OC for ME
Regular Member
I'd enjoy reading the outcome of WW detaining a citizen who wore a gun in a GFSZ.
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Local LEO's enforcing federal law? Allowed or not?
- Thread starter self preservation
- Start date
BB62
Accomplished Advocate
Me too!
color of law
Accomplished Advocate
States may participate in various ways in the enforcement of federal criminal law. But, taking it on their own to enforce federal laws is not authorized by the constitution. States lack power to enforce federal criminal law directly because state prosecutors don't have authority to prosecute federal offenders themselves in state or federal court. Enforcement of federal criminal law by state prosecutors more than likely violates the Appointments and Take Care Clauses of Article II of the U.S. Constitution.
I would bet any officer that would detain an open carrier that is within 1,000 ft. of a school without more will find them-self in hot water.
And I know of no federal case law where someone was prosecuted in federal court just for the fact of being within 1,000ft. of a school carrying a gun.
If you know of a case I would like to see it.
I would bet any officer that would detain an open carrier that is within 1,000 ft. of a school without more will find them-self in hot water.
And I know of no federal case law where someone was prosecuted in federal court just for the fact of being within 1,000ft. of a school carrying a gun.
If you know of a case I would like to see it.
WalkingWolf
Regular Member
Well let's see~~it is lawful for a citizen to make a detention on federal law~~IF the person resists with violence I am sure the prosecution would not be JUST for GFSZA. I have a school 2 miles from me, BenHaven, feel froggy?
I am more than willing to test this out.
color of law
Accomplished Advocate
Lets stay on point; the title of this thread is "Local LEO's enforcing federal law? Allowed or not?"
For more than 25 years my home abutted a school. Open carried on a regular bases. The area was residential. The police chief and a couple of his officers did not see eye to eye with my stance as it related to citizens and their possession of firearms. I was never challenged in regards to being within 1,000 ft. of the school. That's my experience. What's yours?
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WalkingWolf
Regular Member
On point it is allowed, even private citizens have the power to detain or make arrests, it would be stupid to think police officers are excluded. Here is my experience any felony in NC a citizen can, and they have detained individuals for. Violation of GFSZA is a felony, and it is within a private persons power to detain for a felony. There is nothing that the citizen could get in trouble for as YOU alluded. Most people do not give a damn about the GFSZA, including LEO's but that is not a invitation to press your luck. Even as a police officer I avoided gun charges if at all possible. But as a private citizen I would make a exception for a Richard head.
Hell clerks in stores and LP has detained for passing bad notes, on federal law, private citizens make arrests across the country and it is common. Even in DC the power of citizen's arrest is recongnized. Which DC laws are federal laws.
District of Columbia Law 23- 582(b) reads as follows:
(b) A private person may arrest another -
(1) who he has probable cause to believe is committing in his presence -
(A) a felony, or
(B) an offense enumerated in section 23-581 (a)(2); or
(2) in aid of a law enforcement officer or special policeman, or other person authorized by law to make an arrest.
(c) Any person making an arrest pursuant to this section shall deliver the person arrested to a law enforcement officer without unreasonable delay. (July 29, 1970, 84 Stat. 630, Pub. L. 91-358, Title II, § 210(a); 1973 Ed., § 23-582; Apr. 30, 1988, D.C. Law 7-104, § 7(e), 35 DCR 147.)
Anytime you want to test your theory let me know. I have made many detentions as a private citizen, all convictions. In fact the prosecution loves private citizens detentions, because it is a case where the private citizen is a witness to the crime. I am guessing you are not a attorney. :lol:
Primus
Regular Member
WW your proving our point... the State must have a law on file that says you can enforce said law. It isn't just "if it doesn't say I can't, then I can".
