|This directive is for internal use only and does not enlarge an employee’s civil liability in any way. The directive should not be construed as creating a higher duty of care, in an evidentiary sense, with respect to third party civil claims against employees. Violations of this directive, if proven, can only form the basis of a complaint by the San Juan County Sheriff’s Office for non-judicial administrative action in accordance with the rules and laws governing employee discipline.|
|DIRECTIVE TYPE: POLICY||SUBJECT: Domestic Violence||NUMBER: OPER-324.01|
|APPROVED BY: Sheriff Ken Christesen||EFFECTIVE DATE: 2/21/2016|
|NMLEA STANDARDS: OPR.13.01 (A - F) & ADM.24.02 (E)||LAST MODIFIED: 5/17/2017||LAST REVIEW: 5/16/2017|
The purpose of this policy is to establish uniform guidelines and procedures for the response to domestic violence related incidents by personnel of the San Juan County Sheriff’s Office.
It is the policy of the San Juan County Sheriff’s Office that all incidents involving domestic violence reported to the Sheriff’s Office are handled professionally and in compliance with all applicable state statutes. Through proper investigations and collaboration with outside resources, the Sheriff’s Office attempts to identify victims of domestic abuse, assist them, and provide support through a combination of direct law enforcement intervention and referrals to community services.
The following definitions will apply for the purposes of this policy:
- Domestic Violence Related Incident – Any incident involving the alleged commission of a crime outlined in the Crimes Against Household Members Act (30-3-10 to 30-3-16 NMSA 1978).
- Ex Parte Order of Protection – Also known as an Emergency Order of Protection, this is an order of protection which is issued by a district judge and expires 72 hours after issuance or at the end of the next judicial day. Ex Parte Orders of Protection are enforceable in the same manner as other orders of protection.
- Household Member – As defined in NMSA 30-3-11, a spouse, former spouse, parent, present or former stepparent, present or former parent-in-law, grandparent, grandparent-in-law, a co-parent of a child, or a person with whom a person has had a continuing personal relationship (dating or intimate relationship). Cohabitation is not necessary to be deemed a household member for the purposes of the Crimes Against Household Members Act.
- Order of Protection – An order of protection issued by a court following a hearing.
- Primary Physical Aggressor – The party who is the most significant or principal aggressor. The primary physical aggressor is not necessarily the first disputant to engage in assaultive behavior, and should be identified through the totality of the investigation. Factors to consider include, but are not limited to:
- Evidence of offensive or defensive injuries.
- The severity of injuries received by each party.
- Threats made by a party against the other or a family member.
- Fearful and controlling demeanors.
- The relative size and strength of the parties involved.
- Evidence and statements gathered during the investigation. (OPR.13.01(B))
- Temporary Order of Protection – An order of protection issued on the basis of a petition and prior to a hearing.
DOMESTIC VIOLENCE RESPONSE, INVESTIGATION, AND ARRESTS
Domestic violence incidents can be complex and emotional situations which require deputies to exercise caution and proper investigative skill. The Sheriff’s Office expects deputies to make every attempt to identify the primary physical aggressor and consider whether one of the involved parties acted in self-defense. While dual arrests may be required in rare circumstances, they are strongly discouraged. In the event a dual arrest is deemed to be required, a supervisor should be contacted for approval.
One of the primary concerns when responding to domestic violence incidents is the safety of all persons involved. Medical assistance should be offered, rendered, and/or obtained as soon as practical for subjects who have sustained injury or expressed any complaint of injury. Deputies will take whatever steps are reasonably necessary to protect the victim(s) from further domestic abuse.
Deputies will respond to and investigate all calls regarding domestic violence. This holds true even when a call is made by any party involved in the dispute requesting that Sheriff’s Office personnel not respond.
Deputies will arrest a person, without a warrant, when the deputy is at the scene of a domestic violence disturbance and has probable cause to believe that the person has committed an assault or a battery upon a household member. When an arrest is made, deputies will charge the appropriate offense under the Crimes against Household Members Act, NMSA 1978, Sections 30-3-10 through 30-3-16 and complete a probable cause statement indicating the facts surrounding the incident and the reasoning for the determination of the primary physical aggressor. (OPR.13.01(A))
(Note: 31-1-7 NMSA 1978 authorizes deputies to make a warrantless arrest when the deputy is at the scene of a domestic disturbance and has probable cause to believe that the person has committed an assault or battery on a household member. The Supreme Court of New Mexico has further defined “at the scene” to mean reasonably close to the scene in respect to both distance and time. (State v. Almanzar 2013))
Sheriff’s Office personnel will obtain an arrest warrant for domestic violence offenses under the Crimes Against Household Members Act, NMSA 1978, Sections 30-3-10 through 30-3-16 when the deputy has probable cause to believe that a person who has fled the scene of a domestic violence incident has committed an assault or a battery upon a household member.
The Sheriff’s Office Arrest Procedures Policy will be followed when any arrest is made by a deputy pursuant to this policy.
If requested by the victim or recommended by the deputy, deputies will provide or arrange for transportation to a shelter, safe refuge, or medical facility for the victim(s) of domestic violence. Deputies will not broadcast over the police radio any information concerning the location of the victim or of any shelter. (OPR.13.01(D))
Under NMSA 40-13-7, deputies must advise the domestic abuse victim of the remedies available under the Family Violence Protection Act; and the availability of domestic violence shelters, medical care, counseling, and other services. Deputies must also advise domestic abuse victims of the procedure for initiating proceedings under the Family Violence Protection Act or criminal proceedings and of the importance of preserving evidence. This advisement is made possible through the use of the Domestic Violence Packet for Victims provided by the Sheriff’s Office and given to victims by deputies. (OPR.13.01(E))
Deputies will, upon request of the victim, accompany the victim to the victim’s residence to obtain the victim’s clothing and personal effects required for immediate needs and the clothing and personal effects of any children in their care.
