Fri. Jul 12th, 2024

Penal Code 142 PC – Peace Officer Refusing to Arrest or Receive Person Charged with Criminal Offense

PART 1 – OF CRIMES AND PUNISHMENTS
TITLE 7 – OF CRIMES AGAINST PUBLIC JUSTICE
CHAPTER 7 – Other Offenses Against Public Justice
Section 142.

Universal Citation: CA Penal Code § 142 (2021)

142.

  • (a) Any peace officer who has the authority to receive or arrest a person charged with a criminal offense and willfully refuses to receive or arrest that person shall be punished by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in a county jail not exceeding one year, or pursuant to subdivision (h) of Section 1170, or by both that fine and imprisonment.
  • (b) Notwithstanding subdivision (a), the sheriff may determine whether any jail, institution, or facility under his or her direction shall be designated as a reception, holding, or confinement facility, or shall be used for several of those purposes, and may designate the class of prisoners for which any facility shall be used.
  • (c) This section shall not apply to arrests made pursuant to Section 837.
  • (Amended by Stats. 2011, Ch. 15, Sec. 255. (AB 109) Effective April 4, 2011. Operative October 1, 2011, by Sec. 636 of Ch. 15, as amended by Stats. 2011, Ch. 39, Sec. 68.)

Vol. 18 No. 1 Citizens Arrests And P.C. 142

To: All Police Chiefs and Sheriffs

From: Martin J. Mayer

 

CITIZENS ARRESTS AND P.C. 142

Recently I was contacted by several clients with questions about a memo sent by another law firm indicating that the law, requiring officers to accept citizen arrests, had changed; that is correct information.

P.C. 142 makes it a felony for a peace officer to “willfully” refuse to “receive” a person arrested and charged with a criminal offense. This, before the change in the law, included the arrest of someone by a private person under the citizen’s arrest provision of P.C. 837 – even if the officer was going to release the arrestee pursuant to P.C. 849(b)(1).

Federal law, however, requires probable cause to believe a crime has been committed before a government agent can take someone’s liberty – and “receiving” an arrested person is restricting their liberty. Therefore, when an officer accepts custody of the arrested person, even for the short time it takes to complete the 849(b)(1) release, the officer is violating that person’s federal civil rights, since the officer has NO probable cause to believe a crime was committed.

That is called a “Catch 22!”

When that was made clear to us by a federal judge, while we were representing a city and it’s police department in a matter arising out of a citizen’s arrest, we decided to do something about it. As General Counsel to the California State Sheriffs Association (CSSA) I asked for, and received, authorization from it’s Board of Directors to attempt to “fix the problem.” With the outstanding assistance of Nick Warner, Legislative Advocate for CSSA, we were able to secure the support of Assembly member Bates, of San Diego, to author AB 1835. The Bill deletes those arrests made pursuant to P.C. 837 from the mandate of P.C. 142, and an officer will no longer face the possibility of felony prosecution if he or she refuses to accept a citizen’s arrest.

Nick [along with help from John Lovell, Legislative Advocate for the California Police Chiefs Association (CPCA) and California Peace Officers Association (CPOA)], then “ran with the ball” and secured virtually total support in the legislature for the successful passage of the Bill. The Bill was signed by Governor Gray Davis on September 13, 2002 and filed with the Secretary of State on September 15, 2002.

We are obviously very pleased with this legislative success, since it removes from a peace officer a burden which made no sense. Placing an officer in a position where the use of discretion could result in a felony conviction under state law, and the failure to exercise discretion could violate federal law, was absurd. This change in California law removes that “Catch 22.”

Jones & Mayer is, quite frankly, proud of our ability, as legal counsel to California law enforcement, to have accomplished this on behalf of law enforcement. It proves, once again, that through a teamwork effort much can be done. It was also a pleasure to work with, and have support from, both labor and management groups throughout the state.

As always, we urge that you confer with your agency’s legal advisor regarding this matter. If you have questions or wish to discuss this Memo in greater detail, please do not hesitate to communicate with Martin Mayer at 714-446-1400 or mjm@jones-mayer.com.

[The Law Offices of Jones & Mayer located in Fullerton, California focus its practice on representing the interests of public entities as its City Attorney, in labor negotiations, in defending tort litigation and civil rights litigation. Martin Mayer focuses his practice in the area of representing cities, counties and the State on matters arising out of their respective law enforcement agencies.] source


Peace Officer Refusing to Arrest or Receive Person Charged with Criminal Offense – Penal Code Section 142

It is a crime for a California peace officer to refuse to arrest, or refuse to receive a person for arrest where a duty to arrest exists.(1)

The crime is punishable in the following manner:

  1. A misdemeanor carrying up to 1 year in jail,
  2. A felony punishable by up to three years in a felony jail facility (county jail), or by a $10,000 fine, or by both fine and imprisonment.

The law essentially punishes any peace officer who willfully neglects his or her public duty.(2)  A peace officer generally has the authority, however, to release a person soon after arresting them.(3) The officer has fulfilled his or her duty by making the arrest.(4)

Commentary on Penal Code Section 142 Violations:

The author is a former supervising prosecutor in the Ventura County District Attorney’s Office.  The Ventura County District Attorney’s Office has never, to the author’s knowledge, prosecuted a peace officer for a violation of Penal Code Section 142.

The statute supports the basis for peace officers receiving individuals placed under citizen’s arrest.  The purpose of the statute is to keep the public peace, and to ensure that officers are fulfilling their lawful duties.(5)

In 1990, the California Attorney General rendered an opinion that a peace officer must accept a person into custody who has been placed under citizen’s arrest for a crime even though the officer believes that there is insufficient grounds for making a criminal complaint.(6)

Sources Cited:

  • (1) Penal Code Section 142(a) reads: “Any peace officer who has the authority to receive or arrest a person charged with a criminal offense and willfully refuses to receive or arrest that person shall be punished by a fine not exceeding ten thousand ($10,000) dollars, or by imprisonment in a county jail not exceeding one year . . .or by both that fine and imprisonment.”
  • (2) 2 Witkin, California Criminal Law, Fourth Edition,  Govt. Section 117 (2012).
  • (3) People v. Pringle (1984) 151 Cal.App.3d 854, 855.
  • (4) 2 Witkin, Calfiornia Criminal Law, Fourth Edition, Goft. Section 117 (2012), citing People v. Pringle (1984) 151 Cal.App.3d 854, 855.
  • (5) See 73 Ops.Cal.Atty.Gen 291 (Cal.A.G.), 1990 WL484773 [Attorney General’s Answer to official question asked by Ventura County District Attorney Michael D. Brabury: “Must a California peace officer accept custody of a person who has been placed under citizen’s arrest for a crime when requested to do so by the person who made the arrest if the officer is satisfied that there is insufficient grounds for making a criminal complaint against the person arrested?”
  • (6) Id.