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Police Misconduct and Domestic Violence Cases

Posted by Joseph Tully | Jul 14, 2017

If you've been arrested in California for domestic violence, the odds are against you.

There's no question that the law is stacked against the accused, or defendant, even if the person has done nothing wrong. Don't think you can just explain the situation to the police and they'll understand. That's not how the system works – and you should never speak to the police after an arrest without your attorney present.

In fact, police misconduct is a possible defense for these very serious charges. In California, domestic violence is either a misdemeanor or a felony, and the police prefer to file felony charges if they can as it can help them get promoted and/or a raise at the end of the year by increasing the amount of their felony arrests.

The district attorney also has the ability to decide whether or not a domestic violence charge is a felony or misdemeanor regardless of how the police charged it.

Even if your accuser wants to “drop the charges,” that's not going to help keep the case from going to court, and it won't help to keep you from paying large fines and/or going to jail.

You may also lose your home, job, custody of children and permanently lose your gun rights. Remember, the “battered women's syndrome”? It addresses a very real and very serious problem of an abused partner siding with their abuser.

The problem is that now the prosecutors and judges assume that every “victim” in every domestic violence case is suffering from battered women's syndrome and wants to protect the “abuser.” We see these situations every day in courthouses from Alameda to Napa to Sacramento. If you think the police mishandled your case, it's a question of proving it to the judge and jury.

Let's be honest, while the Constitution says that everyone is “innocent until proven guilty” and that the state has the burden of proof and the defendant doesn't have to prove or say anything, in reality, it is best to proceed in court as though you have to prove yourself innocent.

To do so, you need an experienced domestic violence lawyer to thoroughly investigate your case, obtain the evidence and defend you in the courtroom.

Police Protocol

Police officers responding to a domestic violence call are supposed to follow a strict protocol. State guidelines may not prove as strict as those in a particular county or city. In the majority of domestic violence calls, the whole “investigation” takes just a few minutes. Police cannot take into account the following, according to state guidelines:

  • Non-visible injuries
  • Complainant's emotional state
  • Complainant's history of prior complaints
  • Complainant's history that an arrest be made or not be made

So, it's entirely possible that someone is arrested after a domestic violence call from an agitated person – who may have made false claims about other parties in the past – who has no apparent injuries and decides they didn't want the accused arrested after all.

Zero Tolerance in Contra Costa

Contra Costa County (Concord, Walnut Creek, Danville and the rest) is just one jurisdiction that has developed a “zero tolerance” policy for domestic violence.

That goes along with a “no drop” policy, so once accused, the defendant will find having charges dismissed very difficult, if not impossible. Of course, no one should tolerate genuine domestic violence, but up to 70 percent of domestic violence allegations are false, fueled by anger, alcohol, emotional or mental instability or the desire for a better divorce settlement or sole child custody.

That means even if the police don't really think you committed domestic violence, they're going to arrest you anyway.

For them, it's basically make an arrest or explain to their superiors why they didn't, and making the arrest shields them from liability in case someone accused of domestic violence later seriously injures or kills the accuser.

Think of your arrest as police ‘CYA.'

Police Misconduct – Entrapment as a Defense

Because there is such a strong bias by law enforcement against the accused in domestic violence situations, it's not unusual for police to engage in misconduct when dealing with a person accused of domestic violence.

Tell your lawyer if any of the following things happened:

  • Did the police deny your request for an attorney?
  • Were you read your Miranda – right to remain silent – rights?
  • Was there a police interrogation that wasn't recorded?
  • Did the police ask for your side of the story prior to the arrest?
  • Do you feel the police used racial profiling in the way you were treated? For example, did you hear an officer say something along the lines of, “All these XXX beat their women.”
  • Were you physically brutalized by the police?

Your lawyer can use these and other mistakes or omissions to prove police misconduct was involved.

Prosecutorial Misconduct

Even if the police did not mishandle your case, it is possible that the prosecutor did. The prosecutor's job is to get convictions. They often overstep boundaries in their zeal to win at all costs, not caring about an innocent party being found guilty.

Your lawyer will know if the prosecutor didn't follow proper procedures or invited the jury to speculate about issues for which no evidence was offered.

You Need a Skilled Domestic Violence Attorney

Each alleged case of domestic violence is unique. It's crucial to contact an attorney as soon as you are arrested.  A skilled domestic violence attorney conducts a thorough investigation and leaves no stone unturned so that his client receives justice.

If charges were filed in Alameda County, Contra Costa County, Napa County or San Francisco County, the experienced domestic violence attorneys at Tully & Weiss can help – there is always a defense, call now to learn your options.

About the Author

Joseph Tully

Founding Partner, Criminal Law Specialist Our founding attorney, Joseph Tully, is sought out for his expert legal advice throughout California. With over 20 years of experience as a criminal lawyer, in 1000+ felony and other cases, Tully served as felony trial counsel as a public defender before...