[FoRK] Citizen's Arrest!

Stephen Williams sdw at lig.net
Mon Nov 28 12:48:56 PST 2011

On 11/27/11 8:36 PM, mdw at martinwills.com wrote:
>> Thanks!  I sensed some of that (and knew about the legislators (and
>> Congress people) being protected while in session.  Just
>> needed a reference.  I guess the question is: Does this only apply to
>> physical arrests, or any form?  Are you saying that
>> someone else in the department won't perform a delayed citizen's arrest
>> when requested and it is reasonably likely to be valid?
>> I suspect you are referring to being physically arrested and detained.  I
>> would think that was the case.  However, it seems that
>> this shouldn't be an restriction on more administrative action.
> Arrest and detention are two different things.  The only type of arrest is
> physical.  A law enforcement officer in misdemeanors can only arrest if

True, however indicating intent to arrest and delegating authority to do so is, in effect, an "arrest in progress".

> DELEGATED AUTHORITY: In many cases, the suspect will not be present when officers
> arrive. For example, he may have fled, or he may be unaware that the citizen intends to
> arrest him. If officers locate him, they may of course detain him until the citizen arrives
> and arrests him.
> But they may also arrest him themselves if the citizen, in addition to declaring his
> intention to arrest the suspect, had delegated to them his right to take the suspect into
> physical custody.31 As the Court of Appeal explained:
> It is well established that a citizen in whose presence a misdemeanor has been
> attempted or committed may effect a citizen’s arrest and in so doing may both
> summon the police to his aid and delegate to police the physical act of taking the
> offender into custody.32
> Delegations of authority can occur in two ways. First, the citizen may make an
> express delegation by uttering some sufficiently magisterial words such as, “Go get him!”
> Second, a delegation will be implied if the citizen’s actions demonstrated an intent to
> have the suspect arrested. As the court said in Padilla v. Meese,33 “[T]he delegation of the
> physical act of arrest need not be express, but may be implied from the citizen’s act of
> summoning an officer, reporting the offense, and pointing out the suspect.” Thus, the
> courts will ordinarily find that a delegation of authority occurred if:
> (1) POLICE SUMMONED: The citizen, or someone at his direction, summoned officers;
> and
> (2) ATTEMPT TO LOCATE OR IDENTIFY: The citizen took steps to keep the suspect on the
> scene, follow him, identify him, or learn his whereabouts—any of which could
> reasonably indicate that he wanted to have the officers arrest him when they
> arrived.

> the incident happened in their presence.  They can arrest for a felony on
> "probable cause".  After an incident (as in the case you are making) the
> only way a person can be arrested is if the PA (prosecutor) submits a
> request for an arrest and it signed by a Judge.  The common rule of thumb

That doesn't seem to match Green v. DMV:

> Green contended the arrest was unlawful because the arresting officers had not seen
> her driving the vehicle; i.e., the crime had not occurred in their presence. But the court
> ruled that it didn’t matter because it was apparent that Baughn had, and that he had
> delegated to the officers his authority to make the arrest. Said the court, “[T]he police
> were acting as agents assisting in effectuating Baughn’s citizen’s arrest . . . . The entire
> sequence of events beginning when Baughn decided to arrest respondent and went to get
> help constitutes the arrest.”

> for a cop is: a) If I see it I can arrest for it. b) If someone gets hurt
> or more than some baseline cost in money, I can arrest if I wasn't there;
> but only after I investigate; and a reasonable person would probably come
> up with the same belief that I have, that the person I am arresting did
> the act. c) If it happened before I showed up and I can't make a
> contemporaneous arrest, I turn it over to the detectives and they work
> with the prosecutor to get an arrest warrant.

That's only true when there hasn't been a citizen's arrest commencement.
> If a citizen has a legal right to arrest a suspect and elects to do so, there is a
> procedure that officers should follow. This procedure can be divided into four parts: (1)
> taking the arrestee into custody, (2) arrest formalities, (3) disposition of the arrestee, and
> (4) searching the arrestee.
> Taking custody
> If the suspect is present when officers initially meet with the citizen, and if the citizen
> arrests him or has already done so, officers must “receive” him, meaning they must take
> custody of him.22 The purpose of this requirement is to “minimize the potential for
> violence when a private person restrains another by a citizen’s arrest by requiring that a
> peace officer (who is better equipped by training and experience) accept custody of the
> person arrested from the person who made the arrest.”23 For example, when this issue
> arose in Wang v. Hartunian, the court pointed out that the officers “were in fact obligated
> to take custody of Wang merely at the direction of [the citizen], that is, when [he]
> informed the police that he had arrested Wang.”24
> Three things should be noted about this requirement. First, the officers’ act of taking
> custody of the suspect does not constitute an arrest by the officers.25 It is merely a
> transfer of custody following an arrest by the citizen.26 Consequently, the officers cannot
> be held liable for false arrest.27
> Second, officers must accept custody even if they don’t know whether the citizen had
> probable cause.28 In the words of the Court of Appeal:
> A peace officer who accepts custody of a person following a citizen arrest is not
> required to correctly determine whether the arrest was justified, and cannot be
> held liable for the arrest if it was improper.29
> (As we will discuss later, however, officers who determine that probable cause does
> not exist may later release the suspect.)
> Third, in the past, officers could be charged with a felony for refusing to take custody
> of a suspect who had been arrested by a citizen. This crime was deleted from the Penal
> Code in 2002.30

