Ladies and Gents…I give you North State DA!

Since Cleanville seems to have some sort of delusional fantasy about arresting and apparently manufacturing a reason to assault an allegedly resistant officer, I asked North State DA to weigh in on Cleanville’s desire to pursue legal action against an officer for an infraction. I highlighted what I felt was the most entertaining bit. Without further ado…

Alright, let’s get some definitional issues out of the way, first: an arrest is taking a person into custody, in the manner prescribed by law (this part is important) (I’m not going to cite PC 834, because its too late at night for me to look it up . . . dammit, I just did. But its the last cite you will see in this post.) Our system, however, has changed the real definition of arrest- when MC pulls you over for yapping on your telephone, he is TECHNICALLY arresting you. Rather than putting you in bracelets and hauling you to the station, he issues a citation and lets you go. This is actually an arrest with a release based on a promise to appear (that’s why you sign the ticket- without the John Hancock, he would actually need to take physical custody.)

Nobody thinks of a ticket as an arrest, but that’s what it is. Remember the “manner prescribed by law”? Cops can’t actually haul a compliant traffic offender in, because the law says that a cop must let the offender go on a promise to appear for minor traffic violations.

Now, about that citizen’s arrest thing: here in California, citizens have almost the same powers as cops- its true! Here’s an example: I have a concealed carry permit. Its not because I’m a Deputy DA, its because I applied for one as a citizen and was granted one by the sheriff. If I’m cruising along and see a man going after somebody with a knife, and its reasonably obvious that he intends to cut his victim, I can draw on the perp and, if he does not comply with my demands to drop the knife, I am committing no crime by blowing his head off. Just like a cop. 830.1, the statute that defines what it means to be a cop (OK, I cited another one, but its so common among LE personnel that its generic, like xerox and google,) allows peace officers to openly carry a loaded weapon, but does not allow them to use that weapon in any manner that is different than a private citizen. Cops can’t shoot or brandish for no reason. A cop that whips his gun out and points it at a little old lady just to be a dick is guilty of 417 just as much as an average Joe (DAMMIT- I just can’t help it!)

(Nothing said here should be taken to mean I have even a fraction of the training peace officers get in the carriage and employment of firearms. I carry one to deal with an immediate threat that finds me as a last resort, but cops have to GO TO the threat and deal with it. That’s why we give them guns, pay them to practice with them, and let them carry those guns virtually anywhere.)

When it comes to arrests, citizens have the same rights as cops. BUT- cops have protections citizens don’t. If a cop arrests you for an infraction, no matter how stupid and ridiculous, as long as a custodial arrest is not specifically prohibited, resisting that cop is a misdemeanor (which is a brand-new charge, to wit, PC 148 et seq- CRAP- OK, so my brain has been altered- bite me, or at least try- remember, I’m packin’.)

This means that if a cop arrests you, and you fight back or even simply refuse to cooperate, you are committing a new crime, and the cop is authorized to “persuade” you, perhaps with blunt force trauma or Edison’s Medicine (Dear God, I love Tasers. A police report with a Taser deployment puts a smile on my face every. damn. time.,) if reasonable. Citizens DO NOT have that protection. A citizen can therefore be PROSECUTED for false imprisonment or assault or battery if said citizen attempts to arrest someone.

A citizen’s arrest has been found to be legitimate when a man pointed at a dude and said “That’s him.” Here is a hypothetical: you are chillin’ downtown, listenin’ to your iPhone and mindin’ your own. You see some shithead spraypaint a tag on the wall. Cop walks around the corner, sees the wet paint, and looks pissed off, so you point at the tagger and say “That’s him.” Congratulations, you just made an arrest. Its obvious what the crime is (vandalism) and you have identified the perp. That’s all it takes in California.

So getting to the point (hey, quality takes time): Cleanville, if you see MC blow a stop sign, you can “arrest” MC by filing a sworn affidavit and submitting it to the DA’s office (and they will get a hearty laugh and toss your affidavit in the nearest receptacle, but only after e-mailing it to the entire department and mocking you for being a pathetic dumbass.) But if you attempt to detain him with force, he will no doubt create a cheek-pavement interface, and will be legally entitled to do so.

