CLIENT ALERT MEMORANDUM
January 3, 2003
To: All Police Chiefs and Sheriffs
From: Martin J. Mayer
CITIZENS ARRESTS AND P.C. 142
Recently I was contacted by several clients with questions about a memo sent by another law firm indicating that the law, requiring officers to accept citizen arrests, had changed; that is correct information.
P.C. 142 makes it a felony for a peace officer to “willfully” refuse to “receive” a person arrested and charged with a criminal offense. This, before the change in the law, included the arrest of someone by a private person under the citizen’s arrest provision of P.C. 837 – even if the officer was going to release the arrestee pursuant to P.C. 849(b)(1).
Federal law, however, requires probable cause to believe a crime has been committed before a government agent can take someone’s liberty – and “receiving” an arrested person is restricting their liberty. Therefore, when an officer accepts custody of the arrested person, even for the short time it takes to complete the 849(b)(1) release, the officer is violating that person’s federal civil rights, since the officer has NO probable cause to believe a crime was committed.
That is called a “Catch 22!”
When that was made clear to us by a federal judge, while we were representing a city and it’s police department in a matter arising out of a citizen’s arrest, we decided to do something about it. As General Counsel to the California State Sheriffs Association (CSSA) I asked for, and received, authorization from it’s Board of Directors to attempt to “fix the problem.” With the outstanding assistance of Nick Warner, Legislative Advocate for CSSA, we were able to secure the support of Assembly member Bates, of San Diego, to author AB 1835. The Bill deletes those arrests made pursuant to P.C. 837 from the mandate of P.C. 142, and an officer will no longer face the possibility of felony prosecution if he or she refuses to accept a citizen’s arrest.
Nick [along with help from John Lovell, Legislative Advocate for the California Police Chiefs Association (CPCA) and California Peace Officers Association (CPOA)], then “ran with the ball” and secured virtually total support in the legislature for the successful passage of the Bill. The Bill was signed by Governor Gray Davis on September 13, 2002 and filed with the Secretary of State on September 15, 2002.
We are obviously very pleased with this legislative success, since it removes from a peace officer a burden which made no sense. Placing an officer in a position where the use of discretion could result in a felony conviction under state law, and the failure to exercise discretion could violate federal law, was absurd. This change in California law removes that “Catch 22.”
Jones & Mayer is, quite frankly, proud of our ability, as legal counsel to California law enforcement, to have accomplished this on behalf of law enforcement. It proves, once again, that through a teamwork effort much can be done. It was also a pleasure to work with, and have support from, both labor and management groups throughout the state.
As always, we urge that you confer with your agency’s legal advisor regarding this matter. If you have questions or wish to discuss this Memo in greater detail, please do not hesitate to communicate with Martin Mayer at 714-446-1400 or mjm@jones-mayer.com.
[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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