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Main Page Citizen's Arrest?
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Posted by: LandShark9C1

Can anyone here direct me to someplace in the MGL or case law covering this?
It is my understanding that if someone commits a felony in your presence you could "arrest" them, however I'm looking for something solid to base that on.

The reason I ask is becuase I give my time to the Lowell Aux, however it is my understanding that we do not have the police power like some other auxiliaries. This is for a number of reasons which I don't feel like getting into but the Aux program in Lowell is very low key compared to towns in the area, which..never made much sense to me.

anyways, I haven't been carrying cuffs, becuase, why would I spend money on something I'm not allowed to use. However, I was asked to start carrying them. My problem with this is that I really do not want to slap the cuffs on someone when I legally shouldn't be doing so.
The likelihood I would even be in that situation is very very low, HOWEVER, in the event it does come up I would like to know, in black and white, what I can and cannot do.

thanks

Posted by: 209

If you are on an Police Aux. couldn't you just get that info from who ever is in charge of your unit?

Posted by: Fozzy

Like bosco109 said: For nonsworn persons the standard is 'in fact committed' which would leave a nonsworn person open to civil liability if the verdict were anything other than 'guilty.'

If you're asked to carry cuffs, carry them and learn how to use them. Just don't put them on anyone! Actually, if someone who has the authority to make arrests tells you that a person is under arrest and asks you to 'cuff that person, you're good to go AS LONG AS THAT OFFICER TOLD THE SUSPECT THAT HE OR SHE IS UNDER ARREST! That makes you a willing bystander rather than the arresting officer.

I'll say it again... Learn how to use the handcuffs properly. You'd be surprised how many officers either don't care or don't bother to use them the right way.

Posted by: csauce777

Quote:

Originally Posted by bosco109

As a citizen if you make a citizen's arrest for a felony, the burden of proof is that the individual "in fact committed" the offense. If you are a sworn PO and make a citizen's arrest for a felony the burden of proof is probable cause.

Lets face it...if theres a felony, its likely that the police are going to make the arrest. The need for a citizens arrest in Mass is almost non-existent.

Posted by: Wiggum_1

In the Waltham Aux. we have no powers, but we are required to carry cuffs in case a regular officer is making multiple arrests or, we're directed to cuff a suspect by a regular officer. And we are trained in how to use them.

I'm sure this is the reason why you need to carry them Landshark.

Posted by: bosco109

As a citizen if you make a citizen's arrest for a felony, the burden of proof is that the individual "in fact committed" the offense. If you are a sworn PO and make a citizen's arrest for a felony the burden of proof is probable cause.

Posted by: LandShark9C1

Quote:

If you are on an Police Aux. couldn't you just get that info from who ever is in charge of your unit?

I've asked...several times....I cannot get a straight answer out of any of my superior officers. I believe that LPD Aux has no written policy on the matter. I was trying to find actual written law I could distribute to the group to finally put the matter to bed. I assume that since we are not sworn PO anything we do would have to fall under the same authority as "citizen's arrest". I've been told I could "detain" someone, however I don't see how that is different than "arrest". I really just want to clear it up.
What everyone has said here was more or less my understanding of the law, but can anyone point to something set in stone to follow?

Quote:

Learn how to use the handcuffs properly. You'd be surprised how many officers either don't care or don't bother to use them the right way.

I agree, it seems rather straight foreward, however I have never been trained in any handcuffing techniques. Lowell will not sponsor us to NERPI, nor will they train us in house beyond the Citizen's Police Academy. Is there any sites or liturature you can direct me to? I'd hate to injur or allow a suspect to escape becuase I was negligent in the manner I restrained him with.

thanks for all the responses so far

Posted by: 209

Okay Now you got me looking. And this is all i could find on citizens arrest...which still doesnt give you a chapter and section. Not sure if there is one. I was surprise when I went through all the books I have and Googled the crap out of this topic and this was all I got. Oh well, sorry I couldnt help you more.
"United States

All states permit citizen arrests if a felony crime is witnessed by the citizen carrying out the arrest, or when a citizen is asked to help apprehend a suspect by the police. The application of state laws varies widely with respect to misdemeanor crimes, breaches of the peace, and felonies not witnessed by the arresting party. Note particularly that American citizens do not have the authorities or the legal protections of the police, and are liable before both the civil law and criminal law for any violation of the rights of another. In the United States, the police do not have to determine the legality of the citizens arrest and this practice has been greatly criticized.
The State of North Carolina Supreme court has passed down the decision that in the state of North Carolina there is no such thing as legal citizen's arrest. However, if a citizen witnesses the commission of a felony he may detain a subject for just as long as it takes local authorities to arrive. This is referred to as a citizen's detention, rather than a citizen's arrest.----wikipedia.org----"

