[FoRK] Citizen's Arrest!
sdw at lig.net
Mon Nov 28 15:57:45 PST 2011
On 11/28/11 2:48 PM, mdw at martinwills.com wrote:
>>> Arrest and detention are two different things. The only type of arrest
>>> 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.
Did you read the Alameda district attorney opinion? Seems to disagree with that.
> 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.
>>> DELEGATED AUTHORITY: In many cases, the suspect will not be present when
> 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
GPS would have worked and at highway speeds does not need calibration. And any vehicle traveling faster than general traffic in that
situation would have been speeding. And this one was traveling much faster.
> 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.
I haven't? You mean I don't have solid enough proof to win? Depends on the judge doesn't it?
> 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.
I have evidence. Maybe not solid enough to convict on, but that is a judgment issue for a judge/jury.
> The citizen arrest powers were put into place for security guards.
If I understand correctly, citizen arrest powers are common law in the US, i.e. they've always been part of the legal system. They
were solemnized at some point and made more clear, but I get the idea that they have always existed. The referenced document
mentions that it was the default, common case in the US old West.
> 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?
A moving vehicle violation, or at least what most people would think of as such: DUI.
> 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
And what about when they are off duty?
> 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
> 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.
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