does a cops power overturn that of a military personnel? If a soldier sees a cop violate the constitution can he legally in that moment disarm and arrest the cop? How far does being a civilian versus an active soldier go?
Let’s say a group of police violate the law, can the soldier in that instance act as a judge and decide they’ve broken the rules and hold them accountable in that instance by disarming and arresting them?
Also what would this be called, a soldier isn’t a civilian so is it still considered to be a citizens arrest?
The Posse Comitatus Act generally forbids the use of military personnel for law enforcement within the United States. (I say generally because there are exceptions. But as a practical matter, soldiers can’t arrest people.)
In Britain the Civil Power overrules the Military Power, so soldiers of any rank have to obey the police.
In war-time some flexibility is required, but the forces are still required to follow the law of the land, and MPs ( Military Policemen ) must accept ordinary police direction.
I’ve never heard of soldiers arresting police, or anybody. I guess if there were terrorists nearby and no bobbies about they might. But strictly speaking it would be a civilian arrest available to anybody, so the on-duty soldiers would be civilians.
One important exception is on military installations, where military police exercise criminal jurisdiction. But as a practical matter, civilians who engage in shenanigans on an army base will be turned over to the civil authorities in the nearest town.
Nitpick - IANAL but… constitution does not have any provisions that someone could be arrested under. The constitution tells us what the government may and may not do. Then congress passes laws that must adhere to the limits of the constitution, and spell out the penalties for breaking those laws.
Anyone can arrest anyone for breaking laws (with the proviso noted above that a soldier cannot be used in his official capacity / duty to act as a policeman.) However, arresting a policeman (or anyone) you better be real sure that you know a law has been broken and an arrest is warranted* (sorry), and be sure that the person can be physically restrained. Assaulting a police officer is a crime above and beyond simple assault and when it comes down to a dispute, a judge or jury that wasn’t there at the time will decide who is right.
*IIRC some lesser crimes do not call for arrest. Can you arrest someone for littering?
This is comparing apples to oranges. Military personnel have no more law enforcement powers that you or me, unless they are an MP arresting other military personnel under military law. And as mentioned, the government may not legally use military personnel for law enforcement.
I think you are confusing two uses of the term “civilian”. Cops use it to refer to non-cops, but more generally it refers to a non-member of the military. It’s like how Mormons talk about Gentiles, meaning non-Mormons*.
But no, a member of the military does not have any more (or less) power to effect a citizen’s arrest than anyone else. In theory, any citizen can arrest a cop under the same authority as I could, but it would be a lot harder to bring about, and to prove later.
IANAL, but if a cop tries to do an illegal arrest on me, and I punch him in the nose, I can still be arrested for assaulting a cop, and I can be convicted even if the arrest later is shown to be illegal. It’s the “order” part of “law and order” - the time to argue that a cop is acting illegally is in front of a judge, not on the scene.
Regards,
Shodan
*Do Mormons still do this? I read it in A Study in Scarlet, which is not a legally binding document AFAIK.
Do cops, in general, know that they are civilians? Because to hear them talk, it sounds like they believe they are not civilians. That is, do they know or intend to use it in the clannish sense, or do they believe they are not civilians?
The first time I went to New Orleans, I read in a paper that was on the table in a café I was in, that New Orleans operated under ‘Napoleonic Law’. The part I remember said that you could be arrested for resisting arrest, even if the arrest was illegal.
Not a cop or lawyer, but my observation is that civilian law enforcement does view itself as distinct from most citizens because they’re entrusted with deadly State Force and restricted by constitutional considerations (because of the “state” part of State Force).
It is disturbing that policing is taking a paramilitary cultural turn. I remember as a kid that Officer Smith down the block was your trusted friend. But that may just have been propaganda, and even back then, “You know the score, pal! You’re not cop, you’re little people.”
I may not understand your question. Cops know that they are cops, and that other people are not cops, and they know that they are not members of the military, and that other people are. IME when cops say “civilian” they mean a non-cop. I have no statistics on this, and I don’t think either use is non-standard.
State and city law varies. FWIW you wouldn’t be arrested for resisting arrest - you would be arrested for something else (interfering with a police officer in the pursuit of his duty), and then if you resisted, tack on a charge of resisting arrest. Then, even if the charge of interfering was found to be bogus, the charge of resisting arrest could theoretically stick.
IOW the legal thing to do when being illegally arrested is to submit to the arrest, exercise your right to remain silent, get a lawyer, and argue your case in front of the judge.
So… They’re civilians and know that they are not military, but they consider themselves ‘military’ because they are above ‘civilians’ and are therefore not civilians?
Several years ago, I was jury foreman for a criminal trial in suburban Chicago. The core charge against the defendant was DUI, but there were several other charges, including resisting arrest.
During testimony, we learned that the defendant was one of two people in a car. The arresting officer claimed that the defendant was the driver, while the defendant claimed to have been a passenger (and, in fact, the other occupant of the car testified to having been behind the wheel).
The state’s testimony and evidence was full of holes – their timelines didn’t line up, and their one piece of physical evidence – a photograph of several liquor bottles which were allegedly found in the defendant’s car – was taken with bottles lined up on the arresting officer’s desk, back at the police station.
What became clear to us in the jury was that, after the officer pulled the car over, the defendant was belligerent, and the cop decided to hang as many charges on the defendant as he could.
We threw out most of the charges, but we did find the defendant guilty on resisting arrest – the defendant, himself, admitted that, as the officer was cuffing him, he was wrestling and trying to get away. By the reading of Illinois law (as well as the defendant’s admission), he resisted arrest, and there was no provision in the law for it not being a case of resisting arrest if the arrest itself was unlawful. As Shodan notes, that’s a matter for a court to decide, not the suspect.
We actually considered asking the judge if we could address the defendant after we returned the sentence, and say, “if a cop tells you to shut up, shut up!”
The problem with this theory is that you don’t know how illegally the cop is planning on acting.
You know what he’s claiming isn’t true and that he’s breaking the law. But you don’t know what other lies he may plan on telling or what other laws he may plan on breaking.
Is he going to arrest you and then make false accusations against you in court? Or is he going to arrest you and then shoot you and tell people you tried to escape?
The term “civilian” can be applied to anyone not a member of your group. If your group is the military, then cops are civilians. If your group is cops, then cops are not civilians.
informal -
a person who is not a member of a particular profession or group, as viewed by a member of that group.
“I talk to a lot of actresses and they say that civilians are scared of them”
I’ve often heard cops refer to people as “citizens” which is another way of saying “not cops” even though the cops are, themselves, also citizens.