WASHINGTON, March 13, 2016 — You can arrest people. Both statutes and what is known as the common law say you can.
Common law is law that has been decided by judges in courtrooms, on a case-by-case basis. These court case decisions have the full force of laws passed by state legislatures. Thus, when a judge decides something, that is the law for that matter, and it has precedential effect, meaning in similar cases in the future, the law just- decided will apply.
If you see someone robbing a bank, stealing a purse from a woman on the street, driving more than the posted speed limit, using illegal drugs, and a host of other crimes, yes… you are allowed to arrest them. But is it smart to do so? That is another issue to be addressed in a bit.
Most states have laws that allow private citizens to make an arrest of another person without an arrest warrant for a felony, a misdemeanor, or for a “breach of the peace.” But some states only allow citizen arrests if the crime being committed is a felony. Be forewarned, and check your state’s law.
The Supreme Court has described that a “breach of the peace” covers a multitude of crimes, including something as minor as a seatbelt violation punishable by only a fine. Historically breaching the peace included theft, “night-walking,” prostitution, and playing cards and dice games. Today, breaches of the peace can be either misdemeanors or felonies, and some states use other terms, such as “public offense,” to describe this category of crimes.
Are your neighbors blasting their music too loud? Noise violation! Go get ‘em.
In the case of misdemeanor crimes (less serious crimes), states almost universally require that the crime is committed in your presence before you are authorized to make an arrest.
In the case of a felony crime (more serious), an arrest can be made by a private individual, even if not seen by the would-be cop, if there is reasonable cause for believing the person arrested committed the crime. Warning here – if the crime is not a felony, the person arrested can sue for false arrest.
Before you put on your fake badge — actually, you should never put on a badge, as pretending to be a police officer is against the law — you should know a few of the ins and outs of being a cop for a day.
An arrest is actually a detention. It means you are taking physical custody of someone else and preventing him or her from leaving. This undertaking may involve the use of force. The general rule for using force is that only that amount of force that is reasonable and necessary to make the arrest is allowed. What exactly that amount of force is in any situation is ultimately up to a court to decide.
The use of deadly force is rarely acceptable. Beyond the mistaken use of deadly force, even using “excessive” force can expose the arrestor to civil and criminal liability. Deadly force will be allowed if the person making the arrest, or someone else, is faced with the threat of serious bodily injury, or death. The arrestor may use deadly force to prevent harm to himself, herself or others.
Warning: using deadly force that causes death could result in manslaughter or murder charges. An added problem could well be a civil wrongful death lawsuit by the decedent’s survivors.
Generally, there is a justification for using non-deadly force upon another if:
- The other person is committing a felony;
- The force used is necessary to prevent further commission of the crime and to apprehend the offender.
The force used, again, must be reasonable under the circumstances to restrain the individual arrested.
How do you arrest someone? Carefully. You should be physically bigger or stronger than the person to be arrested. You may not use deadly force, meaning a weapon, unless the situation involves defending yourself or another person. You may not beat someone unconscious for stealing an apple.
Consider alternatives. Call the police. Take a photograph of the criminal with your mobile telephone. Get others to assist you with the arrest.
Do you want to try to arrest someone? Consider their psychological demeanor. There is a high likelihood the individual you are about to arrest is not going to be calm about it. Ever hear about the 90-pound woman who lifted a car to free her trapped child? Criminal types committing crimes are going to have more adrenalin pumping, rendering them able to do physical things beyond their normal expected capabilities.
Are you sure about what you have seen and what you know? Criminal and civil consequences, as discussed, can visit you if you are wrong.
The phrase heard often in our society that “people do not want to get involved” does not necessarily mean those people do not want to make citizen arrests. You can, and you should get involved if you see a crime being committed, or know of a crime and the identity of the criminal. Caution is a good practice however, before you commit to the actual arrest attempt.
A final discussion involves the possibility of a private citizen arresting a real police officer. Search on the Internet or on YouTube with the search term “arresting police” and you will have a resource for hours of amusement and amazement.
While technically there is nothing illegal about arresting a police officer, the overwhelming sentiment from police, prosecutors and legal scholars is that attempting to do so is dangerous, and in many of the details, may then be illegal.
Arresting an officer is probably going to end with the officer or one or more of his or her colleagues arresting you for interfering with or obstructing a police officer.
Arresting an officer probably means disarming him or her. Often that is a crime. The very involvement of weapons escalates the situation to one involving the possibility of the use of deadly force. Not a great idea. Imagine a second officer, arriving on the scene and seeing you wrestling an officer on the ground, trying to take the officer’s gun. How likely is it the second officer will shoot you?
- Most police have numerous weapons on them, and all are trained in hand-to-hand force techniques.
- Officer Oops ends up shooting or killing you and claims you appeared to be drawing a weapon.
- Finally, contrast your credibility with the officer – likely a court will believe the officer.
Want to arrest a cop? Better to make notes or show your video later to officials, putting a copy of those notes or video in the hands of your trusted friend. Best of all, hope you’re never in this situation.
“Let’s be careful out there,” said Sergeant Phil Esterhaus (Michael Conrad) at the end of every roll call in the classic 1980s police drama series “Hill Street Blues.” That’s still good advice.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.
His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.