Request By:
Hon. David L. Armstrong
Commonwealth Attorney
30th Judicial District
Jefferson Hall of Justice
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear; Elizabeth A. Myerscough, Assistant Attorney General
I am in receipt of your letter requesting an opinion on the proper police procedure involved in warrantless arrests sanctioned by KRS 431.005(2). You also raise the issue of possible civil liability incurred by an officer making an arrest pursuant to this statute.
KRS 431.005(2) states:
Any peace officer may arrest without a warrant when he has reasonable grounds to believe that if the person is not arrested he will present a danger or threat of danger to others if not immediately restrained and in addition he has probable cause for believing that said person has intentionally or wantonly caused physical injury to his spouse, parent, grandparent, child or stepchild. Within twelve (12) hours following apprehension and booking of a person arrested under this section, an officer shall return to the abused person, if the abused person is an adult, and request that a signed, written statement be made by the abused person, stating that an abuse occurred and the person who committed it. If the abused person refuses to sign the statement, the charges shall be summarily dismissed and the defendant released from custody.
Concerning implementation of the above statute, you indicate the present procedures of the Jefferson County Police Department and the Division of Police require the execution of a written statement by the abused person indicating his/her willingness to prosecute as a condition precedent to arrest.
The language of the statute does not permit such an interpretation. Rather, it requires that ". . . within twelve hours following apprehension and booking of a person arrested under this section, an officer shall return to the abused person, if the abused person is an adult, and request that a signed, written statement be made. . ." (emphasis added). Imposing the prerequisite of signing a statement of intent to prosecute before arrest appears to circumvent the purpose of the statute -- permitting a peace officer to remove a person exercising a dangerously dominant influence over a relative.
If a police officer has probable cause to believe that an individual has caused injury to the persons enumerated in the statute and further has reasonable grounds to believe that if the individual is not placed under arrest he presents a danger or threat of danger to others, an arrest should be made without regard to obtaining any statement from a complaining witness at that time.
You also raise the issue of possible "civil liability from an arrest under this law as it would pertain to a sworn peace officer. " Common law and statute [KRS 431.005(1)] require a misdemeanor be committed in the presence of an officer before a warrantless arrest may be made. An officer is protected from civil liability for false imprisonment in such a situation if he has reasonable grounds to make such an arrest and acts in good faith. This protection is afforded the officer even if the arrestee is subsequently not guilty of any offense.
McCray v. City of Lake Louisvilla, Ky., 332 S.W.2d 837 at 842 (1960).
However, the warrantless arrest situation envisioned in KRS 431.005(2) does not necessarily occur within the presence of the officer. Even in this situation, the officer should be free from civil liability. An analogous arrest situation sanctioning warrantless arrest for misdemeanors not necessarily committed in the presence of a peace officer is provided in KRS 433.236 -- Detention and arrest of shoplifting suspect. The statute does not delineate between thefts over $100 (felony) and thefts under $100 (misdemeanors) .
In
Consolidated Sales Company v. Malone, Ky., 530 S.W.2d 680 at 682 (1975), the court held "KRS 433.236(1) creates a defense to false imprisonment that did not exist before its enactment."
By analogy, KRS 433.005(2) should provide a defense to any peace officer making an arrest on the basis of this statute. "This would appear to be a necessary concomitant to the salutary principle, that until a law has been declared void the public good demands that the validity should be given to the acts of public officers performed under it."
McCray v. City of Lake Louisvilla, supra.
I hope the above information covers your areas of concern regarding KRS 433.005(2). If you have further questions please feel free to contact me.