It's going to take a paradigm shift, one I believe will have to start with government officials. I think the constabulary is in the prime position for this, being beholden to no elected officials, and having a jurisdiction of not their bailiwick but the state. There are thousands of constable positions in PA, one for each township and ward, and so many of them vacant. It takes 10 valid petitioners/signatures and a hearing to take a vacancy, and for places where there are rarely challengers for the position, 10 (write in) votes (or less?) to be elected.
I imagine that much of the unlawful conduct police undertake against the people are breaches of the peace (as today's understanding has accumulated, anyway). I can only chuckle as I imagine constables swarming around police officers as flash-mob independent oversight committees and how annoyed those officers might be that they have to at once consider their oaths. On the other hand, I can imagine how dangerous that's going to be when the officer thinks he is the be all and end all of the law and another law man demands that he stand down. In any case, constables of boroughs also have enlarged statutory powers of arrest.
Other than in the case of enlarged statutory arrest powers for some of them, constables have and office and the law explicitly behind them which is not so much the case for laypersons, which is why I think they would need to lead the way for change.
(ETA: The above all seemed like a good idea until I just read the following: "Thus, we conclude, given this legislative regulation, that constables possess no common law police or peace officer powers but can only exercise the authority granted by statute."
Com. v. Roose, 690 A.2d 268 (Pa.Super. 1997). lol, will have to do more research.)
I'm weary of the breadth of that breach of the peace arrest power. At first I was going to say that the courts have either not commented on it or have limited their discussion to felonies and misdemeanor breaches of the peace. Then I came across Com. v. Dobbins, 594 Pa. 71 (2007) which does repeatedly make mention of "breaches of the peace" without the attendant qualification "misdemeanor" (although I didn't read through Dobbins right now to seek the context.) Whether or not there is some historical common law power to arrest for breach of the peace summary offenses, I don't know, but there is doubt cast on that ability today. "It is black letter law, reiterated and statutorily defined by Pa.R.Cr.P. 51, that a private citizen may not make an arrest for a summary offense." Com. v. Stahl, 442 A.2d 1166 (Pa.Super. 1982).
Also, as to what actually is a breach of the peace, the courts have occasionally treated that a bit broadly. I've come across an annotation (which I'd like to find again...) in WestLaw noting a case that said it was a breach of the peace to transport illegal drugs in a vehicle. I don't really see how that could be, since we'd be approaching the point where few things aren't a breach of the peace.
If you did commit a crime (cognizable under our constitutions, anyway, and subject to arrest) then I guess you'd better hope that the person didn't make note of your conduct on any report or to any person, so that the evidence making the foundation for the arrest dies with him.
January 4th, 2011
Re: Citizens Arrest
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