Advanced Arrest, Search & Seizure (Lesson 11 of 31)
Requirement of Observation of Misdemeanor by Private Individual
Hamburg v. Wal-Mart Stores, Inc.
The court in Hamburg v. Wal-Mart Stores, Inc. analyzed the issue of a private person’s arrest for a commission of a misdemeanor. (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497.) In Hamburg v. Wal-Mart a store manager made arrests of individuals who were conducting a protest at the Wal-Mart’s place of business in Yucaipa, California. The individuals were arrested by the store manager for trespass, a misdemeanor, after they refused to leave the store. The individuals then brought an action against Wal-Mart for false arrest in violation of constitutional rights against Wal-Mart and the store manager.
In Hamburg, the Court of Appeal analyzed at length the issue as to whether or not a trespass was committed by the arrested individuals. However, the Court also examined the issue as to whether or not the arrest was valid. The Court stated:
“Furthermore, it is not even necessary to determine whether Appellants committed the trespass for which they were arrested if the offenses (assuming they took place) were not ‘committed or attempted’ in the presence of the private person who arrested them. ‘The authority of a private citizen to make an arrest is more limited than that of a peace officer. A peace officer may arrest a person without a warrant whenever he has probable cause to believe that the person has committed a misdemeanor in his presence. [Citation.] A private citizen, however, may arrest another for a misdemeanor only when the offense has actually been committed or attempted in his presence.’ (Italics in the original.)” Id. at 512.
The court continues explaining,
“The mere fact that the private person has reasonable cause to believe a misdemeanor offense has been committed or attempted in his presence is not enough.”
The court further explains,
“The reason private persons are held to a higher standard than peace officers is that a citizen ‘has no public responsibility; there is less necessity for such arrest, and more occasion to deter private citizens from taking the law into their own hands.’ (Roth v. Golden Nugget Casino Hotel, Inc., 576 F.Supp. 262, 267.)”
Consequently, the private individual must actually observe the actions which amount to a misdemeanor and cannot merely have reasonable cause to believe the misdemeanor was committed.
The distinction is somewhat confusing as the misdemeanor arrest for both the police officer and the private individual must be committed in the presence of either the police officer or the private individual. However, the private individual must actually observe the actions which amount to a misdemeanor. For the police officer, the actions must be in his/her presence and have reasonable cause to believe the actions occurred, but the officer does not necessarily need to observe the actions.
In the Hamburg case, the store manager provided a declaration stating that he had a good faith belief that the individuals were in violation of the law. However, the store manager did not assert or even imply that the acts for which he arrested appellants were committed in his presence. Consequently, the arrest was found to be invalid. The result was a civil lawsuit for false imprisonment and false arrest.