455.085. Arrest for violation of order--penalties--good faith immunity for law enforcement officials. - Missouri Statutes

Arrest for violation of order--penalties--good faith immunity for lawenforcement officials.

455.085. 1. When a law enforcement officer has probable cause tobelieve a party has committed a violation of law amounting to abuse orassault, as defined in section 455.010, against a family or householdmember, the officer may arrest the offending party whether or not theviolation occurred in the presence of the arresting officer. When theofficer declines to make arrest pursuant to this subsection, the officershall make a written report of the incident completely describing theoffending party, giving the victim's name, time, address, reason why noarrest was made and any other pertinent information. Any law enforcementofficer subsequently called to the same address within a twelve-hourperiod, who shall find probable cause to believe the same offender hasagain committed a violation as stated in this subsection against the sameor any other family or household member, shall arrest the offending partyfor this subsequent offense. The primary report of nonarrest in thepreceding twelve-hour period may be considered as evidence of thedefendant's intent in the violation for which arrest occurred. The refusalof the victim to sign an official complaint against the violator shall notprevent an arrest under this subsection.

2. When a law enforcement officer has probable cause to believe thata party, against whom a protective order has been entered and who hasnotice of such order entered, has committed an act of abuse in violation ofsuch order, the officer shall arrest the offending party-respondent whetheror not the violation occurred in the presence of the arresting officer.Refusal of the victim to sign an official complaint against the violatorshall not prevent an arrest under this subsection.

3. When an officer makes an arrest he is not required to arrest twoparties involved in an assault when both parties claim to have beenassaulted. The arresting officer shall attempt to identify and shallarrest the party he believes is the primary physical aggressor. The term"primary physical aggressor" is defined as the most significant, ratherthan the first, aggressor. The law enforcement officer shall consider anyor all of the following in determining the primary physical aggressor:

(1) The intent of the law to protect victims of domestic violencefrom continuing abuse;

(2) The comparative extent of injuries inflicted or serious threatscreating fear of physical injury;

(3) The history of domestic violence between the persons involved.

No law enforcement officer investigating an incident of family violenceshall threaten the arrest of all parties for the purpose of discouragingrequests or law enforcement intervention by any party. Where complaintsare received from two or more opposing parties, the officer shall evaluateeach complaint separately to determine whether he should seek a warrant foran arrest.

4. In an arrest in which a law enforcement officer acted in goodfaith reliance on this section, the arresting and assisting law enforcementofficers and their employing entities and superiors shall be immune fromliability in any civil action alleging false arrest, false imprisonment ormalicious prosecution.

5. When a person against whom an order of protection has been enteredfails to surrender custody of minor children to the person to whom custodywas awarded in an order of protection, the law enforcement officer shallarrest the respondent, and shall turn the minor children over to the careand custody of the party to whom such care and custody was awarded.

6. The same procedures, including those designed to protectconstitutional rights, shall be applied to the respondent as those appliedto any individual detained in police custody.

7. A violation of the terms and conditions, with regard to abuse,stalking, child custody, communication initiated by the respondent orentrance upon the premises of the petitioner's dwelling unit, of an exparte order of protection of which the respondent has notice, shall be aclass A misdemeanor unless the respondent has previously pleaded guilty toor has been found guilty of violating an ex parte order of protection or afull order of protection within five years of the date of the subsequentviolation, in which case the subsequent violation shall be a class Dfelony. Evidence of prior pleas of guilty or findings of guilt shall beheard by the court out of the presence of the jury prior to submission ofthe case to the jury. If the court finds the existence of such prior pleasof guilty or finding of guilt beyond a reasonable doubt, the court shalldecide the extent or duration of sentence or other disposition and shallnot instruct the jury as to the range of punishment or allow the jury toassess and declare the punishment as a part of its verdict.

8. A violation of the terms and conditions, with regard to abuse,stalking, child custody, communication initiated by the respondent orentrance upon the premises of the petitioner's dwelling unit, of a fullorder of protection shall be a class A misdemeanor, unless the respondenthas previously pleaded guilty to or has been found guilty of violating anex parte order of protection or a full order of protection within fiveyears of the date of the subsequent violation, in which case the subsequentviolation shall be a class D felony. Evidence of prior pleas of guilty orfindings of guilt shall be heard by the court out of the presence of thejury prior to submission of the case to the jury. If the court finds theexistence of such prior plea of guilty or finding of guilt beyond areasonable doubt, the court shall decide the extent or duration of thesentence or other disposition and shall not instruct the jury as to therange of punishment or allow the jury to assess and declare the punishmentas a part of its verdict. For the purposes of this subsection, in additionto the notice provided by actual service of the order, a party is deemed tohave notice of an order of protection if the law enforcement officerresponding to a call of a reported incident of abuse or violation of anorder of protection presented a copy of the order of protection to therespondent.

9. Good faith attempts to effect a reconciliation of a marriage shallnot be deemed tampering with a witness or victim tampering under section575.270, RSMo.

10. Nothing in this section shall be interpreted as creating aprivate cause of action for damages to enforce the provisions set forthherein.

(L. 1980 S.B. 524 § 16, A.L. 1986 S.B. 450, A.L. 1989 S.B. 420, A.L. 1993 H.B. 476 & 194, A.L. 2000 H.B. 1677, et al.)

(1982) Adult Abuse Act does not violate constitutional requirement that legislative bills contain only one subject which shall be clearly expressed in the title; provisions relating to ex parte orders of protection excluding certain persons from home to prevent further abuse do not violate due process; and provisions permitting trial court to include certain provisions in ex parte or full order of protection, violation of which were misdemeanors, did not violate constitutional requirements of separation and nondelegation of power. State ex rel. Williams v. Marsh (Mo.), 626 S.W.2d 223.

(1996) "Lingering outside" is not unconstitutionally vague. State v. Schleiermacher, 924 S.W.2d 269 (Mo.banc).