CLIENT ALERT MEMORANDUM
January 31, 2003
To: All Police Chiefs and Sheriffs
From: Martin J. Mayer
CITIZENS ARREST SAMPLE POLICY
In our previous Client Alert Memo dated January 3, 2003 we explained the change in law regarding California Penal Code Sections 837 and 142. Subsequent to that update, there has been some confusion as to how officers should proceed when confronted with a citizen’s arrest. In response to that confusion, we are submitting for your consideration, a sample Citizens Arrest Policy.
We urge that you confer with your department’s legal counsel before changing any policies based on this information. As always, if you have any questions and/or comments regarding this matter, feel free to contact Martin Mayer at (714) 446-1400 or MJM@Jones-Mayer.com.
GENERAL ORDER:
SUBJECT:
PRIVATE PERSONS ARREST
ISSUED ON:
REVISED ON:
POLICY
It is the policy of the _______________ Department to carefully and objectively evaluate private person arrests and, where it is lawful to do so, accept and properly process the person arrested.
PROCEDURE
A.
Officers presented with a situation in which someone wishes to make a private person arrest should be aware of the following provisions of the law:
1.
Penal Code § 837 provides in part that:
A private person may arrest another: 1. For a public offense committed or attempted in his presence.”
2.
However, notwithstanding this provision of state law, officers must also be aware that, under federal interpretations of the Fourth Amendment to the United States Constitution, any action by an officer in which a person is taken into custody — i.e., deprived of their liberty — must be supported a probable cause to believe that a public offense has occurred and that the person being taken into custody committed that offense.
B.
With these provisions of the law in mind, officers presented with a situation in which a private person expresses the desire to place another person under arrest, pursuant to the private person arrest authority of Penal Code § 837, shall:
1.
Prior to accepting custody of the private person arrestee, make reasonable efforts to obtain all information relevant to the issue of whether a criminal offense has occurred and whether the person to be arrested is the one who committed that offense.
2.
Where it appears from the objective circumstances and evidence that there is probable cause to believe a criminal offense occurred and the person to be arrested is the one who committed that offense, the officer shall:
a.
accept custody of the arrestee; and,
b.
process the arrestee accordingly, i.e., citation release, booking and release, incarceration, etc.
3.
Where it appears from the objective circumstances and evidence, that there is no probable cause to believe a criminal offense has occurred, the officer shall:
a.
carefully explain to the person wishing to make the private person arrest the legal requirement that acceptance of custody by the officer requires the presence of probable cause to arrest, as well as the facts and circumstances which indicate to the officer an absence of probable cause;
b.
seek the consent and cooperation of the person wishing to make the arrest to have the matter handled by submission of a crime report for further investigation by detectives and/or evaluation of criminal charges by the District Attorney;
c.
if the person insists on making the arrest, the officer shall refuse to accept custody of the arrestee;
d.
complete a report detailing all of the allegations, facts, circumstances and evidence bearing on the officers determination to refuse to accept custody.
4.
Officers should seek advice from a supervisor or the watch commander when there is any question in the mind of the officer as to how to proceed regarding a private person arrest.
[The Law Offices of Jones & Mayer located in Fullerton, California focus its practice on representing the interests of public entities as its City Attorney, in labor negotiations, in defending tort litigation and civil rights litigation. Martin Mayer focuses his practice in the area of representing cities, counties and the State on matters arising out of their respective law enforcement agencies.]
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