One problem with mandatory
arrest policies in domestic violence cases is that both parties may allege that
the other was the aggressor, requiring the police to arrest both parties,
including an innocent victim who may have been acting in self-defense. Without a
law or policy limiting the officer’s duties under the mandatory arrest law in
the dual arrest context, victim complaints to the police will be deterred by
fear of personal arrest, contrary to the purpose of the mandatory arrest law.
Hence, states have adopted an amendment to the mandatory arrest law authorizing
the officer to arrest only the primary aggressor. A corollary amendment often
provides an incentive to exercise judgment in dual arrest situations, by
requiring the officer to fully explain why a dual arrest was made. Because the
problem of dual arrests is exacerbated by the court’s issuance of mutual
orders of protection to both parties, many state laws contain provisions
limiting the authority of the court to issue mutual orders of protection. See
Mary O’Brien, Mutual Restraining Orders in Domestic Violence Civil Cases,
30 Clearinghouse Rev. 231 (1996). State laws setting forth "dual
arrest" or "primary aggressor" guidelines for police to follow in
making arrests include Ala. Code § [new], Ala Acts 2000, Act 266, § 5; Alaska
Stat. § 18.65.530 (b); Ariz. Rev. Stat. Ann. § 13-3601 (B) (self defense is
not an act of domestic violence); Col. Rev. Stat. § 18-6-803.6 (2); Conn. Gen.
Stat. Ann. § 46b-38b (b); Fla. Stat. Ann. §§ 741.29 (4), 901.15 (7) (public
policy to discourage dual arrest), 943.171 (1) (training in dual arrests); Ga.
Code Ann. § 17-4-20.1 (b); Iowa Code Ann. § 236.12 (3); Md. Code Ann. art 27
§ 594B (d)(2) (self defense consideration); Mass. Gen. Laws Ann. ch. 209A § 6
(7) (special report required); Mich. Stat. Ann. § 28.1274(3) (3)(b)(ii); Mo.
Rev. Stat. § 455.085 (3); Mont. Code Ann. § 46-6-311 (2)(b); Nev. Rev. Stat.
§ 171.137 (2); N.H. Rev. Stat. Ann. § 173-B:9; N.J. Stat. Ann. § 2C:25-21
(comparison required); N.Y. Crim. Proc. Law § 140.10 (4)(c); N.D. Cent. Code §
14-07.1-10 (2); Ohio Rev. Code Ann. §§ 2935.03 (B)(3)(d), 2935.032 (A)(1)(a)(ii),
(b)(ii); R.I. Gen. Laws § 12-29-3 (c)(2); S.C. Code Ann. § 16-25-70 (D); S.D.
Codified Laws Ann. § 23A-3-2.2; Tenn. Code Ann. § 36-3-619 (b), (c); Utah Code
Ann. § 77-36-2.2 (3); Va. Code Ann. §§ 19.2-81.3 (B), 19.2-81.4 (2); Wash.
Rev. Code Ann. § 10.31.100 (2)(c); Wis. Stat. Ann. § 968.075 (3)(a)1.b. A
number of other states (and some of those with dual arrest laws) also have
statutory provisions that tell police not to discourage reporting of domestic
violence by threatening arrest of the person making a complaint. See, e.g.,
Conn. Gen. Stat. Ann. § 46b-38b (b).