Thursday, July 19, 2012

Vigilante Justice, Part II: The Citizen's Arrest

Update:  This article was posted in today's Los Angeles Times.

I had so much fun with my previous post on "Vigilantism and the Law" that I've decided to devote a series of posts to some of the legal issues surrounding vigilantism.  For part II in my series, I've chosen to write a little bit about the legalities of the "citizen's arrest".  As a case study, I've selected a recent incident that took place aboard a subway train in Brooklyn, New York (*Disclaimer:  I am licensed to practice law in California, but not in New York.  Legal analysis of the subway incident will apply CA law, even though I understand that it did not occur in CA).  Today's course materials are available for your viewing pleasure here.

Here's the factual scenario: Around 9:30 PM on Friday, July 13, two women followed a young man as he boarded a train car at Brooklyn's Lorimer station.  They were pointing and yelling at the man, who they accused of sexually assaulting them on the train platform moments before the doors of the train car opened.  The women demanded that he exit the train and wait for police to arrive. Other passengers quickly joined in and helped the women physically drag the suspect from the train. Bystanders restrained him until arresting officers arrived.

This is the classic, textbook example of the "citizen's arrest".  By definition, a citizen's arrest occurs when a private person (rather than a police officer) takes another person into custody on suspicion of having committed some crime.

In the year 1872, the California State Legislature bestowed upon us sections 837, et seq., of the California Penal Code.  That series of laws provides a system by which non-sworn, private citizens may lawfully detain and arrest their peers if certain conditions are met.  Under PC 837, a citizen may arrest a suspect in any of the following situations:

-When the private person has actually witnessed a suspect commit or attempt to commit any crime (felony or misdemeanor) in his or her presence,
-When the person being arrested has actually committed a felony (regardless of whether or not it occurs in the presence of the arresting citizen), or
-When a felony has actually been committed (regardless of whether or not it occurs within the presence of the arresting citizen) and the person making the arrest has reasonable suspicion to believe that the suspect committed it.

"The person making the arrest must, on request of the person being arrested, inform the latter of the offense for which he is being arrested" (PC 841)

Penal Code section 839 further provides, "Any person making an arrest may orally summon as many persons as he deems necessary to aid him therein" ("Hey, y'all, help me hold this guy!"). 

It gets even better.  "To make an arrest, a private person...may break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing the person to be, after having demanded admittance and explained the purpose for which admittance is desired." (PC 844)

...And if you get locked INSIDE a suspect's house while making a citizen's arrest, PC 845 says that you may break open a door or window if necessary to get OUT.  Apparently, there was a time when California must have had a real problem with private citizens becoming trapped inside the homes of people that they had been attempting to arrest because the arresting citizen was reluctant to break down the door for fear of legal repercussions.  This problem must have become so dire that the legislature felt it necessary to pass a law authorizing such entrapped citizens to break doors or windows to escape.

Sworn peace officers DO enjoy a few more protections than the average man-on-the-street when making arrests, however.  For example, a peace officer cannot be held personally liable in a civil suit for false arrest if the officer acts with "reasonable cause" to believe that the arrest is lawful. You and I do not enjoy this qualified immunity.  If you or I attempt a citizen's arrest and we nab the wrong guy, we can expect to get sued.  Peace officers may also use "all necessary means" of force to effect arrests in certain limited situations, whereas private citizens may only use "such restraint as is reasonable".

Now, let's take what we've just learned and apply it to the above-mentioned subway incident. When the camera starts rolling, the two female victims have just witnessed a crime occur in their presence.  They had been sexually assaulted and they were attempting to restrain the suspect until police could be summoned.  Unfortunately for the women, they were physically unable to restrain the man because of his relative size and strength.  Fortunately for the women, however, Penal Code section 839 permitted them to summon "as many persons as [they deemed] reasonably necessary to aid [them]" in effecting the arrest.  They hollered and other subway riders sprung into action.  Several men physically dragged the suspect onto the train platform and held him until subway police responded to the scene and took the man into custody.

One thing that immediately jumped out at me about the incident is the surprising lack of force used to effect the arrest.  Several men grab the suspect by the torso and neck, but I did not see the degree of violence that might be expected in a "lynch mob-type" environment such as this. The suspect is manhandled and thrown to the ground, where he is restrained by strangers, but I could not discern a single punch thrown or any sign that excessive force was applied.  My impression was that the arresting citizens employed only a "reasonable" degree of restraint and did not apply anything near "excessive force".  As always, please feel free to comment and to tell me that I'm an idiot if you disagree.

Thanks for reading! Stay tuned for more fun and exciting legal news and analysis.  And remember, if you or a loved is arrested (by police or citizens), call us for a free attorney consultation.  (714) 505-2468.  Ask for John.

Orange County Criminal Defense Attorney