As to the question of Misdo v. Infraction? I think MC is wrong- a citizen CAN arrest another citizen for an infraction. But since the code does not allow for a custodial arrest for most traffic crimes, the citizen would have to swear an affidavit or appear in person to a DA and ask the DA to take the case. Remember that police do not prosecute crimes- DAs do. Police are only entitled to remand into custody based on probable cause, but the arrestee must be arraigned within 72 hours of the arrest (if the defendant is in custody.). That means a Deputy DA must review the police reports and file a complaint within 3 days of the arrest, or the defendant cannot be incarcerated.

DA’s delegate some of their authority to the police, and allow for direct filing of certain less-important violations with the courts. For example, your speeding ticket was never reviewed by a DA. The cop sent it to the court, and the court proceeds. The DA doesn’t get involved (usually.) But a DA can always file a complaint, based on any information that meets legal and ethical standards. So if you are in your car, with a video camera, and you tape your TomTom saying that you are doing the limit at 55, and you tape some dude blowing past you, and the plate is evident on the tape, I can totally charge that case, even if you never called the cops. Would I? Fuck no- I have over 300 active cases right now, ranging from driving on a suspended license to manslaughter, with 5 new cases coming in every business day. I’m simply NOT going to give a shit about a dude in a Maserati doing 80. But you have the right to send the letter.

The ultimate point is (Dude! I have one!) is that you should totally sign a statement describing somebody’s bad behavior and request criminal charges if you see somebody breaking the law, unless that perp is doing something that is going to immediately injure somebody else’s physical person- then feel free to do the hero thing. However, unless somebody is going to die or potentially get seriously fucked up, wait until you can find a cop and ask for a CA (Citizen’s arrest) form. Anything less would be uncivilized.


Thanks, DA, I appreciate your time! The overwhelming point seems to be that should Cleanville attempt to detain an officer for an infraction, he may find himself surprised to feel the bracelets on a different set of wrists than he originally intended. But again, good luck to you, Cleanville; however, I suggest you take up your complaints and self-imposed lunacy with your local District Attorney. I’m sure they’ve nothing better to deal with…

Please note: I reserve the right to delete comments that are offensive or off-topic. Snark is encouraged. Being a prat is not.

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19 thoughts on “Ladies and Gents…I give you North State DA!

  1. Dude. Seriously. Get a fuckin' hobby.

    I'm gonna go ahead and side with the cat that's passed the bar and practices criminal law.

    Good luck in your fantasy world. I would strongly advise you not to attempt to detain an officer, though. Not the best of plans. If you have an ax to grind, it would behoove you to pursue it in a less confrontational capacity. You can contact your local DA or the Officer of the Day for whatever unfortunate jurisdiction in which you live should you witness your oft-mentioned infraction.

    God help them.

    Oh, and I'm done with you.

  2. Something tells me I would make a better prosecutor than a defense attorney in the event I ever do go to law school.

    Even if what Cleanville Tziabatz said is true, any citizen attempting to arrest a police officer is asking for trouble.

    Wrong or right, don't mess with the people who protect you and know how to fight back.

    If they are doing something seriously wrong, there are other ways of dealing with it than attempting to physically arrest a cop hah.

    Anyone see someone wrestling with a cop, is going to assume the person is drunk, on drugs, or just plain stupid.

  3. Is "sucking the fun out a blog" an arrestable offense? Because if so, I'd like to make a citizen's arrest…

  4. MC it seems to me you and Copnattitude have a bit of a staker situtaion…or an admirer I cant quite tell. Either way the blog is damn funny keep up the good work!!

  5. Cleanville- you sound like you should be a part of the ACLU with your logic. I'm just sayin'. How about trying to be a help to the men and women in blue, instead of being a speed bump? There's enough REAL issues going on in this world that need to be discussed; semantics isn't one of them. Go back to your game of 'Magic: The Gathering' in your mom's basement, and leave the police talk to the big boys and girls, would 'ya?

  6. Cleanville:

    You cited, "PC 847 says:
    a)A private person who has arrested another for the commission of a public offense must, without unnecessary delay, take the person arrested before a magistrate, or deliver him or her to a peace officer."

    Before you get all indignant on your emphasis added portion of PC 847, howz about you read the first 7 words in that code.

