So I was having a bit of a discussion with my brother about getting pulled over and afterwards I was thinking about something. The basic question is if a police officer sees someone commit an arrestable offence under normal situations are they required to arrest the person? So for example, if a police officer pulls you over and you try not to answer questions(such as “Do you know how fast you were going?”) he might say that if you don’t cooperate he’ll be forced to arrest you for wreckless driving. If he actually saw you driving wrecklessly and that was an arrestable offence in the given state is he required to arrest the person? (Are police actually given the discretion to not arrest people even if the officer witnessed the crime under normal circumstances.) I realize if you don’t cooperate the officer could look harder for stuff to charge you with but in this hypothetical does he really have a choice to not arrest somebody for that?
I don’t know the answer, but need to point out that “wreckless” driving is desirable: no wrecks. Reckless driving, as in driving with disregard for safety, is against the law.
My WAG is that when it comes to traffic tickets, they couldn’t possibly arrest every single driver going over the speed limit on most major highways, or even every reckless or careless driver.
IANAL - I would expect not. They should be able to use their discretion on whether to arrest or not. District attorneys use their discretion on whether to prosecute or not. Seems like it would go that way also.
No. Police are not required to make arrests, as a general rule.
Some states have a MANDATORY arrest for Domestic Violence, Ohio does for the most part.
Unless the law Mandates an arrest, or arrest is the preferred method of execution of the person, an arrest is discretionary.
While the US SC has ruled a full custodial arrest is even permitted for a money fine only offense, you can bet department’s discourage such unless unusal facts support it. My state does not conform to Atwater v. Lago Vista, as a side note.
While states differ on when a warrantless misdemeanor arrest can take place, I have never seen any that require a warrant for a felony, in a public place that is. If a felony is known to have been committed, no jurisdiction I ever heard of will issue a Summons/Citation instead of arrest. So in that sense, if an on scene charge is to be made, then it will be an arrest.
Wat?
“Execution of the person” is a fancy term for Arrest, like a Writ of Bodily Attachment, in a sense.
If you Execute/serve an arrest warrant for a person, then arrest, that is an execution of the person. odd as it may sound.
Mary Shelley writ that a while ago.
Required to arrest. Yes, no, and it depends.
Some offenses have mandatory arrest written into the statute.
Many warrants also dictate that *"…a peace officer shall arrest so&so" *but I’ve seen some warrants that actually said “…a peace officer may arrest so&so”.
Then there is the “order in”. The order in is a cop out (no pun intended) for the officer in the field that isn’t sure and the subject isn’t considered dangerous to release. The subject is given an order in summons to appear in the District Attorneys office. The issuing officer also shows up. It’s usually within 72 hours.
The officer explains what went down, and the DA decides whether he would prosecute it or not. If yes, the officer arrests the subject right there in the office and he’s booked. If no, the subject is free to leave. Failure to appear on an order in will result in officers hunting you down right quick. They won’t just put a warrant out for you. They go out and actively look for you.
I had a bench warrant issued on me. (The Ex was throwing away paperwork that she should have passed on to me). I had committed no offense. The cop let me go with a warning on X-mas eve on my way to Grandmother’s House. He admonished me that I needed to take care of things as soon as I got home. I did.
Possessing a J.D and being a former police officer in Illinois I can shed some light on how it is handled here.
Under Illinois law, a police officer must arrest a person for any criminal offense that he witnessed – there is no discretion. The only area an officer has for discretion is for non-major traffic offenses where the offender has both valid license and insurance. In that case the officer can use his discretion and let the traffic offender go. A police officer that observes a violation of Illinois law and does not attempt/make an arrest can be prosecuted for “Official Misconduct” under Illinois law, which is a felony.
In practice, police officers use their discretion quite often but they are actually violating the law if they do so. Furthermore, if a citizen wishes to swear out and sign a criminal complaint stating that a crime has been committed against them by an offender and they want the offender arrested, the officer must place the offender into custody upon that signed complaint. Again, the officer has no discretion and can face prosecution for Official Misconduct for non-compliance.
