MISSISSIPPI LEGISLATURE

2002 Regular Session

To: Judiciary

By: Senator(s) Carlton

Senate Bill 2460

(As Sent to Governor)

AN ACT TO AMEND SECTION 99-3-7, MISSISSIPPI CODE OF 1972, TO REVISE ARREST REQUIREMENTS IN DOMESTIC VIOLENCE CASES; AND FOR RELATED PURPOSES.

†††† BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

†††† SECTION 1.† Section 99-3-7, Mississippi Code of 1972, is amended as follows:

†††† 99-3-7.† (1)† An officer or private person may arrest any person without warrant, for an indictable offense committed, or a breach of the peace threatened or attempted in his presence; or when a person has committed a felony, though not in his presence; or when a felony has been committed, and he has reasonable ground to suspect and believe the person proposed to be arrested to have committed it; or on a charge, made upon reasonable cause, of the commission of a felony by the party proposed to be arrested.† And in all cases of arrests without warrant, the person making such arrest must inform the accused of the object and cause of the arrest, except when he is in the actual commission of the offense, or is arrested on pursuit.

†††† (2)† Any law enforcement officer may arrest any person on a misdemeanor charge without having a warrant in his possession when a warrant is in fact outstanding for that person's arrest and the officer has knowledge through official channels that the warrant is outstanding for that person's arrest.† In all such cases, the officer making the arrest must inform such person at the time of the arrest the object and cause therefor.† If the person arrested so requests, the warrant shall be shown to him as soon as practicable.

†††† (3)† (a)† Any law enforcement officer shall arrest a person with or without a warrant when he has probable cause to believe that the person has, within twenty-four (24) hours of such arrest, knowingly committed a misdemeanor which is an act of domestic violence or knowingly violated provisions of an ex parte protective order, protective order after hearing or court-approved consent agreement entered by a chancery, county, justice or municipal court pursuant to the Protection from Domestic Abuse Law, Sections 93-21-1 through 93-21-29, Mississippi Code of 1972, or a restraining order entered by a foreign court of competent jurisdiction to protect an applicant from domestic violence as defined by Section 97-3-7 that require such person to absent himself from a particular geographic area, or prohibit such person from being within a specified distance of another person or persons.

††††††††† (b)† If a law enforcement officer has probable cause to believe that two (2) or more persons committed a misdemeanor which is an act of domestic violence as defined herein, or if two (2) or more persons make complaints to the officer, the officer shall attempt to determine who was the principal aggressor.† The term "principal aggressor" is defined as the most significant, rather than the first, aggressor.† The officer shall presume that arrest is not the appropriate response for the person or persons who were not the principal aggressor.† If the officer believes that all parties are equally responsible, the officer shall exercise such officerís best judgment in determining probable cause.

††††††††† (c)† To determine who is the principal aggressor, the officer shall consider the following factors, although such consideration is not limited to these factors:††††

††††††††††††† (i)† Evidence from the persons involved in the domestic abuse;

††††††††††††† (ii)† The history of domestic abuse between the parties, the likelihood of future injury to each person and the intent of the law to protect victims of domestic violence from continuing abuse;

††††††††††††† (iii)† Whether one (1) of the persons acted in self-defense; and

††††††††††††† (iv)† Evidence from witnesses of the domestic violence.

††††††††† (d)† A law enforcement officer shall not base the decision of whether to arrest on the consent or request of the victim.

††††††††† (e)† A law enforcement officerís determination regarding the existence of probable cause or the lack of probable cause shall not adversely affect the right of any party to independently seek appropriate remedies.

†††† (4)† (a)† Any person authorized by a court of law to supervise or monitor a convicted offender who is under an intensive supervision program may arrest the offender when the offender is in violation of the terms or conditions of the intensive supervision program, without having a warrant, provided that the person making the arrest has been trained at the Law Enforcement Officers Training Academy established under Section 45-5-1 et seq. or at a course approved by the Board on Law Enforcement Officer Standards and Training.

††††††††† (b)† For the purposes of this subsection, the term "intensive supervision program" means an intensive supervision program of the Department of Corrections as described in Section 47-5-1001 et seq., or any similar program authorized by a court for offenders who are not under jurisdiction of the Department of Corrections.

†††† (5)† As used in subsection (3) of this section, the phrase "misdemeanor which is an act of domestic violence" shall mean one or more of the following acts between family or household members who reside together or formerly resided together, current or former spouses, persons who have a current dating relationship, or persons who have a biological or legally adopted child together:

††††††††† (a)† Simple domestic violence within the meaning of Section 97-3-7;

††††††††† (b)† Disturbing the family or public peace within the meaning of Section 97-35-9, 97-35-11, 97-35-13 or 97-35-15; or

††††††††† (c)† Stalking within the meaning of Section 97-3-107.

†††† (6)† Any arrest made pursuant to subsection (3) of this section shall be designated as domestic assault or domestic violence on both the arrest docket and the incident report.

†††† (7)† A law enforcement officer shall not be held liable in any civil action for an arrest based on probable cause and in good faith pursuant to subsection (3) of this section, or failure, in good faith, to make an arrest pursuant to subsection (3) of this section.

†††† SECTION 2.† This act shall take effect and be in force from and after July 1, 2002.