Delude v. Raasakka

*673Van Valkenburg, J.

(dissenting). This appeal involves an interpretation as to the extent of authority granted police officers to make an arrest outside of their jurisdictions. I have concluded that the one arrived at by my distinguished colleagues is in error, and, therefore, respectfully dissent.

First, it must be emphasized that the defendants herein were not the officers who observed and pursued plaintiffs speeding vehicle, but rather they were among the officers who responded to the pursuing officers’ radio call for assistance.

The sole issue with which we are concerned centers around the question of whether or not the trial court erred by instructing the jury that the arrest of the plaintiff was unlawful, and that anyone assisting in the arrest was equally liable.

The pertinent parts of the charge given by the trial judge read as follows:

" * * * that the police officers, Bade and Korb, had no right to arrest the plaintiff for a breach of the peace.
"Therefore, you will not concern yourself with the breach of the peace or resisting of arrest since that could not serve as a basis for a lawful arrest. Once these defendants left the city of Flint, they were acting as private citizens and not as police officers.
"Officers Bade and Korb did not have legal authority to arrest the plaintiff. Their act of arresting and taking him into custody and imprisoning him in the city jail constituted false imprisonment. If you find that these defendants or either of them wrongfully assisted officers Bade and Korb in the false imprisonment, then you will return a verdict against the defendants in favor of the plaintiff.
*674"First of all, you start out with the proposition that officers Bade and Korb had no right to make an arrest. And so whatever they did from the point that they attempted to restrain the plaintiff onward throughout all these proceedings was done without any authority because they were outside their bailiwick; that is, they were outside the City of Flint.
"But, then they put in a call for help and the defendants arrived on the scene. But when the defendants left the City of Flint, they too were without any authority to act as police officers.”

Analysis of the above clearly indicates that the learned trial judge, in effect, directed a verdict for the plaintiff. The trial court’s charge to the jury was in error for two reasons: (1) it would appear that under these circumstances defendant officers were statutorily vested with the authority to arrest in their official capacity, and (2) even if the officers were acting as private citizens, private citizens have the power to make an arrest for breaches of the peace committed in their presence.

The authority of a policeman to arrest outside his bailiwick.

The status of defendant officers is largely dependent upon the status of the officers who pursued plaintiff from within the corporate limits of Flint to the point of arrest just outside the city limits. In this regard I cannot agree with the statutory interpretation expressed by my brother judges in the majority opinion. The majority opinion reads into the statute defining the powers of arrest of policemen of home rule cities, MCLA 117.34; MSA 5.2114,1 the limitation that a person who is pur*675sued from within the city to some point outside the city limits can only be arrested for the crime for which that person was pursued. The statute contains no such limitation. On the contrary, the statute specifically provides: "When any person has committed * * * any crime or misdemeanor within a city * * * the police officers of the city shall have the same right to * * * arrest and detain such person without the city limits as the sheriff of the county” (Emphasis added.)

The Legislature has expressly provided that police officers of home rule cities shall have the same right to arrest outside the city a person who has committed a crime within the city as would the sheriff of the county. The very use of the language "the same power” connotes that the pursuing police officers shall have the statutory authority to arrest the person pursued for any crime for which the sheriff could arrest under similar circumstances. MCLA 117.34, supra, thus, in effect, makes the pursuing police officer an officer of the county with respect to the person pursued, with powers to arrest that person which are co-extensive with those of the sheriff.

The original pursuing officers were thus clothed with the statutory power to arrest plaintiff for breach of the peace and resisting arrest. 2 What then was the status of the defendants who answered the pursuing officers’ call for assistance? Since the pursuing officers were clothed with the statutory authority to act as officers of the county with respect to plaintiff, the defendants were likewise clothed with the same authority by virtue of MCLA 764.2a; MSA 28.861(1) which provides:

*676"Any peace officer of any county, city or village of this state may exercise authority and powers outside his own county, city or village, when he shall be enforcing the laws of the state of Michigan in conjunction with the Michigan state police, or in conjunction with any peace officer of the county, city or village in which he may be, the same as if he were in his own county, city or village.” (Emphasis supplied.)

It should also be noted that even if defendants were acting merely as private citizens, they would have the power to arrest, since they had been summoned by duly-authorized peace officers to assist said officers in making a valid and proper arrest. See MCLA 764.16; MSA 28.875.

