CACI No. 1404. False Arrest Without Warrant - Affirmative Defense - Private Citizen - Probable Cause to Arrest

Judicial Council of California Civil Jury Instructions (2020 edition)

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1404.False Arrest Without Warrant - Affirmative Defense - Private
Citizen - Probable Cause to Arrest
[Name of defendant] claims the citizen’s arrest was not wrongful because
[he/she/nonbinary pronoun] had the authority to cause [name of plaintiff]
to be arrested without a warrant.
[If [name of defendant] proves that [name of plaintiff] committed or
attempted to commit a crime in [name of defendant]’s presence, then the
arrest was lawful.]
[or]
[If [name of defendant] proves that a felony was committed and that
[insert facts, that if proved, would establish that defendant had reasonable
cause to believe that plaintiff had committed a felony], then the arrest was
lawful.]
New September 2003
Directions for Use
The judge must insert in the brackets the fact or facts that are actually controverted
and that may be necessary to arrive at the probable cause determination. There may
be one or more facts or combinations of facts that are necessary to make this
determination, in which case they can be phrased in the alternative.
If a criminal act is alleged as justification, it may be necessary to instruct whether
the crime is a felony, misdemeanor, or public offense.
Penal Code section 837 provides, in part, that a warrantless arrest may be made if a
person has committed a felony, although not in the citizen’s presence. While the
requirement of probable cause is not explicitly stated, it would seem that the citizen
must always have probable cause at the time of the arrest and that subsequent
conviction of a felony does not sanitize an improper arrest.
Sources and Authority
• Citizen’s Arrest. Penal Code section 837.
• Felonies and Misdemeanors. Penal Code section 17(a).
• “What is probable cause, as has been often announced, is not a question of fact
for the jury, but one of law for the court, to be decided in accordance with the
circumstances at the time of the detention, unhampered by the outcome of the
charge against the plaintiff of the public offense or by the conclusions of the trial
court.” (Collyer v. S.H. Kress Co. (1936) 5 Cal.2d 175, 181 [54 P.2d 20], internal
citations omitted.)
• “ ‘Presence’ is not mere physical proximity but is determined by whether the
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offense is apparent to the [person]’s senses.” (People v. Sjosten (1968) 262
Cal.App.2d 539, 543-544 [68 Cal.Rptr. 832], internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 438, 439
3 Levy et al., California Torts, Ch. 42, False Imprisonment and False Arrest,
§ 42.22 (Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 257, False Imprisonment,
§ 257.19 (Matthew Bender)
10 California Points and Authorities, Ch. 103, False Imprisonment, § 103.60 et seq.
(Matthew Bender)
1 California Civil Practice: Torts § 13:11 (Thomson Reuters)
FALSE IMPRISONMENT CACI No. 1404
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