When Both People Are Arrested: Dual Arrest and "Who Started It" in Michigan

Michigan police can arrest one person, both people, or no one after a domestic call. The statute that governs police policy does not use the phrases "dual arrest" or "primary aggressor"; it lists what an officer should consider when deciding whether to arrest one or both people, and it says an officer should not arrest someone reasonably believed to have acted in lawful self-defense.^[1]

This page explains that guidance, how self-defense fits into the decision at the scene, and why the arrest is not the last word on who, if anyone, is charged.

What does Michigan law tell officers to consider?

MCL 776.22 requires each police agency to adopt a written domestic violence policy.^[4] One required part of that policy addresses the situation where an officer has probable cause to believe that spouses, former spouses, people with a child in common, current or former dating partners, or current or former household members "are committing or have committed crimes against each other."^[1]

In that situation, the officer, "when determining whether to make an arrest of 1 or both individuals, should consider":^[1]

1. The intent of the statute to protect victims of domestic violence.^[1]
2. The degree of injury inflicted on the individuals involved.^[1]
3. The extent to which the individuals have been put in fear of physical injury to themselves or other members of the household.^[1]
4. Any history of domestic violence between the individuals, if that history can reasonably be ascertained by the officer.^[1]

The statute then adds a separate instruction: "the officer should not arrest an individual if the officer has reasonable cause to believe the individual was acting in lawful self-defense or in lawful defense of another individual."^[1]

Is there a "primary aggressor" rule?

Not in those words. MCL 776.22 does not use the labels "primary aggressor" or "predominant aggressor," and it does not bar an officer from arresting both people.^[1] The verbs matter too. The statute says an officer "should consider" the factors and "should not arrest" a person acting in lawful self-defense.^[1]

What a particular department's policy says beyond the statutory minimum can be checked directly. The policies are required to be in writing and available to the public on request.^[5]

How does "who started it" figure in?

"Who started it" is not one of the listed factors. The statute points officers toward injury, fear and history, and toward whether one person was acting in lawful self-defense.^[1] That can produce results people do not expect:

• A person with scratches or bite marks may have received them from someone defending against an attack. The self-defense instruction applies when the officer has reasonable cause to believe that is what happened.^[1]
• A person with no visible injury may still be treated as the victim. A decision not to arrest should not be based solely on the absence of visible indications of injury.^[6]
• The person who called 911 is not automatically the one treated as the victim. The officer's report records who called, but the arrest decision turns on probable cause and the listed factors.^[7][1]

Officers make this judgment from what they see and what each person says. What you say at the scene can be used as evidence later; see Talking to the police: your rights at the scene and after.

What "lawful self-defense" means, briefly

The officer's instruction refers to "lawful" self-defense, which is defined by the law of self-defense and not by the policy statute. Under Michigan's model jury instructions, a person who acts in lawful self-defense or defense of others is justified and is not guilty.^[8] For non-deadly force, the person must have honestly and reasonably believed that force was needed to protect against the imminent unlawful use of force by another.^[9] The person claiming self-defense must not have acted wrongfully and brought on the assault, although using only words does not prevent the claim if the person was then attacked.^[10]

The same idea appears in Michigan's evidence statutes for domestic violence cases, which define "domestic violence" as certain acts by a person "that is not an act of self-defense."^[11] The full rules, including proportionality and the duty to retreat, are in Self-defense law in Michigan domestic violence cases. Situations where both people were willing participants are covered in Mutual fighting and consent.

Scene decision versus courtroom decision

The policy statute guides police. It is not a rule of evidence and does not decide a case in court. The difference between the two stages looks like this:

	At the scene	In court
Who decides	The responding officer[1]	The prosecutor decides whether to charge; a jury or judge decides guilt[2][12]
Standard	Reasonable cause under the arrest statute; probable cause in the policy statute[13][4]	Proof beyond a reasonable doubt[12]
Self-defense	Officer should not arrest on reasonable cause to believe the person acted in lawful self-defense[1]	The prosecutor must prove beyond a reasonable doubt that the defendant did not act in self-defense[3]

So an officer's choice to arrest one person does not prevent that person from raising self-defense later, and an officer's choice not to arrest the other person does not bind the prosecutor.^[2]

What happens after both people are arrested?

Each person is handled as a separate arrest. A person arrested for domestic assault cannot be released on an appearance ticket or post bond with the police, and is held until arraignment or until a judge or district court magistrate sets interim bond.^[14][15] A judge or magistrate who sets interim bond must consider, and may impose, a condition that the released person have no contact of any kind with the victim.^[16] See How long are you held after an arrest? and No-contact orders explained.

The agency then files its domestic violence report with the prosecuting attorney within 48 hours after the incident is reported.^[17] The prosecutor may charge both people, one, or neither.^[2] Because the report must describe all injuries and how they were sustained, and any previous domestic violence incidents between the two, those details are in front of the prosecutor in that review.^[7] The charging step is covered in Who decides whether charges are filed?

Being both a defendant and a complaining witness raises separate legal questions. A person can be subpoenaed as a witness in the other person's case while facing a charge of his or her own, and the court rule on refusing to testify after a court order speaks only of matters that are "not privileged."^[18][19] Anyone in that position should get advice specific to both cases; see The right to a lawyer.

What people get wrong

"Police cannot arrest both of us." The statute contemplates an arrest of "1 or both individuals" and prohibits neither outcome.^[1]

"Michigan law says the officer has to pick the primary aggressor." The statute lists factors to consider and does not use that term.^[1]

"I was defending myself, so the arrest was illegal." The instruction not to arrest depends on the officer having reasonable cause to believe the person acted in lawful self-defense.^[1] The statute governs what agency policy must say.^[1] Self-defense remains available as a defense in court.^[8]

"The person who was not arrested is in the clear." Charging is the prosecutor's decision, and the general time limit for filing a domestic assault charge is 6 years.^[2][20] See Charged later, by warrant or by mail.