Law enforcement officers generally have considerable discretion about whether to make an arrest in a given situation and are usually protected from liability if the decision not to arrest results in harm to a member of the general public. However, Tennessee does not allow officer discretion when it comes to arresting individuals who violate protective orders. Arrest is mandatory.
Illustrating how inflexible state law is on the matter, the attorney general’s office issued an opinion that “a law enforcement officer, having observed the commission of a felony, may choose not to arrest or charge the offending party, except when the officer has probable cause to believe that a suspect has violated an order of protection.” Op. Tenn. Atty. Gen. No. 01-119 (July 27, 2001).
In other words, while an officer has discretion to ignore a felony committed right before his or her eyes, that option does not exist if the misconduct violates a valid order of protection, regardless of whether it would otherwise constitute a misdemeanor, or no criminal offense at all. If Petitioner or Petitioner’s property come to harm after an officer fails to arrest the violator, the county is subject to liability for damages. Matthews v. Pickett County, 996 S.W.2d 162 (Tenn. 1999); Hudson v. Hudson, 2005 WL 2253612 (W.D. Tenn. 2005).
On the other hand, if the law enforcement agency fails to notify TCIC and NCIC that an order has been dismissed or of its expiration date, and the former Respondent is wrongfully arrested, the prospect of legal liability again rears its ugly head. That is one of many reasons it is so important that such orders be correctly served and that modifications and other required information be correctly entered in the Tennessee and National Crime Information Systems.
An arrest for violating a protective order may be made with or without a warrant. A law enforcement officer shall arrest Respondent without a warrant if:
T.C.A. § 36-3-611(a)(1-3).
Even if Respondent is violating an ex parte order and not a standard order of protection, the officer is required to make an arrest, but only if Respondent “has been served with the ex parte order or otherwise has acquired actual knowledge of the order.” T.C.A. § 36-3-611(b). The term “actual knowledge” means Respondent has direct, clear knowledge of information that would lead a reasonable person to inquire further. Black’s Law Dictionary, 7th Edition. Otherwise, an ex parte order cannot be enforced by arrest.