Memorandum
City of Lawrence
Legal Department
TO: |
Toni Ramirez Wheeler, Director of the Legal Department
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FROM: |
Scott J. Miller, Staff Attorney
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Date: |
November 2, 2010
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RE: |
Arrests for Municipal Offenses – Charter Ordinance 42 and Ordinance 8582 |
Table of Contents
Advantages of Proposed Ordinances
Several sources of law govern the arrest powers of municipal law enforcement officers. Under the law, arrests are seizures of a person and the Fourth Amendment of the United States Constitution governs those seizures. The Kansas Constitution’s Bill of Rights includes equivalent protections. K.S.A. 22-2401 places further statutory limits on when arrests may be made for violations of Kansas law, and K.S.A. 12-4211 and 12-4212 are even more restrictive when the crime involved is a municipal ordinance violation.
Unfortunately, the provisions that apply to municipal ordinance violations are written in a way that makes their effects extremely problematic. Because those statutes are part of a non-uniform state enactment, however, the City may exempt itself from those provisions by charter ordinance and provide substitute provisions. For the reasons discussed below, it is staff’s recommendation that the City exempt itself from these two statutes and adopt substitute provisions that are equivalent to those found in K.S.A. 22-2401, the arrest statute found in the Kansas criminal procedure code.
The Kansas Legislature enacted the Kansas Code of Procedure for Municipal Courts in 1973. While the text of most of that code applies in a uniform manner to all cities throughout Kansas, K.S.A. 12-4105 requires that municipal judges in cities of the first class be licensed attorneys, while municipal judges in second and third class cities need not be attorneys. Because the question of whether a law uniformly applies to all cities is decided by looking at an enactment as a whole and not at individual sections of that enactment, this means that the whole municipal procedures code is considered to be a law that does not apply uniformly to all cities. Pursuant to Article 12, Section 5 of the Kansas Constitution, the City of Lawrence may choose to pass a charter ordinance exempting itself from the provisions of that enactment and may provide substitute arrest provisions. Any new arrest provisions, however, cannot violate other provisions of Kansas law or the Fourth Amendment.
In fact, the City previously passed charter ordinances exempting itself from other provisions of the municipal court code of procedure. See Charter Ordinance 17 (court costs); Charter Ordinance 31 (notices to appear); and Charter Ordinance 37 (time of trial).
The best way to understand the difficulties created by K.S.A. 12-4211 and 12-4212 is to compare these statutes with the arrest power granted to law enforcement officers by K.S.A. 22-2401, the statute that establishes the boundaries of law enforcement arrest power for violations of Kansas law. Before discussing all of these statutes, however, it should be remembered that the Fourth Amendment standard for making an arrest, even for very minor crimes committed in the officer’s presence, is probable cause. For example, in Atwater v. City of Lago Vista, 532 U.S. 318 (2001) the United States Supreme Court ruled that in the absence of a statute to the contrary, the Fourth Amendment permitted an officer to arrest for a seatbelt violation that was only punishable by a fine and not jail time. While this illustrates the point that the Constitutional probable cause standard for arrest applies to all classes of crimes, the result would have been different in Kansas because Kansas statutes prevent arrests for traffic and tobacco infractions.
This statute applies to arrests under the Kansas criminal procedure code.
22-2401. Arrest by law enforcement officer. A law enforcement officer may arrest a person under any of the following circumstances:
(a) The officer has a warrant commanding that the person be arrested.
(b) The officer has probable cause to believe that a warrant for the person's arrest has been issued in this state or in another jurisdiction for a felony committed therein.
(c) The officer has probable cause to believe that the person is committing or has committed:
(1) A felony; or
(2) a misdemeanor, and the law enforcement officer has probable cause to believe that:
(A) The person will not be apprehended or evidence of the crime will be irretrievably lost unless the person is immediately arrested;
(B) the person may cause injury to self or others or damage to property unless immediately arrested; or
(C) the person has intentionally inflicted bodily harm to another person.
(d) Any crime, except a traffic infraction or a cigarette or tobacco infraction, has been or is being committed by the person in the officer's view.
These statutes control arrests for municipal ordinance violations. Because municipal ordinance violations may not be felony crimes, the statutes do not cover felony arrests.
