You were threatened, abused or assaulted. You felt that you were in a situation where your personal safety was in danger. There was a physical altercation and you had to act in self-defense. Whatever the reason, you felt it necessary to call 911 for help, either to defuse a combustible situation or to protect yourself or others. The police arrive, ask questions, and the next thing you know, you’re being led away in handcuffs. How could this have happened?
Washington’s Primary Aggressor Rule
In Washington, as in most states, there is a primary aggressor rule. The primary aggressor rule states that when the police are sent on a domestic violence call they must determine which party is the most culpable, caused the greater injury, or acted initially and without legal provocation. If there is probable cause to believe that a felony was committed or that one party suffered bodily injury or the threat of severe bodily injury or death, then that individual must be arrested. It is the subjective application of the rule that can, and often does, result in the wrong person being arrested. There are a number of reasons why this happens.
Both Parties Have Been Injured
Often, when the police arrive on the scene, they find evidence of injury to both parties. Scratches, bruising, swelling, etc. When this is the case, a judgment call is made. Whose injuries appear worse? What is the relative size and stature of the parties? Does one of the parties have a criminal history? Who appears to be more credible? In a classic “he said/she said” situation, where there are no third party witnesses, the police will have to make subjective judgment call as to who was the primary aggressor. And while the 911 caller may have a leg up by being the first to report, often the police who respond end up believing that the caller was, in fact, the primary aggressor. When that occurs, the 911 caller can be arrested.
The 911 Caller Downplays the Incident to Protect the Other, but…
…the other party has no intention of protecting the 911 caller. In situations where the 911 caller ends up being arrested, we have found that the reason often falls into this category. Whether it’s feelings of remorse or second guessing having called 911 to begin with, the caller downplays what occurred. Unfortunately, the other party, perhaps upset that the police are even there to begin with, is not feeling so charitable. In this scenario, when the police arrive, they find a 911 caller who is already recanting their statement or minimizing what occurred. Meanwhile the other party is regaling the police with a litany of the caller’s bad behavior dating back to the day they first met. In this example, by not following through with what he or she started, the 911 caller has effectively ended up calling the police on themselves.
The Non-Caller Knows How to Manipulate the System
Occasionally, the non-caller is much savvier and outwardly more credible than the person who calls 911. Whether it’s because they know the system better, they are able to appear more sympathetic, or they simply know what to say and how to say it, some people are simply more persuasive than others, even if they were the aggressor. The police are trained to be able to see through this behavior, but it doesn’t always work out that way. There are times when someone calls 911 because they have been assaulted or are in danger, but because the other party can communicate better, the caller ends up going to jail.
The Caller Was Actually the Aggressor
I would be remiss if I didn’t include this category. There are simply times that, for whatever the reason, the person who was the aggressor ends up calling the police. On themselves. Often this involves the use of alcohol or drugs, but the bottom line is that he or she shouldn’t have called 911 to begin with. When the police arrive, they find a victim of domestic violence that probably wasn’t going to call 911 to begin with. The police find injuries to the victim, an intoxicated or impaired caller, and make the arrest.
As you can see, calling 911 in a domestic violence setting, even if there is a verifiable reason to have done so, doesn’t ensure that you won’t be arrested. At the end of the day, the police have to make a judgment call in a situation where there are not usually disinterested third party witnesses. And when the non-caller has injuries as well the caller, or sometimes as opposed to the caller, anything can happen. Statistically speaking, of course, in a very high majority of the cases, the 911 caller is not arrested. It is usually the caller that has suffered some form of injury and not the non-caller. Still, the 911 caller can be, and many times is, arrested. When that occurs, it’s usually due to one of the reasons listed above.