CACI 1404 False Arrest Without Warrant—Affirmative Defense—Private Citizen—Probable Cause to Arrest

California Civil Jury Instructions CACI

1404 False Arrest Without Warrant—Affirmative Defense—Private Citizen—Probable Cause to Arrest

[Name of defendant] claims the citizen’s arrest was not wrongful because [he/she/nonbinary pronoun] had the authority to cause [name of plaintiff] to be arrested without a warrant.

[If [name of defendant] proves that [name of plaintiff] committed or attempted to commit a crime in [name of defendant]’s presence, then the arrest was lawful.]


[If [name of defendant] proves that a felony was committed and that [insert facts, that if proved, would establish that defendant had reasonable cause to believe that plaintiff had committed a felony], then the arrest was lawful.]

Directions for Use

The judge must insert in the brackets the fact or facts that are actually controverted and that may be necessary to arrive at the probable cause determination. There may be one or more facts or combinations of facts that are necessary to make this determination, in which case they can be phrased in the alternative.

If a criminal act is alleged as justification, it may be necessary to instruct whether the crime is a felony, misdemeanor, or public offense.

Penal Code section 837 provides, in part, that a warrantless arrest may be made if a person has committed a felony, although not in the citizen’s presence. While the requirement of probable cause is not explicitly stated, it would seem that the citizen must always have probable cause at the time of the arrest and that subsequent conviction of a felony does not sanitize an improper arrest.

Sources and Authority

Citizen’s Arrest. Penal Code section 837.

Felonies and Misdemeanors. Penal Code section 17(a).

“What is probable cause, as has been often announced, is not a question of fact for the jury, but one of law for the court, to be decided in accordance with the circumstances at the time of the detention, unhampered by the outcome of the charge against the plaintiff of the public offense or by the conclusions of the trial court.” (Collyer v. S.H. Kress Co. (1936) 5 Cal.2d 175, 181 [54 P.2d 20], internal citations omitted.)

“ ‘Presence’ is not mere physical proximity but is determined by whether the offense is apparent to the [person]’s senses.” (People v. Sjosten (1968) 262 Cal.App.2d 539, 543–544 [68 Cal.Rptr. 832], internal citations omitted.)

Secondary Sources

5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 511, 512
3 Levy et al., California Torts, Ch. 42, False Imprisonment and False Arrest, § 42.22 (Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 257, False Imprisonment, § 257.19 (Matthew Bender)
10 California Points and Authorities, Ch. 103, False Imprisonment, § 103.60 et seq. (Matthew Bender)
California Civil Practice: Torts § 13:11 (Thomson Reuters)