A duly-authorized city ordinance forbade the assembly of persons idly on the sidewalk, and provided that when three or more were assembled and refused to disperse when commanded to do so by a police officer, they should forfeit and pay a penalty of not more than $50 for every such offense. Held that the offense created by the ordinance was not the assembling, but the refusal of the persons so assembled to disperse when commanded to do so, and that this necessarily implied a reasonable time and opportunity to comply with such command. Accordingly, one who casually meets and stops to speak with friends on the sidewalk does not become an offender merely because he fails to move on instantly when ordered to do so by a policeman; and his arrest before he has a reasonable opportunity to do as directed, and his subsequent detention in the police station, is an unjustifiable invasion of his rights for which he is entitled to recover damages. the superintendent of police, who was in charge of the police station, refused to release the plaintiff, who had been arrested for an alleged violation of the foregoing ordinance, until his friends had paid $5, when he was discharged. Held that whatever might have been the theory upon which the chief of police assumed to act, it was a false one and afforded him no protection for the wrong done to the plaintiff by his unlawful restraint. The authority of a peace officer to arrest, without a warrant, for mere misdemeanors, is conferred and limited by § 1770 of the General Statutes. This section provides that policemen and other peace officers may "arrest, without complaint and warrant, any person for any offense in their jurisdiction, when the offender shall be taken or apprehended in the act." Held that this implied an offender and a present offense — not one already committed.
PRENTICE, J.
The plaintiff's arrest was at the hands of a police officer, without a warrant, and for the commission of a statutory misdemeanor created and defined by a municipal ordinance. The common law has long recognized the right of a peace officer to arrest without a warrant one whom he had reason or probable ground to suspect of having committed a felony, even though the suspected person is innocent, and although no felony had been committed. 4 Blackstone's Comm. 292; 2 Swift's Digest, 388; Samuel v. Payne, 1 Douglas, 359; Beckwith v. Philby, 6 Barn. C. 635; Rohan v. Sawin, 5 Cush. (Mass.) 281. Power to the same extent has not been recognized in the case of misdemeanors. In many jurisdictions statutes have been enacted regulating that subject in a manner deemed to be more suited to modern conditions than does the common law. Section 1770 of our General Statutes is such a statute, and its provisions define and prescribe the limits of the power of officers in making arrests for offenses such as that for which this arrest was made. The common-law power was less comprehensive, and there is no statute, general or special, which we have discovered, conferring a broader one upon this policeman. Section 21 of the charter of the city of Waterbury (12 Special Laws, p. 65) deals with the subject of arrests by members of the Waterbury police department for certain offenses, but it goes no further than the general statute, and the offenses enumerated do not embrace the present. The general statute referred to authorizes police and other peace officers to "arrest, without previous complaint and warrant, any person for any offense in their jurisdiction, when the offender shall be taken or apprehended in the act, or on the speedy information of others." It further provides that "all persons so arrested shall be immediately presented before proper authority."
The plaintiff's arrest was not upon the information of others. It was made upon the strength of the officer's own knowledge gained from his personal observation. The authority conferred in such cases is to arrest "when the offender shall be taken or apprehended in the act." This implies an offender and an act of offense which is not in the past. It does not justify an arrest of one who is not offending. such a person cannot be taken in the act of offending, since he is not offending.
The court below held, and rightly upon the facts before it, that the plaintiff was not committing, and had not committed, the offense created by the ordinance. The three young men, who met casually upon the walk and stopped for a friendly and orderly conversation with each other, were certainly not subject to the penal provisions of the ordinance before they were requested to move on. Tehan's command did not instantly convert them into persons against whom a criminal charge could be made. That result could not be accomplished until they should, in the language of the ordinance, have refused to disperse in obedience to such command. That necessarily implies a reasonable time and opportunity to do as directed. Such time and opportunity Tehan did not give them before the arrest was made. It is evident that he acted hastily and impulsively, and that he was prompted to make the arrest because he was piqued, and quite possibly because his temper was aroused by an innocent remark of the plaintiff, misunderstood or misconstrued. He failed to keep himself under that control which is required of an officer and to act with that regard for the rights of the individual which the law demands before he deprives a person of his liberty. The law seeks to give to those who are charged with the important duty of maintaining peace and good order in the community all reasonable protection in its discharge. But it cannot overlook the rights of private individuals, and justify arrests made as this was.
When authority over the plaintiff passed to the defendant Beach, he proceeded to exercise it by making terms with the plaintiff's friends as a condition of his liberation. This conduct was without possible justification. Upon what theory he assumed to act it is difficult to imagine. Whatever it was, it was a false one, and can afford him no protection for the wrong done the plaintiff by his unlawful restraint.