Connecticut law authorizes state and local police to arrest people for violations of federal criminal law. But, whether they can legally make an arrest for a specific federal crime depends on whether federal law explicitly or implicitly allows them to make an arrest for that crime. Congress' power to prohibit a state from enforcing a federal law rests with the Supremacy Clause of the federal constitution, which provides that the “laws of the United States. . .shall be the supreme law of the land. . .any thing in the Constitution of laws of any state to the contrary notwithstanding” (U.S. Constitution Art. VI, cl. 2).
http://www.cga.ct.gov/2005/rpt/2005-R-0457.htm
Above is an excerpt from a paper on Connecticut law and the enforcing immigration laws.
Primus
Regular Member
Here's more on the Jurisdiction issues that were mentioned earlier.
http://criminal.lawyers.com/Criminal-Law-Basics/Jurisdiction-Where-Can-the-Police-Make-Arrests.html
Note: It says right out the Feds enforce Fed laws and Local enforce Local laws. There has to be some type of agreement or local law that allows you to enforce Fed law.
http://criminal.lawyers.com/Criminal-Law-Basics/Jurisdiction-Where-Can-the-Police-Make-Arrests.html
Note: It says right out the Feds enforce Fed laws and Local enforce Local laws. There has to be some type of agreement or local law that allows you to enforce Fed law.
Primus
Regular Member
I apologize for reposting your link. I hadnt seen this before I started looking.
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Primus
Regular Member
Citizen's arrest
http://www.constitution.org/grossack/arrest.htm
Historically, in Anglo Saxon law in medieval England citizen's arrests were an important part of community law enforcement. Sheriffs encouraged and relied upon active participation by able bodied persons in the towns and villages of their jurisdiction. From this legacy originated the concept of the posse comitatus which is a part of the United States legal tradition as well as the English. In medieval England, the right of private persons to make arrests was virtually identical to the right of a sheriff and constable to do so. (See Inbau and Thompson, Criminal Procedure, The Foundation Press, Mineola, NY 1974.
A strong argument can be made that the right to make a citizen's arrest is a constitutionally protected right under the Ninth Amendment as its impact includes the individual's natural right to self preservation and the defense of the others. Indeed, the laws of citizens arrest appear to be predicated upon the effectiveness of the Second Amendment. Simply put, without firepower, people are less likely going to be able to make a citizen's arrest. A random sampling of the various states as well as the District of Columbia indicates that a citizen's arrest is valid when a public offense was committed in the presence of the arresting private citizen or when the arresting private citizen has a reasonable belief that the suspect has committed a felony, whether or not in the presence of the arresting citizen.
http://www.constitution.org/grossack/arrest.htm
Note the bolded part. I know you keep mentioning the common law aspect of Citizens arrest. Again here... it's a jurisdictional issue. I'm aware that most states have the "felony in presence" citizens arrest. Some states have variations but thats the gist of it. I'm searching for a cite, but I'm ceratin it's a Felony as defined by STATE law, not Fed. Law. As you mentioned, it's stupid that a citizen could arrest for the GFSZ and a cop couldn't. I don't think either can. Could the citzen arrest for some Felony as described in state law? Yes.
Internet is your friend.... http://answers.yahoo.com/question/index?qid=20090819142559AAHQ8mF
I wish he had a cite to a court case, but I honestly don't believe it's ever happened. I'm open to being proven wrong, but I honestly believe Citizen's arrest is for STATE felony. I also believe that the State must have an explicite agreement and written legislation that GIVES powers to its LE to enforce Federal law. I'm aware it's not enough, but I'm telling you as a local LE that we do not and cannot arrest or enforce Federal crimes. We happen to not have those powers granted to us. Some states do for certain things.
http://www.constitution.org/grossack/arrest.htm
Historically, in Anglo Saxon law in medieval England citizen's arrests were an important part of community law enforcement. Sheriffs encouraged and relied upon active participation by able bodied persons in the towns and villages of their jurisdiction. From this legacy originated the concept of the posse comitatus which is a part of the United States legal tradition as well as the English. In medieval England, the right of private persons to make arrests was virtually identical to the right of a sheriff and constable to do so. (See Inbau and Thompson, Criminal Procedure, The Foundation Press, Mineola, NY 1974.