Posted by: frank

Quote:

Originally Posted by LandShark9C1

Simply put, it seems you have zero responsibility to detain someone unless ordered to by a regular police officer. Other than that, it's a very gray area. If the department cannot train you to the point where you know what you can and cannot do, and should and should not do - and further they do not pair you with a officer that clearly does - then you really have no business being on the street for that department. Harsh, but true. Additionally, unless you've been trained on how to use handcuffs, then you shouldn't be using them unless ordered to.

If LPD will not sponsor you to go to a reserve academy (just sponsor - I'm not talking pay for, but rather just sign the paperwork so you can go), then I would recommend going to another auxiliary that would...Randolph, Somerville, or Billerica to name a few.

Posted by: 4ransom

Here's my advice.... If your department doesn't care enough to make this clear for you, then don't bother making the arrest. You have a portable radio or a cell phone, correct? Call the station and have the sector car respond to make the decision and put the liability on the sworn police officer. Because if you put somebody in cuffs and tell them they are under arrest, and you find out later it was a bad arrest because you didn't know the letter of the law or didn't have sufficient facts or all the correct factors needed for probable cause, you are screwed. Your department probably won't spend the resources and money to defend you in a civil trial when you are being sued by the person for wrongful arrest.

Also here is another point to ponder... The adminstration of your dept probably does not want you making arrests. That is why you haven't had the proper training nor the clear cut policy directive on what to do in this situation. stick to directing traffic like you are supposed to and leave the real police work to the sworn in officers. that is their job, not yours.

Posted by: NEPS

Landshark, here is the law:

A citizen may effect the arrest of a person who has "in fact committed" a felony, Comm. v. Lussier, 333 Mass. 83 (1955). There is no statute which authorizes citizen's arrests in this state; The common law, which the colonists of Massachusetts brought with them from England, provides this authority. The "in fact committed" standard is thought to mean that only a conviction for the felony will justify the citizen in having made the arrest.

This legal issue usually comes to the appellate courts in this state when a municipal police officer outside his jurisdiction makes an arrest. Since a city or town police officer's arrest authority is limited (with exceptions) to his appointing jurisdiction, an arrest made elswhere is viewed as a citizen's arrest. An officer outside his municipality may make an arrest, like any other citizen, for a felony, but the courts have relaxed the "in fact committed" to "probable cause" for police officers. This is because the rationale for the "in fact committed" standard is that citizens should be discouraged from irresponsible action. Police officers, however, trained and charged with law enforcement duties, would be frustrated in their legitimate efforts by the stricter standard. Comm. v. Harris, 11 Mass.App.Ct. 165 (1981).

While police officers may detain suspects outside of their jurisdictions, the officers still are required to have probable cause (not jsut reasonable suspicion) to believe the person detained has committed a felony. Comm. v. Claiborne, 423 Mass. 275 (1996).

Is the standard for an auxiliary police offcer to make a citizen's arrest for a felony "in fact committed" or "probable cause?" I have not seen the issue addressed in a case, so I don't know. Auxiliary officers are appointed under an act of the legislature passed in the 1950s. This act is not consolidated into the general laws so I don't have the citation or exact terms handy. Auxiliary officers do have police authority, but only when called to duty by the police chief in a circumstance in which the police chief believes that the regular force is not sufficiently capable. Most work done by auxiliary officers probably does not fall under the kind of "emergency" call to duty, but I have not seen any case law on this, either.

If it were up to me to make an argument for auxiliary police officers I would argue that, by virtue of their (one hopes) training prior to appointment and their supervision by a police organization, auxiliary officers ought to have the benefit of the "probable cause" standard of review when they make citizen's arrests. But this is just my opinion of how I would like the auxiliary officers who work for my department to be viewed by the courts.

The consequence for a regular citizen of making a citizen's arrest that is not justified by a conviction for a felony is potential liability in a civil lawsuit for false arrest, assault and battery, etc, and possible criminal prosecution. The consequence for a police officer making a citizen's arrest that is not justified by the much lower standard of probable cause to believe a felony has been committed is the exclusion of evidence obtained by the arrest and the other consequences.

