Does South Carolina's domestic violence 'must arrest' law leave officers any discretion?

Plain-English summary

A South Carolina legislator asked whether an officer retained discretion under a domestic-violence statute that said the officer “must arrest.” The Attorney General answered in 2002 that the officer still had broad discretion when gathering facts and deciding whether probable cause existed. The letter did not treat the statutory command as a choice to decline arrest after its stated conditions were met.

The quoted statute required arrest when physical signs of injury to the alleged victim were present and the officer had probable cause to believe a person was committing or had just committed one of the listed domestic-violence offenses. The AG described probable cause as a practical assessment from the officer's perspective. It said arrest was mandated when those conditions were present, yet fact finding and the probable-cause determination still involved substantial judgment.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Officers assessing an incident

Under the provision discussed in the letter, an officer had to evaluate the observed conditions and whether facts supported probable cause of a listed offense. The AG said that evaluation involved broad discretion. It also expressly described arrest as mandatory once the injury and probable-cause conditions existed.

People reading the “must arrest” language

The letter distinguished the required result under the statute from the officer's judgment about whether its factual conditions were met. It did not say that an officer could ignore the mandate after finding those conditions.

Common questions

Did “must arrest” remove all officer judgment?
A: No. The AG said gathering facts and assessing probable cause still required broad discretion.

Could an officer decline arrest after finding probable cause and physical injury under the statute? A: The letter said arrest was mandated when probable cause of a listed offense and physical signs of injury were present. Its discussion of discretion concerned the officer's assessment of those conditions.

Did the offense have to occur in the officer's presence? A: No. The provision quoted in the opinion expressly applied even when the act did not take place in the officer's presence.

Background and statutory framework

The request focused on Section 16-25-70(B). The opinion quoted that provision's injury and probable-cause conditions and its references to Sections 16-25-20, 16-25-50 and 16-25-65. It cited State v. Moultrie and a federal decision quoted there for the practical nature of a probable-cause assessment.

Citations and references

• Section 16-25-70(B): the arrest provision interpreted by the AG.
• Sections 16-25-20, 16-25-50 and 16-25-65: covered offenses named in that provision.
• State v. Moultrie, 316 S.C. 547, 451 S.E.2d 34 (1994), citing United States v. Pasquarille, 20 F3d 682 (6th Cir. 1994): probable-cause discussion in the opinion.

Official title

Officer discretion under the domestic-violence “must arrest” provision.

Requester

The Honorable Rebecca Meacham-Richardson, Member, House of Representatives

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-21-2002/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/04/02may21ricardson.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M. CONDON
ATIORNEY GENERAL

May 21, 2002

The Honorable Rebecca Meacham-Richardson
Member, House of Representatives
Post Office Box 142
Columbia, South Carolina 29201
Re: S.C. Code Ann. §16-25-70(B)
Dear Representative Meacham-Richardson:

I

You have raised questions concerning a law enforcement officer's discretion when determining whether to arrest pursuant to S.C. Code Ann.§ 16-25-70(B) in light of the fact that such section uses the phrase "must arrest." You wish to know whether a police officer retains discretion in carrying out his or her duties pursuant to such section. It is our opinion that a police officer possess broad discretion under this statute .
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Section 16-25-70(B) provides as follows:
A law enforcement officer must arrest, with or without a warrant, a person at the person's place of residence or elsewhere if physical manifestations of injury to the alleged victim are present and the officer has probable cause to believe that the person is committing or has freshly committed a misdemeanor or felony under the provisions of Section 16-25-20, 16-25-50, or 16-25-65 even ifthe act did not take place in the presence of the officer. The officer may, if necessary, verify the existence of an order of protection by telephone or radio communication with the appropriate police department. A probable cause analysis "includes a realistic assessment of the situation from a law enforcement officer' s perspective." State v. Moultrie, 316 S.C. 547, 451 S.E.2d 34 (1994) quoting United States v. Pasquarille, 20 F3d 682 (6th Cir. 1994). Further, in determining the presence of probable cause for arrest, the probability cannot be technical, but must be factual and practical considerations of everyday life on which reasonable and cautious men, not legal technicians, act. Summersell v. S.C. Department of Public Safety, 377 S.C. 19, 522 S.E.2d 144 (Ct.App. 1999).

~ REMBERT c. DENNIS BUILDING

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~ r/iJr#.r. \

POST OFACE Box 11549

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COLUMBIA,

s.c. 29211-1549

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TELEPHONE: 803-734-3970

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FACSIMILE: 803-253-6283

The Honorable Rebecca Meacham-Richardson
Page 2
May 21, 2002

The officer's determination of probable cause involves broad discretion in gathering facts and evaluating existing conditions. See Copper v. City of Fargo, 905 F.Supp. 680 (1994); Reese v. May, 955 F.Supp. 869 (1996). Accordingly, despite the fact that arrest is mandated when there is probable cause of a violation of Section 16-25-20, etc. and physical manifestations of injury to the victim, it is our opinion that the officer, nevertheless, retains broad discretion in enforcing Section 16-25-70(B).

David K. Avant
Assistant Attorney General
DKA/an