Current through Register Vol. XLI, No. 43, October 25, 2024
Section 149-3-8 - The Arrest Decision8.1. 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 victim8.7. 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.