CITIZEN’S ARREST

By Jus­tice Paul E. Pfeifer

On April 16, 2009, Kat­rina McCall went to the Hamil­ton County Munic­i­pal Court to file a hand-written affi­davit alleg­ing that her hus­band – Mor Mbodji – had caused phys­i­cal harm to her. That action touched off a case that ulti­mately made its way here – to the Supreme Court of Ohio.

When Kat­rina filed her affi­davit, she signed a doc­u­ment that was nota­rized by the deputy clerk. Then, the clerk of the court, with­out for­ward­ing the doc­u­ments to a review­ing offi­cial, issued a war­rant for Mbodji’s arrest.

After Mbodji came before the court and entered a plea of not guilty, the mat­ter pro­ceeded to a bench trial. The court con­victed Mbodji, and he was sen­tenced to eight months of com­mu­nity service.

When the court of appeals reviewed the case, Mbodji argued that the trial court did not have juris­dic­tion because the com­plaint and affi­davit were not reviewed by a review­ing offi­cial. In mak­ing this argu­ment, Mbodji cited a law which states that a pri­vate cit­i­zen may cause the arrest or pros­e­cu­tion of a per­son charged with com­mit­ting an offense if the cit­i­zen com­plies with cer­tain provisions.

The law then sets forth that pro­ce­dure: A cit­i­zen “may file an affi­davit charg­ing the offense com­mit­ted with a review­ing offi­cial for the pur­pose of review to deter­mine if a com­plaint should be filed by the pros­e­cut­ing attor­ney.” A “review­ing offi­cial” is a judge, a pros­e­cut­ing attor­ney, or a magistrate.

In June 2006, this law – we’ll call it the “citizen’s arrest” law – was amended by the Ohio leg­is­la­ture. Prior to that time, a pri­vate cit­i­zen could file an affi­davit charg­ing an offense with­out it being reviewed by a “review­ing offi­cial.” After the amend­ment, the law lim­ited a pri­vate citizen’s abil­ity to cause the arrest or pros­e­cu­tion of another.

The law allows clerks to accept the affi­davits for fil­ing before or after nor­mal busi­ness hours of the review­ing offi­cials, but clerks must for­ward the affi­davit “to a review­ing offi­cial when the review­ing official’s nor­mal busi­ness hours resume.” Thus, addi­tional pro­cess­ing takes place when a pri­vate cit­i­zen files an affi­davit and before an arrest or pros­e­cu­tion is instituted.

The court of appeals nev­er­the­less over­ruled Mbodji’s argu­ment and con­cluded that the trial court had juris­dic­tion despite lack of review. After that, the case came before us.

Both sides in this case agree that the “citizen’s arrest” law was not fol­lowed. So, the issue before us was this: What effect, if any, did the pro­ce­dural error have on Mbodji’s conviction?

Mbodji argued that the com­plaint wasn’t valid and, because of that, the trial court was with­out juris­dic­tion to pro­ceed. The state main­tained that the com­plaint was prop­erly filed because – although it didn’t fol­low the citizen’s arrest law – it did com­ply with the Crim­i­nal Rules that gov­ern crim­i­nal pro­ceed­ings and define what con­sti­tutes a valid complaint.

By a five-to-two vote our court agreed with the state’s argu­ment and affirmed the judg­ment of the court of appeals. The major­ity con­cluded that because the com­plaint com­plied with the Crim­i­nal Rules – specif­i­cally, Crim­i­nal Rule 3 – the trial court had jurisdiction.

Jus­tice Ter­rence O’Donnell and I cast the two dis­sent­ing votes. As men­tioned ear­lier, the fil­ing of a com­plaint that is ini­ti­ated by a pri­vate cit­i­zen is gov­erned by the “citizen’s arrest” law. That law pro­vides a spe­cific pro­ce­dure crafted by the state leg­is­la­ture and it says: “A pri­vate cit­i­zen hav­ing knowl­edge of the facts who seeks to cause an arrest or prosecution…may file an affi­davit charg­ing the offense com­mit­ted with a review­ing offi­cial for the pur­pose of review to deter­mine if a com­plaint should be filed by the pros­e­cut­ing attorney…”

Thus, as Jus­tice O’Donnell wrote in his dis­sent­ing opin­ion, “there is no leg­isla­tive author­ity for a pri­vate cit­i­zen to file a com­plaint seek­ing to cause an arrest or ini­ti­ate a crim­i­nal prosecution.”

The leg­is­la­ture has estab­lished a pro­ce­dure for a pri­vate cit­i­zen to file an affi­davit alleg­ing a crim­i­nal offense. That affi­davit must be filed with a review­ing offi­cial, who then deter­mines if a com­plaint should be filed by a pros­e­cut­ing attor­ney. But the law does not per­mit a pri­vate cit­i­zen to file a crim­i­nal com­plaint with the clerk of a court which trig­gers the issuance of an arrest warrant.

“The pro­ce­dure fol­lowed in this case,” Jus­tice O’Donnell wrote, “is com­pletely at odds with that autho­rized by law.” The major­ity acknowl­edged that fact, but nonethe­less con­cluded that a munic­i­pal court has juris­dic­tion over a crim­i­nal pros­e­cu­tion ini­ti­ated by a pri­vate cit­i­zen because a doc­u­ment titled “com­plaint” – which con­tained the infor­ma­tion required by Crim­i­nal Rule 3 – had been filed with the clerk of courts.

But Crim­i­nal Rule 3 envi­sions that a com­plaint be filed by a pros­e­cut­ing attor­ney, not by a pri­vate citizen.

“By accept­ing the propo­si­tion that a munic­i­pal court has juris­dic­tion to con­sider a crim­i­nal com­plaint ini­ti­ated by a pri­vate cit­i­zen,” Jus­tice O’Donnell wrote, “the major­ity opens the door to a myr­iad of unin­tended con­se­quences, such as the fil­ing of crim­i­nal charges by an inmate against a vic­tim of a crime which resulted in the inmate’s incar­cer­a­tion; it invites quar­relling neigh­bors to esca­late dif­fer­ences into the crim­i­nal realm; and other end­less possibilities.

“I would sub­mit that these kinds of sit­u­a­tions prompted the leg­is­la­ture to act to spec­ify a man­ner for the law­ful fil­ing of crim­i­nal com­plaints by pri­vate cit­i­zens. Accord­ing to the majority’s ratio­nale, any inmate could file a crim­i­nal case and cause an arrest war­rant to be served on a vic­tim, which that vic­tim must defend, and it is only after the vic­tim has been arrested and required to appear in court that a chal­lenge to the suf­fi­ciency of the fil­ing of the com­plaint could be presented.”

It’s that type of legal exer­cise that the leg­is­la­ture sought to pre­vent by requir­ing a pri­vate cit­i­zen to file an affi­davit with a review­ing offi­cial who would first assess the mat­ter and deter­mine whether a pros­e­cut­ing attor­ney should file a complaint.

But, as Jus­tice O’Donnell con­cluded, “these basics of pro­ce­dural due process some­how get lost in the majority’s rush to resolve this case.”

EDITOR’S NOTE: The case referred to is: State v. Mbodji, 129 Ohio St.3d 325, 2011-Ohio-2880. Case No. 2010–0819. Decided June 21, 2011. Major­ity opin­ion writ­ten by Jus­tice Judith Ann Lanzinger.

Posted by Paul Pfeifer on Jan 30 2012. You can follow any responses to this entry through the RSS Feed. Both comments and pings are currently closed.