Mandatory Arrest and the Primary Aggressor Rule

When Police Must Arrest

Under CPL § 140.10(4), an officer must make an arrest, and may not attempt to reconcile the parties or mediate, when the officer has reasonable cause to believe that any of the following occurred between members of the same family or household:

The misdemeanor rule has a catch. The officer is prohibited from asking the victim whether they want an arrest. The request has to come from the victim unprompted, and even then the statute only lifts the mandate. It does not forbid the arrest. In practice, officers and their supervisors treat an arrest as the safe choice, and a complainant's request to let it go rarely changes the outcome.

Violations Are Treated Differently

The mandatory arrest provision covers felonies, misdemeanors, and order-of-protection violations. It does not cover a petty offense such as harassment in the second degree, which is a violation and not a crime. Under the general arrest rules, police may arrest for a violation only when they have reasonable cause to believe it was committed in their presence. So a shove that caused no injury, reported after the fact, does not by itself require or permit an arrest at the scene.

This matters less than it should. When an officer hears an account of physical contact, the complaint of pain that follows is usually enough for the officer to treat the incident as assault in the third degree, a misdemeanor, and the mandate applies. Whether the proof supports an assault charge is sorted out later, in court.

Cross-Complaints and the Primary Physical Aggressor

Domestic incidents frequently produce two versions. Each person says the other started it, and sometimes both have marks. The statute addresses this. Where the officer has reasonable cause to believe that more than one family or household member committed a family-offense misdemeanor, the officer is not required to arrest each of them. Instead, the officer must attempt to identify the primary physical aggressor, after considering:

• the comparative extent of any injuries inflicted by and between the parties;
• whether either person is threatening, or has threatened, future harm to the other or to another family or household member;
• whether either person has a prior history of domestic violence that the officer can reasonably ascertain; and
• whether either person acted defensively to protect against injury.

That is a careful inquiry on paper. On the street it is conducted in a few minutes, in a hallway, often late at night, by officers who were not there when the incident happened. The person who called 911 first tends to be treated as the victim. The person who is calmer, more articulate, or more visibly injured tends to be believed. A scratch on a face can be a defensive wound inflicted by someone being restrained, or it can be an attack, and the officer has to guess. People who were defending themselves get arrested under this rule with some regularity.

The Domestic Incident Report

Officers responding to a domestic call must complete a Domestic Incident Report, known as a DIR, whether or not anyone is arrested. The form records the officers' observations, the condition of the scene and the parties, and any prior incidents. It also includes a statement of allegations written or dictated by the complainant and signed beneath a warning that false statements are punishable as a crime.

The DIR is one of the most important documents in the case. It is the complainant's first written account, given within minutes or hours of the event. It is turned over in discovery, and we compare it line by line with the 911 call, the body-worn camera footage, the criminal complaint, the medical records, and later testimony. Details that appear for the first time weeks later, or that contradict the DIR, are the core of cross-examination. Prior DIRs between the same parties also matter, because prosecutors rely on them in arguing about bail and the order of protection.

An Arrest Is Not a Finding of Guilt

Reasonable cause is a low standard. It means only that the information available to the officer made it reasonably likely that an offense was committed. It is far from proof beyond a reasonable doubt, and because the statute compels the arrest, the fact of the arrest says very little about the strength of the case. We use that in several ways:

• The rushed analysis. Body-worn camera footage shows how long officers actually spent on the primary aggressor question, whom they spoke to, and what they ignored. Where they never asked our client what happened, a jury hears that.
• Defensive injuries. We photograph the client's injuries immediately and obtain any medical records. Injuries to the accused support a justification defense and undercut the officer's choice of aggressor.
• Who called, and what they said. The 911 recording captures tone, background sound, and the first description of events. It often differs from the complaint.
• A cross-complaint. Where the client was the injured party, we evaluate whether and how to present that to the District Attorney's office. This is a decision for counsel, because a statement made to support a cross-complaint is also a statement that can be used against the person making it.

If the Police Are Looking for You

Often the accused has left by the time officers arrive. The police take the report, and the precinct detective squad issues an internal notice that the person is wanted for arrest. In New York City this is commonly called an I-card. It is not a warrant, but it means any police contact will end in arrest. The detective may call and ask you to "come in and tell your side." The purpose of that call is to make the arrest and to obtain a statement.

• Do not give a statement, by phone or in person. Explanations offered to a detective do not prevent the arrest. They become evidence.
• Do not contact the complainant to work things out. It can be charged as a new offense, and it will be described to the judge at arraignment.
• Arrange a surrender through counsel. We contact the detective, notify them in writing that the client is represented and will not answer questions, and schedule a surrender timed so that the client sees a judge as quickly as possible. We then prepare for the arraignment, where the court will decide release and issue an order of protection.

For general guidance, see what to do if you are arrested in New York.

Call Before You Speak to a Detective

If you have been arrested after a domestic call, or a detective has left a card or a voicemail, call us at 212-233-1233 or email [email protected].