The Prisoner at the Bar: Sidelights on the Administration of Criminal Justice

by Arthur Cheney Train

In one respect only does the law recognize any difference between the private citizen and the public officer paid to keep the peace,—if a felony has in fact been committed, the officer may arrest any one who he has reasonable ground to believe is the guilty party, while a citizen may arrest only the person who is actually guilty. Thus the citizen must guarantee not only the commission of the crime but the identity of the criminal, while the officer, so long as the law has actually been violated, may take a chance as to the identity of the perpetrator of the offence.

Now, the police invariably interpret the law to mean that they may arrest anybody who they have reasonable cause for believing has committed a felony,—but of course the statute gives them no such power.[12] The felony must have been committed; the "reasonable cause" refers only to the identity of the criminal. This, however, does not worry the average policeman at all.

He sees "Mr. O.C.'s" burglar coming out of the area with his bag, promptly pounces upon him and hales him off to the precinct house in spite of the burglar's protests and expletives. If the burglar prove refractory he is clubbed into submission, or if he attempt to run he may be shot in the leg. Now suppose that on reaching the police station the burglar turns out not to be a burglar at all but the family doctor? Or a late caller upon the cook? Or a gentleman who has mistaken some one's else area for his own? Of course no felony has been committed. The policeman had no right to make the arrest. Assuming that the house had been burglarized, the officer beyond a doubt had reasonable cause for a hastily formed opinion that the man in the area was the guilty party and had a right to make the arrest, but in law he makes this assumption at his peril. If he is wrong the victim has a good cause of action against the policeman for false arrest. But the execution following his civil judgment against the latter will probably be returned nulla bona by the sheriff, and he will have to pay for his own medical treatment and legal advice.

Now let us see in what position is O.C., who is not a peace officer, when he discovers the suspicious figure in the area. He may lawfully make an arrest, although he has not seen the crime committed, "when the person arrested has committed a felony." In other words, if it turns out that no crime has occurred, or that if one has in fact been perpetrated he has got hold of the wrong man, he will have to patch up the matter and very likely his own head as best he can.

We will assume O.C. to be a public-spirited citizen and that he forthwith lays hands on his burglar and reduces him to subjection. Having done so he rings the front door bell and rouses the owner of the house, who in turn discovers that the mansion has been burglarized. They then investigate the prisoner and find that he is a commercial traveller in an advanced state of intoxication who has rambled into that particular area by accident. O.C. has been guilty of an illegal arrest. Even should it prove that the intruder was in fact a burglar, but not the right burglar, the arrest would still have been without authority.[13]

To carry the illustration a little further let us assume that in each case a burglary has been committed and that the prisoner is the guilty party. What can the officer do, and what can "O.C." do, if his quarry attempt to escape?

Roughly speaking, a person lawfully engaged in arresting another for a felony or in preventing the escape of such an one lawfully arrested, may use all the force necessary for the purpose, even to taking the life of the prisoner.[14]

It is by virtue of this salutary provision of law that the unscrupulous policeman gets "square" with his enemies of the under world. When the officer clubs the "drunk" on the corner, it is on the pretext that the latter is "resisting" arrest. It is practically an impossibility to prove that it was not justifiable unless there be eye-witnesses to what has occurred, and an officer may safely be guilty of a good deal of physical brutality so long as he brings his victim to the station house under actual arrest for some alleged offence. It is only when the victim of such an assault is not arrested that the officer finds himself in an awkward situation. He must then explain why he clubbed the citizen unless the latter had committed some offence and was trying to resist arrest, and, if so, why he did not then conduct him to the station house.

There is a story told of an old veteran upon the force who was heard to remark to a companion as they left court together after the acquittal of an ex-convict on the charge of assaulting the officer:

"Begorra, Tom, 'twon't be long before I'll be afther arrestin' the cuss agin, and whin I do, pray God that he resists arrest!"