    "A private person who has arrested another…"

    MC and his fellow badge wielding brethren swore an oath. They are NOT "private person[s]" when they are behind that badge, doing the duty they swore to do… even if that duty is having to serve and protect a dumbass PRIVATE PERSON such as yourself.

    How's that for emphasis added???

  7. Ok, I generally just lurk. I don't live around ya'll (at least I don't think I do), so I usually just click on by on my nightly randomly funny rounds to unwind after job #2. Gotta say though, as the mom of an Aspie, that Cleanville may want to seek a diagnosis…and lay off the whole telling-a-professional-how-to-do-his/her-job-in-a-way-that-is-stunningly-immature/inappropriate/disrespectful thing, at least until some counseling, social skills training, and possibly medication has had a chance to take effect.

  8. Just to be clear, here, Cleanville is all hung up on "arrest" and "magistrate." The Penal Code describes proceedures whereby Jackass did something really bad and Guardian wants to keep that person in jail. The whole "magistrate" thing is about how you keep Jackass in jail.

    When Guardian (usually a cop) arrests Jackass (in this case somebody who is seriously dangerous,) Jackass has due process rights. This means that the county clink can't hold Jackass unless a neutral, detached magistrate (i.e., a judge that doesn't have a horse in the race) determines that Jackass is a flight or public safety risk.

    Is a traffic violator a public safety risk? Marginally at most. Is violator a flight risk? Even if he is, its not worth taking up a cell in Hotel County over a failure to wear a seatbelt. So the violator is cited out and sent on his way.

    If Jackass did something more serious, like beating up his girlfriend or stealing a car, then everybody starts to get serious. The prosecution may argue that Jackass is a blight on the community that will break things or kill people, and will never come to court, and Jackass' attorney will argue that he's a pillar of the community, the charges are bogus, and he isn't going anywhere. And the "magistrate" will make a call wether to keep Jackass in jail or let him out pending resolution of the charges. That's it- a custodial arrest and the hearing is merely deciding wether or not the accused should be set free pending trial.

    A private citizen can arrest Jackass, if he did something serious, and appear before the judge (the "magistrate") and argue that Jackass should be jailed pending resolution of the case. But infractions BY DEFINITION can't result in jail time, so the law does not allow a custodial arrest.

    Bear in mind that merely being arrested does not mean criminal charges are pending. Cops can cuff people and throw them in jail all day long, but until a representative of an elected DA approves charges, Jackass has not been charged with any crime.

    So if Cleanville thinks that dragging a cop before a "Magistrate" means any damn thing, he's ignorant or high (or both.) A sworn police officer that commits a traffic violation is neither a flight risk nor a threat to public safety, so there is NO CHANCE that a judge will order incarceration pending trial for an infraction committed by a peace officer in the line of duty or otherwise. Since there is no way that a cop can get jail time for simple traffic stuff, and there is a clear, commonsense alternative to a physical arrest (write a letter to the DA, numbnuts,) physically arresting a cop for a traffic violation is not authorized, and ANY force used to affect that arrest is a crime.

    But if you want to try, that's cool, as long as I can watch . . .

  9. A private person who has arrested another…"

    MC and his fellow badge wielding brethren swore an oath. They are NOT "private person[s]" when they are behind that badge

    I disagree with this statutory construction and argument, but it is interesting and has some force. It would be interesting to see what the DA had to say about this particular argument that "another" means "another private person" and not merely "another person."

    I disagree with the argument on a couple grounds. One is that later references in the statute refer to the 837/847 arrestee as "the person" and not as "the private person." Another reason I disagree is that this interpretation leads to absurd results. For example, a shopkeeper could not arrest an off duty police officer who was shoplifting.

    I took a look at the case law but did not see anything particularly on point either way. Thanks for taking the time to raise this interesting issue.

  10. So if Cleanville thinks that dragging a cop before a "Magistrate" means any damn thing, he's ignorant or high (or both.) A sworn police officer that commits a traffic violation is neither a flight risk nor a threat to public safety, so there is NO CHANCE that a judge will order incarceration pending trial for an infraction committed by a peace officer in the line of duty or otherwise. Since there is no way that a cop can get jail time for simple traffic stuff, and there is a clear, commonsense alternative to a physical arrest (write a letter to the DA, numbnuts,) physically arresting a cop for a traffic violation is not authorized, and ANY force used to affect that arrest is a crime.

