Assistant police chief continues calls to expand law enforcement arrest power

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If you see someone tattooing a child or mistreating an animal and expect police to make an arrest, you’re out of luck, says Brookfield Assistant Police Chief Dean Collins.

It’s not that they don’t want to, he said. It’s instead that state law, according to Collins, simply does not permit them to.

“The question before the (state) Legislature is whether they want their laws enforced or not,” Collins said. “… Ultimately, the ball is in the Legislature’s court to decide how to address this void in the law.”

A yawning gap?

Wisconsin law obviously allows police to make arrests for crimes. When it comes to civil infractions, though, the authority can be used only against those who violate traffic laws, municipal ordinances or alcohol laws. The limits, Collins said, were set by the state Court of Appeals in the case of City of Madison vs. Ricky Two Crow.

The law thus leaves out an entire class of violations that fall short of being crimes but are still punishable by forfeitures. Collins also cautioned that the word “arrest” means more than simply taking someone into custody.

“It doesn’t mean that people spend a night in jail,” he said. “It gives us an ability to enforce, which gives us a spectrum of actions to take.”

When police are allowed to make arrests, they become better able to stop someone without violating Fourth Amendment rights, to subject a person to questioning or to take a suspect to the police station.

Dangers of the ‘lacuna’

Collins argued that the lack of explicit arrest authority for certain civil infractions has very real consequences for law enforcement. If police officers are suspected of violating someone’s Fourth Amendment rights, they can be sued in federal court and made to pay both damages and attorney’s fees. A victory against police is easy to secure in those sorts of cases, he said, largely because of the precedent set by City of Madison vs. Ricky Two Crow.

That is exactly what happened when officers from the Brookfield Police Department took Krysta Sutterfield into custody in 2010 for illegally transporting firearms. The arrest was made before the state passed its conceal-carry law.

Sutterfield later sued the police in federal court, alleging that the arrest was unlawful and that her Fourth Amendment rights had been violated. Sutterfield argued that she was apprehended for a type of civil infraction that did not permit arrests.

The Brookfield Police Department eventually settled the lawsuit for $7,500. Expanding law enforcement’s authority to make arrests in response to civil violations would help prevent such costly legal disputes, Collins said.

Even so, at least some participants in the legal system say these types of civil-liberties cases remain rare.

“Sometimes police will make bad arrests, and that’s what the legal system works out,” said Ray Dall’Osto, a Milwaukee criminal defense attorney and former director of the Wisconsin affiliate of the American Civil Liberties Union.

On the other hand, criminal defense lawyers acknowledge that one of the first questions they ask in such a case is: Was the arrest made in a lawful way?

“It’s something we always look for: Whether the detention was justified in the first place,” said Julius Kim, Brookfield defense attorney and former prosecutor.

Kim said he understands why Collins is frustrated. When Kim worked as a prosecutor, he spent time training Milwaukee police officers on how to make lawful arrests.

Many of the civil violations on Collins’ list can fall under the heading of disorderly conduct, Kim said.

“I always used to tell the cops, ‘There’s always more than one way to skin a cat,’” he said. “There’s plenty on the criminal state statute books that would justify an arrest.”

Man with a mission — and a solution

For years, Collins has been lobbying the Legislature and state to expand law enforcement’s authority to make arrests. In 2011, he came close to successfully lobbying in favor of a one-sentence bill, AB 237. The proposal was supported by organizations such as the Wisconsin District Attorneys Association and the Wisconsin Police Chiefs Association.

“The solution is so simple,” Collins said. “Just add one sentence to the statutes. It’s so simple. And they can use the same language they use for crimes, traffic violations, alcoholic beverage violation and municipal ordinances.”

An Assembly panel approved the bill, but it never made it to the floor of the Legislature. A number of the bill’s authors withdrew their support, and Sen. Van Wanggaard, R-Racine, decided to cease being a sponsor. Wanggaard said he changed his mind because he decided much could be accomplished simply by making sure the public was better informed of the true meaning of the word “arrest.”

More recently, Collins has pushed for the bill’s language to be incorporated into an expansive overhaul of the state’s criminal code. Earlier this year, Collins also tried to pique the interest of members of the Wisconsin Judicial Council, which recommends changes to the state’s court system.

At the council’s June meeting, though, members declined to take up the proposal. They contended that the council’s primary responsibilities are procedural rather than substantive and that arrest authority is something that ought to be instead taken up by the Legislature.

On Aug. 20, Collins testified at the end of the 5-1/2 hour hearing on the criminal procedure bill. He urged lawmakers to insert language from the 2011 bill into the proposal, but did not get much of a response.

“I’m not sure if they are inclined to (listen) or not,” he said. “But they can’t say they weren’t told. I told them two years ago, and I told them again.”

Another way?

Both Dall’Osto and Kim, meanwhile, say that expanding law-enforcement officials’ arrest authority would be going too far.

“It’s using the 500-pound bomb to kill the fly,” said Dall’Osto. “It will cause a lot more collateral damage.”

If police were allowed to take those suspected of civil infractions into custody, the resulting records would eventually appear on the state’s court website, where the public could view them. Being associated with a violation, even a relatively minor one, could greatly harm a person’s employment prospects.

Moreover, the type of charge filed could have a further ripple effect, Dall’Osto said, becoming registered with the Department of Transportation and even the Crime Information Bureau in Madison.

Then there’s the likelihood that expanding arrest powers would mean more work for the state’s already-taxed justice system, Dall’Osto said.

“Look at it as a systemic flow,” he said. “You’re going to create a lot more work internally. That’s going to slow things down … clog the system unnecessarily. It’s already clogged, but at least the water’s flowing.” Follow @erikastrebel