The Militia Origins of American Policing
by William Flatt


There were four primary institutions that provided the basis of English and American law enforcement for almost 600 years, from the Statute of Winchester (1285), until the statute of 1856 requiring all English counties to maintain professional police forces: (a) the local constable, appointed in England, elected from small precincts in the U.S.; (b) the neighborhood hue and cry; (c) the night watch, later supplemented by a day watch, on which in theory all adult males were bound to serve; and (d) the posse comitatus, consisting of all males over the age of 15, a variant of the citizen militia established by the Assize of Arms (1181).

Origins of Policing Based in Militia Tradition
The English background of the individual right to possess weapons dates back to the reign of King Alfred the Great in 690 A.D. Under King Alfred, every free male was required by law to possess the weapons of an infantryman and serve in the citizen militia (although the word "militia" itself was not used until the late 16th century). In 1181, King Henry II's Statute of Assize of Arms ordered all freemen to bear arms for national defense. By the late 16th century, gun ownership had become mandatory for all adult males for anti-crime purposes, and for the defense of the realm. Arms were necessary so that all citizens could join in the hutesium et clamor (hue and cry) to pursue fleeing criminals; indeed, citizens were legally required to join in. Any person who witnessed a felony could raise the hue and cry.

In Holland, the night watch was introduced in 14th century and was the responsibility of the Sheriff. But as towns grew every neighborhood got its own department of watchmen. The organization of the night watch was based on the militia, even with titles as lieutenant, captain and colonel. But these titles were reserved for the rich and they never patrolled town.

The English colonies in America quickly established an individual right and duty to bear arms that paralleled the developments in England. In 1658, the Virginia House of Burgesses required every householder to have a functioning firearm. The purpose was to have a citizenry that could be called to militia duty to fight Indians, foreign invaders, or pursue and detain infamous criminals. Additionally, in both Great Britain and America, citizens were required to participate in anti-crime patrols such as a night watch and to obey the commands of sheriffs to pursue fleeing felons. Lastly, as a practical matter, citizens had to possess arms for their own personal protection, since public safety agencies were few and far between.

The night watch as originally conceived was a volunteer body, drawn by lottery from among all adult males. Its expiration began when the hiring of substitutes was permitted. With the rise of professional police, another form of select militia, any effort to enlist or enforce public participation in law enforcement was abandoned. Yet, the inevitability of this decline is far from obvious. Until well into the nineteenth century volunteer watchmen - not policemen - patrolled their communities to keep order.... Their presence deterred disorder or alerted the community to disorder that could not be deterred. And a relative of the night watch survives without controversy: The volunteer fire department continues to serve in many parts of the country. Yet a new form of the night watch is being used, and though the term citizen militia is studiously avoided by modern officials, it is called "neighborhood watch" and "community policing"; the very things that are the responsibility of the citizen militia during peacetime.

A New Model of Policing
Meanwhile in England, British Home Secretary Sir Robert Peel organized the first professional city-police force in 1829 by passage of the Metropolitan Police Act. The structure of this police force placed the control of these men at the disposal of the Home Secretary himself. This in essence became the foundation for the development of nationalized police forces in every nation outside America. The abuses of nationalized police forces are well documented in the examples of Nazi Germany, the Soviet Union, Communist China, and virtually every tyrannical government since.

America resisted the development of a national police force, in large part due to the development of our traditions of decentralized power and local accountability. Another factor is the extreme caution that Americans have toward placing the power of arrest and detainment in the hands of others. Healthy distrust of government has been and remains central to the American tradition of checks and balances, and limits on the powers of those charged with policing is congruent with that tradition. By 1900, however, the growing size and political manipulation of metropolitan police forces drew mounting criticism from many who saw that the police were quickly becoming nothing short of political operatives. This parallels the development of national police forces in foreign countries as tools of persecution and political repression.

C. B. Klockars (The Idea of Police, Sage, 1985) provides a clear and brief definition of this new model of policing that closely mirrors the Maoist model of the theory of political power. "The meaning of police is not found in what is done, it is how it is done. Policing is done by coercive force". Robert Langworthy and Lawrence Travis, in Policing in America (Macmillan, 1994) assert, "The price for more freedom is likely to be less order; the price for more order is likely to be less freedom". He continues, "Police actions must be justified in order to be considered appropriate".

Langworthy and Travis continue with this new definition of policing by expounding on the maintenance-of-order concept. They use the term "peacekeeping" to describe the new role of the police officer. Evocative as that is in describing the maintenance of the peace, we begin to see that the same terms are now being applied to our military, which are entangled in missions of peacekeeping.

