In New Jersey one of the few statutes that call for a manditory arrest is in the case of domestic violence. An arrest must be made if there are visible signs of injury, there is a violation of a restraining order, there is a warrant in effect or there was a weapon used. Otherwise all other arrests under domestic violence are discretionary. That includes all of the ennumerated statutes under domestic violence (homicide, assault, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual contact, lewdness, criminal mischief, burglary, criminal trespass, harassment, stalking). That does not mean you ignore those crimes. It means that you don’t have to put the cuffs on just because it barely breaks the plane of probable cause. That allows you to either develop the case further or in the case of minor offenses, not waste time on small stuff that could not be won in court. For instance lets say you get sent to a domestic dispute. No one is injured but there is a broken mirror. Party A says Party B got mad and broke the mirror. Party B says Party A bumped into the mirror and it broke by accident. So you have the damaged item and an eye witness. Is there probable cause for an arrest on criminal mischief? Sure. Do you have to? No. And if you do it would depend on everything else that is going on.
As has been pointed out earlier there is a reason why statutes use the words “shall” and “may”. Sometimes its mandatory sometimes its not.
*Can you cite some statute that supports this claim?
Sure. Let’s start with (720 ILCS 5/2-13) (from Ch. 38, par. 2-13)
Sec. 2-13. “Peace officer”. “Peace officer” means (i) any person who by virtue of his office or public employment is vested by law with a duty to maintain public order or to make arrests for offenses
Some more explanation can be found here:
259 N.E.2d 22
“A peace officer is defined as “any person who by virtue of his office or public employment is vested by law with a duty to maintain public order or to make arrests for offenses * * *.” (Ill. Rev. Stat. 1969, ch. 38, par. 2-13.) He has the duty to maintain public order wherever he may be;”
In sum, witnessing a crime and failing to take police action is a violation of their duty as sworn certified law enforcement officers in Illinois and yes they could be charged with Official Misconduct.
Also,
That falls more under the “Duty to protect”, not Duty to arrest. There is generally NO Duty to protect, case law controls.
Supreme Court cases have carved this out and no I don’t feel the need to ask you for your cites as I am well aware of the current case law. But since you are such a “buff” why didn’t you mention that there are two exceptions to the duty to protect, you know ,the special-relationship and the state-created danger theory? Or even the fact the primary responsibility of an Illinois law enforcement officer is the preservation of life first and foremost.
The OP asked if a police officer sees someone commit an arrestable offense under normal situations are they required to arrest the person? I simply answered him as to how it applies in the State of Illinois. Feel free to look up ILCS statutes and regurgitate them to your hearts content.
PS: when that fascist cop catches you with that 1/4 ounce of weed and just takes it from you and doesn’t lock you up, yeah he is violating the law. It’s called giving the guy " a play". Street lawyers or law buffs never get a play.
You have used two totally different statements. In one the cop has probable cause. In the other he is a direct witness. They are not the same. I can use plenty of examples from my cases where there was probable cause for an arrest and no arrest was made. In many cases because the prosecutors office did not wish to proceed with a case that was a slam dunk. If I went by what you say is in the law in Illinois I would have to legally go around the prosecutors back because I had probable cause. That is not the case. Which is why some statutes state “may arrest” and others say “shall arrest.”
woodsjacker most, if not all states have similar statutes. The way you’re citing it is questionable. It doesn’t exactly say what you say it’s saying. And just because you say it’s saying it doesn’t say much for your credibility about saying what it’s saying it says.
How about showing us an example of some cop in the flatlands getting charged with this because they saw a crime and gave a warning instead of making an arrest.
What does it mean that he witnesses a crime? Is it probable cause? If he sees someone light up a hand rolled cigarette but can’t even smell the smoke is he witnessing a crime? How does he know the guy in the red and white striped shirt running down the street with a cloth bag with a big $ on it is a bank robber and not a mime? Certainly there are cases where the police officer has to establish additional facts before he has witnessed a crime. He can’t arrest every running person because they may be fleeing the scene of a crime.
Could be? You still have cited no authority for that. period, just a blanket opinion.
I post 11 you stated;
This section contradicts that. I have seen nothing that indicates an arrest is mandatory for a crime that was witnessed, and this supports my belief. It mentions nothing about an exception to a witnessed crime and a mandatory arrest, but a NTA can be given when an arrest is posssible. This is what I asked before, can a citation, here it is called NTA, can be given in lieu of arrest.
Sec. 107-12. Notice to appear.
(a) Whenever a peace officer is authorized to arrest a person without a warrant he may instead issue to such person a notice to appear.
(b) The notice shall:
(1) Be in writing;
(2) State the name of the person and his address, if known;
(3) Set forth the nature of the offense;
(4) Be signed by the officer issuing the notice; and
(5) Request the person to appear before a court at a certain time and place.
(c) Upon failure of the person to appear a summons or warrant of arrest may issue.
(d) In any case in which a person is arrested for a Class C misdemeanor or a petty offense and remanded to the sheriff other than pursuant to a court order, the sheriff may issue such person a notice to appear.
(Source: P.A. 83-693.)
Yes, I am a buff, that is why I mentioned “case law controls” in my quote. I took Criminal law in College as my Major, so I guarantee, I know more than you give me credit for.
