Is Arrest Mandatory for Domestic Violence in Michigan?

No. Michigan does not have a mandatory arrest statute for domestic violence. The arrest statute, MCL 764.15a, says a peace officer "may arrest" for domestic assault without a warrant.^[1] A different statute, MCL 776.22, requires every police agency to adopt a written policy emphasizing that "in most circumstances, an officer should arrest" when there is probable cause.^[2]

Together the two statutes make arrest the response that department policy must favor when officers find probable cause, while leaving the individual officer with authority, not an order, to arrest.^[1][2] This page separates what the statutes authorize, what they tell departments to prefer, and what is truly required.

What does MCL 764.15a allow?

MCL 764.15a lets a peace officer arrest a person for domestic assault (MCL 750.81), aggravated domestic assault (MCL 750.81a), or a substantially corresponding local ordinance, regardless of whether the officer has a warrant or whether the violation was committed in the officer's presence.^[1] Two things are needed. The officer must have, or receive positive information that another officer has, reasonable cause to believe that:

• the violation occurred or is occurring; and^[1]
• the person has had a child in common with the victim, resides or has resided in the same household as the victim, has or has had a dating relationship with the victim, or is a spouse or former spouse of the victim.^[8]

For this statute a "dating relationship" means frequent, intimate associations primarily characterized by the expectation of affectional involvement. It does not include a casual relationship or an ordinary fraternization between two people in a business or social context.^[8] The section was last amended by 2001 PA 208, effective April 1, 2002.^[1] More on these categories is in Who is covered: the domestic relationship and What counts as a dating relationship.

The operative verb is "may." The statute gives authority to arrest; it does not say an officer must arrest.^[1]

What does MCL 776.22 require of police departments?

MCL 776.22 is directed at agencies, not at individual calls. Each police agency in Michigan had to develop, adopt and implement written policies for officers responding to domestic violence calls, and those policies must reflect that domestic violence is criminal conduct.^[2] The arrest portion of the policy must emphasize several points:

What the policy must emphasize	Statutory wording
Arrest on probable cause "in most circumstances"	"In most circumstances, an officer should arrest and take an individual into custody if the officer has probable cause to believe the individual is committing or has committed domestic violence and his or her actions constitute a crime."[2]
The victim's wishes about prosecution do not control	The arrest decision "should not be based solely on the consent of the victim to any subsequent prosecution or on the relationship of the individuals involved in the incident."[3]
Lack of visible injury does not control	A decision not to arrest "should not be based solely upon the absence of visible indications of injury or impairment."[3]
Self-defense	"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."[4]
When each person may have committed a crime	The officer deciding whether to arrest one or both "should consider" the intent to protect victims, the degree of injury, the extent of fear, and any history of domestic violence that can reasonably be ascertained.[4]

The repeated word is "should." The policy standard favors arrest and directs how the decision is made, but it is written as guidance for departments and not as an order to arrest in every case.^[2] Each agency must consult the prosecuting attorney and an area shelter for victims of domestic violence in developing, implementing and evaluating its policy.^[9] The policy must also address officer training, discipline for noncompliance, and annual evaluation, and it must be available to the public on request.^[10]

So what is actually mandatory?

Several duties do use mandatory language. The first three apply after officers investigate or intervene, whatever they decide about arrest; the last two apply when there is an arrest.

• Notice to the victim. The officer must give the victim a written notice with the agency's name and telephone number, the officer's name and badge number, and a statement of rights.^[5]
• A report. The officer must prepare a domestic violence report, and agency policy must provide for a written report whether or not an arrest is made.^[6][10]
• Sending the report to the prosecutor. The agency must file a copy with the prosecuting attorney within 48 hours after the incident is reported.^[11]
• No ticket in place of custody. If the officer does arrest, an appearance ticket must not be issued for a domestic violence violation of MCL 750.81 or 750.81a.^[12]
• A hold. A person arrested without a warrant under MCL 764.15a must be held until arraignment or until a judge or district court magistrate sets interim bond.^[7]

The full sequence at the scene is described in What happens when police respond to a domestic call, and the hold is covered in How long are you held after an arrest?

How much evidence do officers need?

The arrest statute speaks of "reasonable cause," and the policy statute of "probable cause."^[1][2] Neither statute mentions visible injury as a requirement.^[1][2] In a 1994 opinion, the Michigan Attorney General concluded that an officer may make a warrantless arrest for an assault committed outside the officer's presence, in the absence of physical evidence of domestic abuse, when there is other corroborating evidence sufficient to constitute probable cause.^[13] An Attorney General opinion is not a court decision. The policy statute separately says a decision not to arrest should not be based solely on the absence of visible indications of injury.^[3]

A federal appeals court reviewing a Michigan domestic assault arrest gave one example of enough: a bleeding finger, combined with the wife's description to officers of grabbing and pushing and her immediate fear, was a sufficient basis for probable cause.^[14] Whether an injury is needed for the charge itself is a separate question, answered in Can you be charged without an injury?

Other situations where officers may arrest without a warrant

Two related statutes also use "may":

• An officer may arrest without a warrant on reasonable cause to believe a personal protection order was issued, that the person named is violating or has violated it by an act the order specifically prohibits, and that the order states on its face that a violation subjects the person to immediate arrest.^[15]
• An officer may arrest without a warrant a defendant the officer has reasonable cause to believe is violating or has violated a condition of release, such as a no-contact condition.^[16]

Those are covered in PPO violation penalties and Violating a no-contact order.

What people get wrong

"Michigan is a mandatory arrest state." The arrest statute says "may arrest," and the policy statute says an officer "should arrest" in most circumstances.^[1][2] Neither says "shall arrest."

"Someone always has to go to jail when police are called." Officers are told not to arrest a person they have reasonable cause to believe acted in lawful self-defense, and the arrest standard itself depends on probable cause.^[4][2] See When both people are arrested.

"If the victim does not want to press charges, there can be no arrest." The policy statute says the decision should not be based solely on the victim's consent to prosecution.^[3] What the complaining witness can and cannot control afterward is explained in Can the victim drop the charges?

"An arrest means charges." An arrest is a police decision. Whether a charge is filed is decided by the prosecutor.^[17] See Who decides whether charges are filed?