Chapter 26 Domestic Disturbances PDF

CHAPTER 26 – DOMESTIC DISTURBANCES REV. NOVEMBER 30, 2012 26.01 DEFINITIONS A. Assault - A criminal act which causes bodily injury to another, including one’s spouse; a threat against another, including one’s spouse, of imminent bodily injury: any threat against another, including one’s spou...

CHAPTER 26 – DOMESTIC DISTURBANCES REV. NOVEMBER 30, 2012 26.01 DEFINITIONS A. Assault - A criminal act which causes bodily injury to another, including one’s spouse; a threat against another, including one’s spouse, of imminent bodily injury: any threat against another, including one’s spouse, made while brandishing a deadly weapon. B. Bodily injury - Physical pain, illness, or any impairment of physical condition. C. Breach of the Peace - Any unauthorized and unwarranted act which involves violence or which likely will provoke violence. D. Common law marriage - A man and woman are married by common law if they agreed to be married, lived together as husband and wife, and represented to others that they were married. E. Deadly Weapon - A firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or anything that in the manner of its use or intended use can cause death or serious bodily injury. F. Domestic Disturbance - A dispute, whether of a civil or criminal nature, which occurs between members of the same family (or between persons who share a similar intimate relationship) and results in contact with, police officers. G. Family includes individuals related by consanguinity or affinity, individuals who are former spouses of each other, individuals who are the biological parents of the same child, without regard to marriage or legitimacy, and a foster child and foster parent, whether or not those individuals reside together. H. Family Violence - the intentional use or threat of physical force by a member of a family or household against another member of a family or household, but does not include the reasonable discipline of a child by a person having that duty. I. Household - a unit composed of persons living together in the same dwelling, whether or not they are related to each other. (Member of household includes former member who has filed for protective order). J. In the Presence of - When a police officer, through one or more of his five senses, has probable cause to believe that an offense is being committed, that offense is being committed, that offense occurs "in the presence of" the officer. K. Intoxication - Any disturbance of mental or physical capacity resulting from the introduction of any substance into the body. L. Mediation - Guiding a discussion of the disputants about their problem to assist them in reaching agreement on a course of action that will end the immediate controversy. Effective date April 30, 2014 269 M. Private Premises - A permanent or temporary personal residence including, but not limited to, a house, an apartment, a hotel room, and a trailer. N. Probable Cause - That total set of apparent facts and circumstances based on reasonably trustworthy information which would warrant a prudent person (in the position of and with the knowledge of the particular peace officer) to believe something, for example, that a particular person has committed some offense against the law. O. Public Place - Any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops. P. Serious Bodily Injury - Bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member organ. 26.02 POLICY A. The nature of each particular domestic disturbance will determine the extent of appropriate intervention. However, officers must respond to a domestic disturbance and attempt to: 1. Restore and maintain order; 2. Render emergency assistance; 3. Prevent escalation in the level of violence; 4. Determine if a crime has occurred; 5. Arrest where appropriate; and 6. Inform the disputants of their alternative options and remedies, including specific social agencies and community resources. B. In CHAPTER 5 of the Code of Criminal Procedure, the Legislature established public policy on "family violence" which shall also be division policy, as follows: 1. Family violence is a serious threat to society; victims are entitled to the maximum protection from harm or threats permitted by law. 2. Officers shall protect the victim without regard to the relationship between the offender and victim. 3. General duties imposed on officers by CHAPTER 2 of the Code of Criminal Procedure, and officers’ duty to prevent criminal offenses, are not waived because of a family or household relationship between the potential violator and victim. 4. The primary duties of officers investigating possible family violence are: Effective date April 30, 2014 270  a. Protect any potential victim, b. Enforce the law, and c. Make lawful arrests of violators. 