Myths About Restraining Orders that are Believed by Many Police

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December 2001

MYTH 1: Police officers have to make an arrest in domestic situations. In reality, as Chief Riello noted, Chapter 209A, the section of the Massachusetts Code that governs domestic situations, makes no such requirements. An arrest is the “preferred response,” not a “mandatory” response. The police officer still has discretion. Most importantly, under both 209A and the United States Constitution, an arrest cannot lawfully be made without probable cause.

MYTH 2: A police officer can be sued if the officer does not make an arrest and the perpetrator hurts the victim. Many police officers have told me that they are quick to arrest because if they do not, they could be sued “if anything bad happens afterward.” In reality, the general rule is that in the absence of statutes, a municipal corporation is not liable for injuries caused by its negligence in the exercise of governmental functions, such as running a police department. In Massachusetts, this immunity for suit is created by statute. Some courts have held that this governmental immunity ceases when a special relationship exists between the person and a particular governmental body. Under such a theory, a special relationship exists in a 911-call because there have been special assurances that the police our on their way, and the victim is relying on police assurances. The lawsuit then arises when the police do not get there.

However, I know of no case where the police arrived on a scene, asked a victim if she was afraid, offered to take her to a safe place such as a batterer shelter, and wherein upon refusal and subsequent acts of violence by the perpetrator, were found to be liable. The victim’s refusal to take him or herself out of harms way immunizes the officers from a lawsuit. Were the rule to be otherwise, police officers would feel compelled to make an arrest, even when probable cause did not exist. Already, such misunderstandings unfortunately cause many police officers to arrest when they should not.

MYTH 3: If a women states she was harmed, there is probable cause to make an arrest. Many police officers, and members of the public at large, believe that probable cause is sustained by a mere allegation alone from an interested witness. In reality, probable cause exists when there is a known set of facts or circumstances sufficient for a reasonable person to conclude that it is fairly likely (certainly more likely than not) that a crime has occurred. Chief Riello said, “It has to be very likely.” “It could have happened” is not sufficient. The test for probable cause is a “totality of the circumstances” test. A police officer must weigh the basis of knowledge of the witness, the reliability of the witness, and corroborating evidence to determine whether probable cause exists.

When corroborating evidence does not exist, such as other reliable eyewitnesses or physical harm such as bruises, all that is left is the reliability of the witness and the basis of knowledge. The problem is that in a domestic situation the alleged victim is inherently unreliable – there is too much of a motive to lie. False allegations are often made out of spite after a relationship has gone sour, or to obtain the property, house, and children. When there is no corroborating evidence and the only eyewitness is the accuser herself who has a motive to lie, probable cause simply does not exist. It has been ruled in Massachusetts in the case of Lewis v. Kendrick, “To accept a hitherto unknown victim’s uncorroborated account without question [is] a circumstance that weigh[s] against probable cause.”

MYTH 4: Women are arrested as often as men in domestic situations. According to an informative staff member of the Elizabeth Freeman Center who attended our forum last year in the City of Pittsfield, in 325 instances only the man was arrested for domestic violence, in 10 cases both the man and the women were arrested, and in only 7 instances was the women alone arrested. A table of citations of studies indicating that women are as likely to commit domestic violence as men is at our website.

MYTH 5: False allegations of violence or rape are rare and isolated. Very few 911-calls concerning allegations of domestic violence or rape result in actual convictions. While in many instances this is a result of the difficulty in proving many of these charges, much is attributable to the fact that the alleged event simply did not occur, or was greatly exaggerated. False police reports and restraining order abuse is a serious problem in this Commonwealth and have wrongfully separated many children from their fathers, to the child’s great detriment. According to the Clerk’s Office of the Probate and District Courts, approximately 150 restraining orders are issued by the Pittsfield Probate Court, and the Pittsfield District Court issues 600 restraining orders. If only 3% of those 750 restraining orders are predicated on false allegations (an extremely low estimate), that would mean that there were 22 wrongfully issued restraining orders per year. The Berkshire Fatherhood Coalition believes that number to far exceed 3%. Still, at 3%, that will have equaled in once year the 20 people that would have been evicted from their homes due to the Civic Authority, who had the legal right to just recompense.

MYTH 6: Domestic arrests are issues that is beyond the mayor and any local official. The Pittsfield Charter and City Code allow regulation of the police department through hiring and firing the police chief, and the ability to pass rules and regulations governing the police department through ordinances. The Chief of Police must enforce lawful ordinances that are not in conflict with state law. For instance, the Mayor and City Council could pass an ordinance that would codify the  Lewis decisions which requires additional corroborating evidence before an arrest could be made based on the words of alleged victim. The Mayor and City Council have a duty to account to the public and make sure the police department behaves in a constitutional manner and the Bill of Rights is safeguarded. Local ordinances are presumed lawful, ordinary, and in compliance with state law.

MYTH 7: People are punished for filing false police reports. Very few people are ever arrested for filing a false police report in a domestic situation. Chief Riello did not recollect arresting anyone for filing a false police report in his entire career, and he did not personally know of any arrest of a person that filed a false police report. Lies about domestic violence and rape are for all practical purposes, at least in criminal court, made with impunity.

MYTH 8: We need “pro-arrest” and “mandatory arrest” laws because police officers refuse to arrest obviously violent men. “Pro-arrest” and “mandatory arrest” sounds great if you picture a victim with raccoon eyes, a knife sticking out of her leg, and a police officer unwilling to arrest. However, such events almost never occur and have not occurred with great frequency over the last few decades. The problem occurs because these pro-arrest or mandatory arrest policies encourage thoughtless arrests because the police officer believes he or she has no choice but to make an arrest. For these reasons, Chief Riello expressed his dissatisfaction with mandatory arrest policies.

Unfortunately, the Federal Government, through the Violence Against Women Office, is offering grants to a number of towns and cities in the Commonwealth in the range of $250 thousand to $450 thousand dollars to adopt “pro-arrest” or “mandatory arrest policies.” Many have accepted the bribe. The Berkshire Fatherhood Coalition believes that arrest policies should be pro-justice not “pro-arrest.” Officers need discretion.

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