Towards Voluntaryism (Part 31)
3.11.3. Citizen's Arrest Laws III: Massachusetts to New Jersey
Towards Voluntaryism (Part 31)
Citizen's Arrest Laws II: Massachusetts to New Jersey
21. Massachusetts
I was unable to locate specific law addressing the execution of a citizen's arrest in Massachusetts. That citizen's arrests are legitimate in Massachusetts has however been demonstrated in case law and court decisions with reference to the Model Penal Code, with the provision that a felony has been committed and witnessed by the person performing the arrest. Virtually all case law I reviewed referenced Commonwealth vs. Harris, Commonwealth vs. Lussier and Commonwealth vs. Klein, the relevant passages of which are provided here: Commonwealth vs. Harris, 11 Mass. App. 165 (1981)
... An extensive line of cases from other States upholds the validity of an extraterritorial arrest made by a police officer who lacked the official authority to arrest where the place of arrest authorizes a private person to make a "citizen's arrest" under the same circumstances. (List of cases provided)... As aptly expressed in State v. O'Kelly, supra at 595: "When the . . . officers came to [the adjoining jurisdiction], they ceased to be officers but they did not cease to be persons." In Massachusetts a private person may lawfully arrest someone who has in fact committed a felony.
Commonwealth v. Lussier, 333 Mass. 83 , 92 (1955). The stricter requirement for a citizen's arrest -- that the person arrested be shown in fact to have committed a felony -- is designed to discourage such arrests and to prevent "the dangers of uncontrolled vigilantism and anarchistic actions." Commonwealth v. Klein, 372 Mass. 823 , 829 (1977). Cf. Commonwealth v. Mahnke, 368 Mass. 662 , 688-689 (1975), cert. denied, 425 U.S. 959 (1976). See also Rohan v. Sawin, 5 Cush. 281 , 285 (1851); Commonwealth v. Carey, 12 Cush. 246 , 251 (1853); Commonwealth v. Walden, 380 Mass. 724 , 728 n.2 (1980); Note, Arrest Without a Warrant in New England, 40 B.U.L. Rev. 58, 76 (1960). Generally, the person arrested must be convicted of a felony before the "in fact committed" element is satisfied and the arrest validated. If the citizen is in error in making the arrest, he may be liable in tort for false arrest or false imprisonment.
Commonwealth vs. Leonard L. Lussier, 333 Mass. 83
...A private person may lawfully arrest one who in fact has committed a felony (Rohan v. Sawin, 5 Cush. 281, 285; Pilos v. First National Stores Inc. 319 Mass. 475, 478), and to kill in resisting such arrest is murder and not manslaughter.
Commonwealth vs. Edward Klein
... We hold that the judge charged the jury correctly in this case, as judged in light of principles of law which we in this case adopt governing the right of citizens to use deadly force in attempting to effect the arrest of felons.
...We have examined comparable law elsewhere, and we think the relevant provisions of the Model Penal Code will best serve this Commonwealth. These provisions were adopted after extensive debate among knowledgeable and distinguished contributors. In the past we have relied on portions of the code to clarify vague areas of our criminal law. See Alegata v. Commonwealth, 353 Mass. 287 , 304 (1967). Accordingly, we establish as the law of Massachusetts the rules (in so far as they are material to the instant case [Note 6]) as found in Section 3.07 of the Model Penal Code (Proposed Official Draft 1962). They are as follows:
Section 3.07. Use of Force in Law Enforcement.
(1) Use of Force Justifiable to Effect an Arrest. Subject to the provisions of this Section and of Section 3.09, the use of force upon or toward the person of another is justifiable when the actor is making or assisting in making an arrest and the actor believes that such force is immediately necessary to effect a lawful arrest.
(2) Limitations on the Use of Force.
(a) The use of force is not justifiable under this Section unless:
(i) the actor makes known the purpose of the arrest or believes that it is otherwise known by or cannot reasonably be made known to the person to be arrested; and
(ii) when the arrest is made under a warrant, the warrant is valid or believed by the actor to be valid.