A strong argument can be made that the right to make a citizen's arrest is a constitutionally protected right under the Ninth Amendment as its impact includes the individual's natural right to self preservation and the defense of the others. Indeed, the laws of citizens arrest appear to be predicated upon the effectiveness of the Second Amendment. Simply put, without firepower, people are less likely going to be able to make a citizen's arrest. A random sampling of the various states as well as the District of Columbia indicates that a citizen's arrest is valid when a public offense was committed in the presence of the arresting private citizen or when the arresting private citizen has a reasonable belief that the suspect has committed a felony, whether or not in the presence of the arresting citizen.
http://www.constitution.org/grossack/arrest.htm
Note the bolded part. I know you keep mentioning the common law aspect of Citizens arrest. Again here... it's a jurisdictional issue. I'm aware that most states have the "felony in presence" citizens arrest. Some states have variations but thats the gist of it. I'm searching for a cite, but I'm ceratin it's a Felony as defined by STATE law, not Fed. Law. As you mentioned, it's stupid that a citizen could arrest for the GFSZ and a cop couldn't. I don't think either can. Could the citzen arrest for some Felony as described in state law? Yes.
Internet is your friend.... http://answers.yahoo.com/question/index?qid=20090819142559AAHQ8mF
I wish he had a cite to a court case, but I honestly don't believe it's ever happened. I'm open to being proven wrong, but I honestly believe Citizen's arrest is for STATE felony. I also believe that the State must have an explicite agreement and written legislation that GIVES powers to its LE to enforce Federal law. I'm aware it's not enough, but I'm telling you as a local LE that we do not and cannot arrest or enforce Federal crimes. We happen to not have those powers granted to us. Some states do for certain things.
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WalkingWolf
Regular Member
You did notice that the law is for private citizens? Must I type slower for you? States have laws that lay out citizens arrests or detentions. Without that common law comes into affect which means a private citizen can arrest for any crime, under wide circumstances, states or DC pass laws that limits(restricts) that power, as laws usually do. So it comes back to? You guessed it, "what is not illegal is legal".
NC is an example, I'll dig for the statutes later, but it is easy to find each states policy on citizens arrest. In NC there is no citizens arrest, but citizens may detain for any felony they witness, including federal laws. NOW do you really think citizens have more power than police in this regard?:lol:
Detention in NC is holding for police, it is considered a arrest if the citizen attempts to transport the arrested. Local police routinely arrest for bad notes, and the arrested are held in county jail. FOR FEDERAL CRIMES! I myself have detained for passing counterfeit notes. Could you cite those federal laws that outline who specifically can enforce them? Let's start with GFSZA?
North Carolina General Statutes § 15A-404 Detention of offenders by private persons
Legal Research Home > North Carolina Lawyer
(a) No Arrest; Detention Permitted. - No private person may arrest another person except as provided in G.S. 15A-405. A private person may detain another person as provided in this section.
(b) When Detention Permitted. - A private person may detain another person when he has probable cause to believe that the person detained has committed in his presence:
(1) A felony,
(2) A breach of the peace,
(3) A crime involving physical injury to another person, or
(4) A crime involving theft or destruction of property.
(c) Manner of Detention. - The detention must be in a reasonable manner considering the offense involved and the circumstances of the detention.
(d) Period of Detention. - The detention may be no longer than the time required for the earliest of the following:
(1) The determination that no offense has been committed.
(2) Surrender of the person detained to a law-enforcement officer as provided in subsection (e).
(e) Surrender to Officer. - A private person who detains another must immediately notify a law-enforcement officer and must, unless he releases the person earlier as required by subsection (d), surrender the person detained to the law-enforcement officer. (1973, c. 1286, s. 1.)
