An officer received a report of a disorderly misdemeanor in progress and arrived to see part of it. While the facts were conflicting, there was still probable cause for the arrest. The law of citizen’s arrest is not so obvious that the officer violated it by taking custody of the plaintiff after a citizen’s arrest. Gilmore v. City of Minneapolis, 2016 U.S. App. LEXIS 16708 (8th Cir. Sept. 13, 2016):
A citizen’s arrest may be valid, even if it is an officer who takes custody of the suspect. In State v. Duren, officers asked a private citizen who had witnessed an alleged misdemeanor to sign a citizen’s arrest form, because the officers had not witnessed the commission of the offense themselves. 266 Minn. 335, 123 N.W.2d 624, 631 (Minn. 1963). The court noted “[i]t is clear from the record that after defendant’s arrest by [the citizen] she in effect delivered him to the police officers present who already had him in custody,” and concluded that the fact that “such arrest was made by [the citizen] at the request of the police officers who had arrived after the accident would not affect its validity if § 629.37 were followed.” Id.; see also United States v. Rambo, 789 F.2d 1289, 1293 n.5 (8th Cir. 1986) (noting that under Minnesota law “[p]olice officers are authorized to take custody of an individual arrested by a private person, which means in practice that police officers often are the ones who actually effect the arrest, acting on behalf of the citizen-complainant” (citations omitted)). The district court concluded that Glazer had witnessed all of Gilmore’s relevant behavior, and could effect a citizen’s arrest by asking the officers to detain Gilmore after the fact. See Duren, 123 N.W.2d at 631. Gilmore also argues that Glazer did not comply with the statutory requirement of “inform[ing] the person to be arrested of the reasons therefor,” but Glazer did not need to complete that requirement personally. Under Minnesota law, the officer could do that on his behalf. See id. (“[The police officers] already had [the defendant] in custody and … acting on [the private citizen’s] behalf, advised [the defendant] of the reasons upon which [the private citizen] had based his arrest, indicative of compliance with the statutory requirements outlined.”).
. . .
While we conclude that there remain disputed issues of fact regarding whether the officers had reason to know Rule 6.01 made their actions unlawful, another statute, Minnesota Statutes section 629.36, also applies to the facts of this case. In contrast to the officers’ obligations under Rule 6.01, section 629.36 provides: “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.” While this statute leaves us with more questions than it resolves, and precedent from the Minnesota courts analyzing the statute is lacking, it does seem in direct conflict with Rule 6.01, creating confusion as to the officers’ statutory obligations under the circumstances. See Gleason v. Metro. Council Transit Operations, 563 N.W.2d 309, 318 (Minn. Ct. App. 1997) (noting official immunity applies when the official demonstrates “that the right allegedly violated was not clearly established, that is, that there was no basis for knowing the conduct would violate the plaintiff’s rights”). Rule 6.01 requires release on citation unless certain circumstances exist; section 629.36 seems to require a person be taken into immediate custody, at least for a brief period, by the peace officer. Whether a “bystander” is a citizen for purposes of a citizen’s arrest and what is meant by “criminal processing” are not clear from the statute, but that very lack of clarity is what prevents us from concluding that the officers knew or had reason to know that their conduct in continuing to detain Gilmore was prohibited. We have no conclusive reason to believe that Rule 6.01 does not apply to citizen’s arrests for misdemeanors, and Gilmore’s continued detention may not have been “‘objectively’ legally reasonable,” see Gleason, 563 N.W.2d at 318, but we cannot conclude that Gilmore’s arrest was “clearly established” as unlawful given the existence of section 629.36.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)