January 16, 1980
Subject:
Criminal Law and Procedure; Domestic Violence Act; Civil Contempt; Notice; Arrest
Requested By:
Mary Claire McNaught Public Safety Attorney City of Winston-Salem
Question:
If a protective order is issued pursuant to the Domestic Violence Act and the officer finds probable cause to believe the order is being violated but the offender is unaware of that order, is the officer compelled by G.S. 50B-4(b) to take the offender into custody?
Conclusion:
No.
The 1979 General Assembly enacted the Domestic Violence Bill, Chapter 561, 1979 Session Laws. This Act became effective on October 1, 1979 and was reprinted in the Advance Legislative Service as Chapter 50A. The Act is codified as Chapter 50B.
The purpose of this statute was to provide law enforcement officers with a tool for preventing assaults by family members prior to the crime occurring. See A Crime Control Agenda for North Carolina p. 28 (1978). This Act provides for the Court to issue a protective order or approve a consent agreement to bring about a cessation of acts of domestic violence. The order or agreement may direct a party to refrain from some act, grant possession of a residence of a party and exclude others, require a party to provide alternative housing, or temporary custody of children, order eviction of a party, order either party to make payments for support of minor children, order either party to make payments for support of a spouse, provide for possession of personal property of parties, order a party to refrain from harassing or interfering with the other, and award cost and attorney’s fees to either party. G.S. 60B-3(a).
A copy of any order entered and filed under this Article is issued to each party. In addition, a copy of the order is issued to and retained by the police department or the sheriff’s department.
G.S. 50B-3(c).
Enforcement of this order or agreement is as follows:
"A law enforcement officer shall arrest and take a person into custody if the officer has probable cause to believe that the person has violated a court order excluding the person from the residence or household occupied by a victim of domestic violence or directing the person to refrain from harassing or interfering with the victim and if the victim presents the law enforcement officer with a copy of the order or the officer determines that such an order exists through phone, radio, or other communication with appropriate authorities. The person arrested shall be brought before the appropriate district court judge at the earliest time possible to show cause why he or she should not be held in civil contempt for violation of the order. . . ." G.S. 50B-4(b). (Emphasis added).
The General Assembly has created a new tool of enforcement to prevent crime. The remedy, however, is that for civil contempt. There seems to be no reason to distinguish this type of civil contempt from other civil contempt. The statute relating to civil contempt (formerly G.S. 5-5 – 58, now 5A-21) are criminal in nature must be strictly construed. IN RE HEGE, 205 N.C. 625, 630, 172 S.E. 345 (1933). The failure to obey an order must be willful. Jarrell v. Jarrell, 241
N.C. 73, 74, 84 S.E. 2d 328 (1954) "A person cannot be punished for contempt in failing to obey an order issued by a court unless his disobedience is willful . . . One acts willfully when he acts knowingly and of stubborn purpose. Lamm v. Lamm, 229 N.C. 248, 249-50, 49 S.E. 2d 403 (1948); Mauney v. Mauney, 268 N.C. 254, 286, 150 S.E. 2d 391 (1966). The intent to show disrespect or contempt for the court is not necessary. Hart Cotton Mills v. Abhrams, 231 N.C. 431, 439, 57 S.E. 2d 803 (1950). Notice, however, must be proved. Actual notice, as opposed to formal notice, is all that is necessary. Erwin Mills, Inc. v. Textiles Workers Union, 234 N.C. 321, 330, 67 S.E. 2d 372 (1951). Knowledge of a person of the substance and meaning of an order is sufficient knowledge for prosecution for contempt and is not required that such person have knowledge of the exact words used in the order. Id.
The new civil contempt statute, G.S. 5A-21, does not specifically require a "willful" disobedience to a court order. G.S. 5A-21(a)(3), however, requires a showing that a person is "able to comply with the order or is able to take reasonable measures . . ." to comply. A person is not "able to comply" with an order of which he lacks knowledge.
It would therefore appear to be reasonable to strictly construe G.S. 50A-4(b) to require probable cause to believe that the person "willfully" violated a court order excluding him from the residence of the household occupied by the victim or directing the person to refrain from harassing or interfering with the victim. The officer, of course, does not have to believe the statement of the person to be arrested. He should examine all the facts and circumstances and if the facts would lead a prudent person to believe, a willful violation occurred, then he has probable cause and should arrest. State v. Alexander, 279 N.C. 527, 532, 124 S.E. 2d 274 (1971) (definition of probable cause).
It should be noted that Section 2, Chapter 561, 1979 Session Laws enacted G.S. 14-134.3. This statute provides for domestic criminal trespass. If a person enters after being forbidden to do so or remains after being ordered to leave by the lawful occupant, then he shall be guilty of a misdemeanor. If the person refuses to leave upon being notified of the order, then the officer would have probable cause to arrest for this offense. In addition, if the civil order is presented to the officer, he reads it to the person forbidden to be on the premises and the person then fails to leave, the officer would have probable cause that the arrestee has actual notice of [*6] the order. He shall then arrest the person.
Rufus L. Edmisten Attorney General
Issac T. Avery, III Special Deputy Attorney General