Introduction
I have written (off and on) for some time relative to odd cops under state (not federal) law. My intent was that the citizen cop topic would be in the final installment of the series. However, recent events (see below) in Lake County have rendered the topic more timely and relevant.
The subtitle quote is actually a familiar misquote. In the motion picture version of The Treasure of the Sierra Madre Humphrey Bogart (as Fred C. Dobbs) is confronted by a seedy group of Mexican bandits who claim to be the police. Bogart/Dobbs asks “Where are your badges?” to which the bandit leader replies:
“Badges? We ain’t got no badges! We don’t need no badges! I don’t have to show you any stinking badges!”
The parallel quote from the 1927 novel by B. Travern was:
“Badges, to god-damned hell with badges! We have no badges. In fact, we don’t need badges. I don’t have to show you any stinking badges, you god-damned cabrón and ching’ tu madre!”
It seems that many have paraphrased the profane response about badges, including Mel Brooks in his 1974 Blazing Saddles wherein the quote became:
“Badges? We don’t need no stinking badges!”
The Recent Event
According to published accounts in the NWI Times, a Lexus automobile owned by Gary City Council President Ronald Brewer was reported stolen Saturday September 21, 2019 from a Gary gas station. It was Sunday evening when Brewer and his wife went looking for the vehicle in East Chicago, possibly employing some form of GPS tracking. The Brewers reportedly found the Lexus occupied by two teenagers. The driver sped off while the Brewers gave chase. Then the driver and his passenger bailed out of the Lexus, and one (a 14-year-old boy) was caught by Brewer.
From the published accounts through September 25th it seems that there was some 911 telephone contact between the Brewers and the East Chicago PD. There were reports of gunfire and of an apparent bullet hole “in the trunk” of the Lexus.
Also, according to published accounts, Mr. Brewer placed the teenager in his car (the one not stolen) and drove to his Gary home where he stopped briefly before leaving for the Gary police station. He was stopped, reportedly, as he pulled out of his driveway. Mr. Brewer was arrested and jailed in East Chicago from Sunday night to late Tuesday afternoon.
East Chicago Deputy Police Chief Jose Rivera has been quoted as complaining vociferously that Mr. Brewer improperly “took the law into his own hands.” The CLB agrees that it would have been better for the ECPD to locate and recover the stolen Lexus and to detain its occupants. But the ECPD did none of that. By appearances, Rivera’s protests (“too much, m’lord”) are as much from embarrassment as from indignation.
Deputy Chief Rivera mentioned (potential) charges of criminal recklessness and kidnapping. As for kidnapping, his theory seems to be that delivering the captured teen to the ECPD is part of a citizen’s arrest while attempting to deliver the teen to the Gary PD (for a crime committed in Gary) is a felony. Criminal Recklessness (IC 35-42-2-2) may be committed by vehicle, by gun, or by both.
Common Law
I will address some relevant statutes soon enough, but not before touching upon the common law of the citizen’s arrest. Here is some venerable language from the Indiana Supreme Court quoting from a New York Case.
“The rule is that a private person even may arrest a party, if a felony has in fact been committed, and there was a reasonable ground of suspicion; but in the case of an officer, he is justified in making an arrest if no felony was in fact committed, if he acted upon information from another on which he had reason to rely.”
Simmons v. Vandyke (1894), 138 Ind. 380, 3830384, 37 N.E. 973.
The common law rule does not authorize a citizen to make an arrest for a misdemeanor, even if committed in the citizen’s presence or view. The rule for a citizen’s arrest for a felony requires an actual felony but does not require that the arresting citizen be a witness to the felony. The “or else” consequence of a citizen’s arrest when no actual felony has been committed is civil liability against the intrepid citizen. See Smith v. State (1972), 258 Ind. 594, 283 N.E.2d 365.
In Smith v. State, supra, some Newton County locals came upon some out-of-towners loading a harvest of the hemp variety of marijuana that grows wild in fields and ditches there. The locals used shotguns to effect the arrest of three men. Lawrence G. Smith, the appellant, made the doomed argument that the evidence of marijuana should have been suppressed due to the alleged illegality of his arrest by citizens. The argument was doomed in that the Exclusionary Rule is inapplicable to the actions of private citizens not acting as agents of the police. Gunter v. State (1971) 257 Ind. 524, 275 N.E.2d 810. Moreover, the Indiana Supreme Court unanimously found “nothing illegal about the citizen’s arrest.” The SCOTSI expressed no reservations about the use of firearms and seems to have declared the legality of such.
Some Statutes
The Indiana Statute on “use of force to protect person or property” is found at IC 35-41-3-2. Notably, the statute is placed in the criminal code category of “Defenses Regarding Culpability.” The statute does not expressly grant police powers to mere citizens. Rather, the statute provides a defense to the citizen (in certain cases) for the use of force commonly applied by police without fear of prosecution. For instance, I can use deadly force (when reasonably necessary) to prevent serious bodily injury (or death) to another or to prevent a forcible felony. Still, my right to protect you in this fashion is expressed not in a grant of police powers but rather in the creation of a defense to criminal prosecution. On some level it’s an insult for the law to imply that my use of force upon a miscreant to protect an innocent life would be a crime but for the statutory grant of a defense.