Notice that while no arrests are allowed that detentions are, and there is no restriction for state, local, or federal. And that the crime has to be committed in the private persons presence. Citizen's detentions take place on a daily basis in NC, any detention NOT taken by a police officer is a citizens detention.
You would think a LEO would have studied common law, citizen arrest, and citizen detentions...
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color of law
Accomplished Advocate
As a police officer you are either on duty or off duty. But irrespective of being on duty or off duty, when an officer interacts with a citizen relating to a violation of law that officer is acting in the line of duty. That is the millstone around the officer's neck. If the officer wants to make a citizens arrest then the officer needs to cast off the millstone.
stealthyeliminator
Regular Member
Maybe I'm missing something, maybe the whole point, but I'll take a crack at it anyway.
Concerning cite for statement that LEOs are given "authority to arrest" through state statute...
Well, for Texas, it is in Code of Criminal Procedure. Chapter 14 covers arrest without warrant, chapter 15 with warrant. Without these statutes, there would clearly be no "authority to arrest" whatsoever. Any "arrest" that takes place outside the bounds of these authoritating statutes would certainly qualify as criminal offenses in other statutes, such as unlawful restraint. In such statutes where "authorized" acts overlap, these "authorized arrests" must be specifically excluded**.
http://www.statutes.legis.state.tx.us/Docs/CR/htm/CR.14.htm
http://www.statutes.legis.state.tx.us/Docs/CR/htm/CR.15.htm
I'd be seriously surprised if you didn't already know this and weren't just trying to force the poster to start posting more factually with cites.
** http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.20.htm
Sec. 20.02. UNLAWFUL RESTRAINT.
...
(d) It is no offense to detain or move another under this section when it is for the purpose of effecting a lawful arrest or detaining an individual lawfully arrested.
...
Police do not have "authority" by default, it must be defined by statute and passed by legislator.
Or at the very least, an existing statute must be perverted by the courts.
Edit: As far as common law goes... I'm certainly no common law expert but I would think that any common law authority to arrest would only apply to common law offenses.
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WalkingWolf
Regular Member
Common law originates from England during that time I don't believe there was felonies. Sheriffs had the power of arrest and delegated that power to the subjects in his jurisdiction. From this came the power for arrests for all crimes for all citizens.
States limit the authority, as in NC, but there are no federal laws that outlaw citizen arrests. These arrests were vital in the early 19th century as there was very few police. Most towns had no law enforcement at all. States pass laws to regulate or make things illegal, it is not illegal unless there is a law making it illegal. Police are regulated in every state, outside of that they have the same power as any other person in the US.
In title 18, can't remember exactly, in the case of wanted federal suspects local police are given by federal law the status of US Marshal, even if they are outside their jurisdiction. Title 18 also spells out that private citizens cannot make a arrest unless directed by a judge for IRS codes. Clearly this would not be necessary if the power did not exist for private citizens to make arrests. In fact in the fourth amendment there is no mention of police in the limitations of arrest. Because of this many argue that police are unconstitutional, no matter what state laws say.
I will have to do some digging to see if police are spelled out in the constitution, but before it was written British soldiers were the primary police. And until the posse comitatus act US soldiers acted police on occasion. They still can and do under certain circumstances, and in those circumstances they can enforce local law.
For the most part US Code only gives federal officers powers for US Code, BUT they are still people with the same powers in any state that are afforded by the state. Some states such as CA have statutes laying out that US officers are not police officers UNLESS. Unless they complete the proper training, then they may act as CA police.
I think it very foolish for some to give the impression that local police cannot arrest for a federal crime. This is a bad message to put out there to the public, and it is a false message.
Primus
Regular Member
Felony comes from common law.....
Its funny you mention the word Felony. Felony- A crime punishable by death or imprisonment in the state prison is a felony. All other crimes are misdemeanors. Thats MGL 274 Section 1 https://malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter274/Section1
Notice the word State prison and not Federal Prison? Here's the definition of Federal Felony-A serious crime punishable by more than a year in prison or by death. At English common law, a felony was any crime punishable by forfeiture of land or goods to the Crown.
