HCSD — Standard Operating Procedures

309.1 PURPOSE AND SCOPE

The purpose of this policy is to provide the guidelines necessary to deter, prevent and reduce domestic violence through vigorous enforcement and to address domestic violence as a serious crime against society. The policy specifically addresses the commitment of this office to take enforcement action when appropriate, to provide assistance to victims and to guide deputies in the investigation of domestic violence.

309.1.1 DEFINITIONS

Definitions related to this policy include:

Court order — All forms of orders related to domestic violence that have been issued by a court of this state or another, whether civil or criminal, regardless of whether service has been made.

309.2 POLICY

The Hartwell County Sheriff’s Department’s response to incidents of domestic violence and violations of related court orders shall stress enforcement of the law to protect the victim and shall communicate the philosophy that domestic violence is criminal behavior. It is also the policy of this office to facilitate victims’ and offenders’ access to appropriate civil remedies and community resources whenever feasible.

309.3 PEACE OFFICER/DEPUTY SHERIFF SAFETY

The investigation of domestic violence cases often places deputies in emotionally charged and sometimes highly dangerous environments. No provision of this policy is intended to supersede the responsibility of all deputies to exercise due caution and reasonable care in providing for the safety of any deputies and parties involved.

309.4 INVESTIGATIONS

The following guidelines should be followed by deputies when investigating domestic violence cases:

• Calls of reported, threatened, imminent, or ongoing domestic violence and the violation of any court order are of extreme importance and should be considered among the highest response priorities. This includes incomplete 9-1-1 calls.
• When practicable, deputies should obtain and document statements from the victim, the suspect, and any witnesses, including children, in or around the household or location of occurrence.
• Deputies should list the full name and date of birth (and school if available) of each child who was present in the household at the time of the offense. The names of other children who may not have been in the house at that particular time should also be obtained for follow-up.
• When practicable and legally permitted, video or audio record all significant statements and observations.
• All injuries should be photographed, regardless of severity, taking care to preserve the victim’s personal privacy. Where practicable, photographs should be taken by a person of the same sex. Victims whose injuries are not visible at the time of the incident should be asked to contact the Major Crimes Division in the event that the injuries later become visible.
• Deputies should request that the victim complete and sign an authorization for release of medical records related to the incident when applicable.
• If the suspect is no longer at the scene, deputies should make reasonable efforts to locate the suspect to further the investigation, provide the suspect with an opportunity to make a statement, and make an arrest or seek an arrest warrant if appropriate.
• Seize any firearms or other dangerous weapons in the home, if appropriate and legally permitted, for safekeeping or as evidence. If the domestic violence involved threats of bodily harm, any firearm discovered in plain view or pursuant to consent or other lawful search must be taken into temporary custody (Penal Code § 18250).
• When completing an incident or arrest report for violation of a court order, deputies should include specific information that establishes that the offender has been served, including the date the offender was served, the name of the agency that served the order, and the provision of the order that the subject is alleged to have violated. When reasonably available, the arresting deputy should attach a copy of the order to the incident or arrest report.
• Deputies should take appropriate enforcement action when there is probable cause to believe an offense has occurred. Factors that should not be used as sole justification for declining to take enforcement action include:

1. Whether the suspect lives on the premises with the victim.
2. Claims by the suspect that the victim provoked or perpetuated the violence.
3. The potential financial or child custody consequences of arrest.
4. The physical or emotional state of either party.
5. Use of drugs or alcohol by either party.
6. Denial that the abuse occurred where evidence indicates otherwise.
7. A request by the victim not to arrest the suspect.
8. Location of the incident (public/private).
9. Speculation that the complainant may not follow through with the prosecution.
10. Actual or perceived characteristics such as race, ethnicity, national origin, religion, sex, sexual orientation, gender identity or expression, economic status, age, cultural group, disability, or marital status of the victim or suspect.
11. The social status, community status, or professional position of the victim or suspect.

DV - Arrests 309.4.1 IF A SUSPECT IS ARRESTED If a suspect is arrested, deputies should:

• Advise the victim that there is no guarantee the suspect will remain in custody.
• Provide the victim’s contact information to the jail staff to enable notification of the victim upon the suspect’s release from jail.
• Advise the victim whether any type of court order will be in effect when the suspect is released from jail.

309.4.2 IF NO ARREST IS MADE

If no arrest is made, the deputy should:

• Advise the parties of any options, including but not limited to:

1. Voluntary separation of the parties.
2. Appropriate resource referrals (e.g., counselors, friends, relatives, shelter homes, victim witness unit).

• Document the resolution in a report.

DV - Firearms

309.4.3 ARRESTING DEPUTIES' RESPONSIBILITIES REGARDING FIREARMS

If a suspect is arrested, deputies shall (Penal Code § 273.76):

• Query the Automated Firearms System through the California Law Enforcement Telecommunications System (CLETS) for any firearms owned or possessed by the arrestee.

1. The investigating or filing deputy shall include a copy of the Automated Firearms System report when filing the case with the district attorney or prosecuting city attorney.