A separate issue for you, and perhaps the reason why you have been asked to carry handcuffs, is the authority of a regular police officer to direct you to make an arrest. MGL c. 37, s. 13 says:
"They may require suitable aid in the execution of their office in a criminal case, in the preservation of the peace, in the apprehending or securing of a person for a breach of the peace and in cases of escape or rescue of persons arrested upon civil process."

("They" here actually refers to sheriffs and their deputies, but it applies to police officers because, "The chief and other police officers of all cities and towns shall have all the powers and duties of constables except serving and executing civil process," MGL c. 41, s. 98, and, "Constables may serve... warrants and processes in criminal cases [and] They shall have the powers of sheriffs to require aid in the execution of their duties," MGL c. 41, 94.)

In police circles, this is called the "transferred authority" doctrine. A police officer may require a citizen to assist him by ordering the citizen to effect an arrest or detention in a criminal case, in apprehending a person for a breach of the peace, or in preventing a breach of the peace. This legal issue has also come up in terms of an out-of-town police officer, Comm. v. Morrissey, 422 Mass. 1 (1996). It is actually a crime for a person who has been summoned by a police officer to render aid to refuse to assist, MGL c. 268, s. 24.

To put it plainly, a Lowell police officer may direct you to arrest or detain a person. When you do so, your actions are clothed in the officer's authority and are largely protected from civil liability. "No action, except for use of excessive force, shall lie against any bystander assisting an officer in making an arrest, at the request of the officer," MGL c. 263, s. 3.

If all of this seems needlessly confusing, that is because it is needlessly confusing. In Massachuestts the arrest authority of state troopers, municipal police officers, special officers, state special officers, deputy sheriffs, and auxiliary police officers wallows in a swamp of common law, statutory exceptions, special interests, turf battles, parochialism, elitism, and general neglect that does not serve the interests of justice or comprehensibility.

I share the opinion, expressed by others here, that your organization should do a better job of training you in these matters.

Good luck.

Posted by: Edmizer1

NEPS, that is one of the best replys I have seen on this board.

Posted by: tango2

LandShark9C1,
Well first of all by the looks your an Aux Police Officer with out an Academy. Why dont you get to gether with your Chief show him you and the other Aux Officers like what your doing and you would like to get more exsperince. Request that he sends you to NERPI and request that you would like to work with a full time Officer for on the job training. The way I look at it is that I have a partner with me for 8 hours to assist me making stops and responding to calls when my back up is on the other side of the City.

Posted by: mpd61

NEPS,

Awesome post! You said what I would have said (after about two hours of research and one hour of rewriting)

Seriously it beats the hell out of the post that said "leave the real police work to the sworn in officers" WTF?
4Ransom have some humility YIKES!!!!

Posted by: Fozzy

Quote:

Originally Posted by NEPS

If all of this seems needlessly confusing, that is because it is needlessly confusing. In Massachuestts the arrest authority of state troopers, municipal police officers, special officers, state special officers, deputy sheriffs, and auxiliary police officers wallows in a swamp of common law, statutory exceptions, special interests, turf battles, parochialism, elitism, and general neglect that does not serve the interests of justice or comprehensibility.

Truer words were never spoken!!

Outstanding post!

Posted by: LandShark9C1

Quote:

If LPD will not sponsor you to go to a reserve academy (just sponsor - I'm not talking pay for, but rather just sign the paperwork so you can go), then I would recommend going to another auxiliary that would...Randolph, Somerville, or Billerica to name a few.

yes Frank, in fact I spent saturday and sunday over in Billerica. It is a night and day difference between the two organizations. Unfortunately I was told if I would like to stay in Billerica I would have to resign from Lowell. This is upsetting to me becuase the two would never conflict, and if they did, I really have no obligation to Lowell. It's totally "a volunteer if you can" set up there. However I hope that things work out in Billerica, I'd need my head examined if I turned them down. I have a lot of work cut out for me in Billerica, I was actually surprised by the level of those guys, you would never guess they are an "auxiliary"

Quote:

stick to directing traffic like you are supposed to and leave the real police work to the sworn in officers. that is their job, not yours.

