🚔🚨 Mandatory Arrest in Domestic Violence Cases: Why “May” Still Means “Shall”

The recent Attorney General’s report on the murder of Sandra Marisol Fuentes Huaracha in Berlin, New Hampshire, should hit every law enforcement officer right in the gut. The report isn’t just about one tragedy — it’s a reminder that hesitation, lack of follow-up, or “waiting for prosecution” can cost someone their life.

In this specific case, a credible threat of impending violence came when Michael Gleason expressed suicidal and homicidal thoughts, surrounding his estranged wife. Instead of a thorough investigation being conducted, an officer made a brief phone call, accepted Gleason’s denial of the threats, and closed the call without any further action - including making contact with the initial complaining witness. Two days later, Gleason acted on his threats and murdered Fuentes before taking his own life.

The New Hampshire Attorney General’s Office called the officer’s actions “wholly insufficient under the circumstances.” Even more telling was their reference to certain actions or lack therefore related to the department as the AG's report states:

“These efforts, including the pace at which they were undertaken, raise questions that require further examination.”

That single sentence speaks volumes. The pace of the response — how slowly an officer acted or how limited the action was — is now a benchmark for professional accountability. It’s the AG’s way of saying that when there’s probable cause and danger is clear, the time for discretion is over.

The Law in Plain English

Through recent discussion with my coworkers, it has been pointed out to me that RSA 173-B:10 says an officer “may arrest” — not “shall arrest.” Technically, that quote is correct, but it’s not the whole picture and lacks important context.

Let’s start with RSA 173-B:9, which covers violations of protective orders. The law says:

“Peace officers shall arrest the defendant and ensure that the defendant is detained until arraignment.”

That’s mandatory. If there’s probable cause that a protective order was violated, arrest is required — no discretion, no delay, no exceptions.

Now if we look at RSA 173-B:10, which deals with situations where a protective order isn’t already in place, the law begins with this:

“Whenever any peace officer has probable cause to believe that a person has been abused, as defined in RSA 173-B:1, that officer shall use all means within reason to prevent further abuse.”

Then, later, it says:

“Pursuant to RSA 594:10, an arrest for abuse may be made without a warrant upon probable cause.”

So yes — it says may arrest — but when you read both subsections together, the intent of the law becomes clear.

“Shall use all means within reason” is the directive. It’s the duty imparted onto law enforcement to act. The reference to “may arrest” in section II simply gives the officer legal authority to make that arrest without a warrant. It doesn’t grant the officer discretion to walk away.

If an officer has probable cause that abuse occurred, then arrest is the most reasonable means to prevent further abuse and therefore, SHALL occur. Anything less violates the statute’s intent and the duty of law enforcement to act to protect the safety of the victim.

What Counts as Abuse in New Hampshire

Under RSA 173-B:1, “abuse” includes the commission or attempted commission of any of the following acts when committed by a family or household member or intimate partner:

• Assault or reckless conduct (RSA 631:1 through 631:3)
• Criminal threatening (RSA 631:4)
• Sexual assault (RSA 632-A:2 through 632-A:5)
• Interference with freedom (RSA 633:1 through 633:3-a)
• Destruction of property (RSA 634:1 and 634:2)
• Unauthorized entry (RSA 635:1 and 635:2)
• Harassment (RSA 644:4)
• Cruelty to animals (RSA 644:8)

All of these are forms of abuse under RSA 173-B. Once probable cause exists for any of them, the domestic violence enforcement provisions apply and law enforcement has a duty to act.

The “May” vs. “Shall” Debate — Why It’s Already Settled in Practice

The Attorney General’s Office and Police Standards & Training Council (PSTC) have long made this point in training:

Probable cause equals duty to arrest.

The word “may” in 173-B:10 doesn’t give officers permission to ignore their obligation — it gives them authority to act immediately without an arrest warrant in hand. It's actually one of the only times the AG's Office encourages law enforcement personnel to arrest without a warrant.

If an officer chose to document in a report for example, “I chose not to arrest the abuser because the statute only says I may,” it is clear that this reasoning would never withstand DOJ or AG scrutiny if reviewed.

