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"Current law requires that an officer must take receipt of an individual placed under citizens' arrest. The criminal penalties attached to Penal Code Section 142 leave the officer no room to exercise his/her discretion in determining if a crime has occurred and if the person's civil rights would be violated if placed under arrest.

"Penal Code Section 142, which makes it a felony for a peace officer to refuse to accept custody of an individual arrested by a private person pursuant to Penal Code Section 837, can create a significant conflict with the federal requirement that a peace officer must have probable cause before taking a person into custody. If an officer does believe that a crime has been articulated by the private person, the officer is still obligated to accept custody of the individual and can then release the person from custody pursuant to Penal Code Section 849(b)(1).

"These laws place the officer in the proverbial "catch 22" situation: if the officer refuses to take custody of the individual because of a lack of a probable cause, he or she could be found to be in violation of Penal Code Section 142. On the other hand, if the officer does not believe a crime has been articulated, but follows the mandated PC section 142 and accepts custody for the purpose of complying with the state law, he or she could be found to have violated the individual's federal civil rights."

Hmm. When a cop is asked to arrest someone on "weapons of mass destruction" and upon patting them down finds they don't have so much as a match much less a 50 foot long, several ton cruise missile, does the officer have "probable cause"?

Keith Henson