A recent ruling by the Idaho Supreme Court will have a dangerous effect. The court unanimously ruled that police cannot make a misdemeanor arrest based on probable cause alone. Officers must either witness a crime taking place or obtain a warrant.
The Supreme Court did not make an error in its decision. It read the Idaho Constitution and state law in a straightforward manner. And in most cases, the ruling may be desirable. It’s not obvious that police should be able to place a person under arrest for many less-serious crimes without something that comes close to proof of guilt — because placing someone in jail, even for a short time, is a severe punishment. In most cases, a court ought to review the evidence to see if it is sufficient to support an arrest.
But there is one marked exception: cases of misdemeanor domestic violence. In many of those cases, the risks of further harm and escalation in violence are high, as is the likelihood that further abuse will go unreported. It is imperative to quickly separate an abuser from those he or she has abused, and that has often been accomplished by arresting the suspected perpetrator.
This ruling largely takes that option off the table. Police often do not witness domestic violence taking place because it happens in the privacy of the home. So in the vast majority of cases involving misdemeanor domestic violence, they will arrive afterward and be unable to make an arrest. That could leave many women and children, as well as men in some cases, exposed to further violence.
The problem is pervasive. According to the National Coalition Against Domestic Violence, one in four women at some point in their lives experience severe intimate partner violence, sexual violence or dangerous stalking. That’s also true of about one in nine men.
For those trapped in an abusive relationship, domestic violence is rarely an isolated incident, and misdemeanor charges do not always end the problem. Studies indicate that of those who are convicted of misdemeanor domestic violence, about one-third will be arrested for domestic violence again within a year. Within two years, it rises to 44 percent. This doesn’t include cases where domestic violence continues but goes unreported.
Because the Legislature hasn’t approved a bill that would allow temporary restrictions on gun ownership for those charged with domestic violence, the problem is particularly acute in Idaho. The coalition reports that the presence of a gun in a home where domestic violence is taking place increases the risk of homicide by 500 percent. That is one hole in the law that the Legislature can and should plug during the next legislative session.
But there is no quick legislative fix for the crux of the problem: the inability of police to perform an arrest for misdemeanor domestic violence. The Idaho Supreme Court’s ruling has a constitutional basis, so the Idaho Legislature is unlikely to be able to fix the problem by simply passing a law. It may require a constitutional amendment, which two-thirds of each chamber would need to approve before it goes to the voters. The chances of an amendment failing somewhere in that process are high.
As undesirable as this outcome is, it’s the one we’ll likely have to live with for years. We can’t wish it away. We have to deal with it, and we need to do so quickly.
That can be done by securing more options to shelter victims of abuse. Local organizations such as the Domestic Violence and Sexual Assault Center report that under prior law, among the most difficult challenges was finding housing for those fleeing abusive homes.
“It’s really difficult, especially if it’s somebody who is dependent on (the abuser) for housing, because in our market here in Idaho Falls anything that is affordable for someone who is financially dependent on someone else, that market is scarce to nothing,” center director Teena McBride said in May.
Since misdemeanor domestic violence perpetrators can no longer be arrested in most cases, more families are likely to require shelter, and the housing problem is likely to get much worse.
City government, philanthropists and nonprofit organizations should make obtaining additional short-term shelter and long-term affordable housing for victims of abuse a top priority.