Loading ...
Sorry, an error occurred while loading the content.

Can a Private Citizen Obtain Arrest Warrant?

Expand Messages
  • Legalbear
    Section 16-3-108 addresses the issuance of an arrest warrant in the absence of an information or complaint: A court shall issue an arrest warrant only on
    Message 1 of 2 , Jan 13, 2014
    • 0 Attachment

      Section 16-3-108 addresses the issuance of an arrest warrant in the absence of an information or complaint:

       

      A court shall issue an arrest warrant only on affidavit sworn to or affirmed before the judge or a notary public and relating facts sufficient to establish probable cause that an offense has been committed and probable cause that a particular person committed that offense.

       

      Section 16-3-108 does not specify who may apply to a court for an arrest warrant. From this statutory silence, Kailey infers that not only law enforcement officers, but private citizens too, may apply for an arrest warrant. We do not agree.

       

      The District Attorney does not dispute Kailey's right, as a private citizen, to seek an arrest warrant under section 16-3-108 for another individual. Because of its jurisdictional nature, however, the issue of Kailey's standing to seek an arrest warrant requires our sua sponte inquiry. See People in Interest of J.C.S., 169 P.3d 240, 244 (Colo.App. 2007).

       

      To determine if standing exists, a court must consider whether a plaintiff was 798*798 injured in fact and whether the injury was to a legally protected right. Peters v. Smuggler-Durant Mining Corp., 910 P.2d 34, 38 (Colo.App.1995), aff'd, 930 P.2d 575 (Colo. 1997). With respect to the latter requirement, "[a] complaining party may show injury to a legally protected right by demonstrating that the harm allegedly suffered is protected by a statutory or constitutional provision, or by a judicially created rule of law that entitles the complaining party to some form of judicial relief." Sender v. Kidder Peabody & Co., 952 P.2d 779, 781 (Colo.App.1997).

       

      "[I]n American jurisprudence at least, a private citizen [ordinarily] lacks a judicially cognizable interest in the prosecution or nonprosecution of another." Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 (1973); see Anderson v. Norfolk & W. Ry., 349 F.Supp. 121, 122 (W.D.Va.1972) ("criminal statutes can neither be enforced by civil action . . . nor by private parties"); see also Gansz v. People, 888 P.2d 256, 257 n. 4 (Colo.1995) (quoting Linda R.S. with approval). Applying that principle, courts have held that a private citizen lacks standing to request the issuance of a warrant for the arrest of another person. See DeMillard v. No Named Defendant, 407 Fed.Appx. 332, 333 (10th Cir. 2011); Larry v. Uyehara, 270 Fed.Appx. 557, 558 (9th Cir.2008); see also Kelly v. Dearington, 23 Conn.App. 657, 583 A.2d 937, 940-41 (1990) (concluding that a citizen has no standing to obtain review of a prosecutor's refusal to seek arrest warrant).

       

      A legally protected right can, of course, be created by statute. However, if the General Assembly wishes to change common law, it must manifest its intent expressly or by clear implication. See, e.g., Vaughan v. McMinn, 45 P.2d 404, 408 (Colo.1997); cf. Hildebrand v. New Vista Homes II, LLC, 252 P.3d 1159, 1172 (Colo.App.2010) ("Statutes are presumed not to alter the common law unless they do so expressly.").

       

      Here, unlike in section 16-5-209, there is no language in section 16-3-108 which either expressly or impliedly authorizes a private citizen to petition the court to take action against a third party.[4] Under the reasoning of the Linda R.S., DeMillard, and Vaughan cases, then, section 16-3-108 cannot be read to authorize a private citizen to seek an arrest warrant.

