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Chief's Counsel

Mandatory Arrest Statutes – Are They Really Mandatory?

By Karen J. Kruger, Counsel, Maryland Chiefs of Police Association, Baltimore, Maryland; and Board Member at Large, Legal Officers’ Section

new statute in Maryland directs that “An officer shall arrest with or without a warrant and take into custody a person who the officer has probable cause to believe is in violation of an interim, temporary, or final protective order [for domestic violence] in effect at the time of the violation.”1 Training guidelines instruct officers that “You have no discretion about whether or not to arrest a respondent...You must arrest, whether [a] condition [of the Order] is violated in your presence ... or a violation is called to your attention as having occurred ... and you have probable cause to believe that the violation did occur as alleged...”2

Enactment of this statute and the issuance of the training guidelines instigated lively discussion among law enforcement professionals about the meaning of this mandatory arrest provision in light of the holding of the United States Supreme Court in Town of Castle Rock, Colorado v. Gonzales.3 The Castle Rock case illustrates the terrible tragedy of domestic violence in this country but realistically recognizes the role that law enforcement has in preventing these tragedies must often be limited.

The Supreme Court Excuses Police Non-Compliance with Mandatory Arrest Statute

A state court in Colorado had issued to Ms. Gonzales a restraining order requiring her estranged husband to remain at all times at least 100 yards from the home in which she and the couple’s three daughters resided. After a few weeks, the husband, allegedly without notifying the wife, took the daughters while they were playing outside the home and killed them. The wife filed, under 42 U.S.C.S. § 1983, a suit alleging that the local town had violated the due process clause of the Fourteenth Amendment when the town’s police officers, acting pursuant to official policy or custom, had failed to respond to the wife’s repeated reports over several hours that her husband had taken the three children in violation of her restraining order.

Ms. Gonzales’ claims were based, in large part, on the Colorado statute directing that law enforcement officers “shall use every reasonable means to enforce a protection order” (or even “shall arrest . . . or . . . seek a warrant”),4 which she characterized as a “mandatory legislative command” with which the officers failed to comply. This failure, she contended, deprived her of due process of law, specifically, a protected property interest in enforcement of her restraining order.5

The Supreme Court held that Ms. Gonzales did not, for purposes of the due process clause, have a property interest in police enforcement of the restraining order—and, therefore, even under the facts that she alleged, the police officers had not violated her procedural due process rights by failing to respond to her requests that the police enforce the order. The Court determined that Colorado law did not really make enforcement of restraining orders mandatory, as the state had not created a personal entitlement to such enforcement; and it was not clear that an individual entitlement to enforcement of a restraining order could constitute a “property” interest for purposes of the due process clause.

Essentially, the Court recognized that there is a “deep-rooted ... law enforcement discretion, even in the presence of seemingly mandatory legislative commands.”6 Indeed, Justice Scalia noted that there is “[a] well established tradition of police discretion [that] has long coexisted with apparently mandatory arrest statutes.”7

In Castle Rock the court made two important observations – one, that the Colorado domestic violence statute was “not perceptibly more mandatory than [for instance] the …statute that has long told municipal chiefs of police that they ‘shall pursue and arrest any person fleeing from justice… and that they shall apprehend any person in the act of committing any offense…’”8 and two, that the statute did not necessarily give the “respondent an entitlement to enforcement of the mandate.”9 The Supreme Court ruled that Colorado simply had not given to Ms. Gonzales—or any individual person—a statutory entitlement to enforcement of a restraining order. In fact, such an entitlement would be very unusual in light of the public duty doctrine.10

An Egregious Failure to Protect May Lead to Liability

In Okin v. Village of Cornwall-on-Hudson Police Dept.,11 a New York court recently examined the public duty doctrine in the context of its state statute that calls for mandatory arrest in domestic violence cases. Noting that “[a]s a general matter…a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause,”12 this court did recognize that if the officers’ failure to take action had in some way “assisted in creating or increasing the danger to the victim,” due process rights may indeed be implicated, and the officers might be liable to her.13

In this case, the court held Ms. Okin would be required to prove that the conduct of the village police was “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” The appellate court did find here that there were facts in the record that could show that because the officers knew of “[t]he serious and unique risks and concerns of a domestic violence situation”14 and yet failed to take action, that evidence might amount to the deliberate indifference that “is the requisite state of mind for showing…conduct [that] shocks the conscience.”15 Thus, if Ms. Okin could make such a showing at trial, the officers might be found liable to her.

Law enforcement officers must, therefore, be attentive to mandatory arrest statutes in whatever context they arise; many are found in the domestic violence context.16 As we see in the Castle Rock case, seemingly mandatory commands to arrest do not divest law enforcement officers of the discretion to choose not to arrest. However, in Okin, we see that an abuse of that discretion to the point of deliberate indifference may result in civil liability.

Statutes Cannot Abrogate Police Discretion

Agencies should train officers in the proper exercise of discretion and help them be prepared to explain and document the decisions they make in mandatory arrest situations. Among the conditions that might exist to explain why an arrest was not made include the following:

  • The offense was not committed in the officer’s presence.