I cannot find a single case of a police officer in Illinois charged with official miscondcut for failure to make an arrest. And as I said before, 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.” what law is violated? In the statute you quote,. the law merely lays out the general duty of law enforcement officers, and does not create a duty to effect an arrest every time probable cause for an arrest exists.
In City of Chicago v. Morales, 687 NE 2d 53 (1997), the Illinois Supreme Court discusses how a statute vests too much discretion in police officers as to whether or not to arrest. If the failure of a police officer to arrest when he has probable cause to do so is a criminal offense in Illinois, the omission of that fact is a very curious one. In other words, the Morales court spends a great deal of time discussing police arrests and never once mentions that arrests are mandatory?
No, at this point, I am calling bullshit on your claim.
You guys can cherry pick and cite case law and statutes until you are blue in the face but none of that changes my answer which is correct. Officers in Illinois do not have the discretion to make or not make an arrest when probable cause or a signed and sworn complaint has been made out. Every single certified law enforcement academy teaches this in Illinois. The only discretion an officer has is what are termed non-major traffic related offenses where the person has valid license and proof of insurance.
A few more points, I never once stated that any officers were charged with Official Misconduct for this, I simply stated they could be. I don’t need to trot out some officer out in the sticks who was charged with this to make you feel better about yourself. It probably has never happened, but it certainly can. Hmmm, maybe there is no history of this because officers are taught that they have no discretion or maybe most officers just want to follow the law and not risk their job to give some criminal the benefit of the officer’s discretion, or maybe they are smart enough to do it where nobody can witness them and they believe the offender will be happy with getting a play. Although, I have seen countless instances where officers let persons go for minor offenses (exercising discretion they DO not have) only to see those same officers become the target of that citizen’s complaint after that fact alleging all kinds of misconduct. Police do use discretion in practice on the street but they are not authorized to under the law and can be held accountable, including being charged with Official Misconduct.
In many cases, officers are fired under administrative regulations and the department or state is more than happy to have them off the police department and forgoes other forms of prosecution. Case law also supports that officers can be charged with Official Misconduct for violations of administrative regulations in lieu of a statute whether those administrative regulations are penal or not in nature. You can find that cite on your own as you obviously have all the answers and all the time in the world. Furthermore, any one who has any experience with the Illinois criminal courts will tell you that prosecutors only want to move forward on winning cases or extreme high publicity cases.
Sometimes, simple common sense can help a person figure things out but not if they are addicted to arguing incessantly. If officers have discretion to not arrest then in what situations is this discretion allowable? How is it “triaged”, misdemeanors of what class, felonies of what class? How is this discretion taught to prospective officers in Illinois? Where are the training materials on this subject? Where are you cites or examples showing that officers refused to arrest a person on signed complaints and a court sanctioned this or the instance where officers sat by and did nothing while a crime was committed in their presence and took zero action, citing discretion not to arrest and this was allowed under Illinois law? You can’t because it doesn’t exist.
Continue your rigorous pursuit of telling me I am wrong simply for answering a question someone posed. Let’s teach a whole law class here with all kinds of permutations. Perhaps you can contact the Illinois State Police training academy and ask their instructors, or you can contact the IPRA who oversees the Chicago Police Department and ask them, or perhaps you can go ask a knowledgeable states attorney in Illinois.
If you ever catch a play from an officer for a non traffic related offense in Illinois you better count your blessings because they are either ignorant, outright lazy, or adhere to an older standard that could potentially get them in serious trouble.
So lets say you investigate a crime. You get enough evidence for probable cause. Victim statement. Physical evidence that the incident occurred. The assistant prosecutor tells you there is enough to charge but not enough for a conviction. Do you go behind the prosecutor’s back and arrest anyway? Are you legally obligated to? Probable cause is a low bar for a mandatory arrest. Which is why many states have to spell out that domestic violence offenses are mandatory arrests. Again, there is a reason why some statutes say “May arrest” and others say “Shall arrest.”
I am an attorney, although admittedly not a prosecutor and not licensed in Illinois.
But you’re the one making the claim. You say it’s possible, despite the fact that the case law contradicts you and you cannot identify a single incidence of such a charge actually being brought.
There’s a reason people decline invitations to prove a negative. You can prove your claim, if it’s true. You say this is taught to police in Illinois – do you have any evidence of that?
You ask me to contact the IPRA. I did, at (312) 746-3594. The person I ultimately spoke to had never heard of this claim.
At this point, the burden is on you. What evidence, apart from your own fervent assurances, can you provide?
Here is a sec. of ILL law that states, even when a crime is committed in the officer’s presence, an arrest is NOT mandatory, as again, we see MAY in line 2.
Then we see SHALL, when an arrest is made, a mandatory directive to take the person before an immediate court.
730 ILCS 110/11) (from Ch. 38, par. 204-3)
Sec. 11. Probation officers, in the exercise of their official duties, and sheriffs and police officers, may, anywhere within the state, arrest on view any probationer found by them violating any of the conditions of his or her probation, and it shall be the duty of the officer making such arrest immediately to take the probationer before the court having jurisdiction over him or her for further order.
