FAQ: What Does Mandatory Arrest Mean in Colorado Domestic Violence Cases?

A Question and Answer Session With Denver Defense Attorney Casey Krizman

Question: “I’ve heard that in Colorado, there’s a mandatory arrest law stating that if the police are called to a home in a domestic violence dispute, at least one person has to be arrested. Is this true?”

Answer: That’s an oversimplification, but this is almost true, with some nuances involved. If the cops are called to a domestic violence in progress, they’re going to be looking for probable cause. Probable cause is basically defined as; a 51% chance that a crime is, was, or is about to happen.

So, strictly speaking, there is no mandatory arrest in terms of someone just calling the cops and saying, “There’s a D.V. going on at my neighbor’s house,” where you can be sure they’re going to arrest one of them.

Police have to find that a crime happened, or is going to happen, or is in the midst of happening. And when they determine by 51% that a crime did occur, then they must arrest. So, in that case, it is a mandatory arrest. When there’s probable cause, they have to arrest the aggressor. That’s why it’s a mandatory arrest. And what that really means is they have to arrest, even if the other person doesn’t want to file charges.

As an example, let’s say my wife and I are in a fight, and cops show up at our door. Then let’s say the police have determined that I was the aggressor. No matter what my wife wants, they have to arrest me. She can’t just say, “Never mind! I take it all back! I don’t want to file charges!”

The cops don’t have any discretion in that. They do have discretion in determining whether or not there is probable cause. Maybe they don’t believe my wife’s story, or maybe they go to the wrong house; in those cases, there isn’t probable cause.

Question: “But what happens if both parties are at fault?”

Answer: Well, that can be really hard to determine. Sometimes people have an idea that in domestic violence calls, there can be a case where both parties are to blame. Using the hypothetical fight between my wife and I, maybe it’s half my fault and half my wife’s fault. So who do they arrest if we’re both being violent?

That’s when it’s a cop’s judgment call about who the initial and primary aggressor is or was. Generally, two people aren’t hitting each other at the same time. Usually, someone hit first, or someone pushed first. This is obviously hard for cops to decide, and sometimes, they just make the wrong call.

And to further complicate things, oftentimes, one person is willing to tell a story about what happened, and one person isn’t. And that doesn’t automatically mean the person talking is telling the truth, right?

A lot of times, one person is covering for the other. Maybe the other one is pissed off because they’re being left, or they’re being cheated on, so they’re embellishing or making things seem like they are worse than what really happened, and the other one’s being quiet. And it can be that the quiet person is the one that gets arrested based on the things the talkative person just made up.

Question: “Doesn’t a police officer’s training prepare them for making the right call in these situations?”

Answer: I think we all hope that, but the fact is that the education given to law enforcement officers really isn’t that in-depth for these kinds of things. These cops are trying to make the right decisions, but they’re also trying to be done with that call because almost everyone’s obnoxious when they’re dealing with the cops.

So the police just want to make a move, get an arrest, and get out of there. Then their job is finished, and they can just say, “We’ll let the courts figure it out.” But that decision is made without any consideration for the fact that this is going to cost the person being arrested thousands in legal fees and subject them to potentially life-changing consequences.

Question: “What kinds of consequences?”

Answer: For instance, federal law dictates that anyone convicted of a misdemeanor or felony crime designated as an act of domestic violence loses their right to own a firearm. Forever. This means that if a person pleads guilty to a domestic violence charge after the cops made an incorrect determination of probable cause on the scene, that person has literally lost 10% of their Bill of Rights based on shoddy police work. That’s why it’s not okay to just say, “We’ll let the courts figure it out.”

People often don’t understand the Pandora’s Box they are opening when they call the cops during an argument with their significant other, and the immediate ramifications can be disorienting and even devastating. That’s why it is so important to get the right representation right away.