(b) The use of deadly force [emphasis supplied] is not justifiable under this Section unless:
(i) the arrest is for a felony; and
(ii) the person effecting the arrest is authorized to act as a peace officer or is assisting a person whom he believes to be authorized to act as a peace officer; and
(iii) the actor believes that the force employed creates no substantial risk of injury to innocent persons; and
(iv) the actor believes that:
(1) the crime for which the arrest is made involved conduct including the use or threatened use of deadly force; or
(2) there is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed."
22. Michigan
THE CODE OF CRIMINAL PROCEDURE (EXCERPT) Act 175 of 1927, 764.14
764.14 Arrest by private person; disposition of arrested person; complaint.
Sec. 14.
A private person who has made an arrest shall without unnecessary delay deliver the person arrested to a peace officer, who shall without unnecessary delay take that person before a magistrate of the judicial district in which the offense is charged to have been committed. The peace officer or private person shall present to the magistrate a complaint stating the charge against the person arrested.
Code of Criminal Procedure (Excerpt) Act 175 of 1927, 764.16
764.16 Arrest by private person; situations.
Sec. 16.
A private person may make an arrest—in the following situations:
(a) For a felony committed in the private person's presence.
(b) If the person to be arrested has committed a felony although not in the private person's presence.
(c) If the private person is summoned by a peace officer to assist the officer in making an arrest.
(d) If the private person is a merchant, an agent of a merchant, an employee of a merchant, or an independent contractor providing security for a merchant of a store and has reasonable cause to believe that the person to be arrested has violated section 356c or 356d of the Michigan penal code, Act No. 328 of the Public Acts of 1931, being sections 750.356c and 750.356d of the Michigan Compiled Laws, in that store, regardless of whether the violation was committed in the presence of the private person.
THE CODE OF CRIMINAL PROCEDURE (EXCERPT) Act 175 of 1927, 764.20
764.20 Arrest; private persons, duty.
Sec. 20.
A private person, before making an arrest, shall inform the person to be arrested of the intention to arrest him and the cause of the arrest, except when he is then engaged in the commission of a criminal offense, or if he flees or forcibly resists arrest before the person making the arrest has opportunity so to inform him.
23. Minnesota
629.30 ARRESTS; BY WHOM MADE; AIDING OFFICER.
Subdivision 1.Definition.
Arrest means taking a person into custody that the person may be held to answer for a public offense. "Arrest" includes actually restraining a person or taking into custody a person who submits.
Subd. 2.Who may arrest.
An arrest may be made:
(1) by a peace officer under a warrant;
(2) by a peace officer without a warrant;
(3) by an officer in the United States Customs and Border Protection or the United States Citizenship and Immigration Services without a warrant;
(4) by a private person.
A private person shall aid a peace officer in executing a warrant when requested to do so by the officer.
629.36 PERMITTING BYSTANDER TO DELIVER ARRESTED PERSON TO PEACE OFFICER.
When a bystander arrests a person for breach of the peace, the bystander may deliver that person to a peace officer. The peace officer shall take the arrested person to a judge for criminal processing. When a public offense is committed in the presence of a judge, the judge may, by written or verbal order, command any person to arrest the offender, and then proceed as if the offender had been brought before the court on a warrant of arrest.
629.37 WHEN PRIVATE PERSON MAY MAKE ARREST.
A private person may arrest another:
(1) for a public offense committed or attempted in the arresting person's presence;
(2) when the person arrested has committed a felony, although not in the arresting person's presence; or
(3) when a felony has in fact been committed, and the arresting person has reasonable cause for believing the person arrested to have committed it.
629.38 PRIVATE PERSON TO DISCLOSE CAUSE OF ARREST.
Before making an arrest a private person shall inform the person to be arrested of the cause of the arrest and require the person to submit. The warning required by this section need not be given if the person is arrested while committing the offense or when the person is arrested on pursuit immediately after committing the offense. If a person has committed a felony, a private person may break open an outer or inner door or window of a dwelling house to make the arrest if, before entering, the private person informs the person to be arrested of the intent to make the arrest and the private person is then refused admittance.
