It’s not really on-topic, but I want to tell you about an interesting decision from the Massachusetts Supreme Judicial Court yesterday, Lunn v. Commonwealth (Mass. 2017). Sreynuon Lunn was arraigned on a charge of robbery in the Boston Municipal Court. Bail was set at $1,500, and because Lunn could not post bail, he was committed to the custody of the sheriff and held in the county jail. Just before the arraignment, the federal Department of Homeland Security had issued a “detainer” against him. The detainer is a request—not a command—that Massachusetts hold Lunn for up to two days after he would otherwise be released from custody, so that the Department could take him into custody with the intention of deporting him.

The sheriff brought Lunn back to court for trial, and he was transferred to the custody of the court officers, but the Commonwealth was not ready for trial, so the judge dismissed the case for lack of prosecution. Lunn’s lawyer asked the judge to release him from custody despite the detainer, but the judge did not take action. Lunn remained in custody for several hours, until federal agents arrived and took custody. Lunn’s lawyer then brought a petition in the Supreme Judicial Court for Suffolk County (an interesting feature of Massachusetts practice, which allows single justices of the Supreme Judicial Court to grant relief in certain kinds of cases) seeking an order requiring the Boston Municipal Court to release him. Of course, by then the case was moot, since Lunn was already in federal custody. But because the case was, as they say, capable of repetition but evading review, the single justice reported the case to the full SJC.

Lunn raised claims under the federal and Massachusetts constitutions and under the common law. The common law claim won the day, and the court didn’t reach the constitutional issues. The basic decision is that at common law, there is power to arrest someone without a warrant only if the officer has probable cause to believe the suspect committed a felony or if the suspect commits a misdemeanor that involves a breach of the peace in the officer’s presence (this is a loose statement of the rule). There is no common law authority to arrest someone in a civil matter. There are also various statutes that give officers the power to arrest in non-criminal contexts, but none of them apply here. In short, in the absence of a common law rule or a statute, there is no authority, and certainly no “inherent authority” (as the US government claimed in its submission) allowing a Massachusetts officer to arrest someone because of a civil federal request.

I approve of the outcome, though I am not sure it’s right to say that at common law there was no civil power of arrest. At common law, as we saw in my two posts on service of process in the olden days, at a certain period of development it was not just accepted but most common to begin civil lawsuits with the arrest of the defendant on a writ of capias ad respondendum. The SJC itself recognized this history in Commonwealth v. Gorman, 288 Mass. 294 (1934), and maybe elsewhere. By rule, civil arrest is no longer available except in cases of contempt and in rare ne exeat cases, see Mass. R. Civ. P. 4.3.

I don’t know enough about the adoption of Rule 4.3 to know whether it was just restating developments in the common law that had already occurred or whether it marked a change in the law. You might say that a capias is like an arrest warrant and thus the court’s opinion is consistent with the existence of extensive powers of civil arrest that existed in the past, but I’m not sure that’s a reasonable way to look at it, and in any case the court doesn’t address the point.

To be clear—I’m not criticizing the outcome, because even if there is a civil power of arrest at common law, I don’t see that it would extend to the situation presented in this case. But I think the court’s discussion maybe passed over the history a bit too quickly.