Arresting Situation – Tort of False Arrest
Both peace officers and private citizens have the right to make a civil arrest. The peace officer can make a civil arrest if he has a warrant However, the warrant must not be “defective”, that is, the name, address and other particulars must be correct. It is not expected that the officer be an attorney but he should be able to recognize blatant errors. If the warrant is incorrect then in most states there is no arrest. A private citizen can make a civil arrest if he believes a person is mentally ill and may hurt himself or others
Both the peace officer and private citizen can make an arrest without a warrant for criminal felonies and misdemeanors. However, there are some ground rules. The arresting officer must have a reasonable belief that a crime has been committed, that the person arrested committed the crime and he used only reasonable force in the arrest. In the case of the private citizen, the crime must have been committed in his presence. There is no standard for a reasonable belief that a crime may have been committed.
Volumes of state and federal laws, case law and treatises have been written on what constitutes “reasonable” actions by an arresting officer. For example, a peace officer is at a baseball game and smells marijuana coming from a section where Mary and some friends are sitting. The officer doesn’t know which of Mar’s friends are guilty so he arrest them all for questioning. During the arrest, Mary tries to escape and the officer shoots her. The subsequent investigation showed no marijuana was used.
There was probably a reasonable belief a crime was committed, a grey area concerning who committed the crime and, unless the officer’s life was endangered, using unreasonable force in the arrest.
What if a private citizen actually saw who was smoking marijuana and attempts an arrest? In this situation, there is MAJOR difference. If the citizen makes any mistake in believing he has witnessed a crime, who actually committed he crime and he uses unreasonable force in the arrest then most states will say he is PERSONALLY liable. If the peace officer makes a mistake the police department may be liable but probably not the officer. Keep this in mind if you ever consider a citizens arrest.