CALLING 911 FOR A CURE WORSE THAN THE DISEASE.
Posted by Edmund R. Folsom, Esq.
June 8, 2018
Everyone has seen news stories about people who called 911 for a ridiculous reason, such as to complain that a fast food joint didn’t get their order right. These people have a warped view of the role of police and emergency responders, but they are not the people I am writing about here. I am writing about people who have a less ridiculous but nevertheless distorted view of the role of police in our society – a distorted view that leads them to call 911 for police assistance and then sorely regret that they ever picked up the phone. I talk to these people frequently. They wish they had known beforehand what I am about to tell you now. But before I go further, please allow me to issue a disclaimer: I am not giving you advice. I am only providing information about the way things are. There are some very good reasons to call the police, and there are some very good reasons not to.
When a person calls for police assistance, that person is asking for state intervention. This has serious implications. Typically, a person who calls police for an appropriate reason calls to report a crime. Police respond and investigate. If they determine that a crime was committed, they either arrest or summons the person they think committed it. Police follow up by writing a report and turning it over to the D.A.’s Office. An assistant D.A. reads the report and, if the A.D.A. believes the report demonstrates a substantial chance that the crime can be proved (or at least probable cause to bring the charge), the A.D.A. writes up a charging instrument and files it with the court. This begins the process of formal criminal prosecution in a case that will be styled as: State of Maine v. (name of charged person). Note that the parties to this action are the State of Maine and the charged person. The alleged victim is not a party and does not have the final say over whether the charge will be “pressed.” I point this out because there is a lot of mythology around whether alleged victims get to decide whether to “press charges.” Once a person has been charged, alleged victims don’t get to decide whether to “press charges.” Assistant D.A.’s decide whether charges will be “pressed,” because A.D.A.’s are agents of the State of Maine, the party on the opposite side of the “v.” from the defendant. Because of this, aside from the practical reality that an A.D.A. often needs the testimony of an alleged victim to prove the charge and is required to keep an alleged victim informed of the terms of any plea agreement, an A.D.A. is entirely free to ignore an alleged victim’s wishes. And frankly, because it is much less dangerous for an A.D.A. to ignore the wishes of an alleged victim who wants a case dropped than the wishes of an alleged victim who wants a case vigorously prosecuted, an A.D.A. is far more likely to ignore the wishes of the former than the latter.
Even though the D.A.’s Office, not the alleged victim, holds the power to decide whether or not to pursue a criminal prosecution, there is one mechanism in Maine law for alleged victims to seek dismissal of a criminal charge that they do not wish to see prosecuted. Under Title 15 M.R.S. §891(1), if an alleged victim (“injured party”) appears before the Court and acknowledges satisfaction of injury in writing, the Court “may dismiss the charge.” The Court is not required to dismiss the charge, but the Court may dismiss it, even over an A.D.A.’s objection. This statute is referred to as the “accord and satisfaction” statute. However, it applies only to Class D and E crimes (and their juvenile equivalent), and it expressly does not apply to crimes in which the alleged victim is a “family or household member as defined in Title 19-A, chapter 101.” 15 M.R.S. §891(2). The term “family or household member,” in this context, includes spouses, those who live together or have ever lived together, and those who have ever been sexual partners, among others. See 19-A M.R.S. §4003(4). Because of this, if you and your neighbor get into a shoving match and one of you is charged with assault, the one who isn’t charged may reach an accord and satisfaction with the one who is, which will very likely result in the charge being dismissed. If you and your brother (who at some point lived with you) get into a shoving match and one of you is charged with assault, you are not allowed to resolve the matter the same way.
Because alleged victims have no legal standing to end a prosecution of a charge that involves a “family or household member,” alleged victims in such cases often tell me they regret having called the police in the first place. To illustrate why, let’s walk through the process that unfolds once the call is made in a case that appears to involve some form of “domestic violence.” First, the 911 operator gathers enough information to identify the call as “domestic” and passes that information along to the police. The police are now alerted that they are responding to a “domestic” incident. From the responding officer’s standpoint, the officer could be walking into a highly volatile and personally dangerous situation. According to the State of Maine, Department of Public Safety report “Crime in Maine – 2016,” there were 18 murders and non-negligent homicides in Maine in 2016. Of those, 7 (38% of the total) involved a domestic conflict. According to that same report, there were 4,907 domestic violence assault arrests in Maine in 2016. Maine has a very low homicide rate and a very small percentage of domestic violence incidents that end up as homicides. But domestic violence accounts for a large percentage of Maine homicides, and since the police and the players in the criminal justice system can never know which domestic violence incident will result in the next homicide, they aren’t taking any chances.