• Ask the arrestee, victim, and any other household members, if applicable, about any firearms owned or possessed by the arrestee.
• Ensure that any firearm or other deadly weapon in plain sight or discovered pursuant to a consensual or other lawful search is taken into temporary custody pursuant to Penal Code § 18250.
• Document in the arrest report the detailed actions taken required by Penal Code § 273.76.

DV – Victim Assistance

309.5 VICTIM ASSISTANCE

Because victims may be traumatized or confused, deputies should be aware that a victim's behavior and actions may be affected:

• Victims should be provided with the office's domestic violence information handout, even if the incident may not rise to the level of a crime.
• Victims should also be alerted to any available victim advocates, shelters, and community resources.
• When an involved person requests law enforcement assistance while removing essential items of personal property, deputies should stand by for a reasonable amount of time.
• If the victim has sustained injury or complaints of pain, deputies should seek medical assistance as soon as practicable.
• Deputies should ask the victim whether the victim has a safe place to stay and assist in arranging transportation to an alternate shelter if the victim expresses a concern for the victim's safety or if the deputy determines that a need exists.
• Deputies should make reasonable efforts to ensure that children or dependent adults who are under the supervision of the suspect or victim are being properly cared for.
• If appropriate, deputies should seek or assist the victim in obtaining an emergency order if appropriate.

A deputy shall advise an individual protected by a Canadian domestic violence protection order of available local victim services (Family Code § 6452).

309.6 DISPATCH ASSISTANCE

All calls of domestic violence, including incomplete 9-1-1 calls, should be dispatched as soon as practicable.

Dispatchers are not required to verify the validity of a court order before responding to a request for assistance. Deputies should request that dispatchers check whether any of the involved persons are subject to the terms of a court order.

309.7 FOREIGN COURT ORDERS

Various types of orders may be issued in domestic violence cases. Any foreign court order properly issued by a court of another state, Indian tribe, or territory shall be enforced by deputies as if it were the order of a court in this state. An order should be considered properly issued when it reasonably appears that the issuing court has jurisdiction over the parties and reasonable notice and opportunity to respond was given to the party against whom the order was issued (18 USC § 2265). An otherwise valid out-of-state court or foreign order shall be enforced, regardless of whether the order has been properly registered with this state (Family Code § 6403).

Canadian domestic violence protection orders shall also be enforced in the same manner as if issued in this state (Family Code § 6452).

309.8 VERIFICATION OF COURT ORDERS

Determining the validity of a court order, particularly an order from another jurisdiction, can be challenging. Therefore, in determining whether there is probable cause to make an arrest for a violation of any court order, deputies should carefully review the actual order when available, and where appropriate and practicable:

• Ask the subject of the order about his/her notice or receipt of the order, his/her knowledge of its terms and efforts to respond to the order.

1. If a determination is made that a valid foreign order cannot be enforced because the subject has not been notified or served the order, the deputy shall inform the subject of the order, make a reasonable effort to serve the order upon the subject, and allow the subject a reasonable opportunity to comply with the order before enforcing the order. Verbal notice of the terms of the order is sufficient notice (Family Code § 6403).

• Check available records or databases that may show the status or conditions of the order.

1. Registration or filing of an order in California is not required for the enforcement of a valid foreign order (Family Code § 6403).

• Contact the issuing court to verify the validity of the order.
• Contact a law enforcement official from the jurisdiction where the order was issued to verify information.

Deputies should document in an appropriate report their efforts to verify the validity of an order, regardless of whether an arrest is made. Deputies should contact a supervisor for clarification when needed.

DV – Arrests, continued

309.9 STANDARDS FOR ARRESTS

Deputies investigating a domestic violence report should consider the following:

• An arrest should be made when there is probable cause to believe that a felony or misdemeanor domestic violence offense has been committed (Penal Code § 13701). Any decision to not arrest an adult when there is probable cause to do so requires supervisor approval.

1. Deputies are only authorized to make an arrest without a warrant for a misdemeanor domestic violence offense if the deputy makes the arrest as soon as probable cause arises (Penal Code § 836).

• A deputy responding to a domestic violence call who cannot make an arrest will advise the victim of the victim's right to make a private person's arrest. The advisement should be made out of the presence of the suspect and shall include advising the victim how to safely execute the arrest. Deputies shall not dissuade victims from making a lawful private person's arrest. Deputies should refer to the provisions in the Private Persons Arrests Policy for options regarding the disposition of private person's arrests (Penal Code § 836(b)).
• Deputies shall not cite and release a person for the following offenses (Penal Code § 853.6(a)(3)):

1. Penal Code § 243(e)(1) (battery against spouse, cohabitant)
2. Penal Code § 273.5 (corporal injury on spouse, cohabitant, fiancé/fiancée, person of a previous dating or engagement relationship, mother/father of the offender's child)
3. Penal Code § 273.6 (violation of protective order) if violence or threats of violence have occurred or the suspect has gone to the workplace or residence of the protected party
4. Penal Code § 646.9 (stalking)
5. Other serious or violent felonies specified in Penal Code § 1270.1

• In responding to domestic violence incidents, including mutual protective order violations, deputies should generally be reluctant to make dual arrests. Deputies shall make reasonable efforts to identify the dominant aggressor in any incident. The dominant aggressor is the person who has been determined to be the most significant, rather than the first, aggressor (Penal Code § 13701). In identifying the dominant aggressor, a deputy shall consider:

1. The intent of the law to protect victims of domestic violence from continuing abuse.
2. The threats creating fear of physical injury.
3. The history of domestic violence between the persons involved.
4. Whether either person acted in self-defense.