       

      Further, even if section 16-3-108's silence on the subject would render the statute ambiguous, in construing that section we must presume that "[a] just and reasonable result is intended" and that "[p]ublic interest is favored over any private interest." § 2-4-201(1)(c), (e), C.R.S.2010. In addition, we may also consider the "consequences of a particular construction." § 2-4-203(1)(e), C.R.S.2010. In our view, all three considerations support a construction of section 16-3-108 as not authorizing private citizens to seek arrest warrants. We hold this view for the following reasons:

       

      (1)     Most law enforcement officers (i.e., police officers, sheriff's officers, and district attorneys' and the attorney general's investigators) are certified peace officers whose very job it is to investigate crime. See §§ 16-2.5-102, 16-2.5-103, C.R.S.2010. All of those officers are experienced at investigation, and are trained to prepare affidavits and to know the meaning of probable cause and how to apply it. Most lay people are not so experienced or so trained.

       

      (2) Law enforcement officers are subject to additional employment sanctions besides those associated with criminal charges for perjury if they lie or recklessly disregard the truth in an affidavit. Most lay people are not subject to such employment sanctions.

       

      (3) Law enforcement officers are, ideally, objective investigators with no stake in 799*799 the outcome of a case, and thus, they evaluate the information that they receive without bias. Such objectivity is not presumed from lay people who are "involved" in cases.

       

      For all these reasons, we construe section 16-3-108 as not authorizing a private citizen to seek an arrest warrant for another. Because Kailey had no right to demand that the court issue an arrest warrant in this case, we need not further address the court's failure to issue a warrant here.

       

      KAILEY v. Chambers, 261 P. 3d 792, 797 - Colo: Court of Appeals, 2nd Div. 2011

       

       

      Call me at: 720-675-7230

      On Skype: legalbear

      Best times to call: 8:30 am to 9:00 pm MST

      Join my Yahoo Group Tips & Tricks for Court by sending an email to:

      tips_and_tricks-subscribe@yahoogroups.com

      My blog: legalbearsblog.com

      Tax sites: IRSTerminator.com IRSLienThumper.com IRSLevyThumper.com

      (formatted like this so this email doesn't end up in your spam folder)

       

    • consultants4all@...
      I filed a case in the Mahoning County Common Pleas Court as a pro se. This is not the first time that the Appellate Court wronged me. Once I filed a complaint
      Message 2 of 2 , Jan 19, 2014
      • 0 Attachment

        I filed a case in the Mahoning County Common Pleas Court as a pro se.

         

        This is not the first time that the Appellate Court wronged me. Once I filed a complaint with the discipline Committee of the Ohio Supreme Court against three of the judges.  The discipline committee said that, in essence, so what~

         

        A judge in Mahoning county dismissed a case for all parties failure to appear.  No party had proper notice. I appealed on the basis that the dismissal was not a final order since there was an unanswered objection to magistrates decision and request for finding of facts pending.  The Seventh District Court of Appeals found that the appeal was filed in an untimely manner.  However, in Ohio, if the appeal was timely filed, the appellate court surely would not have jurisdiction to hear the case, as the dismissal was not a final order.  The appeal could not be untimely, as there was no final order.

        The Appellate Court would send it back to the Common Pleas Court. Every appellate court observes the Ohio Rules of Civil and Appellate Procedure.  There is an abundance of case law upholding that a dismissal is not a final appealable order when an objection to magistrate's decision is pending.  In other words, the Seventh Court found that a "dismissal is a final order when there is an objection to magistrate's decision pending. The Seventh District Court of Appeals own local rules state that when an objection to magistrate's decision is pending, the time for filing a notice of appeal begins to run as to all parties when the order disposing of the motion is entered. 

         

        Seventh District Court of Appeals Local Rule 4(B)(2) provides:

         (2) Civil or juvenile post-judgment motion. In a civil case or juvenile proceeding, if a party files a timely motion for judgment under Civ.R. 50(B), a new trial under Civ.R. 59(B), vacating or modifying a judgment by an objection to a magistrate's decision under Civ.R. 53(E)(4)(c) or Rule 40(E)(4)(c) of the Ohio Rules of Juvenile Procedure, or findings of fact and conclusions of law under Civ.R. 52, the time for filing a notice of appeal begins to run as to all parties when the order disposing of the motion is entered. (emphasis added)

         

         

         

         
      Your message has been successfully submitted and would be delivered to recipients shortly.