In practice, a good street cop uses his BS meter and handles accordingly. Lastly, Illinois domestic violence laws state that in a domestic violence situation any sign of visible injury on the victim requires a mandatory arrest even if the victim does not wish to sign a complaint and the officer did not witness the crime. This is to protect the classic battered woman from pleading with the police to not arrest her man.
But certainly there must be room for discretion of the triage variety. I mean if you see a guy who’s smoking a joint while chasing a bank robber who just murdered fifteen people there’s no way they could in good faith try you for Official Misconduct for not somehow magically arresting the stoner while chasing the robber.
(Since you’re a lawyer, I’ll push this to nitpicky levels)
Surely there’s some room to make sure the complaint passes the straight face test, right? I mean, I can’t walk into a Chicago police station and swear out a warrant that yesterday Mitt Romney* assaulted me on Lakeshore Drive by menacing me with his flying saucer, and have him arrested, can I?
- I would have said Obama, but as current POTUS there may be some legal protection against arresting him.
“I mean if you see a guy who’s smoking a joint while chasing a bank robber who just murdered fifteen people there’s no way they could in good faith try you for Official Misconduct for not somehow magically arresting the stoner while chasing the robber”
Obviously what I stated was the black letter of the law and how the law is written. In practice of course it is different and you are correct in that regard.
I like your theoretical as a discussion topic because we could pick this one apart for a lot of fun. Technically, police action would be required on my point. I should notify someone of the crime I observed, smoking cannabis if I could not make the arrest. It sounds ludicrous but that is what the law requires. Say as I was pursuing the bank robber (who by the way is no longer a bank robber but a homicide offender 15x over) and I saw some guys gang raping a ten year old girl in an alley? What happens then? How would they law allow for triage there? Is there a “more heinous type of crime hierarchy” that needs to be followed? Would “good faith” protect me when I kept on chasing the bank robber and did not radio the sexual assault in?
If they could show that I witnessed the cannabis smoking and did not take action then yes, absolutely, I could charged with Official Misconduct. Would this happen? Doubtful, but I could certainly imagine scenarios where it could occur, bizarrely enough as it sounds. In practice, states attorneys here charge based on if they can get a conviction not if a crime occurred. Simple evidence of a crime being committed is is sadly not enough get someone charged with committing that crime. Persons get arrested all the time and the states attorney does not pursue criminal charges because it would be too hard to present and win the case.
Using your example, say as I chased the bank robber I ran past the stoner smoking a joint while a local reverend, Reverend Feel Good, very influential in his community, was leading his parishioners on a say no to drugs rally. They happened to stop in front of Sammy the Stoner and plead with him to “stop smoking that joint” right as I was running past. Reverend Feel Good screams “Officer, arrest Sammy here for smoking cannabis” and I just fly on by in pursuit of the bank robber. I don’t notify dispatch or anything nor tell the Reverend that I am chasing the bank robber. Hmmm. When Reverend Feel Good files a formal complaint about my indifference to the scourge of drugs in his neighborhood, and continues to push the matter, I could be investigated, arrested, and charged with Official Misconduct. Would a states attorney here approve the charges? Highly unlikely, possible but not probable, but based on what transpired it would be a valid arrest under the law. The states attorney would not want to prosecute because it was unlikely to be a winning case, not because the crime of Official Misconduct hadn’t occurred.
PS: Ahhhh, here is my answer to your scenario and I loved to give these way back when in the academy days. If I knew the bank robber killed 15 people and he was fleeing, I would simply shoot him in the back, emptying my entire magazine,and hopefully kill him with the substandard issued 9mm ammunition I was provided, knowing full well that I was 100% justified in using deadly force.
Not in New Jersey. With a citizen’s complaint no warrant will be issued. A summons will be signed and served or mailed. No arrest will be made but you are compelled to appear in court. However, all complaints go before a judge early on in the process and he can throw it out for not have enough probable cause before it goes anywhere.
Surely there’s some room to make sure the complaint passes the straight face test, right? I mean, I can’t walk into a Chicago police station and swear out a warrant that yesterday Mitt Romney assaulted me on Lakeshore Drive by menacing me with his flying saucer, and have him arrested, can I? *
Again, a huge difference in theory and in practice.
