[FoRK] Citizen's Arrest!

mdw at martinwills.com mdw at martinwills.com
Mon Nov 28 17:42:41 PST 2011


>
> Did you read the Alameda district attorney opinion? Seems to disagree with
> that.
>

No.

>
> 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.

It needs certification and a way to record the result. You need to review
the California Criminal rules of evidence.  The rules are extensive and
detailed.

>> 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?
>

You need to review the California Criminal rules of evidence. In this
particular instance, traffic violations are considered "infractions" and
they end up on a driving record and your insurance company punishes you.
They aren't criminal acts. That is why you are not arrested and finger
printed when you get pulled over for a ticket. You also can opt to mail in
your fine or request a hearing in front of a judge. You don't get either
choice for a criminal arrest. Generally ticketing officers don't show up
for traffic court unless subpoenaed. If you fail to pay your fine or fail
to make an appearance, you will have an arrest warrant for contempt of
court issued by the court (not by the prosecutor) for you and it will
probably have an extradition mileage limit.  My experience has been 50
miles for traffic violations and 100 to 300 miles for misdemeanor
violations in state. Depends on the state and the court procedures. I
can't tell you how many times I've gotten a  warrant hit only to find out
that I was 2 or 3 miles beyond the extradition limit or it was from a
neighboring state that I could see from where I was sitting.

>> 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.
>

Judges deal with issues concerning the law and juries determine facts. For
instance: a foreclosure action is a rule of law and can only be heard by a
judge; therefore a jury can't be seated. A breach of contract for the same
action requires a determination of facts and the plaintiff has the right
to a jury. In Criminal law, juries are fact finders and are seated to hear
felony complaints. You can request a jury for a misdemeanor case but, most
courts deny the requests to save money.

You need to review the California Criminal rules of evidence. You haven't
described a misdemeanor criminal act so you won't see the inside of a
court room.  If the investigating department determines that there was a
criminal act, they will prosecute it and you will be called as a state
witness (very unlikely for what you described).

>>
>> 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.
>

Yes when there wasn't a law enforcement presence, there were common laws
of conduct. They regularly hung persons on the belief they had stolen
cattle or horses without a trial or evidence (mob law).  I don't think I
want to go back to the good 'ol days!  Once lawyers became the norm, the
state legislatures enacted massive numbers of laws (California, when I was
there in the 90's, had over 8,000 of them at the state level) so that
lawyers could make a living (remember most state legislatures are made up
of failed lawyers).

>>
>>> 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.

DUI/DWI is a misdemeanor criminal offense (a felony if multiple occurances
within a state specified amount of time or in California if there is an
injury accident). Amazingly enough, you can be charged with DUI/DWI in
most states if your flying an airplane, riding a lawnmower or even sailing
a sail boat.


>> 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?
>

Depends on what it is.  If it's a moving vehicle violation, there is no
crime nor arrest.  If there is a criminal offense, the badge isn't a "get
out of jail free card". The truth of the matter is that I have known
several hundred officers in my days and I have never heard of one of them
committing criminal acts.  In all of my years of law enforcement, I have
never pulled over another officer for any moving vehicle infraction nor
investigated any criminal acts. I had two uncles that had a combined 63
years of law enforcement experience in Los Angeles, and they couldn't
remember investigating an officer for misdemeanor acts.  They remember
pulling over a small number of officers for traffic violations and
generally proffered "professional curtesy". Both of them were pretty hard
core and wouldn't have offered the curtesy if it was an abusive act.  It
happens, it just isn't as common as you might think.  I once was involved
in a traffic accident when I was off-duty.  I received a ticket even
though the investigating officer knew me from an investigation I worked
with them on a few months earlier. There is "professional curtesy" until
it becomes a crime.  It would have been a crime if I wasn't issued a
citation.

Most departments request a cross-department investigation when officers
are involved in minor vehicle accidents or misdemeanor criminal acts. 
Depends on the size of the departments... My experience is small police
departments request Sheriff department investigations, Sheriff departments
request State police investigation and State police departments request
FBI investigations for criminal acts.

--Martin--







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