When the same conduct is prohibited by both an ordinance and a statute (i.e. theft, battery, criminal damage to property, driving under the influence) the question arises as to whether the arrest power of the officer is defined after the fact by the court that the suspect is charged in. I believe that it is not defined in this way, and that if an act violates both a municipal ordinance and a state statute that the power of arrest under the Kansas statute controls. Not only does this seem logical but K.S.A. 12-4111 states that the “powers of law enforcement officers with respect to the code of criminal procedure shall not be reduced” by the municipal court procedures law. Allowing an after the fact charging decision to diminish an officer’s arrest powers and potentially invalidate the arrest reduces law enforcement officers’ power. This interpretation of the statute, however, has never been tested in a published case.
12-4211. Detention; service of complaint and summons. A law enforcement officer may detain a person when:
(a) He or she has a warrant commanding that such person be arrested; or
(b) he or she has reason to believe that a warrant for the person's arrest has been issued by any municipal court; or
(c) he or she has probable cause to believe that the person is committing or has committed a violation of an ordinance, and the law enforcement officer has probable cause to believe that such person will not be apprehended or evidence of the violation of the ordinance will be irretrievably lost unless such person is immediately detained, or such person may cause injury to himself, herself or others or damage to property unless immediately detained; or
(d) any violation of an ordinance has been or is being committed by such person in his or her view.
A law enforcement officer having detained a person pursuant to the preceding paragraph, except subsection (a) or (b) thereof, may release the person or may prepare and serve upon such person a complaint and notice to appear, as provided by K.S.A. 12-4204 or 12-4205 and shall then release such accused person from such detention, except in such instances where the law enforcement officer has power and authority to arrest such accused person as hereinafter set forth.
12-4212. Arrest by law enforcement officer; when authorized.
(a) Except as provided in subsection (b), a law enforcement officer may arrest a person under any of the following circumstances:
(1) The officer has a warrant commanding that the person be arrested.
(2) A warrant for the person's arrest has been issued by a municipal court in this state.
(3) The officer has probable cause to believe that the person is committing or has committed a violation of an ordinance and that the person has intentionally inflicted bodily harm to another person.
(4) The law enforcement officer detained the person pursuant to subsection (c) or (d) of K.S.A. 12-4211 and amendments thereto and:
(A) The person refuses to give a written promise to appear in court when served with a notice to appear;
(B) the person is unable to provide identification of self by presenting a valid driver's license or other identification giving equivalent information to the law enforcement officer;
(C) the person is not a resident of the state of Kansas; or
(D) the law enforcement officer has probable cause to believe that the person may cause injury to self or others or may damage property unless immediately arrested.
(b) A law enforcement officer may not arrest a person who is charged only with committing an ordinance traffic infraction or an ordinance cigarette or tobacco infraction unless the person charged has received service of a notice to appear and has failed to appear for the infraction.
A close comparison of the two different arrest provisions reveals that they are very similar to one another, but that intentional impediments to arrest for municipal code violations have been added. Unfortunately, a muddling of important Fourth Amendment concepts occurs as well because of the unfortunate use of the term “detention”.
Under the Fourth Amendment, an investigatory detention of a suspect may lawfully occur when a police officer has a reasonable and articulable suspicion that the person is committing, has committed or is about to commit a crime. Reasonable suspicion is a much less demanding standard than probable cause. A person may be the subject of an investigatory detention based merely upon suspicion but may be arrested only if probable cause exists. Probable cause to arrest a person exists when there is enough evidence to warrant a reasonable person to believe, and not merely suspect, that the person committed a crime. During an investigatory detention the officer must not unreasonably prolong the detention, but must diligently pursue a line of investigation aimed at quickly confirming or refuting his or her suspicions. K.S.A. 22-2402, a statute entitled “stopping of a suspect”, reflects the appropriate constitutional standards for an investigatory detention.
K.S.A. 12-4211, on the other hand, uses the term detention as part of a catch and release arrest scheme for municipal offenses. It requires probable cause instead of reasonable suspicion to detain, and allows the officer to release a person so detained or to issue a notice to appear before release. According to the statute a person may only be “arrested” if he or she meets the criteria set forth in K.S.A. 12-4214. In reality, however, instead of a detention this process might be more accurately described as an arrest with mandatory release.