629.39 PRIVATE PERSON MAKING ARREST TO DELIVER ARRESTEE TO JUDGE OR PEACE OFFICER.
A private person who arrests another for a public offense shall take the arrested person before a judge or to a peace officer without unnecessary delay. If a person arrested escapes, the person from whose custody the person has escaped may immediately pursue and retake the escapee, at any time and in any place in the state. For that purpose, the pursuer may break open any door or window of a dwelling house if the pursuer informs the escapee of the intent to arrest the escapee and the pursuer is refused admittance.
629.403 REFUSAL TO AID IN MAKING ARREST.
A person who willfully neglects or refuses to arrest another person after having been lawfully directed to do so by a judge is guilty of a misdemeanor.
A person who willfully neglects or refuses to aid a peace officer after being lawfully directed to aid the officer (1) in making an arrest, (2) in retaking a person who has escaped from custody, or (3) in executing a legal process is guilty of a misdemeanor.
24. Mississippi
2013 Mississippi Code Title 99 - CRIMINAL PROCEDURE Chapter 3 - ARRESTS § 99-3-7 - When arrests may be made without warrant
Universal Citation: MS Code § 99-3-7 (2013)
(1) An officer or private person may arrest any person without warrant, for an indictable offense committed, or a breach of the peace threatened or attempted in his presence; or when a person has committed a felony, though not in his presence; or when a felony has been committed, and he has reasonable ground to suspect and believe the person proposed to be arrested to have committed it; or on a charge, made upon reasonable cause, of the commission of a felony by the party proposed to be arrested. And in all cases of arrests without warrant, the person making such arrest must inform the accused of the object and cause of the arrest, except when he is in the actual commission of the offense, or is arrested on pursuit.
2013 Mississippi Code Title 99 - CRIMINAL PROCEDURE Chapter 3 - ARRESTS § 99-3-11 - Arresting officer or person may break into house
Universal Citation: MS Code § 99-3-11 (2013)
To make an arrest an officer or private person, after notice of his office and object, if admittance is refused, may break open a window or outer or inner door of any dwelling or house in which he has reason to believe the offender may be found.
Universal Citation: MS Code § 99-3-17 (2013)
Every person making an arrest shall take the offender before the proper officer without unnecessary delay for examination of his case, except as otherwise provided in Section 99-3-18.
2013 Mississippi Code Title 99 - CRIMINAL PROCEDURE Chapter 3 - ARRESTS § 99-3-23 - No liability for legal arrest
Universal Citation: MS Code § 99-3-23 (2013)
Officers and others who make arrests as authorized or required by law, shall not be liable on account thereof, civilly or criminally, notwithstanding it may appear that the party arrested was innocent of any offense.
25. Missouri
The Solutions Institute states "*We could not find the official citizen’s arrest statute in Missouri, but we found an AG opinion that seems to point to any felony, or any misdemeanor which is either a breach of peace or a larceny, and Missouri statutes on the use of force when making a citizen’s arrest that clearly state “has committed an offense, and who in fact has committed such offense” and does not limit the offense to a simple felony." The Attorney General opinion referenced appears no longer available online. Further, Chapter 563 was updated in 2017 to read as follows:
Title XXXVIII CRIMES AND PUNISHMENT; PEACE OFFICERS AND PUBLIC DEFENDERS Chapter 563
563.051. Private person's use of force in making an arrest. — 1. A private person who has been directed by a person he or she reasonably believes to be a law enforcement officer to assist such officer to effect an arrest or to prevent escape from custody may, subject to the limitations of subsection 3 of this section, use physical force when and to the extent that he or she reasonably believes such to be necessary to carry out such officer's direction unless he or she knows or believes that the arrest or prospective arrest is not or was not authorized.