26.03 GENERAL PROCEDURE A. Disturbances are often volatile situations which can be very dangerous to responding officers. Officers should always exercise caution and be prepared to respond to any potential attack. Whenever possible, two units or a two-man unit should be dispatched to respond. The first responding single officer unit should, if prudent to do so, await the arrival of the back-up unit before approaching the scene. B. If a third party initiated the call to the police, a breach of peace may have occurred and officers should inform the third party of his right to file a formal complaint with a JP court. Officers shall not reveal the identity of an uninvolved third party to the disputants. C. Whenever appropriate, upon intervening in the dispute, officers should take charge immediately by separating the disputants, controlling access to weapons, and limiting movement of all persons involved. If possible, they should direct the disputants into the most public area of the dispute location, such as the living room. However, if circumstances make it desirable, the disputants should be talked to in separate rooms. The selected location should be free of potential weapons. The disputants should be encouraged to sit down. Talking to disputants in separate rooms should never be attempted, if to do so would endanger the officers. D. In attempting to ascertain the facts of the dispute, officers should allow each disputant to present his/her story individually. E. While gathering facts and assessing the situation, officers must remain impartial and should deal with the disputants tactfully by: 1. Avoiding brusqueness, irrelevant interrogation, intimidation, favoritism, or the appearance of favoritism; 2. Proceeding as informally and relaxed as possible; and 3. Directing their manner and effort toward reducing tension and risk of violence. F. When investigating a family violence allegation or responding to a disturbance call that may involve family violence, officers shall advise any possible adult victim of all reasonable means to prevent further family violence, including giving them the BCSO’s written "Notice to Adult Victims of Family Violence." 26.04 ENTRY AND INTERVENTION ON PRIVATE PREMISES A. Where one of the parties to a domestic dispute requests police intervention, the officers may enter the premises even if any other party objects. Effective date April 30, 2014 271 B. Where one disputant locks out another disputant, the officers shall not assist the evicted party in forcing entry unless immediately necessary to protect life or property. C. Where all parties to a domestic dispute voluntarily refuse to admit the officers to the dwelling, the officers shall not enter unless they have probable cause to believe that immediate entry is necessary to prevent serious bodily injury or to render emergency aid to an injured person. In all other cases, a supervisor shall be advised. D. After officers have entered on the consent of any or all of the disputants and one disputant subsequently requests that they leave, and no other disputant requests that they stay, the officers shall leave unless they intend to arrest one of the disputants or they have probable cause to believe that an assault or other offense will occur without their continued presence. If one disputant requests that they stay, the officers may remain until they believe that no assault or other offense will occur if they leave. The officers’ action should be guided by the rules in 26.05, 26.07, and 26.08 of this CHAPTER. 26.05 REMEDIES A. In order to reduce tension between disputing parties and to minimize potential for violence, officers should apply the most appropriate remedy that will prevent future violence. B. Possible remedies (generally listed in ascending order of the degree of intervention) include: 1. Mediation 2. Informing disputants of appropriate social, medical, or legal services. 3. Temporary voluntary separation; 4. Informing the disputants of possible criminal liability; 5. Informing the disputants of civil protective order, peace bond, and complaint procedures; 6. Voluntary surrendering of weapons(s); 7. Temporary and limited physical restraint; and 8. Arrest. C. When the officers reasonably suspect that a child has suffered or is in danger of, abuse or neglect, they shall; 1. Apply remedies to resolve the immediate dispute; and 2. Handle the matter in accordance with CHAPTER 21 on investigation of 3. Child Abuse and Neglect. D. Where arrest is necessary of a parent or sibling of a child, steps should be taken, where feasible to make the arrest outside the presence of the child. Effective date April 30, 2014 272 E. In all domestic disputes, officers shall consider the welfare and safety of all children present or otherwise under the care of the disputants. 1. When necessary, officers must provide for the care of children in accordance with CHAPTER 22 Juvenile Procedures; 2. Officers shall consider the care and protection of children as a factor in determining the appropriate action to take. 26.06 ASSAULTS A. Where family violence, constituting an assault, occurs in their presence, officers shall arrest the assailant. B. Where an assault occurred prior to officers’ arrival, officers shall arrest if they have probable cause to believe: 1. That the offender committed the assault which resulted in bodily injury to a person, and 2. That there is danger of further bodily injury to the same person. C. Where officers have probable cause to believe that family violence occurred prior to their arrival, and that such violence violated a family protective order described in Sec. 26.08 (G), they shall arrest the offender. D. Officers shall also arrest for an assault occurring prior to their arrival if they have probable cause to believe that: 1. The assault resulted in serious bodily injury; and 2. The offender is about to escape so that there is not time to produce a warrant. E. In other assaults occurring prior to officers’ arrival, officers shall inform the victim of his/her right to file a criminal complaint and shall complete an offense report. F. Where officers are assaulted, arrest should be made of the assailant. 