In fact, as the Fuentes report made clear, failing to act with urgency when probable cause exists is a failure of duty. The AG also explicitly noted that “the pace at which [efforts] were undertaken” required further examination — that’s legalese for you should have acted sooner.

Sexual Assault Investigation Considerations: Arrest First, Build the Case After

This is where many investigators may unintentionally fall short. It’s common in sexual assault cases in NH — especially those between romantic partners or cohabitants — for detectives to gather evidence, submit the report to the County Attorney’s Office for review, and wait to see if the case will be accepted by prosecution and presented for indictment in front of the Grand Jury.

But here’s the problem: indictment does not equal arrest. And proprietorial discretion does not relinquish a police officer's duty to arrest. Remember, prosecutors in NH have immunity, police officers don't.

A physical arrest — where the defendant is taken into custody — is what fulfills the officer’s statutory and protective duty to the victim of abuse. The arrest process offers criminal bail protective orders to commence, and allows prosecutors to make an argument regarding bail. Prosecutors lose any argument for dangerousness of a defendant to the community or to a victim when officers don't act expeditiously to make an arrest.

If mere probable cause exists that a sexual assault occurred — particularly between individuals who qualify under RSA 173-B — the officer or investigator has a duty to arrest without a warrant if within 12 hours of the offence, or with a warrant otherwise. The rest of the investigation can (and should) continue afterward, but it cannot replace that physical arrest.

By submitting a case to prosecution without making an arrest, an officer is deferring enforcement, not fulfilling it. That approach is inconsistent with the statute’s command to use “all means within reason to prevent further abuse.”

Put simply:

Investigation is not intervention or immediate action.

If you have probable cause, you must act — don’t hand off the risk to a prosecutor’s calendar.

Warrantless Arrests and the 12-Hour Rule

Under RSA 594:10, an arrest for domestic abuse may be made without a warrant upon probable cause, but the arrest must occur within 12 hours of the offense or discovery of the probable cause.

After that 12-hour window, if no arrest has been made, the officer must seek a warrant before taking the person into custody.

This is another reason why delays in DV or sexual assault cases are dangerous. Waiting for prosecutorial review can easily push a case past the 12-hour mark, turning a mandatory arrest scenario into a warrant requirement — and in some cases, a missed opportunity to prevent another act of violence or provide adequate protection for the victim.

Who’s Covered

Domestic violence protections in New Hampshire extend far beyond traditional married couples. The law applies to:

• Current or former spouses
• Individuals who currently live together or used to live together
• Parents and those related by consanguinity (blood — parents, children, siblings, grandparents, cousins)

One important note under RSA 173-B:1 — the statute includes parents and relatives by blood or marriage, but specifically excludes a defendant’s own minor children who live with them.
This creates an unusual distinction: a child can commit an act of abuse under 173-B against a parent, but a parent’s abuse of their own minor child is handled separately under the Child Protection Act (RSA 169-C) or applicable criminal statutes. In other words, child abuse isn’t excluded from law — it’s just excluded from RSA 173-B’s domestic violence framework.

• Those related by affinity (marriage — in-laws, step-relations, etc.)
• Intimate partners, even if the relationship was never sexually consummated
• Individuals who share a child in common

If any of these relationships exist, and any of the acts listed above occur, you’re in domestic violence territory.

The Bottom Line

You’re not just allowed to act — you’re expected to act.

If you have probable cause that abuse, sexual assault, or criminal threatening occurred between people who meet the relationship definition, you are required to take reasonable action to prevent further harm. That means arresting the offender, seizing weapons, and notifying the victim of their rights and resources.

As the Fuentes case reminds us, the “pace” and seriousness of an officer’s response matter. An officer who waits for prosecution to decide on an indictment has not made an arrest. An officer who delays a warrantless arrest beyond 12 hours has failed to preserve that authority.

If an officer must “use all means within reason” to protect the victim, then arrest — upon probable cause — is the most reasonable means available.

Anything less isn’t just poor judgment. It’s a failure to act under the law — and the consequences can be fatal.