- A private person acting on his or her own account may, subject to the limitations of subsection 3 of this section, use physical force to arrest or prevent the escape of a person whom such private person reasonably believes has committed an offense, and who in fact has committed such offense, when the private person's actions are immediately necessary to arrest the offender or prevent his or her escape from custody.
- A private person in effecting an arrest or in preventing escape from custody is justified in using deadly force only:
(1) When deadly force is authorized under other sections of this chapter; or
(2) When he or she reasonably believes deadly force is authorized under the circumstances and he or she is directed or authorized by a law enforcement officer to use deadly force; or
(3) When he or she reasonably believes such use of deadly force is immediately necessary to arrest a person who at that time and in his or her presence:
(a) Committed or attempted to commit a class A felony or murder; or
(b) Is attempting to escape by use of a deadly weapon. - The defendant shall have the burden of injecting the issue of justification under this section.
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26. Montana
46-6-502. Arrest by private person.
46-6-502. Arrest by private person.
(1) A private person may arrest another when there is probable cause to believe that the person is committing or has committed an offense and the existing circumstances require the person's immediate arrest. The private person may use reasonable force to detain the arrested person.
(2) A private person making an arrest shall immediately notify the nearest available law enforcement agency or peace officer and give custody of the person arrested to the officer or agency.
46-6-505Custody by peace officer.
46-6-505Custody by peace officer. A peace officer who, pursuant to law, takes custody of a person arrested by a private citizen shall proceed in accordance with 46-6-104 and 46-6-312 and as otherwise provided by law.
27. Nebraska
2006 Nebraska Revised Statutes - § 29-402 — Arrest by person not an officer.
Section 29-402
Arrest by person not an officer.
Any person not an officer may, without warrant, arrest any person, if a petit larceny or a felony has been committed, and there is reasonable ground to believe the person arrested guilty of such offense, and may detain him until a legal warrant can be obtained.
28. Nevada
2017 Nevada Revised Statutes Chapter 171 - Proceedings to Commitment NRS 171.126 - Arrest by private person.
Universal Citation: NV Rev Stat § 171.126 (2017)
A private person may arrest another:
- For a public offense committed or attempted in the person’s presence.
- When the person arrested has committed a felony, although not in the person’s presence.
- When a felony has been in fact committed, and the private person has reasonable cause for believing the person arrested to have committed it.
2017 Nevada Revised Statutes Chapter 171 - Proceedings to Commitment NRS 171.132 - Person making arrest may summon assistance.
Universal Citation: NV Rev Stat § 171.132 (2017)
Any person making an arrest may orally summon as many persons as the person making the arrest deems necessary to aid him or her therein
2017 Nevada Revised Statutes Chapter 171 - Proceedings to Commitment NRS 171.136 - When arrest may be made.
Universal Citation: NV Rev Stat § 171.136 (2017)
- If the offense charged is a felony or gross misdemeanor, the arrest may be made on any day, and at any time of day or night.
- If it is a misdemeanor, the arrest cannot be made between the hours of 7 p.m. and 7 a.m., except:
(a) Upon the direction of a magistrate, endorsed upon the warrant;
(b) When the offense is committed in the presence of the arresting officer;
(c) When the person is found and the arrest is made in a public place or a place that is open to the public and:
(1) There is a warrant of arrest against the person; and
(2) The misdemeanor is discovered because there was probable cause for the arresting officer to stop, detain or arrest the person for another alleged violation or offense;
(d) When the offense is committed in the presence of a private person and the person makes an arrest immediately after the offense is committed;
(e) When the offense charged is battery that constitutes domestic violence pursuant to NRS 33.018 and the arrest is made in the manner provided in NRS 171.137;
(f) When the offense charged is a violation of a temporary or extended order for protection against domestic violence issued pursuant to NRS 33.017 to 33.100, inclusive;
(g) When the person is already in custody as a result of another lawful arrest; or
(h) When the person voluntarily surrenders himself or herself in response to an outstanding warrant of arrest.
