arrest, Colorado law enforcement officers must be trained to spot factors such as the evidence of actual self-defense, the relative degree of injury, and the less obvious signs of more subtle threats involving the balance of power in a relationship which is creating a fear of future physical injury to the victim.

The training and information police need to identify the primary aggressor when responding to a domestic violence assault is available and inexpensive.

It is no longer acceptable to assume that adult male against female violence means the male party is always the primary aggressor. There are times when the female – as a result of a close review of the evidence and statements made at the scene – was actually the primary aggressor.

Some Thoughts on Primary Aggressor Analysis

The police should be able to distinguish between injuries inflicted in an affirmative attack to injuries inflicted in self-defense. A bite mark on an arm inflicted in self-defense of an attempt to strangle the victim is a solid example of this kind of analysis.

A decision “to arrest or not arrest” in a domestic violence case should:

(1) never be dependent on the “consent” of the victim,

(2) never be solely controlled by the relationship of the parties prior to the domestic violence investigation, and

(3) also never be based on a “request” to arrest by either party.

Each complaint should be evaluated on the evidence and the case should be evaluated fairly and critically to determine whether there should be an arrest of either party.

The Bottom Line – Maybe This is not the Kind of Case Where the Police Should be Called –  The Decision NOT to Request Police Intervention

There is no doubt that when the police respond to the highly volatile and emotional scenes that characterize domestic violence calls, those scenes are far from black and white. ” DV” calls present the most dangerous situational environment a typical street officer faces each day.

On the other hand, even within this difficult environment, one thing is very clear, dual arrests can sometimes be avoided, The negative consequences for the victims of domestic violence, their families, and for the criminal justice system are very real.

The police, once called, where there has been an act of domestic violence, no matter how minor, will never leave the parties together.

Because of the unpredictability of domestic violence cases, the decision to leave the scene, to withhold an arrest only to risk greater violence at a later time, no matter how slight that possibility, is something law enforcement will no longer allow.

The question must be asked – should the police have been called to the scene in the first place?

Once made, a 911 call cannot be taken back. Add to that fact the reality of Colorado’s mandatory arrest laws, once the process is started, a series of predictable stages will almost always lead to an arrest, followed by charges.

This cycle calls into question whether this litigation nightmare for all involved could have been avoided.

Does it make sense where there has been a simple altercation involving minor contact or the complete absence of anything more than a broken plate or a damaged wall to call the police? Do minor acts of disharmony come anywhere close to justifying the trauma of an arrest and the “criminal justice chaos” that follows?

Mandatory domestic violence arrest laws have taken all of the critical thinking necessary for effective policing. The police no longer are allowed to exercise their commons sense and life experience and use their discretion to make fair decisions based on the case at hand.

They must arrest “someone.” After separating the parties, their task is dumbed down to just making the arrest. Colorado police often routinely actually uttering the words – “we have to arrest someone.”

The Police are not Marriage Counselors or Therapists

Minor squabbles are common in every relationship.

Disagreements, even very angry alcohol-fueled arguments, can often wait until the morning to settle. In the absence of violence, threats, physicality, and possible harm, can the matter be settled without calling the police?

If there is no violence, no serious threats, no fear, no injuries, and no actual harm using de-escalation techniques might be the solution.  Common tips are available everywhere.

The Crisis Prevention Institutes (CPI’s) Top 10 De-Escalation Tips

Be Empathic and Nonjudgmental – Do not judge or be dismissive of the feelings of the person in distress. Remember that the person’s feelings are real, whether or not you think those feelings are justified. Respect those feelings, keeping in mind that whatever the person is going through could be the most important event in their life at the moment.

Respect Personal Space – Be aware of your position, posture, and proximity when interacting with a person in distress. Allowing personal space shows respect, keeps you safer and tends to decrease a person’s anxiety. If you must enter someone’s personal space to provide care, explain what you’re doing so the person feels less confused and frightened.

Use Nonthreatening Nonverbal – The more a person is in distress, the less they hear your words—and the more they react to your nonverbal communication. Be mindful of your gestures, facial expressions, movements, and tone of voice. Keeping your tone and body language neutral will go a long way toward defusing a situation.

Keep Your Emotional Brain in Check – Remain calm, rational, and professional. While you can’t control the person’s behavior, how you respond to their behavior will have a direct effect on whether the situation escalates or defuses. Positive thoughts like “I can handle this” and “I know what to do” will help you maintain your own rationality and calm the person down.

Focus on Feelings – Facts are important, but how a person feels is the heart of the matter. Yet some people have trouble identifying how they feel about what’s happening to them. Watch and listen carefully to the person’s real message. Try saying something like “That must be scary.” Supportive words like these will let the person know that you understand what’s happening—and you may get a positive response.

Ignore Challenging Questions – Engaging with people who ask challenging questions is rarely productive. When a person challenges your authority, redirect their attention to the issue at hand. Ignore the challenge, but not the person. Bring their focus back to how you can work together to solve the problem.

Set Limits – As a person progresses through a crisis, give them respectful, simple, and reasonable limits. Offer concise and respectful choices and consequences. A person who’s upset may not be able to focus on everything you say. Be clear, speak simply, and offer the positive choice first.

Choose Wisely What You Insist Upon – It’s important to be thoughtful in deciding which rules are negotiable and which are not. For example, if a person doesn’t want to shower in the morning, can you allow them to choose the time of day that feels best for them? If you can offer a person options and flexibility, you may be able to avoid unnecessary altercations.

Allow Silence for Reflection – We’ve all experienced awkward silences. While it may seem counterintuitive to let moments of silence occur, sometimes it’s the best choice. It can give a person a chance to reflect on what’s happening, and how they need to proceed. Silence can be a powerful communication tool.

Allow Time for Decisions – When a person is upset, they may not be able to think clearly. Give them a few moments to think through what you’ve said. A person’s stress rises when they feel rushed. Allowing time brings calm.

Conclusion

Law enforcement has a difficult and dangerous job. They are not trained as therapists or counselors. If they are called and there is probable cause for ANY act of domestic violence, no matter how non-violent that act is, they WILL make an arrest.

Finally, while there may be situations where a “dual arrest” is justified, law enforcement must be properly trained to provide the kind of tools necessary to solve the difficult task of analyzing the available evidence at the scene of alleged domestic violence to determine the “primary aggressor,” if there is one, and to not arrest a victim of domestic violence. That person may have been only trying to exercise their right to self-defense.


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Never stop fighting – never stop believing in yourself and your right to due process of law.

BEST-STANDING-CHOICE-200x300ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at hmsteinberg@hotmail.com – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge of Colorado Criminal Law and his 35 plus years of experience in the courtrooms of Colorado may give him the edge you need to properly defend your case.