When the police arrive, they will eliminate any apparent threat to their own safety. Anyone acting squirrelly with a weapon stands a very good chance of being shot, and on a number of occasions household members have in fact been shot to death by officers responding to “domestic” calls. Once police are confident there is no immediate risk to their safety or the safety of others, they will speak to the involved parties. They will confirm the relationship between the parties. If that relationship qualifies the parties as “family or household members,” and if the police believe there is probable cause that a crime of violence was committed (assault, criminal threatening, terrorizing, etc.), someone is going to get arrested — the only question is, who? If there was mutual pushing, shoving, etc., police will decide which person appears to be the primary aggressor. That is the one they will arrest. The other one will be the alleged victim.
For the remainder of our illustration, I will call the alleged victim “A” and the arrested person (defendant) “B.” B will at least be taken to the police station, and probably to jail. Assuming B is eligible for bail, a bail commissioner will set conditions on B’s release that will include that B can have no direct or indirect with A, and cannot be at A’s residence, place of education or employment. If A and B lived together before the arrest, B must find a new place to live, immediately. If A and B previously found it necessary to communicate with each other about children or household finances, B will commit a criminal offense if they communicate about those matters (or anything else) now. If A wants to communicate with B, or to have B allowed back in the family residence, it will be possible for B to bring a motion to amend bail conditions seeking to allow the desired contact. However, B may not legally communicate with A to learn that A wants the conditions eliminated, so the only way to size up the situation is for B to get an attorney who can speak to A (if A wishes to speak to B’s attorney) and then file a motion to amend bail on B’s behalf. But remember, just as the police don’t know which domestic violence call might involve the next non-negligent homicide, the A.D.A. and the judge don’t know which domestic violence defendant might be the next to commit murder. If there is the slightest whiff that there might be danger in allowing contact, the A.D.A. will oppose the motion to amend bail. And if the A.D.A. opposes the motion to amend bail, a judge who allows contact over the A.D.A.’s objection is really crawling out on a limb. If lightning strikes and B ends up seriously harming A, the judge’s crucifixion will be prolonged and merciless – the odds make it a small risk things will go wrong, but a bad result is a career-ender. How would you rule? If the motion to amend bail is not granted, B might remain out of the house, barred from any form of communication with A for months before the case is resolved. If this is not what A wants, if this places A under serious economic and/or emotional stress, A is powerless to do anything about it.
What if B is the one who called the police? How much will B regret the decision once B is arrested? Very much, I have been told by a number of B’s. Oh yes, this has happened many times. What if A called the police expecting them to come along and simply settle an argument over which of the parties has to leave the residence that night and which one gets to stay, and then leave the parties to carry on with their lives? And what if, in talking to the parties, police learned that there was some grabbing, pushing or shoving involved in the argument (D.V. assault), or that one of the parties tried to prevent the other from calling the police (obstructing). Uh, oh… someone is taking a ride in handcuffs, and the parties will no longer be allowed to live together or even communicate with each other, beginning immediately. When A tries to explain to the police or the D.A.’s Office that A did not intend for B to get arrested and that A does not wish to “press charges,” A will be told that the charges are not A’s to “press.” And when A explains that A wants contact with B, A will be told that B’s lawyer will need to bring a motion to amend the bail conditions. When B’s attorney brings the motion to amend bail conditions and A shows up to explain to the judge that A wants the no contact condition removed, A might well find that A’s wishes in this regard are ignored.
A state-imposed communication and association ban backed by the force of the criminal law, preventing all communication between parties both of whom want to associate and communicate, is a strange thing for a free-born adult to get used to. But you would not call the state to handle a problem for you unless you were unable to handle the problem without state intervention, would you? Calling-in the police is very serious business. The police are not counselors or mediators. They come clad in body armor, armed with guns, tasers, pepper spray, handcuffs and batons, and when they come, they take control. When you call in the police, you concede control; first to the police and then to the criminal justice system. The deal isn’t a la carte — you get the whole package. Sometimes, I have been told, the cure can be worse than the disease.
The average person has little to no experience with the criminal justice system and many misconceptions about it. As a nearly life-long denizen of the system, I feel the need to splash around a little reality about it from time to time. In that vein, I also offer this bit: Why it is a Bad Idea to Just Walk Into Court and Plead Guilty at Arraignment.