An Idaho Supreme Court decision that law enforcement officers may not make a warrantless arrest for an alleged misdemeanor crime without witnessing the act could have severe consequences for victims of domestic abuse.

In the unanimous opinion authored by now retired Justice Joel Horton on June 12, the court overturned a conviction for a man convicted of possession of methamphetamine, marijuana and paraphernalia, which were found on him during a search after he was arrested for misdemeanor battery. The judges ruled that a state law that allows officers to make a warrantless misdemeanor arrest without witnessing the alleged crime in cases of battery, domestic assault and stalking conflicts with the U.S. and Idaho constitutions. The justices recognized that that would have a significant impact on domestic violence cases but conceded that the constitutions supersede state code.

“Domestic violence is a serious crime that causes substantial damage to victims and children, as well as to the community. Nevertheless, the extremely powerful policy considerations which support upholding Idaho Code section 19-603(6) must yield to the requirements of the Idaho Constitution,” the opinion states.

Shannon Nichols, director of development and engagement for The Advocates in Hailey, said the organization was shocked by the ruling, adding that the former law had previously been working for victims of domestic abuse, and that domestic violence cases were intentionally treated differently than other misdemeanor crimes because of the immediate physical danger to the victim.

In a press release from the Idaho Coalition Against Sexual and Domestic Violence dated June 13, Annie Hightower, director of law and policy for the organization, said the most obvious impact of the ruling is the “removal of a safety and de-escalation tool from law enforcement officers.” Previously, officers had authority to arrest an alleged abuser, reducing the immediate risk of more violence. Now, officers will not be able to arrest that person immediately unless they believe the violence constitutes a felony—if it involved traumatic injury—or if they obtain a warrant from a judge.

The change is effective imme-

diately.

Nichols said it could affect the number of domestic violence cases reported. She also said the way The Advocates works with victims to create a safety plan will change. Previously, the organization relied on the exception to misdemeanor arrests without a warrant for cases of domestic abuse to get the abuser in custody and get the victim safe. Now, victims may have to be the ones to leave the home to reduce risk of physical danger.

Because domestic violence is typically something that happens behind closed doors, it is up to the victims to call police and seek protections. According to the Coalition Against Sexual and Domestic Violence, 1 in 4 women nationwide will experience domestic violence over her lifetime, and in 2017, the Idaho State Police reported 5,774 incidents of violence between spouses, ex-spouses and those in dating relationships.

Hailey Police Lt. Steve England said the department responds to at least one domestic dispute a day, but explained that those calls typically are not for violent acts, but rather to mitigate the dangers of arguments escalating to fights.

Since the ruling last week, England said the department had met with the county Prosecuting Attorney’s Office to ensure that officers understand the new ruling and don’t make illegal arrests. Officers will still respond to domestic disputes, but the procedure they’ll use to separate the parties may no longer include an arrest.

“We take domestic violence, stalking and restraining orders very seriously as they have a huge impact on families,” England said.

When officers respond to a domestic dispute call, the first priority is to separate the parties involved, England said. Because of the law change, officers may need to obtain an arrest warrant if the parties do not willingly separate, or once on the scene, the victim can make a citizen’s arrest of the alleged abuser in front of officers, if there is probable-cause that violence was inflicted on the victim, such as bruising, redness or scratches on the body.

“Our first priority is to keep all the parties safe,” England said.

England said he’s hopeful that in the event that an arrest warrant is needed to separate the parties, the responding officers would be able to stay with the alleged victim at the scene and continue investigating the case while waiting for the warrant.

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