I have read numerous reports that the police intend to treat criminal cases that occur on State Patty's Day differently than the same criminal cases that occur on other weekends, such as Penn State football or Arts Fest weekends.
Primarily,the police have stated that they will: 1) arrest all people suspected of criminal activity when permitted by law; 2) oppose participation in any first time offender program; and 3) seek maximum punishments for those found guilty of criminal offenses.
As a lifelong Centre County resident and Penn State alumnus, I do not like State Patty's Day and believe that it does reflect poorly on the Penn State community. With that being said, I am also a criminal defense lawyer that is dedicated to protecting the rights of individuals, trying to promote fairness in the criminal system, and seeking redresses in the court when the police violate the constitutional rights of citizens. I have serious concerns over the legality of adopting a blanket policy and arresting everyone that is alleged to have committed summary offenses on State Patty's Day. I also question the legality of the police departments' uniform opposition to participation in first time offenders programs and request for maximum punishments.
Legality of Arrests in Summary Cases
According to an "Announcement" on www.statecollegepa.us, persons suspected of engaging in criminal activity on February 23rd will be immediately taken before a magistrate judge if doing so is permitted by law. Pennsylvania Rule of Criminal Procedure 440 expressly allows for arrests without a warrant in summary cases when "authorized by law." Pursuant to 42 Pa.C.S. § 8902, a police officer is permitted to make a warrantless arrest for the summary offenses of Underage Drinking (18 Pa.C.S. § 6308), Disorderly Conduct (18 Pa.C.S. § 5503), Public Drunkenness (18 Pa.C.S. § 5505), and Obstructing Highways (18 Pa.C.S. § 5507), IF "there is ongoing conduct that imperils the personal security of any person or endangers public or private property." Therefore, the police do not appear to be permitted to make a warrantless arrest for the common offenses that will occur on State Patty's Day unless the suspect is engaging in additional conduct that causes a safety concern or endangers property.
Pennsylvania Law Disfavors Warrantless Arrests in Summary Cases
In the vast majority of Centre County misdemeanor cases, such as DUI, Furnishing Alcohol to Minors, Marijuana Possession, and Possession of a Fake ID, suspects are not arrested and taken before a judge. While arrests may be legal in summary cases, it is also very important to note that the comments section to Rule 440 also states that arrests in summary cases should only be used "in exceptional circumstances such as those involving violence, or the imminent threat of violence, or those involving a danger that the defendant will flee." It is clear that the drafters of the rules of criminal procedure did not intend to have warrantless arrests in summary cases be the norm but instead clearly stated that it should be used in very limited situations.
Even if the police plan to conduct warrantless arrests on State Patty's Day, the next issue is whether or not it is lawful to take the suspects before a judge. Under Rule of Criminal Procedure 441, an officer that conducts a warrantless arrest in a summary case is required to release the person from custody if: 1) the suspect poses no threat of immediate physical harm to anyone; and 2) the arresting officer has "reasonable grounds" to believe that the defendant will appear at court as required. The Comment to the rule states that "reasonable grounds" includes things like concerns about the validity of the suspect's address, if the suspect has prior contacts with the criminal justice system, and the officer's personal knowledge of the defendant. Also, the Comment states that the rule was amended in 2005 to mandate the prompt release of the suspect by the officer if the above two criteria are met.
Blanket Threat of Arrest and Arraignments Ignores Rules of Criminal Procedure
The rules clearly state that warrantless arrests are not the preferred route to initiate charges as such arrests should only be used in "exceptional circumstances." When such an arrest is made, the police are required to promptly release the suspect and not take the case before a judge if the suspect doe not pose an immediate threat and is likely to appear in court. To the best of my knowledge, the police departments have not expressly issued press releases that explicitly state that all suspects will be arrested and immediately taken before a judge, but I have read numerous such quotes and summaries of discussions attributed to the State College Police Department. It appears to me that the police adopting a policy of conducting warrantless arrests on every suspect on State Patty's Day and immediately taking them before the judge ignores the Pennsylvania Rules of Criminal Procedure that are supposed to dictate the functioning of the criminal process.
I again want to emphasize that I despise State Patty's Day, but I also believe that the rule of law must be applied equally and at all times. The fact that State Patty's Day reflects poorly on the Penn State community and causes problems for the State College area does not mean that the police are able to ignore the law. One of the most embarrassing and inhumane things in the history of the United States is that Japanese-Americans were taken into custody and placed in internment camps during World War II, and the U.S. Supreme Court upheld the action under an ends justifies the means analysis. I know that I am comparing apples and oranges, and many people do not care about drunk, college-aged kids being arrested, but the criminal rules apply to everyone on everyday.
Will the Summary Arrest Plan Result in Civil Liability?
I am a criminal defense lawyer and not a civil lawyer, so I must admit that I do not know all of the laws governing civil liability of police officers. I admit that I am friends with and have much respect for the majority of police officers in this area. They attend the same churches, their kids play in the same soccer and T-ball leagues as my kids, and they are involved in the same social organizations as myself. I fear that if the officers follow the police plan and ignore the rules of criminal procedure, especially the mandate that they arrest suspects and not take them before a judge, the officers will be exposed to civil liability for violating the civil rights of the suspects. Given the number of people that will be infiltrating State College and will be subject to the police department's plan, I expect that civil rights attorneys will be waiting in the wings to file a class action lawsuit against the police officers individually and the police department.