The Kickham Comment - Boston Criminal Attorney Blog
Yesterday, the Boston Globe reported on a murder that almost certainly could have been prevented, involving a domestic violence call that Boston Police Department officers had responded to a year ago, in November 2014. This story has cause a lot of concerns among the public about the effectiveness of restraining orders, that I’d like to address today.
The BPD officers who responded to the call, reportedly did not check to see whether the victim had previously been previously granted an Abuse Prevention Order (restraining order) against her boyfriend. Doing so is the first order of business when police officers respond to calls of domestic abuse. Instead, the officers removed the boyfriend from the apartment, and dropped him off at a detox center. A day later, that person murdered the victim, who previously had, in fact, taken out a restraining order against him. If the officers had checked this out as protocol requires, they would have arrested that person, immediately. To be fair, both the victim and the accused were reportedly extremely intoxicated at the scene, and in no condition to convey accurate information to the officers. Regardless, the officers could have checked for this information, with a simple call to their dispatcher.This story has raised concerns that police officers, in general, might be lax when it comes to enforcing Massachusetts Abuse Prevention Orders.
As a Massachusetts domestic violence attorney, I can assure all who are reading this post, that this is not so. In point of fact, domestic violence is taken very, very seriously by all 351 city and town Police Departments in Massachusetts, as well as by all Massachusetts District Attorneys’ offices, and by all District Court and Superior Court judges in Massachusetts. In my view as a Boston criminal defense attorney, domestic violence is one of the most aggressively policed and prosecuted areas of criminal law in Massachusetts. Too many cases involving serious injuries and murders have occurred as the result of lenient approaches to these cases. As a result, no one takes any chances any more – not Police Departments, not prosecutors, not judges.
The unacknowledged reality is that in 95% of domestic violence calls that police respond to, a decision has already been made in the patrol car that one or both of the parties involved is going to be arrested. The legal standard that police officers use to decide whether to make an arrest or not is extremely low, and flexible. It is known as “Probable Cause,” and it is extremely subjective – allowing for wide discretion on the part of officers. These calls (“domestics,”) are dealt with very aggressively. No one wants to be blamed for not doing their job, and having to answer for it later – whether publicly in the media, or privately at their jobs. The police don’t want to be blamed (as the Boston Police are now in the above case.) In the courts, the District Attorneys and their prosecutors don’t want to be blamed for treating any of these cases lightly, and the judges don’t want their names and pictures in the media, for being lenient with these cases.
The bottom line: Massachusetts residents can be assured that restraining orders are dealt with very aggressively by police and the courts. Instances of police dropping the ball on restraining orders, are actually very rare.
I remind readers of what my criminal law website section on Domestic Violence makes clear: While the issuance of an Abuse Prevention Order does not itself constitute a criminal offense, the violation of such an order is a criminal offense. In fact, just the accusation of a violation of a restraining order, is a criminal offense. This leaves the person against whom a restraining order has been issued, constantly at risk of being accused by the person who the Order protects, of violating the Order. In many instances, this results in profound injustices, but it is the law.
If you or someone you know has been accused of a Massachusetts restraining order violation, it is imperative that the attorney that you consult with, be extremely experienced in defending these cases. The stakes are too high to hire “just any”’ criminal defense lawyer.