Q: I was a witness to a crime happening near my house and it appeared nothing was done. How does someone make a private person’s arrest for a crime they see committed?
A: First, let’s look at the different types of crimes and how they are defined. There are three types of crimes defined within the state of California — infractions, misdemeanors and felonies.
Infractions are those types of crimes that result in a citation or ticket. Examples would be a moving violation, littering or some local ordinances. The punishment for infractions is typically monetary or having to do some type of community service.
A misdemeanor is a crime that is generally punishable by a fine, community service, or sentence to the county jail for up to one year. Examples would be certain traffic violations, thefts and some physical assaults.
A felony is a crime that is generally punishable in state prison and is for the most serious of crimes, including murder, rape, kidnapping and many others.
Now, let us look at how a police officer is allowed to make arrests. If an officer has reason to believe a felony has been committed, either in or not in their presence, they can make an arrest based on the evidence and facts surrounding the investigation. The opposite is true when an officer is investigating an infraction or misdemeanor and the crime is not committed in his or her presence. A police officer generally cannot make an arrest for an infraction or misdemeanor not committed in their presence unless someone, whether a victim or witness, places the suspect under a “private person’s arrest.” There are exceptions, including domestic violence and driving under the influence.
In the state of California, you as a private citizens have the right to arrest those you believe have committed a crime. However, you need to use extreme caution when doing so and are strongly advised to call law enforcement personnel whenever possible. Especially if you have any reason to believe the person is dangerous or has a history of mental instability. In fact, you should never physically restrain anyone to have them arrested unless there is physical danger to you or someone else.
If you have decided to place someone under arrest for an infraction or misdemeanor crime, the police officer will first investigate if you are making a legal arrest. The officer will inform you of any concerns he or she may have if they believe the arrest is not legal, and alternatives you may have. If the officer believes you are in fact making a legal arrest, he or she will have you fill out a “Private Person’s Arrest” form. The form will have your information, the arrestee’s name and the charge he is being arrested for. The form will also have the arresting police officer’s information and become part of the crime report.
The police officer will then have the discretion of taking the suspect into custody or releasing him by issuing him a citation. I would like to reiterate, just because you have legally placed someone under arrest, does not mean they will go immediately to jail. Based on the circumstances, the police officer may release the suspect upon him/her signing a citation and promising to appear at a future court date. Examples of this may include someone arrested for urinating in public or for committing a petty theft at a retail store.
Another common circumstance that results in private person’s arrests is assault and battery (mutual combat.) Often times this is a result of both parties saying the other started the fight and they each want the other person arrested. If there are no other witnesses, the police officer will have both parties fill out a “Private Person’s Arrest” form. In addition, based on the circumstances, the police officer will either issue both parties a citation or he could release them both on their own recognizance. It would then be up to the City Attorney’s Office to decide if it wants to pursue the case. The city attorney in charge would base their decision on the statements documented in the officer’s report.
Please note that whenever you make a private person’s arrest, you may or may not be required to attend court and testify as you are the most credible witness to the incident.
Police officers often respond to a call and the witness or victim demands they want the person arrested. When they are told they have to fill out the form and may have to go to court, they sometimes change their mind. In order for us to make a difference and ensure that those who commit crimes are held accountable, we need your help. We (police) cannot be everywhere to witness crimes in progress and we count on our law abiding citizens to help make a difference in our community. But we can only do that if our community makes the effort to go that extra step. Remember to do it safely and call the police immediately. It is always safer to let us try to detain criminals.
This column was prepared by Neighborhood Resource Officer Jeff Glaser (Beat 3: Downtown, including the Third Street Promenade). He can be reached at (424) 200-0683 or jeffrey.glaser@smgov.net.