    Let's be clear. section 837 is what authorizes the private person to arrest the police officer for any "public offense" that the police officer commits in the presense of the private person. The statute doesn't say "any public offense except traffic violations." It says any "public offense" (which clearly includes traffic violations). Also, section 837 says that the private person can "arrest" the offender. Arrest does not mean "write a letter to the DA." Section 837 says that "arrest" is authorized. In fact, another one of the stautory section says that you can also strip the arrestee of her weapons. In short 837 is what authorizes a private citizen to take any public offender (popo or not) into physical custody.

    Section 847 is the section that gives the private person the right to take the arrestee before a magistrate instead of delivering her to a peace officer. Now there is a very good reason why the police officer arrestee should not be delivered to another peace officer and that is:

    The other peace officer has a conflict of interest and will not take the arrest seriously.

    There is also a good reason not to write a letter to the DA:

    the DA will not take the letter serious and will just throw it in the trash.

    That is why it is best to deliver the offending police officer directly to a magistrate, specifically, the magistrate does not work for the executive branch and is therefore neutral and detached and will therefore take the arrest seriously and do justice accordingly.

    The amazing thing about your response, North DA, is that you do not appear to even have read section 837 or 847. You are just making up law out of whole cloth. Even "Wife" did a better job analyzing the statutory language than you did here. My guess is that you want to encourage people to write to the DA so that the DA can just throw those letters away and obstruct justice in that manner. That is a clever ploy, but it is no way noble.

  11. I used to wonder why the police would sometimes look at us regular people like idiots sometimes.

    People like Cleanville make it all make sense now.

    Please keep up the good job MC, and ignore people like Cleanville. Armchair lawyers are scarier than backyard mechanics.

  12. Here's this, Cleanville:

    Due to old laws that never get brought up, there are places where you can press legal charges against someone for taking a bite of your food. Now, turning them over with legal justification doesn't make you any less of a dick for doing so.

    Is that a fairly accurate sum-up?

  13. I took a look at the case law but did not see anything particularly on point either way.

    That's because no idiot ever tried to arrest a cop for stopping over the limit line.

    What law school did you go to? Not because I particularly care, but because I want to know where to NOT send my kids or hire a lawyer from.

  14. Geezuz NS DA! I think my hair turned gray reading this thing. I couldn't even finish it. BUT, parts were particularly hilarious.

    "you can "arrest" MC by filing a sworn affidavit and submitting it to the DA's office (and they will get a hearty laugh and toss your affidavit in the nearest receptacle, but only after e-mailing it to the entire department and mocking you for being a pathetic dumbass.)" I LOVE IT!

    Cleanville! Please, please try this. I want to see you get your ass kicked on the news. Everyone needs a good wake up pummeling.

  15. One of the more enlightening things I've read here MC,thanks.
    I'm confused though, you said you applied for and have a CCW, yet go on to say your allowed to carry per 830.1. Why would you bother with a permit?
    Another question while I have your attention…you seem like a reasonable guy, intelligent,wry, etc…what exactly attracts you to being an MC? Is it the boots and Ray-Bans? I mean, it's frickin dangerous out there. Seriously, why not wrap some steel and climate control around ya and leave the MCing to the Ponch wanna-bes? I know you had a baby and I assume a wife or sigfi…you know what I mean…is it time for big boy pants? We don't want to lose ya.

    Free Plaxico!

  16. Atticus…

    The majority of this post was written by NS DA. I don't need a permit to carry…comes with the badge thingy.

    Why do I do the MC thing?!?! I know you've been around my blog for awhile now. Shouldn't it be clear by now?

  17. MC I'm not the most perceptive dude around. Obviously. I don't know, the wind blowing thru your crew-cut? Motorcycles just seem so damn vulnerable. Years of experience no doubt buy you some margin, but there is always some asshole…the one ya won't see. We lose enough damn cops dude is all I'm saying. Things are tight,those checks we write for cop's memorials ain't as big as the used to be.