Ouch. However I do see your point and I do no consider myself a "police officer" by any means. I feel that the rest of the Lowell Auxiliary is more or less on the same wave length, however there is so much more they could be doing than standing in the street. Some people involved in the LPD are supportive of the Auxiliary, however others are not. It is really a shame.

Quote:

Well first of all by the looks your an Aux Police Officer with out an Academy. Why dont you get to gether with your Chief show him you and the other Aux Officers like what your doing and you would like to get more exsperince. Request that he sends you to NERPI and request that you would like to work with a full time Officer for on the job training. The way I look at it is that I have a partner with me for 8 hours to assist me making stops and responding to calls when my back up is on the other side of the City.

From what I've heard, so this may not be exactly true, the biggest obstacle for the Lowell Auxiliary was the former city manager and now outgoing police chief. I agree with you that it makes sense to invest a little bit for people who will work for free. I don't understand why Lowell won't even sponsor us to NERPI, it is a win-win. The officers get the OPPERTUNITY to get trained(and for someone like me, who does not have vet status, anything I can do to bolster my resume I will do) and the city gets a troop of officers who do not need to be payed. It's not like the Aux will be investigating murders, but it makes sense to have people to patrol city property and maintain a high police presence in the community. plus as you said, its more back up if you need it.

NEPS, thankyou for the great post, very informative!!

Posted by: brkfldpo

Hope this helps...
Citizens' Arrest

By David C. Grossack, Constitutional Attorney

Common Law Copyright © 1994
All Rights Reserved
Not long ago the politically correct Boston Globe noticed a "shocking" new trend. It seems as if some citizens of Massachusetts were so fed up with crime that they have begun to intervene in petty street crime afflicting the streets of our cities. Thieves and pickpockets in Massachusetts should exercise caution in where and how they ply their craft as the chances that vigilantes pummel them and drag them to the nearest cop are definitely on an upswing. While the Globe is shocked at this healthy trend, students of the law should note that both a statutory and common law basis for a certain degree of "vigilante behavior" is well founded. Indeed, in an era of lawlessness it is important that readers be advised as to their lawful right to protect their communities, loved ones and themselves by making lawful citizens' arrests. The purpose of this essay is to simply explain the law and the historical context of the citizen's arrest.
First, what is an arrest?
We can thank Black's Law Dictionary for a good definition: "The apprehending or detaining of a person in order to be forthcoming to answer an alleged or suspected crime." See Ex parte Sherwood, (29 Tex. App. 334, 15 S.W. 812).
Historically, in Anglo Saxon law in medieval England citizen's arrests were an important part of community law enforcement. Sheriffs encouraged and relied upon active participation by able bodied persons in the towns and villages of their jurisdiction. From this legacy originated the concept of the posse comitatus which is a part of the United States legal tradition as well as the English. In medieval England, the right of private persons to make arrests was virtually identical to the right of a sheriff and constable to do so. (See Inbau and Thompson, Criminal Procedure, The Foundation Press, Mineola, NY 1974.
A strong argument can be made that the right to make a citizen's arrest is a constitutionally protected right under the Ninth Amendment as its impact includes the individual's natural right to self preservation and the defense of the others. Indeed, the laws of citizens arrest appear to be predicated upon the effectiveness of the Second Amendment. Simply put, without firepower, people are less likely going to be able to make a citizen's arrest. A random sampling of the various states as well as the District of Columbia indicates that a citizen's arrest is valid when a public offense was committed in the presence of the arresting private citizen or when the arresting private citizen has a reasonable belief that the suspect has committed a felony, whether or not in the presence of the arresting citizen.
In the most crime ridden spot in the country, our nation's capitol, District of Columbia Law 23- 582(b) reads as follows:

(b) A private person may arrest another -
(1) who he has probable cause to believe is committing in his presence -
(A) a felony, or
(B) an offense enumerated in section 23-581 (a)(2); or

(2) in aid of a law enforcement officer or special policeman, or other person authorized by law to make an arrest.

(c) Any person making an arrest pursuant to this section shall deliver the person arrested to a law enforcement officer without unreasonable delay. (July 29, 1970, 84 Stat. 630, Pub. L. 91-358, Title II, § 210(a); 1973 Ed., § 23-582; Apr. 30, 1988, D.C. Law 7-104, § 7(e), 35 DCR 147.)

