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Immunity

A decision governing state legislators’ immunity from arrest, citing exclusively ancient authority as precedent, may seem of little relevance to the average attorney or citizen. Ironically, however, the decision is of great significance to citizens ranging from the most civic-minded to the most indifferent.

Of course, most current statutes that use the term, “breach of the peace,” indisputably intend the modern definition, and are not affected: repossession of secured collateral; repossession of leased property; labor laws; and of course, the disorderly conduct statutes, themselves.

Nevertheless, the court’s definition of the phrase, “breach of the peace,” arguably applies to the common law right of citizen’s arrest, and county sheriffs’ posse comitatus powers.

Citizens’ common law right to make an arrest for crimes that occur in their presence is alternately stated in two ways: if the crime is a felony or a breach of the peace; or if the crime is a felony or a misdemeanor that involves breach of the peace (i.e., violence or threat of violence). 5 Am.Jur. (2d) Arrest, pps. 708-709, secs. 56 & 57.

The leading Wisconsin case discussing citizens’ arrest holds that citizens’ arrest rights for misdemeanors are limited to those involving violence or the threat of violence, applying the modern day interpretation of “breach of the peace.” Radloff v. National Foods Stores, Inc., 20 Wis.2d 224, 123 N.W.2d 570 (1963).

In Radloff, a store was sued for injuries incurred when employees attempted to arrest a shoplifter. The Supreme Court held that shoplifting, a misdemeanor, did not involve a breach of the peace, and therefore, the store could be held liable.

The decision was partially overturned by the legislature via sec. 943.50, which authorizes merchants to detain suspected shoplifters, and gives them immunity from civil or criminal liability for such acts taken in good faith.

Nevertheless, the gist of Radloff remains the law — citizens have no authority to make arrests for misdemeanors not involving violence or the threat of it. Most recently, the court of appeals applied the modern definition to hold that driving while intoxicated was a crime involving a breach of the peace, and a citizens’ arrest was lawful. City of Waukesha v. Gorz, 166 Wis.2d 243, 479 N.W.2d 221 (Ct.App.1991).

The courts in those cases did not discuss the common law definition of “breach of the peace,” however, but rested their decisions solely on public policy. A reconsideration of the reasoning in Radloff may be warranted to determine whether citizens’ authority to arrest has been improperly limited in past years by a misinterpretation of “breach of the peace.”

As for the indifferent — those who would ignore a peace officer’s command to assist in an arrest — their liability is arguably increased by this decision.

Section 59.28 provides that sheriffs and their deputies may call to their aid any persons necessary to apprehend another person committing a felony or breach of the peace.

Section 946.40 makes it a Class C misdemeanor for any citizen to refuse such a command. However, the statute also states it does not apply if the officer is not authorized to command such assistance.

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Wisconsin Court of Appeals

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Under the definition of breach of the peace adopted by the court in Burke’s case, any refusal to aid an officer would be a crime, regardless of the crime committed by the suspect. This interpretation is arguably warranted, given that the predecessor statutes to sec. 59.28 date back to the beginning of our statehood.

Under the modern definition of breach of the peace rejected by the court, however, a citizen could refuse to aid an officer attempting to arrest a misdemeanant if the crime does not involve violence or the threat of violence.

Thus, even the most indifferent citizen — who would refuse to aid a police officer, much less vote in a State Senate race — may be affected by Burke’s case.

For the most thorough discussion of the common law definition of “breach of the peace,” see the U.S. Supreme Court’s definition in Atwater v. City of Lago Vista, et al., 532 U.S. 318, 121 S.Ct. 1536 (2001). For a guide to Wisconsin cases, see 1959 Wisconsin Law Review, 489, 496-499, 518-520.

– David Ziemer

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David Ziemer can be reached by email.

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