See Criminal procedure, Criminal law
DEFINITION FROM NOLO’S PLAIN-ENGLISH LAW DICTIONARY
A serious crime (contrasted with less serious crimes such as misdemeanors and infractions), usually punishable by a prison term of more than one year or, in some cases, by death. For example, murder, extortion, and kidnapping are felonies; a minor fist fight is usually charged as a misdemeanor, and a speeding ticket is generally an infraction. In some states, certain crimes (known as wobblers) may be charged as both a misdemeanor and a felony, and the eventual designation depends on the defendant's ability to fulfill the conditions of his sentence.
http://www.law.cornell.edu/wex/felony
Same thing, serious crime with more then 1 year in Prison. Difference being if it was a Federal Crime, it'd be a Federal Prison. So again... can't citizens arrest for Fed. stuff and local PD can't either unless specifically granted powers.
Lets look at the Codes that give Fed Police their powers. Lets start with FBI...
The Director, Associate Director, Assistant to the Director, Assistant Directors, inspectors, and agents of the Federal Bureau of Investigation of the Department of Justice may carry firearms, serve warrants and subpoenas issued under the authority of the United States and make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony.
http://www.law.cornell.edu/uscode/text/18/3052
According to the it means FBI can't even arrest you for assaulting someone... look at 18USC Chapter 7.... NOTHING about simple assault. So you can't even charge or arrest someone for punching someone in the face as an FBI agent.
http://www.law.cornell.edu/uscode/text/18/part-I/chapter-7
§ 111. Assaulting, resisting, or impeding certain officers or employees
§ 112. Protection of foreign officials, official guests, and internationally protected persons
§ 113. Assaults within maritime and territorial jurisdiction
§ 114. Maiming within maritime and territorial jurisdiction
§ 115. Influencing, impeding, or retaliating against a Federal official by threatening or injuring a family member
§ 116. Female genital mutilation
§ 117. Domestic assault by an habitual offender
§ 118. Interference with certain protective functions
§ 119. Protection of individuals performing certain official duties
Those are the things they can arrest for. Pretty limited. The following may be why....
Federal Jurisdiction
In the United States, there are two separate and distinct jurisdictions, such being the jurisdiction of the States within their own territorial boundaries and the other being federal jurisdiction. Broadly speaking, state jurisdiction encompasses the legislative power to regulate, control and govern real and personal property, individuals and enterprises within the territorial boundaries of any given State. In contrast, federal jurisdiction is extremely limited, with the same being exercised only in areas external to state legislative power and territory. Notwithstanding the clarity of this simple principle, the line of demarcation between these two jurisdictions and the extent and reach of each has become somewhat blurred, due to popular misconceptions and the efforts expended by the federal government to conceal one of its major weaknesses. Only by resorting to history and case law can this obfuscation be clarified and the two distinct jurisdictions be readily seen.
http://www.constitution.org/juris/fedjur1.htm
I can do this all night.... it's a jurisdiction issue. The Feds have very limited powers the States have it all. Hence The Feds can't arrest for a simple A&B. This goes BOTH ways. Local guys can't arrest for Federal things because we don't/can't prosecute for it. As stated above, the line gets blurred because the Feds don't like admitting they don't have powers and then other guys just spout misinformation about common law can arrest for anything I want unless it says I can't (completely backwards form how it works, can't arrest unless it specifically says you CAN). This is why CIA doesn't pull you over for tail lights out. In fact, the Feds CAN'T conduct a traffic stop. They need a local sworn officer to conduct the stop. I know, I happen to work with the guys who are on ATF and DEA taskforces. There is no Federal law about having a broken taillight and they can't enforce state law....