In Tennessee, it has been held that a private citizen has the right to arrest when a felony has been committed and he has reasonable cause to believe that the person arrested committed it. Reasonable grounds will justify the arrest, whether the facts turn out to be sufficient or not. (See Wilson v. State, 79 Tenn. 310 (1833).
Contrast this to Massachusetts law, which while permitting a private person to arrest for a felony, permits those acquitted of the felony charge to sue the arresting person for false arrest or false imprisonment. (See Commonwealth v. Harris, 11 Mass. App. 165 (1981))
Kentucky law holds that a person witnessing a felony must take affirmative steps to prevent it, if possible. (See Gill v. Commonwealth, 235 KY 351 (1930.)
Indeed, Kentucky citizens are permitted to kill fleeing felons while making a citizen's arrest (Kentucky Criminal Code § 37; S 43, §44.)
Utah law permits citizen's arrest, but explicitly prohibits deadly force. (See Chapter 76-2-403.)
Making citizen's arrest maliciously or without reasonable basis in belief could lead to civil or criminal penalties. It would obviously be a violation of a suspect's civil rights to use excessive force, to torture, to hold in unsafe or cruel conditions or to invent a reason to arrest for the ulterior motive of settling a private score.
Civil lawsuits against department stores, police departments, and even cult deprogrammers for false imprisonment are legend. Anybody who makes a citizens arrest should not use more force than is necessary, should not delay in turning the suspect over to the proper authorities, and should never mete out any punishment ... unless willing to face the consequences.
As the ability of the powers that be to hold society together and preserve law and order diminishes, citizen's arrests will undoubtedly be more common as a way to help communities cope with the wrongdoers in out midst.
The author is an attorney in private practice in Boston.

Posted by: Macop

Give the kid a break, his dept should have a policy stating either way. At least he has enough of a head to find out what his dept is too dam lazy to tell him.

LandShark9c1 wrote:
I agree, it seems rather straight foreward, however I have never been trained in any handcuffing techniques. Lowell will not sponsor us to NERPI, nor will they train us in house beyond the Citizen's Police Academy. Is there any sites or liturature you can direct me to? I'd hate to injur or allow a suspect to escape becuase I was negligent in the manner I restrained him with.

Hey, if thats the case screw that place and go somwhere else!!!

Posted by: PDExplorer3

Why dont you just diall 911 on your cell phone and follow the suspect if your not a sworn PO. If someone is commiting a felony, you most likely will not want to get involved unless you are carrying.

Posted by: policelaborlaw.com

I've posted a variety of cases and documents related to citizen's arrest & auxiliary police (including the text of the civil defense act) on my website. http://www.policelaborlaw.com/Default.aspx?tabid=130.

Posted by: kttref

In regards to law suits, while you're trying to help or whatnot...Don't. You don't want to risk being sued. Especially if you don't have full backing from our Aux. department. You don't have the same protection sworn officers do...unless you really feel strongly about getting involved, your best bet is just to be a good witness.

Posted by: masscopguy

This has been one of the most productive threads I have read in a while.

1. Although you are citizen and have no arrest powers as a Lowell Aux, a lawyer could agrgue that when you made an arrest you were not acting as a private citizen but as an agent of the LPD.

As a former Aux who never had arrest powers, I would remember that you are the eyes and ears for the regulars and that is it. Use that radio to transmitt the situation you are in and let the regular make the tough calls. The City of Lowell is not paying you enough to put yourself in a situation that might end up in a law suit against you personally.

I had no powers of arrest when I was an Aux in Somerville and New York City. We would very often detain someone in NYC until a regualr car pulled up and made the decision if he was going to bring the guy down to the house. And when I say detain we would tell the perp to just relax and sit tight as another officer is on his way. I was not about to put handcuffs on these people but were never told when we couldn't use them. The only thing we were required to do was keep them in the case they gave us. The reason for this was a lot of guys would carry them behind their lower back. An officer was pushed down a flight of stairs and the cuffs went into his back and left him paralyzed.

Finally, when you do a motor vehicle stop and have two people to deal with and you decide to put cuffs on them soley for your personal protection while you conduct an investigation and you have not told them they are arrest. You are just putting on the cuffs for safety reasons. Does the act of cuffing them effectively put them under arrest. My nephew the lawyer says yes. What do our veteran officers have to say?

I have found that many cities and towns like their Auxiliaries becasue they can direct traffic at parades and be at the ready if they have an emergency situation and need bodies for traffic control but that is about it.

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