A number of blogs and other publications are saying that New Hampshire is rolling back the rights of domestic violence victims. I decided to look into it. There is a bill, House Bill 1581. The sponsor is a Tea Party Republican, Rep. Dan Itse.
As usual, my first step was to review the text of the bill. The Analysis is rather sparse: "This bill restricts the authority of law enforcement officers to make an arrest without a warrant."
The bill adds and deletes language.
594:10 Arrest Without a Warrant Upon Observation of a Crime.
I. An arrest by a peace officer without a warrant on a charge of a misdemeanor or a violation is lawful whenever[:
(a) he] the peace officer has probable cause to believe that the person to be arrested has committed a misdemeanor or violation in [his] the officer’s presence[; or
(b) He has probable cause to believe that the person to be arrested has within the past 12 hours committed abuse as defined in RSA 173-B:1, I against a person eligible for protection from domestic violence as defined in RSA 173-B:1, has within the past 12 hours violated a temporary or permanent protective order issued under RSA 173-B or RSA 458:16 by committing assault, criminal trespass, criminal mischief or another criminal act, or has within the last 12 hours violated stalking provisions under RSA 633:3-a.
(c) He has probable cause to believe that the person to be arrested has committed a misdemeanor or violation, and, if not immediately arrested, such person will not be apprehended, will destroy or conceal evidence of the offense, or will cause further personal injury or damage to property].
II. An arrest by a peace officer without a warrant on a charge of felony is lawful whenever[:
(a) A felony has actually been committed by the person arrested, regardless of the reasons which led the officer to make the arrest.
(b) The officer has reasonable ground to believe that the person arrested has committed a felony] the peace officer has probable cause to believe that the person to be arrested has committed a felony in the officer’s presence or in the presence of another peace officer with whom the officer is working.
III. No peace officer shall enter the dwelling or other private property not accessible to the general public without a warrant or consent of the owner, except where the peace officer has observed a person who has committed a felony or misdemeanor in the officer’s presence enter such dwelling or private property and the officer is in hot pursuit of the person.
IV. In the event an arrest is determined by a court or through a petition for redress of grievance to be unlawful, the law enforcement agency which made the arrest shall be liable for all of the arrestee’s legal and incidental costs associated with obtaining his or her freedom and expunging the record of the arrest. All records of unlawful arrests shall be destroyed by the law enforcement agency making the arrest.
5 Protection of Persons From Domestic Violence; Protection by Peace Officers. Amend RSA 173-B:10, II to read as follows:
II. [Pursuant to RSA 594:10, an arrest for abuse may be made without a warrant upon probable cause, whether or not the abuse is committed in the presence of the peace officer.] When the peace officer has probable cause to believe that the persons are committing or have committed abuse against each other, the officer need not arrest both persons, but [should] may arrest the person the officer believes to be the primary physical aggressor. In determining who is the primary physical aggressor, an officer shall consider the intent of this chapter to protect the victims of domestic violence, the relative degree of injury or fear inflicted on the persons involved, and any history of domestic abuse between these persons if that history can reasonably be obtained by the officer.
6 Annulment, Divorce, and Separation; Temporary Relief and Permanent Restraining Orders. Amend RSA 458:16, III to read as follows:
III. When a party violates a restraining order issued under this section by committing assault, criminal trespass, criminal mischief, stalking, or another criminal act, that party shall be guilty of a misdemeanor, and peace officers shall arrest the party, detain the party pursuant to RSA sec 594:19-a, and refer the party for prosecution. Such arrests may be made within 12 hours after a violation [without] with a warrant upon probable cause whether or not the violation is committed in the presence of a peace officer.
A law of unintended consequences?
The effect is to treat domestic violence cases like all other victims. In itself that may not be a bad thing. But the unintended effect is to prohibit police from making warrantless arrests for any type of offense unless the officer personally witnesses the act. What this means is that if a citizen complains to police about any sort of crime the police are unable to take any action other than to seek a warrant. Of course, by the time the warrant is obtained, the culprit will have surely fled, or perhaps eliminated the complaining witness.
It does seem that Rep. Itse was trying to eliminate the added protections, but he has also thrown the baby out with the bathwater. There is no question domestic violence victims will be at greater risk, but so will everyone else.
Of course, since he's not talking, it's hard to tell what he is trying to do.
See also HuffingtonPost. HuffPO reported that the sponsors refused to comment on the bill despite repeated requests.
