[FoRK] Citizen's Arrest!

mdw at martinwills.com mdw at martinwills.com
Mon Nov 28 14:48:54 PST 2011


>> 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".
>

There is no such thing as an "arrest in progress".  There is either an
arrest or there isn't.  It has been scrupulously defined over the past 250
years of court rulings what designates an arrest and it is an absolute.

Simplest definition of an arrest is: "An individual takes physical
possession of another individual." When the arrestor takes physical
possession they become legally responsible for their arrestees health and
well-being. A person being "detained" has the right to leave, once that
right is refused they are "arrested".

If you "ATTEMPT" or "DO" physically prevent an individual from exercising
their right to leave, you have "arrested" them and you are legally
responsible for their health and well-being.  It has happened on too many
occasions that an arrestee has fled and gotten injured and the person
making the arrest is sued by the arrestees family.  Law Enforcement
officers have "limited immunity" in these instances, a citizen does not. 
That is enough to make me never institute a "citizens arrest" even though
I have been previously trained and I am armed.  I don't want to be sued if
they get hurt.

> [1]:
>> 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.
>
>

I thought we were talking about Moving Vehicle violations.  These aren't
misdemeanor violations.  Your vehicle speedometer hasn't been properly
calibrated for pacing (assuming you have your speedometer calibrated every
year or whenever you change your tires or have drive train work) and your
radar hasn't been calibrated in the last year (or six months depending on
the state and assuming you have radar). You don't have emergency vehicle
lights (if you do and your not authorized to have them, that is a
misdemeanor) to enforce a traffic stop. If effect, you have no way of
legally determining whether the officer was speeding; you have no
calibrated recording devices to provide evidence of speeding; and you have
no way to pull the officer over to issue them a moving vehicle violation
(nor in the majority of the US do you have the legal authority to issue a
moving vehicle citation). You have not witnessed a misdemeanor or felony.
It is your word against the officers word. You will never see the inside
of a Courtroom.

In an administrative review you will be heard but, again you lack evidence
of any moving vehicle violations unless; you have calibrated your
speedometer; and/or you have radar; and/or you have a certified a
start/stop marker for speed estimation calculations; and/or you have a
dozen witnesses that will testify. If you meet these criterion you still
don't have a misdemeanor or a felony. You have nothing to arrest on and
therefore there will never be a warrant sworn out for the officers arrest.

The citizen arrest powers were put into place for security guards. 
Shoplifting and related misdemeanors/felonies were the intent of most
states citizen arrest statutes.  If a citizen without training and not in
a Security Guard position, wishes to make a citizens arrest, good luck! 
Every person you approach in the United States could possibly be legally
armed and they have the right to defend themselves including preventing
another citizen from arresting them.  For this very reason, the majority
of Policing agencies prohibit "plain clothes" officers from making arrests
except in limited situations. And yes, plain clothes law enforcement
officers have been shot and killed by uniformed officers, security guards,
and legally armed citizens.


>
> 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.”
>>

what was the criminal act in Green v. DMV?

>
>> 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.
>> ARREST PROCEDURE
>> 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
>
>

You will never find an officer that will "receive" another officer you
have made a "citizens arrest" on. An officer needs jurisdiction to make
the arrest -- remember an officer on duty can't be arrested except by
those having jurisdiction to do so even in the case of felonies. I have
never been in the position to "relieve an officer on duty". It is up to
the detectives/prosecutor to pursue an arrest when the officer is off
duty.

In Shoplifting situations, I had the right to release an individual once I
have "received" them (and I did on numerous occasions) under officers
discretion (e.g. from above:"... however, officers who determine that
probable cause does not exist may later release the suspect." or by
issuing a court summons.) If the act a citizen was trying to make an
arrest on is a felony, I would make the contemporaneous arrest and have
the citizen become the states witness. They are called FELONIES because
they are bad and generally you want to make sure they stick because the
legal procedures have been followed. Since I don't have to witness a
felony to make a contemporaneous arrest there is no reason to require a
citizens arrest.

--Martin--





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