Summary and Analysis of Cases Applying penal code §837 to security officers

Cervantes v. J.C. Penney Co., Inc. (1979) 24 Cal3d 579

This California Supreme Court case clarifies some of the differences between Penal Code §836 and Penal Code §837. It also confirms that private security officers are governed by the same laws which govern private persons making an arrest, rather than the laws which govern arrests made by peace officers.

In Cervantes, an off-duty police officer was acting as a private security officer at a J.C. Penney store. The security officer believed he observed the suspect place tools and other items into a bag and then exit the store without purchasing them. The security officer made an arrest upon the suspect. Thereafter, the suspect sued the security guard and J.C. Penney for false imprisonment, malicious prosecution, assault, battery, intentional infliction of emotional distress, and negligence.

First, the California Supreme Court determined that the laws governing a private person making an arrest would apply. Even though the security guard was an off-duty police officer, he was acting as a private security officer at the time of the arrest.

The California Supreme Court then set forth the standard governing a private person’s authority to arrest:

“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. (Penal Code §836(a).) A private citizen, however, may arrest another for a misdemeanor only when the offense has actually been committed or attempted in his presence. (Penal Code §837(1).)”

At the end of the trial, the trial court had provided an instruction to the jury that the arrest would be considered lawful if the security guard had probable cause to believe that an offense had been committed in his presence. This was an incorrect instruction because, as a private citizen, the security guard was only permitted to make an arrest if the misdemeanor offense had actually been committed in the security guard’s presence.

LESSON: Even if the suspect did in fact steal, the security officer violated Penal Code section 837 since it was not literally observed by him. Ironically, a guilty suspect would be able to have his criminal case thrown out. Worse yet, he could then sue the security officer and the security company for false arrest, false imprisonment, battery (assuming he was “touched unwantedly” by the security officer), and negligence. Under this scenario, he would probably win some money.

TIP: Do not arrest anyone for a mere misdemeanor unless it is committed in your presence and preferably observed by you.

People v. Raymond Lewis Carter (1982)130 Cal.App.3d 690

In this case, a security officer at FedMart observed the suspect take a hose reel out of its box and place several expensive tools into the box. The suspect then went through the cashier lane by paying for the inexpensive hose reel, rather than the more expensive tools inside. The security officer arrested the suspect.

The arrest was determined to be lawful because the offense in question occurred in the presence of the security guard. Here, the security officer acted properly. The conviction will be upheld and no exposure to a civil lawsuit will exist.