[FoRK] Citizen's Arrest!

Carey Lening lawnun at gmail.com
Mon Nov 28 23:39:47 PST 2011

Heh.  Having fun with this?  I find arguing law with folks who cherry-pick statutes and regs to be terribly tiring.  Amusing to read though, if for no other reason than it proves why I never want to practice law/take clients again. ;)

Sent from my iPad

On Nov 28, 2011, at 5:42 PM, mdw at martinwills.com wrote:

>> 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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