2017 Nevada Revised Statutes Chapter 171 - Proceedings to Commitment NRS 171.138 - Breaking open door or window: Making arrest.
Universal Citation: NV Rev Stat § 171.138 (2017)
To make an arrest, a private person, if the offense is a felony, and in all cases a peace officer, may break open a door or window of the house, structure or other place of concealment in which the person to be arrested is, or in which there is reasonable grounds for believing the person to be, after having demanded admittance and explained the purpose for which admittance is desired.
2017 Nevada Revised Statutes Chapter 171 - Proceedings to Commitment NRS 171.1772 - Issuance of citation after arrest by private person.
Universal Citation: NV Rev Stat § 171.1772 (2017)
Whenever any person is arrested by a private person, as provided in NRS 171.126, for any violation of a county, city or town ordinance or state law which is punishable as a misdemeanor, such person arrested may be issued a misdemeanor citation by a peace officer in lieu of being immediately taken before a magistrate by the peace officer if:
- The person arrested furnishes satisfactory evidence of identity; and
- The peace officer has reasonable grounds to believe that the person arrested will keep a written promise to appear in court.
2017 Nevada Revised Statutes Chapter 171 - Proceedings to Commitment NRS 171.1774 - Form and contents of citation: When issued after arrest by private person.
Universal Citation: NV Rev Stat § 171.1774 (2017)
- In those instances described in NRS 171.1772, the peace officer summoned after the arrest shall prepare a misdemeanor citation manually or electronically in the form of a complaint issuing in the name of “The State of Nevada” or in the name of the respective county, city or town, and containing:
(a) A notice to appear in court;
(b) The name and address of the person;
(c) The state registration number of the person’s vehicle, if any;
(d) The offense charged, including a brief description of the offense and the NRS or ordinance citation;
(e) The time when and place where the person is required to appear in court;
(f) Such other pertinent information as may be necessary; and
(g) The signatures of the private person making the arrest and the peace officer preparing the citation. - The time specified in the notice to appear must be at least 5 days after the alleged violation unless the person charged with the violation demands an earlier hearing.
- The place specified in the notice must be before a magistrate, as designated in NRS 171.178 and 171.184.
- The person charged with the violation may give a written promise to appear in court by signing at least one copy of the misdemeanor citation prepared by the peace officer, in which event the peace officer shall deliver a copy of the citation to the person, and thereupon the peace officer shall not take the person into physical custody for the violation. If the citation is prepared electronically, the officer shall deliver the signed copy of the citation to the person and shall indicate on the electronic record of the citation whether the person charged gave a written promise to appear. A copy of the citation that is signed by the person charged or the electronic record of the citation which indicates that the person charged gave a written promise to appear suffices as proof of service.
29. New Hampshire
Universal Citation: NH Rev Stat § 612:14 (2015)
612:14 Arrest Without a Warrant. – The arrest of a person may be lawfully made also by any peace officer or a private person without a warrant upon reasonable information that the accused stands charged in the courts of a state with a crime punishable by death or imprisonment for a term exceeding one year, but when so arrested the accused must be taken before a judge or magistrate with all practicable speed, and complaint must be made against him, under oath, setting forth the ground for the arrest as in RSA 612:13, and, thereafter, his answer shall be heard as if he had been arrested on a warrant.
2017 New Hampshire Revised Statutes Title LXII - CRIMINAL CODE Chapter 627 - JUSTIFICATION
Section 627:5 - Physical Force in Law Enforcement.http://www.gencourt.state.nh.us/rsa/html/LXII/627/627-mrg.htm)
...
IV. A private person acting on his own is justified in using non-deadly force upon another when and to the extent that he reasonably believes it necessary to arrest or prevent the escape from custody of such other whom he reasonably believes to have committed a felony and who in fact has committed that felony: but he is justified in using deadly force for such purpose only when he reasonably believes it necessary to defend himself or a third person from what he reasonably believes to be the imminent use of deadly force.