Clearly the pursuing officers had the statutory right to act as peace officers, and to effectuate plaintiff’s arrest for any crime, even though they were outside their own bailiwick. Defendants were thereby also clothed with the same authority when they answered the call for assistance. Any other statutory construction would create the anomalous result of requiring the assisting officers to run the risk of possible civil liability when requested to assist a duly-authorized brother officer. Such a result obviously was not intended by the Legislature, nor is it in accord with the public policy of this state. As stated in Odinetz v Budds, 315 Mich 512, 518 (1946):

"If possible, any doubt should be resolved in favor of an honest discharge of duty by peace officers, and the courts should not place them in fear of responding in damages for the lawful and proper discharge of that duty.”

Arrest for breach of the peace by a private citizen.

Notwithstanding the above discussion with regard to whether the defendants were statutorily *677authorized to act as peace officers, it is clear that the trial court erred in holding that neither the original officers nor defendants could arrest plaintiff for breach of the peace if acting as private citizens. The law with regard to the right and power of a private citizen to arrest for breaches of the peace is succinctly stated in OAG, 1947-1948, No 375, pp 317, 318-319 (May 20, 1947):

"Private persons retain the common-law power to make arrests for felonies and breaches of the peace committed in their presence, People v Moore, 2 Doug 1, 4 [1845]; Quinn v Heisel, 40 Mich 576, 580 [1879]; Ross v Leggett, 61 Mich 445, 449 [1886]; People v McLean, 68 Mich 480, 485 [1888], as well as arrests for felonies which have in fact been committed, although not in their presence, provided they are able to prove a reasonable ground for believing that the person arrested committed the felony. Maliniemi v Gronlund, 92 Mich 222, 227 [1892]; Filer v Smith, 96 Mich 347 [1893].
"Care should be exercised in arresting for a felony not committed in the presence of the arresting individual, for in justifying such an arrest the arresting individual must be able to prove that a felony was in fact committed and a reasonable ground existed for believing that the person arrested committed the same. See Maliniemi and Filer cases, supra.
"3 Comp Laws 1929, § [17150], section [16], ch 4, code of criminal procedure Stat Ann § 28.875, provides:
'A private person may make an arrest—
'(a) For a felony committed in his presence;
'(b) When the person to be arrested has committed a felony although not in his presence;
'(c) When summoned by any peace officer to assist said officer in making an arrest.’
"In addition to the foregoing powers continued by statute, private persons still possess the power to arrest for breaches of the peace committed in their presence, the common law respecting such arrests not being inconsistent with the foregoing statute. Principles of the common law are not abrogated by implication un*678less the common law and the statute are in direct conflict. Smith v Martin, 124 Mich 34, 35 [1900]. It is never presumed that the legislature intended to make any innovation upon the common law any further than the case absolutely requires in order to carry an act into effect. Wales v Lyon, 2 Mich 276, 282 [1851]; Garwols v Bankers Trust Co, 251 Mich 420, 425 [1930].”

The Michigan rule would thus appear to be in accord with the generally accepted rule as stated in 6 CJS, Arrest, § 8, p 607:

"A private person may, ordinarily, arrest without a warrant one committing a breach of the peace in his presence.”

See, also, 5 Am Jur 2d, Arrest, § 34, p 726, which states:

"The authority of a private person to arrest without warrant is more limited than that of an officer. Nevertheless, the common law accorded a private person extensive powers to arrest without warrant for felonies and breaches of the peace committed in his presence, and on probable cause for past felonies, provided they had actually been committed.”

For a fine discussion of the power of arrest of a police officer who pursues a misdemeanant to a point outside his jurisdiction and thus must act as á private citizen, see State v Hodgson, 200 A2d 567 (Superior Court of Delaware, 1964).

For the reasons set forth herein, I find that the trial court’s charge to the jury was erroneous and caused incalculable prejudice to defendants. While the jury might well find that the plaintiffs actions did not constitute a breach of the peace, and thus find that plaintiff was falsely arrested and imprisoned, it is a question for the jury. I would therefore vote to reverse and remand for a new trial.

MCLA 117.34; MSA 5.2114 provides:

"When any person has committed or is suspected of having committed any crime or misdemeanor within a city, or has escaped from any city prison, the police officers of the city shall have the same right to *675pursue, arrest and detain such person without the city limits as the sheriff of the county.”

Plaintiff admitted both at trial and in oral argument before this Court that he was speeding within the Flint city limits and was pursued by the original officer to a point just outside the city limits.