Are you sure that applies to misdemeanors rather than violations? A lot of pretty significant crimes are misdemeanors. I mean, it could be true, but it would be surprising to me.
Nevermind. I see it’s true, with a few exceptions. And there’s this, uh, helpful, requirement:
“(b) Any time a peace officer is called out on a domestic violence call, it shall be mandatory that the officer make a good faith effort to inform the victim of his or her right to make a citizen’s arrest, unless the peace officer makes an arrest for a violation of paragraph (1) of subdivision (e) of Section 243 or 273.5. This information shall include advising the victim how to safely execute the arrest.”
I’m sure that gets used all the time. Ugh.
If I understand the quoted portion of your post, the victim is expected to execute the arrest on a domestic violence call?
Can someone explain how that would even work? I’m picturing a 5 foot woman being talked through cuffing a beefy 6 foot man. Is that about how it would go?
What happens after this “arrest”?
You dont cuff on a citizens arrest. You just tell the nice PO to cuff him.
But it goes on:
(d) Notwithstanding paragraph (1) of subdivision (a), if a suspect commits an assault or battery upon a current or former spouse, fiancé, fiancée, a current or former cohabitant as defined in Section 6209 of the Family Code, a person with whom the suspect currently is having or has previously had an engagement or dating relationship, as defined in paragraph (10) of subdivision (f) of Section 243, a person with whom the suspect has parented a child, or is presumed to have parented a child pursuant to the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12 of the Family Code), a child of the suspect, a child whose parentage by the suspect is the subject of an action under the Uniform Parentage Act, a child of a person in one of the above categories, any other person related to the suspect by consanguinity or affinity within the second degree, or any person who is 65 years of age or older and who is related to the suspect by blood or legal guardianship, a peace officer may arrest the suspect without a warrant where both of the following circumstances apply:
(1) The peace officer has probable cause to believe that the person to be arrested has committed the assault or battery, whether or not it has in fact been committed.
(2) The peace officer makes the arrest as soon as probable cause arises to believe that the person to be arrested has committed the assault or battery, whether or not it has in fact been committed.
So that is another exception, and yes, most of the time the officer just makes the arrest, no need for a citizens arrest".
836.
(a) A peace officer may arrest a person in obedience to a warrant, or, pursuant to the authority granted to him or her by Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, without a warrant, may arrest a person whenever any of the following circumstances occur:
(1) The officer has probable cause to believe that the person to be arrested has committed a public offense in the officer’s presence.
(2) The person arrested has committed a felony, although not in the officer’s presence.
(3) The officer has probable cause to believe that the person to be arrested has committed a felony, whether or not a felony, in fact, has been committed.
So, note than a non-felony generally has to be in the officers presence.
But now, when he alleges “false arrest”, his legal argument is with his partner, not with the police department.
Not partner, or spouse or girlfriend, they all come under (d).
But casual friend or roomate, yes.
Only if the crime was assault or battery.
I read the thread title as hearsay execution.
Dang, but I’d want to see some forensic evidence first.
So, Op- what happened?
I have arguments on a motion to dismiss next month and assuming it goes to trial the month after that.
Yes a zombie but considering the replies I got, I thought people might be interested in the outcome that I never updated.
I asked for a jury trial and after the preliminary hearing I discussed the case with the city attorney and he claimed the law was not vague as per some Massachusetts case. I pointed out the issues with relying on the neighbor’s complaint and the officer never asking me question as part of his investigation like, “Do you leave your house at 3pm every day.” I also pointed out the law said “neighborhood” and does one neighbor that may or may not have an axe to grind constitute a neighborhood? Basically I was saying your case will not hold up in court because the officer never did a complete investigation and if need be, I had evidence that directly contradicts what was in the neighbor’s police report. Later the city attorney wrote me that he was dismissing the case, not because of any of my arguments of course but because (insert my arguments here). Also found out via small town grapevine that the officer in question was giving training on how to conduct an investigation.
Thank you and congrats on the win.