The real practical differences between the criminal and municipal code arrest provisions arise in two circumstances. First, the municipal arrest law makes no allowance for custodial arrest if evidence of a crime may be irretrievably lost without the arrest. Given that evidence is normally retrieved in this situation pursuant to a search incident to arrest, the lack of custodial arrest power under the statute at least allows a defendant to argue that such searches are improper. If that argument is accepted, then the police officer’s ability to actually retrieve the evidence in an efficient manner is circumscribed.
The second and more important difference arises when a law enforcement officer observes an offense occurring in his or her presence. Under the state law, if a misdemeanor other than a tobacco or traffic infraction occurs in an officer’s presence he or she may always make an arrest. Traffic and tobacco infractions do not give rise to an immediate arrest under either law. The municipal provision is much more complicated than the state law. Even if a municipal code violation occurs in an officer’s presence, he or she may not arrest the offender unless the person refuses to sign a notice to appear, is unable to provide identification of self through a drivers license or equivalent identification, the person is not a Kansas resident, or when the officer has probable cause to believe that the person may injure his or her self or others or damage property if not immediately arrested.
In practice, what this means is that if a person is a Kansas resident with a drivers license who will continue to sign notices to appear, then the person may never be arrested by a police officer. For many offenses, this would appear to be an acceptable result, especially since the officer would likely serve a notice to appear in those cases anyway. There are some municipal violations, however, that cannot adequately be addressed under this statute.
Two examples serve to illustrate this problem – one involving repeated noise violations and the other involving repeated violations of laws such as our fire code. If the police are called to a loud party, the ordinary course of enforcement might involve responding to the location and issuing a warning or a notice of violation. Often times this will solve the problem but sometimes the party resumes, becomes noisy again, and the police are called back to the location. Under the current law, no matter how many times the police are called back to a location or how egregious the violation, they may not be able to make an arrest. As long as the offenders are Kansas residents, will sign notices to appear, and have appropriate identification they probably are not subject to arrest. While the legal system may levy appropriate sanctions weeks or months later, the police action is unable to provide relief to the neighborhood for ongoing problems.
In the fire or building code enforcement context, the same problem arises if a building is posted as unfit for occupancy. If an owner or occupant refuses to comply with that order and meets the other important criteria discussed above, the police may not arrest to prevent the continuing violation.
Advantages of Proposed Ordinances
The substitute arrest provisions contained in Ordinance 8582 are identical to the portion of the Kansas criminal procedure code that applies to misdemeanor arrests. Therefore, all of the protections that exist regarding misdemeanor offense arrests under that code would also apply to arrests for municipal code violations in Lawrence. Of course, Constitutional provisions governing search are seizure would also apply. The proposed changes would be advantageous for many reasons:
1. Police officers would be trained with one set of arrest standards for misdemeanor offenses. Arrest power would no longer be dictated by whether there is an equivalent state statute on the subject or whether the state statute and city ordinance are identical. This consistency should lead to less likelihood of mistakes and less potential liability on the part of the City.
2. The term detention, as discussed in K.S.A. 12-4211, would no longer be defined in a manner that is inconsistent with the Fourth Amendment to the United States Constitution.
3. The police officers would have a clear right of access to evidence of a crime that might otherwise be lost pursuant to a lawful search incident to arrest.
4. The police officers would have a means to provide an immediate response to repeated criminal behavior through a custodial arrest that otherwise may not be available now such as the noise violations or code violations discussed above.
It should be noted that police officers would still have the power to issue notices to appear instead of making custodial arrests for ordinance violations in appropriate circumstances. Right now the majority of offenses that might be subject to arrest under the existing law such as possession of marijuana, disorderly conduct, and criminal trespass are addressed through notices to appear. There is no reason to believe that this practice would not continue as it is often the most efficient means of using police resources.
For these reasons, it appears that adoption of the proposed ordinances would be advantageous to efficient law enforcement in the City, and therefore I would recommend their adoption. I know that some of these concepts are fairly technical so if further explanation is warranted or there are unanswered questions please let me know.