So again to the OP..... as multiple guys have stated. Sherrifs CAN'T just enforce Federal law. There has to be some agreement or legislation in place (state level) that grants them power. I would bet dollars to donuts that if you checked the state in question, there WOULD be a mirroring law that is the same as the Federal Law. So the Sheriff looks tough by saying he's refusing the Feds, but really he's just refusing to enforce local laws.
Primus
Regular Member
Finally... GFSZ
Guidance Concerning State and Local Responsibilities
Under the
Gun-Free Schools Act of 1994
This guidance is to provide information concerning State and local responsibilities under the Gun-Free Schools Act (GFSA), which was enacted on October 20, 1994 as part of the Improving America?s Schools Act of 1994 (the reauthorization of the Elementary and Secondary Education Act of 1965 (ESEA)), Public Law 103-382. Preliminary information was mailed to Governors and Chief State School Officers in a letter dated November 28, 1994. Revisions to the guidance were made and issued on October 31, 1995. This revision of the guidance contains an additional question and answer (Q. 10) concerning reporting.
The GFSA states that each State receiving Federal funds under ESEA must have in effect, by October 20, 1995, a State law requiring local educational agencies to expel from school for a period of not less than one year a student who is determined to have brought a weapon to school. Each State's law also must allow the chief administering officer of the local educational agency (LEA) to modify the expulsion requirement on a case-by-case basis.
http://www2.ed.gov/offices/OSDFS/gfsaguidance.html
Here's an example of how the Feds push stuff on local PDs. So basically the Sheriff would refuse to enforce the STATE law that would need to be passed to comply with this example. Again, just an example.
Guidance Concerning State and Local Responsibilities
Under the
Gun-Free Schools Act of 1994
This guidance is to provide information concerning State and local responsibilities under the Gun-Free Schools Act (GFSA), which was enacted on October 20, 1994 as part of the Improving America?s Schools Act of 1994 (the reauthorization of the Elementary and Secondary Education Act of 1965 (ESEA)), Public Law 103-382. Preliminary information was mailed to Governors and Chief State School Officers in a letter dated November 28, 1994. Revisions to the guidance were made and issued on October 31, 1995. This revision of the guidance contains an additional question and answer (Q. 10) concerning reporting.
The GFSA states that each State receiving Federal funds under ESEA must have in effect, by October 20, 1995, a State law requiring local educational agencies to expel from school for a period of not less than one year a student who is determined to have brought a weapon to school. Each State's law also must allow the chief administering officer of the local educational agency (LEA) to modify the expulsion requirement on a case-by-case basis.
http://www2.ed.gov/offices/OSDFS/gfsaguidance.html
Here's an example of how the Feds push stuff on local PDs. So basically the Sheriff would refuse to enforce the STATE law that would need to be passed to comply with this example. Again, just an example.
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sudden valley gunner
Regular Member
Government doesn't is not supposed to have the same freedom of citizens. Their authorities are supposed to be limited where the citizens are not.
BB62
Accomplished Advocate
You can think it to be as foolish as you want, you can also:
- repeatedly insult rather than respond directly
- change the subject as you have attempted to do multiple times
- cite laws from D.C. (!?) when your state of residence is North Carolina
- speculate that police must have powers equal to the citizenry
- cite legal or monetary actions empowering state/local LEOs to enforce Federal law (which would exist for what reason if they weren't required?)
but you just can't get away from the fact that the reason local cops might be able to enforce Federal law IS NOT because "if it's not illegal it's legal".
The false message is yours.
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WalkingWolf
Regular Member
All police officers are people, just like the rest of the people. They have the same rights as individuals. They are only limited in what they do as government agents. And then only by what statutes and the constitution limits them to. The BOR has no limits for police, it does not even mention police.
BB62
Accomplished Advocate
This is the same sort of way the Feds stuffed the 55 mph speed limit down the state's throats - by saying "we're gonna cut off your highway funds unless you make the interstate speed limit 55 mph!".
So, the violation of the law by an individual was a violation of a STATE law.