If the offender and victim are both present and the victim states they are willing to sign and swear a complaint against the offender, then technically you must make the arrest. So, if Mitt was present at the station but denied it, yet the victim insisted it occurred and signed the sworn complaint, it would be the officer’s legal duty to take him into custody. The officer should conduct a preliminary investigation and look for additional evidence but the probable cause to arrest is in the complaint sworn to by the victim. The victim is in essence “arresting” the offender by swearing that that the law was violated by the offender. The officer is not the determiner of guilt or fact, that is up to the court. The officer has to make sure the legal requirement to arrest exists and a signed and sworn complaint would meet that threshold and compel the officer to make an arrest.
If Mitt was not present then the officer has a lot more leeway. Technically, he should make a criminal case report for the battery and then advise the victim how to apply for a summons for Mitt to appear in court to answer the allegation. At that point, the judge would look at the complaint and decide if there was enough merit in the complaint to issue a summons to appear. The judge can look outside the “straight face” of the complaint at other facts and issues before issuing the summons but the officer technically does not have that authority.
In sum, under Illinois law officers do not have discretion in making arrests if there is probable cause to believe a crime occurred, whether the probable cause is due to the officer’s own investigation or witnessing of a crime or a signed and sworn complaint by another person.
725 ILCS 5/107-2)
Sec. 107-2. Arrest by Peace Officer.
(1) A peace officer may arrest a person when:
(a) He has a warrant commanding that such person be
arrested; or
(b) He has reasonable grounds to believe that a
warrant for the person's arrest has been issued in this State or in another jurisdiction; or
(c) He has reasonable grounds to believe that the
person is committing or has committed an offense.
(1) states MAY arrest, not SHALL. You mean police can not issue citations in lieu of arrest for even a Misdemeanor you have not listed?
IF a police officer witnesses a crime he must make an arrest, he does not have to legal authority to pull out some kind of scale of justice and weigh if he personally feels based on his experience that the crime should go unpunished. A citation is also considered a form of arrest. To make it more confusing, Illinois does not issue citations for non-traffic related misdemeanor offenses. Perhaps you are thinking of an officer writing an ordinance complaint, citation, or ticket for a violation of a municipality’s law not the IL state law.
For example, a citizen violates a law that could be cited either by the municipality’s code or the state code, the officer can have discretion in choosing which law to cite. For traffic offenses, most municipalities prefer their officers to write tickets under their municipal code so some of the revenue is returned to them, but the officer could just as easily write the ticket for a violation of the Illinois Traffic Code. However, the officer is not empowered to use his discretion in not taking enforcement action.
Lastly, you are citing the statute outlining the arrest powers of a police officer in the state of Illinois. However all officers must be professionally certified and that certification requires an officer to take police action when a violation of Illinois criminal law is committed in their presence if not they can be prosecuted for Official Misconduct.
Last time, in answer to the OP’s question, in IL a police officer does not have discretion to not arrest someone for committing a violation of IL criminal code unless it is a misdemeanor traffic offense and valid license and insurance is provided.
Just imagine if police officers could witness crime and they arbitrarily decide to sit and do nothing? “Hey Jim check out that girl getting her teeth kicked in across the street. Should we arrest the guy for battery?” “Naw, I figure I will exercise discretion and say she deserved it”
On an episode of the old Hill Street Blues series that dealt with this whole “duty to arrest” issue. An officer got invited to a party and realized that someone was about to light up a J and tried to say “please don’t do that” but once they did he was bound to arrest him. Talk about a party pooper.
Can you cite some statute that supports this claim?
In reading 720 ILCS/5 33-3, which is I assume the statute under which you claim the prosecution of the officer would lie, I find the following:
In Fellhauer v. City of Geneva, 568 N.E.2d 870 (1991), we learn that to prosecute someone under this section of law, the prosecution must “specify the `law’ allegedly violated by the officer or employer in the course of committing the offense.” In other words, as I read it, there must be a law somewhere, apart from the “Official Misconduct”: statute, that mandates the arrest.
So far as I can tell, there isn’t one.
So I’m going to ask you for a citation to some authority that supports your position.