• An arrest shall be made when there is probable cause to believe that a violation of a domestic violence court order has been committed (Penal Code § 13701; Penal Code § 836), regardless of whether the offense was committed in the deputy's presence. After arrest, the deputy shall confirm that a copy of the order has been registered, unless the victim provides a copy (Penal Code § 836).

309.10 REPORTS AND RECORDS

• A written domestic violence incident report shall be completed on all incidents of domestic violence. All such reports should be documented on the appropriate form, which includes information and notations specific to domestic violence incidents, including notations for any court order served that are subject to the report requirements (Penal Code § 13730; Code of Civil Procedure § 527.12).
• Reporting deputies should provide the victim with the case number of the report. The case number may be placed in the space provided on the domestic violence victim information handout provided to the victim. If the case number is not immediately available, an explanation should be given regarding how the victim can obtain the information at a later time.
• Deputies who seize any firearm, ammunition, or other deadly weapon in a domestic violence incident shall issue the individual possessing such weapon a receipt that includes the name and residential mailing address of the owner or person who possessed the weapon and notice of where the weapon may be recovered, along with the applicable time limit for recovery (Penal Code § 18250; Penal Code § 18255; Penal Code § 33800; Family Code § 6389(c)).

309.11 RECORD-KEEPING AND DATA COLLECTION

The Records Division shall maintain records of court orders related to domestic violence and the service status of each order (Penal Code § 13710).

Additionally, records shall be maintained on the number of domestic violence related calls reported to the Office, including whether weapons were used in the incident or whether the incident involved strangulation or suffocation. This information is to be reported monthly to the California Department of Justice (DOJ). The Records Manager has the responsibility to ensure that records are maintained and the required information is reported to the DOJ (Penal Code § 13730).

309.12 SERVICE OF COURT ORDERS

• A deputy who obtains an emergency protective order from the court shall serve it on the restrained person if the person can be reasonably located and shall provide the person protected or the person's parent/guardian with a copy of the order. The deputy shall file a copy with the court as soon as practicable and shall have the order entered into the computer database system for protective and restraining orders maintained by the Department of Justice (Family Code § 6271; Penal Code § 646.91).
• A temporary restraining order, emergency protective order, or an order issued after a hearing shall, at the request of the petitioner, be served on the restrained person by a deputy who is present at the scene of a reported domestic violence incident or when the deputy receives a request from the petitioner to provide service of the order (Family Code § 6383; Penal Code § 13710).
• Any deputy serving a protective order that indicates that the respondent possesses weapons or ammunition shall request that the firearm/ammunition be immediately surrendered (Family Code § 6389(c)).
• During the service of a protective order any firearm discovered in plain view or pursuant to consent or other lawful search shall be taken into temporary custody (Penal Code § 18250).

1. A deputy should ensure that the Records Division is notified of any firearm obtained for entry into the Automated Firearms System (Family Code § 6383) (see the Records Division Policy for additional guidance).

• If a valid Canadian order cannot be enforced because the person subject to the order has not been notified or served with the order, the deputy shall notify the protected individual that reasonable efforts shall be made to contact the person subject to the order. The deputy shall make a reasonable effort to inform the person subject to the order of the existence and terms of the order and provide the person with a record of the order, if available, and shall allow the person a reasonable opportunity to comply with the order before taking enforcement action (Family Code § 6452).

309.13 PUBLIC ACCESS TO POLICY

A copy of this domestic violence policy will be provided to members of the public upon request (Penal Code § 13701).

309.14 DECLARATION IN SUPPORT OF BAIL INCREASE

Any deputy who makes a warrantless arrest for a felony or misdemeanor violation of a domestic violence restraining order shall evaluate the totality of the circumstances to determine whether reasonable cause exists to seek an increased bail amount. If there is reasonable cause to believe that the scheduled bail amount is insufficient to assure the arrestee's appearance or to protect the victim or family member of a victim, the deputy shall prepare a declaration in support of increased bail (Penal Code § 1269c).

309.15 DOMESTIC VIOLENCE DEATH REVIEW TEAM

This office should cooperate with any interagency domestic violence death review team investigation. Written and oral information relating to a domestic violence death that would otherwise be subject to release restrictions may be disclosed to the domestic violence death review team upon written request and approval of a supervisor (Penal Code § 11163.3).

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