In regards to an earlier post of mine, a reader asks:
“If you think the law is stupid, do you still enforce it, or not enforce it with regularity? Just curious since I am now getting into LE work myself. “
A good and valid question.
However, given the preponderance of lawyers and the litigious nature of today’s society, and given that the upper echelons of Police Departments and Sheriff’s Offices can be very sensitive to anything that may impact negatively upon the department or head of same, it is not a question that can be directly answered on a public forum.
We can, however, examine the law as it applies to Peace Officers and their powers of arrest.
In Texas, two pieces of law directly control when, where and how we arrest folks.
The first part is found in the Code of Criminal Procedure under Powers and Duties of a Peace Officer:
a) It is the duty of every peace officer to preserve the peace within the officer’s jurisdiction.
To effect this purpose, the officer shall use all lawful means.
(b) The officer shall:
(1) in every case authorized by the provisions of this Code, interfere without warrant to prevent or suppress crime;
(2) execute all lawful process issued to the officer by any magistrate or court;
(3) give notice to some magistrate of all offenses committed within the officer’s jurisdiction, where the officer has good reason to believe there has been a violation of the penal law; and
(4) arrest offenders without warrant in every case where the officer is authorized by law, in order that they may be taken before the proper magistrate or court and be tried.
(c) It is the duty of every officer to take possession of a child under Article 63.009″
Above all else, it is the duty of a Peace Officer “to preserve the peace” within your jurisdiction.
All else is subservient to that one duty. Which means that the officer should always ask himself: “Is the action I am taking right now necessary to preserve the peace?”
Other officers will point out that the above section also states: “arrest offenders without warrant in every case where the officer is authorized by law” and tell you that an officer has no leeway in making an arrest. If you see an offense, you must make an arrest.
In response, let us peruse the part of Texas Law that allows and controls — authorizes in other words — our powers of arrest.
It is in Chapter 14 of the Code of Criminal Procedure, titled “Arrest Without Warrant”:
OFFENSE WITHIN VIEW. (a) A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.
(b) A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.
Notice the word that I have highlighted. It is a very important word.
Also, in the same chapter, we have:
AUTHORITY OF PEACE OFFICERS. (a) Any peace officer may arrest, without warrant:
(1) persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony, violation of Title 9, Chapter 42, Penal Code, breach of the peace, or offense under Section 49.02, Penal Code, or threaten, or are about to commit some offense against the laws;
(2) persons who the peace officer has probable cause to believe have committed an assault resulting in bodily injury to another person and the peace officer has probable cause to believe that there is danger of further bodily injury to that person;
(3) persons who the peace officer has probable cause to believe have committed an offense defined by Section 25.07, Penal Code (violation of Protective Order), or by Section 38.112, Penal Code (violation of Protective Order issued on basis of sexual assault), if the offense is not committed in the presence of the peace officer;
(4) persons who the peace officer has probable cause to believe have committed an offense involving family violence;
(5) persons who the peace officer has probable cause to believe have prevented or interfered with an individual’s ability to place a telephone call in an emergency, as defined by Section 42.062(d), Penal Code, if the offense is not committed in the presence of the peace officer; or (6) a person who makes a statement to the peace officer that would be admissible against the person under Article 38.21 and establishes probable cause to believe that the person has committed a felony.
(b) A peace officer shall arrest, without a warrant, a person the peace officer has probable cause to believe has committed an offense under Section 25.07, Penal Code (violation of Protective Order), or Section 38.112, Penal Code (violation of Protective Order issued on basis of sexual assault), if the offense is committed in the presence of the peace officer. (c) If reasonably necessary to verify an allegation of a violation of a protective order or of the commission of an offense involving family violence, a peace officer shall remain at the scene of the investigation to verify the allegation and to prevent the further commission of the violation or of family violence. (d) A peace officer who is outside his jurisdiction may arrest, without warrant, a person who commits an offense within the officer’s presence or view, if the offense is a felony, a violation of Chapter 42 or 49, Penal Code, or a breach of the peace. A peace officer making an arrest under this subsection shall, as soon as practicable after making the arrest, notify a law enforcement agency having jurisdiction where the arrest was made. The law enforcement agency shall then take custody of the person committing the offense and take the person before a magistrate in compliance with Article 14.06 of this code.
Again, I have highlighted the most important words.
There are only two cases where a Peace Officer must arrest someone. Both cases are when the person has violated a Protective Order in the presence of the Peace Officer. In all other cases — including your question concerning weapons — the Peace Officer MAY make an arrest.
Please bear in mind that all of the above does not apply when you have knowledge of a valid arrest warrant. The above only applies for non-warrant on-sight arrests.
In the past, the Sheriffs I have worked for have made it clear to me that I was a Conservator of Peace in the County, not a Law Enforcement Officer, and that I was expected to use good judgement and common sense regarding on-sight arrests. In using what I felt was good judgement and common sense there were cases where I felt arresting an offender would not conserve the peace in my County, nor would it serve justice.
My previous Sheriffs never found it necessary to censure me concerning those decisions.
I can also state that in my current job, I obey Texas law as regards to my duties, and I follow the General Orders and Standard Operating Procedures as laid out by the Sheriff in my County.
To do less would be grounds for termination.