>> In some cases, they will incur liability of some kind if they do not.  I
>> think.
>> Just recently read this:
>> http://www.fbi.gov/about-us/investigate/civilrights/color_of_law
>> Interesting, although I don't see how it would apply here, although
>> ignoring proper requests about abuse would seem to be
>> heading in that direction.
> You have touched on the "holy grail" of BS!  The FBI will only investigate

Not surprising. As always, there is what is theoretically possible and what is market viable, often separated by a huge gap.
On the other hand, people should tend to avoid being even theoretically exposed. You would think.

> "outrageous" conduct (think Rodney King as the absolute floor) and only
> after there is an outcry from the Public -- or -- IF YOU HAVE A POLITICIAN
> ON YOUR PAYROLL. The U.S. Legislature in the 1970's provided the means for
> lawyers to get paid pursuing 42 U.S.C. 1983 ->  1985 civil remedies.  This
> was done so the US Government could get out of the money sucking
> prosecutions for 18 U.S.C. 241&  242 violations (e.g. from your link :
> "During 2009, the FBI investigated 385 color of law cases.")
>> I don't want any money.  This is not a nuisance suit from that
>> perspective.  I'm not fighting a speeding ticket.  I suffered
>> some excess risk, but survived this time.  It is addressing an obvious,
>> and dangerous in this case, illegal double standard.  In
>> effect, I'm objecting to police operating as a dangerous nuisance who
>> can't resist the attractive nuisance of citizens operating
>> safely in the spirit but not the letter of the law.  As evidenced in other
>> areas, many police departments need sensitivity
>> training as to the full breadth of constitutional rights and how to
>> achieve goals without injuring those.
> If you want to fix what is going on at the bottom, you need to fix it at
> the top first!  Get congress off of the wealth-making opportunities of

That would be better, but not within my time / resources budget. Occasionally things get turned on their ear from the bottom, 
sometimes by a sweet judicial ruling. Vanishingly unlikely here, but not impossible, and within my budget.

> being elected to the U.S. Legislature.  Get the Judges off the "absolute
> immunity" rules (e.g. U.S. Supreme Court Justice Clarence Thomas failing
> to disclose more than $1.5 million made by his wife on his income taxes).
> Get transparency in the Judicial System (THERE IS NONE RIGHT NOW AND THERE
> WON'T BE ANY UNTIL IT IS FORCED) and you will clean up the system.  The
> law enforcement agencies will not police themselves when the people
> writing the laws and those interpreting the laws are not being held
> accountable.
>>> arrest is required to do all of the paperwork and attend the court
>> Beyond what I wrote up, I don't see any reference to other paperwork.  The
>> Alameda prosecutor opinion seemed to indicate that
>> the police department would have to do procedural followup.  I would
>> expect to have to go to court as the witness /
>> plaintiff-ish party.
> If it goes to Court you will go through a Prosecutor. If you go through a
> police dept. it will only be administrative and won't be prosecuted as a
> criminal act.
>> In some sense it isn't their fault as they probably can't
>> buck the status quo too much in their choices.
> You have correctly summed up the situation.
>> Or maybe they can.  Anyway, in this case, it was clearly technically
> illegal and
>> dangerous in some major ways.  An officer wouldn't
>> hesitate to pass up an opportunity to jump on that, why should I keep
>> letting it pass?  At some point, it becomes a civic duty
>> to try to do something.
> You are somewhat accurate.  The metaphor "The squeaky wheel gets the
> grease" is appropriate.  Enough people complain, then something will
> probably happen.  If no one complains, then there isn't a problem.
>>> hearings. If the citizen makes a frivolous/fraudulent arrest, they are
>>> civilly liable. Almost every state has the civil tort of "Malicious
>>> Prosecution and/or Abuse of Process".
>> Yep, have read that they have civil tort recourse.  If I were lying.
> Don't forget that the omission of facts also makes you liable, and you
> wouldn't be lying.
>> sdw
> --Martin--



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