26.07 VERBAL ASSAULTS Officers shall arrest for verbal assault under Sec. 22.01 (a) (2), Penal Code, if they have probable cause, based on the threats and all other circumstances that bodily injury to a person will occur. 26.08 OTHER OFFENSES AND SITUATIONS A. Intoxication - Officers shall not arrest a person solely for alcohol intoxication within any private place. The law does not permit arrest for intoxication in a private place, and officers should fully explain this to any party demanding another’s arrest. If chronic alcohol intoxication (or unsubstantiated but alleged drug use) appears to be involved, the officers may: Effective date April 30, 2014 273  1. Inform the parties of counseling available, or 2. When appropriate, inform the complainant regarding the filing of an alcoholic commitment petition. B. Disorderly Conduct and Other Offenses Which Breach the Peace: 1. Officers may arrest an individual involved in a domestic disturbance in a public place, or in a private residence which he has no right to occupy, for a disorderly conduct offense, if the individual commits the offense in their presence. Procedures for disorderly conduct arrests in CHAPTER 11 shall be followed. 2. The primary duty of officers in such situations, however, is to prevent or abate a public disturbance. An arrest should not be made unless a specific offense occurred and: a. Alternative remedies prove ineffective or b. Only timely arrest will protect the disputants and the public interest. C. Removal of, threat to, or Destruction of Property: 1. Where a party to a domestic dispute is removing or attempting to remove property for the domestic dwelling, the primary duty of the officer is to prevent violence and to preserve the peace. In each case, a supervisor shall be advised. Officers should attempt to ascertain if both parties claim and interest in the property. If the right of the party removing the property is disputed by the other party (because it is community property or otherwise jointly owned) the officer should attempt to preserve the status quo, by not permitting removal of the property. Officers shall advise the parties to seek legal counsel and inform them that their conduct may have civil and criminal consequences. Officers, if presented with a court order regarding the property, should attempt to determine the current validity of that court order. 2. Where a domestic disputant seeks an arrest on the basis of past property damage alone, officers should inform the complaining party that the law limits their authority. Officers shall complete an offense report and suggest consultation with a prosecutor or private legal counsel. 3. Where a party to a domestic dispute is damaging or destroying property claimed by both disputants in the presence of officers, they should attempt to prevent the property damage. Officers shall inform the parties of potential civil and criminal consequences of their conduct and suggest that they seek legal counsel to resolve their property rights. 4. Where one of the disputants nonviolently threatens property damage alone, officers shall apply non-arrest remedies. Officers shall inform the threatening party of the potential civil and criminal consequences if that party carries out that threat. Officers shall advise the disputants to seek legal counsel to resolve their property rights. D. Divorce/Child Custody –Where a party to a domestic dispute alleges that an estranged spouse is violating a court order regarding custody of the children, officers shall: Effective date April 30, 2014 274  1. Attempt to ascertain whether a court order is in effect (but violation of a child custody order itself is not a criminal violation.) 2. Attempt to prevent violence and preserve the peace. 3. Warn both parties of the possible civil and criminal violations involved in their conduct and suggest that they contact legal counsel. 4. If either party demands additional action, officers will inform him/her of the right to file a complaint with the Court responsible for the order. 5. If there is reason to believe that a criminal offense, officers shall proceed in accordance with CHAPTER 21, Investigation of Child Abuse and Neglect. E. Family Protective Orders 1. In approaching a possible domestic dispute, officers should keep in mind that a Family Protective Order under CHAPTER 71 of the Texas Family Code may be in effect. 2. Under Art. 5.05 (c), Code Crime. Proc., an officer who is presented a certified copy of a protective order must accept it as valid unless it reflects an expired termination date or is more than one year old from its execution date. 3. If officers otherwise suspect a protective order may be in effect, they shall contact the dispatcher. 