The next statute of interest declares that we can be enlisted (on pain of prosecution) to give assistance to a police officer. Here is the text to IC 35-44.1-3-3:
“Sec. 3 A person who, when ordered by a law enforcement officer to assist the officer in the execution of the officer’s duties, knowingly or intentionally, and without a reasonable cause, refuses to assist commits refusal to aid an officer, a Class B misdemeanor.”
Presumably, the “deputized” citizen may exercise police powers when ordered by a law enforcement officer to aid him.
The most substantial statute relating to the arrest powers conferred upon the common citizen (or noncitizen) is IC 35-33-1-4:
“Sec. 4 (a) Any person may arrest any other person if:
(1) the other person committed a felony in his presence;
(2) a felony has been committed and he has probable cause to believe that the other person has committed that felony; or
(3) a misdemeanor involving a breach of peace is being committed in his presence and the arrest is necessary to prevent the continuance of the breach of peace.
(b) A person making an arrest under this section shall, as soon as practical, notify a law enforcement officer and deliver custody of the person arrested to a law enforcement officer.
(c) The law enforcement officer may process the arrested person as if the officer had arrested him. The officer who receives or processes a person arrested by another under this section is not liable for false arrest or false imprisonment.”
The statute appears to be a codification of common law with respect to a citizen’s felony arrest plus new powers respecting misdemeanors involving a continuing breach of the peace. The statute dates to 1981. Of less than a dozen published appellate decisions citing the statute, the most interesting may be Walker v. State, 503 N.E.2d 883 (Ind. 1987) wherein Chicago cops followed some Chicago suspects into Indiana where the latter group committed a break-in and the former group executed an arrest far, far from their bailiwick. There was no hot pursuit here across a state line. The Chicago cops had no more police powers in Indiana than you or I would have under IC 35-33-1-4. Yet those mere “citizen” powers were enough. The unanimous SCOTSI held that there was “nothing illegal concerning the arrest.”
In light of the “recent event” involving gunshots in the course of a citizen’s arrest, the CLB must address the question of what force is allowable in the execution of the arrest of a resisting suspect. The general “arrest” statute for law enforcement officers is found at IC 35-33-1-1 and affords law enforcement officer powers of arrest exceeding those under the citizen’s arrest statute. But neither statute addresses the issue of force.
There is, however, an oddly placed statute pertaining to the use of force by a person (not a law enforcement officer) in executing a citizen’s arrest for an actual felony or to prevent the felon’s escape. The statute is IC 35-41-3-3(a), adjacent to the statute pertaining to the defense of one’s self, one’s property, and others. Subsection (b) of the statute is even odder in terms of placement. IC 35-41-3-3(b) authorizes the use of force by law enforcement officers under certain circumstances. Subsection (a) is generous in its authorization of “reasonable force” to a citizen entitled to make a felony arrest or to prevent a felon’s escape. But there is a limitation upon a citizen’s use of deadly force:
“However, such a person is not justified in using deadly force unless that force is justified under section 2 of this chapter.”
This quoted text requires a cross-reference to the general “self-defense” statute and its provisions respecting deadly force.
Apart from the inapplicable allowance of deadly force against a burglar in your home or someone car jacking your occupied vehicle, the apparently most relevant deadly force provision of IC 35-41-3-2 is in subsection (a):
“However, a person:
(1) is justified in using deadly force, and;
(2) does not have a duty to retreat;
if the person reasonably believes that force is necessarily to prevent serious bodily injury to the person or a third person or the commission of a forcible felony . . .”
Section 2(a) seems to fall short of authorizing deadly force in a citizen’s recovery (outside his home) of his stolen property.
But is gunfire always “deadly force?” It certainly isn’t, for instance, at the gun range where sights are set on a paper target. What about a warning shot in the presence of a car thief? The answer may reside back at IC 35-41-3-3(b), the “force” statute for law enforcement officers. Under section 3(b) an officer must give warning, if feasible, prior to employing deadly force. The CLB holds that the use of a deadly weapon (a firearm) in a fashion neither intended nor likely to cause harm does not amount to deadly force when no harm in fact results. IC 35-31.5-2-85 defines “deadly force” as such force that creates a “substantial risk of serious bodily injury.”
Applying the Law
Ronald Brewer was authorized to track down his stolen Lexus. He was authorized to make a citizen’s arrest. He was authorized to exert reasonable force, though most likely not deadly force. If he has a carry permit he was entitled to be armed with a handgun.
To the CLB the most troubling detail from the published accounts is the allegation of a bullet hole in the trunk of the Lexus, as if fired from a trailing vehicle. Shooting at a fleeing Lexus would seem to be an unauthorized use of deadly force and certainly not a warning shot.
Brewer’s attorney rightly insists that it is “pure speculation” to suggest his client fired a gun. That speculation could be well-founded if the ECPD had sense enough to test for gunshot residue while Brewer was in custody.
Advice to the Prosecutor. The fact that Bernie Carter doesn’t need my advice is no impediment to me. Mr. Carter (if he doesn’t recuse himself) should put the case to a grand jury. Whether a grand jury should or should not return an indictment depends on facts not yet made public.
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