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Discussion Starter · #1 ·
The recently case of Comm V. Urkiel, the Appeals Court said in note #12 says that the power of arrest is limited to situations where there is abuse or danger of abuse. So it appears that contact and stay away violations are no longer arrested.
 

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Re: Non Violent violation of 209A many no longer be arrestab

Are you sure about that? I searched for the case and could not find it. Might they be referencing the powers of arrest under Chapter 209a without an order being in effect? It would be odd for them to strike out the constitutionality of the arrest clause alone without addressing the statute itself as the arrestability of an offense is set by the legislature and is generally unconnected to such matters (ie the court should not care whether an offense is arrestable or not just whether the statute and its punishment are constitutional). Can you provide a link to the case?
 

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Re: Non Violent violation of 209A many no longer be arrestab

Take out your cuffs and lock the SOB up every time he/she violates the 209A. MGL clearly states that you "shall arrest". Don't chance it.
 

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Re: Non Violent violation of 209A many no longer be arrestab

Not every part of a restraining order is arrestable. 209A s6 provides powers for arrest of abuse, no contact, vacate and suspension/surrender provisions of restraining orders. Other portions of the orders are not arrestable.

I have read the case in question and am not sure the court was changing anything. I think they were saying that violating a section of an order about not going to a child's ball game may not be one of the above arrestable violations.

Just my thoughts.
 

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Re: Non Violent violation of 209A many no longer be arrestab

you refering to the greenfield pd case? if so, i read it that the court was making a statement about the use of force to effect the arrest not the act of arresting the offender
 

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So if I read that right basically the right of arrest was fine under 209A/6 but the warrantless entry was bad due to the lack of exigent circumstances.
 

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I think you are getting hung up on your definition of abuse. Placing someone in fear of physical abuse is still abuse under the statute. If this can be accomplished by violating a no contact or stay away order, arrest is still proper. Err on the side of caution...if the order is valid and is violated, arrest until the courts tell us otherwise or the state ammends the established domestic violence protocols. You rarely get sued for what you do, its what you don't do that gets you in the soup! Acting in good faith under color of law, you'll never be held personally responsible.
 

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Re: Non Violent violation of 209A many no longer be arrestab

All that latin writing changed nothing. I agree will by brother who stated earlier, if the law states YOU SHALL,WILL,MUST, then you should.
 

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Discussion Starter · #10 ·
Re: Non Violent violation of 209A many no longer be arrestab

Note #12 reads as follows: (read the section I have in BOLD)

"12) Of possible interest on police motivation is an exception to the usual warrant requirement in misdemeanor arrests that emerges in cases of restraining order violations. See G. L. c. 276, § 28; G. L. c. 209A, § 6(7). But § 6, under the heading "abuse prevention," appears to confine the power of arrest to situations where the officer "has reason to believe that a family or household member has been abused or is in danger of being abused." Broad reading of the statute might derogate from the traditional limitations on power of entry and arrest applying to misdemeanors. At all events, the Commonwealth concedes there were no exigent circumstances in the present case justifying the entry."

It appears to me that they are saying that you can make an arrest if there is abuse or the threat of abuse.
 

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Re: Non Violent violation of 209A many no longer be arrestab

Even though the officers had a warrantless right of arrest in this case, officers cannot cross the threshold of his residence to effect the arrest without an arrest warrant at that point. Three hours had passed where there was no abuse or physical confrontation. The sergeant testified that he was going to pursue a warrant for the violation when they were not able to raise him the first time. Exigency was not an issue here.

This, along with the resisting arrest charge were the issues being debated here. Any violation of the 209A is still arrestable, but you cannot enter his residence, being seperate from hers, to effect the arrest without a warrant or consent.
 
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