4. A person violates Penal Code Sec. 25.08 if he does any of the following acts and he has been ordered not to do such act in a family protective order: a. Commits family violence, b. Directly communicates with a member of the family or household in threatening or harassing manner, or c. Goes to or near the residence or place of employment or business of member of the family or household as specifically described in the protective order. 5. An officer who has probable cause to believe an offense under Sec. 25.08 has been committed may arrest the offender without warrant whether or not the offense was committed in the officer’s presence. F. Peace Bonds 1. Officers shall attempt to ascertain whether a peace bond is in effect. Officers may not arrest solely for violation of a peace bond, but may arrest if the act itself constitutes a specific criminal offense. 2. When an officer has reason to believe that one of the disputants is in violation of a peace bond under CHAPTER 7, Texas Code of Criminal Procedure, he shall note the violation on the Effective date April 30, 2014 275  offense report and cause a copy of it to be sent to the District Attorney (who has authority to sue to forfeit the bond under Art. 7.16, C.C.P.) 26.09 SURRENDER OF FIREARMS BY PERSONS INVOLVED IN FAMILY VIOLENCE INCIDENTS. A. Officers answering family violence calls will attempt to determine if any firearms are available to a person involved in a family violence incident and will attempt to lawfully remove the firearms for safekeeping. Officers shall inquire of both subjects and victims whether or not firearms are present in the place where family violence has occurred, as well as the lawful owner of said weapons. 1. If an officer determines that a firearm is present, the officer will request for the owner to voluntarily relinquish the firearm to the Bexar County Sheriff’s Office for safekeeping and storage, until returned by the Sheriff’s Office to the custody of the owner. 2. If the owner of the weapon is arrested and refuses to voluntarily surrender the firearm, and the officer determines that it is for the safety of both parties to remove the weapon, even in the absence of consent, remove the weapon if probable cause exists to believe removal is necessary to prevent threatened injury to a person, the officer shall document the refusal in the Offense Report to notify Pre Trial services and the District Attorney’s Office. 3. Taking custody and storage of firearms a. The officer taking custody of the firearm shall make the weapon safe by separating the ammunition from the firearm. The officer shall issue a property receipt for the seized property. Officers unfamiliar with the nomenclature of the weapon shall attempt to locate an officer who is familiar with the firearm before making the weapon safe. b. The firearm(s) will be turned over to evidence personnel who will secure the weapon in the evidence room in accordance with office policy and procedures. The evidence clerk will be responsible for the NCIC check and other necessary forensics processing requested. B. Procedures for returning of firearm(s) to the owner 1. Voluntary Surrender Cases 2. Proof of ownership 3. Valid Identification 4. Clear Criminal History Check 5. If the Criminal History return has a legal impediment, prohibiting the return of the firearm, the officer shall not return the firearm to the owner unless ordered to do so by the court. The officer will notify the Sheriff’s Office legal advisor of the refusal to return. Effective date April 30, 2014 276  6. Magistrate Order Cases upon receipt of a notice of a hearing related to the return of a firearm, the Sheriff’s Office will run a Criminal History Check. The Sheriff’s designee will appear at the time of the hearing to notify the court of the results. C. Legal impediments prohibiting the return of firearms are as follows: 1. The owner has been found guilty of a felony in Texas or any other state (Texas Penal Code sec. 46.04) 2. The owner has been found guilty of a misdemeanor crime of domestic violence in Texas or any other state (Texas Penal Code sec 46.04). 3. There is an injunction prohibiting the possession of a firearm(s) in effect against the owner in Texas or any other state. 4. The owner has been adjudicated mentally defective, or been committed to a mental institution. 5. The owner of a firearm has outstanding criminal warrants. 6. There is a superseding Family Violence Civil Protective Order; and 7. The owner does have a legal impediment to owning or possessing a firearm, including but not limited to those mentioned above. D. If a firearm cannot be returned to the owner, due to section 5c of this policy, or the firearm(s) are abandoned by the owner, the Sheriff’s Office will follow the proper Procedures for disposing of the firearm(s). Officers shall follow Policy and Procedures for the disposal of the firearm(s). Report the incident completely and accurately. In major, serious, or complex crimes, the Criminal Investigations Division shall conduct the investigation, which may include preliminary and follow-up investigation. Effective date April 30, 2014 277