  • The whereabouts of the offender are unknown.

  • The violation was too immaterial to justify an arrest.

  • It was not safe to make an arrest.

  • There were important competing demands for the officer’s time and attention.17

  • Agency resources were too limited.
  • There was a difference of opinion among officers as to the existence of probable cause.

  • There was a negligent failure to appreciate the gravity of the situation.

  • There was insufficient time for reflection to decide the best course of conduct.

  • A magistrate, in his or her discretion, declined to issue an arrest warrant.


Domestic violence has long been, and will continue to be, a social problem18 for which law enforcement must be part of the solution. Legislatures seek to aid victims by enacting mandatory arrest statutes, but given the complexity of police work, such mandates must have exceptions. Realistically, law enforcement officers cannot protect all citizens from all dangers, try as they might. It would be patently unfair and untenable to the functioning of the profession to hold officers liable for failing to comply with every so-called mandatory command, regardless of the circumstances. Yet, they must act responsibly, in good faith, and without negligence, and, for that, they need guidance of the type discussed here. ■


1MD Code Ann., Family Law Art., sec. 4-509(b), eff. 10/01/2009. In Maryland, a person may be subject to arrest if he/she violates a protective order by failing to (1) refrain from abusing or threatening the petitioner; (2) refrain from contacting or harassing the petitioner; (3) refrain from entering the petitioner’s residence; (4) vacate the residence; (5) stay away from petitioner’s employment, school, or temporary residence; and (6) surrender any firearms in his/her possession and refrain from possessing any firearm during the effective term of the order.
2Governor’s Family Violence Council Firearm Surrender Task Force: Law Enforcement Instructional Guide—2009 Update (October 1, 2009), 2, (accessed October 23, 2009).
3Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005).
4Colo. Rev. Stat. §§ 18-6-803.5(3)(a), (b).
5Gonzales v. City of Castle Rock, 366 F. 3d 1093 (10th Cir. 2004).
6Gonzalez, 545 U.S. at 760, citing Chicago v. Morales, 527 U.S. 41, 47, n. 2 (1999) (involving an ordinance that said police officer “shall order” persons to disperse under certain circumstances; noting that the “Court rejected out of hand the possibility that ‘the mandatory language of the ordinance… afford[ed] the police no discretion...It is, the Court proclaimed simply common sense that all police officers must use some discretion in deciding when and where to enforce city ordinances.’”
7Gonzalez, 545 U.S. at 760.
8Id. at 762.
9Id. at 765, noting that “the benefit of having someone else arrested does not generally trigger a due process claim”; Id. at 768, n. 10.
10Karen J. Kruger, Chief’s Counsel, “Duty to All, Duty to No One: Examining the Public Duty Doctrine and Its Exceptions,” The Police Chief 74 (May 2007): 10–11; see also Donaldson v. Seattle, 65 Wn. App. 661, 667 (1992) (where statute creates government duty to protect particular individuals, liability for negligence may lie if the statute was violated and the injured party was one of the persons entitled to protection).
11Okin v. Vill. of Cornwall-on-Hudson Police Dept., 577 F.3d 415 (2d Cir. N.Y. 2009).
12Id. at 428; The court recognized that “mandatory arrest statutes, like the one passed in New York, were passed in many states in the 1980s and 1990s to address severe problems of recidivism and slow police response to domestic violence calls.” Id. at 432, n. 10.
13Id., quoting Deshaney v. Winnebago County Dept. of Soc. Svcs., 489 U.S. 189, 197 (1989); See also Smith v. McCarthy, 2009 U.S. Dist. LEXIS 746 (4th Cir. 2009) (no duty to individual to investigate and prosecute alleged police officer misconduct).
14Okin, 577 F.3d at 431, quoting County of Sacramento v. Lewis, 523 U.S. 833, 847, n. 8 (1998).
15Okin, 577 F.3d at 432.
16See for example, La. Rev. Stat. Ann., Title 14, sec. 79(E); Mo. Ann. Stat. sec. 455.085(5); In re Amendments to the Florida Family Law Rules of Procedure, 717 So.2d 914, 918 (Fla. S. Ct. 1998) (requiring arrest of noncustodial parent who refuses to return children to custodial parent); see also 84 Op. Atty Gen. 105 (Md. 1999); and Donaldson v. Seattle, 65 Wn. App. 661 (1992) (officers had no mandatory duty to arrest murderer who was subject to domestic “no contact” order).
17See Matican v. City of New York, 524 F.3d 151, 155 (2d Cir. 2008) (decision not to arrest drug dealer given competing obligations of own safety and that of informant).
18Nicole M. Questor, “Refusing to Remove an Obstacle to the Remedy: The Supreme Court’s Ruling in Town of Castle Rock v. Gonzales Continues to Deny Domestic Violence Victims Meaningful Recourse,” Akron Law Review 40, no. 2 (2007): 391–434, (accessed October 24, 2009).



From The Police Chief, vol. LXXVI, no. 12, December 2009. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.

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