30. New Jersey
Universal Citation: NJ Rev Stat § 2A:169-3 (2017)
2A:169-3. Arrest of disorderly person without process
Whenever an offense is committed in his presence, any constable or police officer shall, and any other person may, apprehend without warrant or process any disorderly person, and take him before any magistrate of the county where apprehended.
New Jersey Criminal Law Digest: IV. WARRENTLESS ARRESTS BY PRIVATE CITIZENS page 25
A private citizen can arrest a disorderly person if the offense is committed in his or her presence. N.J.S.A. 2A:169-3. When an arrest is made without a warrant, the prisoner must be taken without unnecessary delay before the nearest available judge, a complaint should be filed and a warrant issued. R. 3:4-1; State v. Ferraro, 81 N.J. Super. 213, 218 (Cty. Ct. 1963).
At common law, a private person may arrest another where a felony has been committed and the citizen had probable cause to believe that the person arrested committed the crime. Rueck v. McGregor, 32 N.J.L. 70, 74 (Sup. Ct. 1866); see also, Barletta v. Golden Nugget Hotel Casino, 580 F. Supp. 614, 619 (D.N.J . 1984); State v. McCarthy, 123 N.J. Super. 513, 517 (County Ct. 1973). If no felony has been committed, the arresting citizen may be sued for false arrest. Rueck v. McGregor, 32 N.J.L. at 70.
By statute, certain citizens have been given the authority to “cause the arrest” of a person under specified circumstances. See N.J.S.A. 2C:20-11e (A merchant, who has probable cause to believe that a person has shoplifted, and where the merchant can recover the merchandise by taking the person into custody, may take the person into custody and detain the person in a reasonable manner for a reasonable time.); Horn v. Village Supermarkets, Inc., 260 N.J. Super. 165 (App. Div. 1992), certif. denied, 133 N.J. 435 (1993); Carollo v. Supermarkets General Corp., 251 N.J. Super. 264 (App. Div. 1991), certif. denied, 127 N.J. 559 (1992)
In addition, licensed casino employees, who have probable cause to believe that a person violated N.J.S.A. 5:12-113 to 5:12-116 of the Casino Control Act, may take such a person into custody. The suspect may be detained only in a reasonable manner for a reasonable length of time for the purpose of notifying law enforcement or casino control commission authorities. N.J.S.A. 5:12-121. See Santalone v. Bally’s Park Place Casino Hotel, 228 N.J. Super. 121 (App. Div. 1988). N.J.S.A. 5:12-121, however, does not apply to card counters. Bartolo v. Boardwalk Regency Hotel Casino, Inc., 185 N.J. Super. 534 (Law Div. 1982).
V. PROCEDURE AFTER A WARRANTLESS ARREST
When a suspect is lawfully arrested without a warrant, the arrested person must be taken to a police station. Depending upon the nature of the crime, the police prepare a Complaint-Warrant form (CDR2) or Complaint-Summons form (CDR1). R. 3:3-1(c); R .3:4- 1. Where the crime involved is any of the serious crimes set forth in R. 3:3-1© or is a conspiracy or attempt to commit these crimes, a Complaint-Warrant form is prepared and a judicial officer must make a probable cause determination.
See Powell v. Nevada, 511 U.S. 79, 114 S.Ct. 1280, 128 L.Ed. 2d 1 (1994) (a delay of more than 48 hours between a warrantless arrest and a judicial determination of probable cause is presumptively unreasonable under the Fourth Amendment); State v. Tucker, 137 N.J. 259 (1994) (probable cause determination should be made within twelve hours of arrest), cert. denied, 513 U.S. 1090, 115 S.Ct. 751, 130 L. Ed. 2d 651 (1995). If probable cause is found, a warrant is issued and bail set within twelve hours after arrest.
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Next: Towards Voluntaryism (Part 32) Citizens Arrest IV: New Mexico - South Carolina
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