Deputies are required to have available, and provide to victims, petitions for orders of protection from domestic abuse, including the instructions for completion, and the victim resource information when responding to domestic violence related incidents.
When notified by the detention center of an alleged perpetrator being released from custody, deputies will make a reasonable attempt to notify the victim of this fact.
ORDERS OF PROTECTION
If a deputy has at least a reasonable belief that family abuse has occurred and there exists the likelihood of further abuse, the deputy, with cooperation from the victim, will petition a district judge to issue an emergency order of protection in accordance with NMSA 40-13-3.2 Ex Parte Emergency Orders of Protection. Deputies will advise the victim, that the Ex Parte Emergency Order of Protection is only temporary and will expire in 72 hours or at the end of the next judicial day. (OPR.13.01(F) & ADM.24.02(E))
Deputies will enforce the provisions of a valid court order of protection and arrest, without a warrant, any respondent whom the deputy has probable cause to believe has violated a valid order of protection which is in effect at the time of the incident.
When an order of protection is confirmed, the deputy will place the respondent who is in violation of the order under arrest and transport the offender to the Detention Center for booking. Petitioners will not be arrested for violation of a restraining order. Deputies will advise Respondents to file an order to show cause with District Court if it is deemed the Petitioner is violating the order. Petitioners can be Respondents in “counter filed” protection orders.
When filling out a booking sheet, the deputy will cite Section 40-13-6, NMSA 1978 of the Family Violence Protection Act, as well as write “Violation of Court Protection Order” and include the District Court Order or other Domestic Relations Court number in the charge section of the booking sheet. All such charges should be filed in the Magistrate Court.
Orders of protection and returns of service are recorded by the Sheriff’s Office Civil Division. A file of the original document is maintained at the San Juan County Communications Authority and is available on a 24 hour basis to all law enforcement personnel. When a deputy comes in contact with a person suspected of violating an order of protection, the deputy will contact the Communications Center to determine if a valid order of protection is in effect, or if an order of protection is on file waiting to be served. The deputy will determine what provisions the order contains to make a determination on what appropriate action should be taken.
Deputies will enforce the provisions of custody as set forth in a valid court order which is in effect at the time of the incident so long as it meets the requirements set forth in the Sheriff’s Office Civil Process Operations Manual.
While the service of orders of protection is usually handled by the Sheriff’s Office Civil Division, deputies may encounter situations where service is required during off hours. In these cases, deputies will, upon the request of a victim having a valid order of protection granting possession of the dwelling or premises, assist in placing the victim in possession of the dwelling or premises, or otherwise assist in the execution or service of the order of protection.
If an Order of Protection is on file which has not been served to the respondent, the Communications Center will notify the responding deputy, who will serve the order. If the petitioner has an extra copy, that copy may be used for service. If the petitioner cannot find an extra copy, the deputy will secure a copy of the order from the Communications Center.
Deputies who serve an order of protection will immediately fill out the return of service form attached to the order and, immediately notify the Communications Center that the order has been served so it may be entered into the computer. The original return of service will then be returned to the Sheriff’s Office Civil Division.
FOREIGN ORDERS OF PROTECTION
While most foreign processes requiring enforcement action must first be domesticated, foreign orders of protection are exempt from this requirement. State (NMSA 40-13A-4) and federal (18 U.S. Code § 2265) mandates requires any valid order of protection issued by a court from another state, Indian tribe, or territory be given full faith and credit, and enforced by the court and law enforcement of another state, Indian tribe, or territory. When presented with a foreign order of protection by an involved person, deputies will take reasonable action to address emergencies and violations involving criminal acts. Other civil actions contained in the same order, such as taking children or property will require assistance from a Sheriff’s Office lieutenant or higher who will request a copy of the order directly from the issuing court or other official entity before authorizing any action. This order may be sent by facsimile and ensures that only the most recent order is enforced. Orders issued by San Juan County District Courts will be given precedence if they conflict with foreign orders regardless of the date of issue.
Deputies will document all reported incidents of domestic violence in an Offense/Incident Report and complete, when required, all arrest reports, domestic violence data reports, and victim affidavits. This includes all cases where a call for assistance originated from inside the residence, regardless of injury. All reports will be classified as domestic violence incidents. (OPR.13.01 (C))
In the event of a third party report of a domestic violence incident in which the call for help was made from outside the location of the reported incident and no evidence of any kind exists to support the call, deputies may opt to not initiate a report with approval from the on-duty supervisor.
- Crimes Against Household Members Act (30-3-10 to 30-3-16 NMSA 1978)
- Warrantless Arrest Act, (31-1-7, NMSA 1978)
- Family Violence Protection (40-13-1 to 40-13-7 NMSA 1978)
- Sheriff’s Office Civil Process Operations Manual
- State v. Almanzar, 2014-NMSC-001
- SJCSO Policy OPER-329.00 “Arrest Procedures”
- SJCSO Domestic Violence Packet for Victims
- Uniform Interstate Enforcement of Domestic Violence Protection Orders (40-13A-2 to 40-13A-9 NMSA 2016)
- 18 U.S. Code § 2265