"As we prepare for the future, special operations forces will be operating," says H. Allen Holmes, former Assistant Secretary of Defense, "in what I would call the seam between war and crime". In this statement alone, we see the merging of police and military functions in America. How did this happen, in a free nation where the police function and the military function have been circumscribed, that we would begin to adopt the maintenance-of-order mechanisms of other nations whose people are less free?

Clearly here we see there is a radical shift in the concepts and definitions of policing, and the people in whom this responsibility is vested. We start in the mid 18th Century with a concept of policing by the people and for the people, and by the end of the 20th Century policing is now performed by a highly elite cadre - not for the people, but to control the people. Where did we go wrong?

In examining the professionalization of the police function, we can see that the radical shift in police philosophy began with the development of urban centers. The admiration of British institutions produced a rapid introduction of the foreign (British) model of policing into American cities. This is in contrast to rural America, where the county sheriff constituted the primary police function, locally accountable and sworn to uphold the Constitution as a public official who performed many civic duties and was not limited to merely "enforcing the law".

Shift in Policing Returns to Basics
In the mid-1990's, the ongoing federalization of local police departments and the adoption of models of policing by the military were recognized and denounced by various law officials who maintained the integrity of their oaths to uphold the Constitution. Some of the first to do so were Sheriffs in western states such as Richard Mack and Jay Printz, as well as Officers Jack McLamb and Rick Dalton, and the hundreds and thousands of members of the American Citizens & Lawmen's Association.

From the grassroots, these patriotic peace officers began to awaken their fellow officers to the fact that there is still a Constitution! There are more yet who know and understand the militia and 2nd Amendment origins of policing in America, and have quietly participated in militia groups all over America. In these organizations, an emphasis is placed on Constitutional knowledge and understanding, skills development, and character building. Some militias even train on specific aid-to-law-enforcement skills such as communications, search & rescue, and disaster preparedness.

I already covered the emergence of citizen action groups known as "neighborhood patrols" and "Guardian Angels". These are also militia groups. Like the camouflage-clad variety, they work WITH and in support of local police! Add to this the western phenomenon of property-protection groups like Ranch Rescue, which recently interdicted nearly 280 lbs of marijuana being smuggled in from Mexico, and you have a movement that is actually accomplishing a lot to help the police perform their proper functions!

Some private special-interest organizations who are hostile to Americanism, the Constitution, and the patriot movement, have worked long and hard to demonize these fellow defenders of our communities. We are told by these self-proclaimed "experts" that citizen militia groups are "the enemy" and "criminal groups"; waiting to wage war against the police on a scale far grander than even the radical groups of the 1960's - such as the Black Panthers - had threatened... yet their disinformation tactics are easily exposed by the law itself, and the track record of militias themselves.

Article 1, section 8 of the Constitution clearly states that Congress has the power "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions". Read that again! "...calling forth the Militia to execute the Laws of the Union..." Think about this: if the police have their origin in the militia, and the militia (which is the whole people;) may be called forth to enforce the law, then the militia is the ally of the peace officer!! Nonetheless, the critics of a free republic are attempting to deceive police into thinking it may be necessary to shoot these people as if they were the problem. Would you shoot your own partner? This is essentially what groups like the ADL and SPLC are asking police to do - and exactly what some policemen have already done in isolated cases.

Oh, I am sure you have heard stories about some whacked-out militiaman breaking the law, but consider this: Of the approximately 1 million people who consider themselves to be formally enrolled in a well regulated citizen militia group, how many have been actually tried, convicted and sentenced for a crime? If you listen to the ADL and SPLC, they would have you believe this happens hundreds of times every year. However I think that the serious researcher would be hard pressed to find 50 instances in the past 10 years, let alone the 500 or 5000 a year claimed by these morons. Statistically, it is plain to see that the per-capita involvement of militia members is well below the norm for the general population!

Given the self-serving rhetoric dished up by these political special-interest groups, who would you trust more to assist in catching real criminals? A political hack whose concern for the people can be measured on the head of a pin? Or real-life concerned, patriotic, law-abiding people who genuinely wish to assist in the apprehension of criminals and illegal aliens and just happen to be in a group that calls itself a militia?

Since the historical and social roots of American policing have already been clearly identified in the militia tradition, anyone who enforces the laws has to examine their philosophy of policing to see whether they are on the side of the people, with the full protection of constitutional rights; or against the people with an eye to arrest them for their exercise of inalienable rights. Which are you?

Citizens' Arrest
By David C. Grossack, Constitutional Attorney

Common Law Copyright © 1994
All Rights Reserved

Not long ago the politically correct Boston Globe noticed a shocking new trend. It seems as if some citizens of Massachusetts were so fed up with crime that they have begun to intervene in petty street crime afflicting the streets of our cities. Thieves and pickpockets in Massachusetts should exercise caution in where and how they ply their craft as the chances that vigilantes pummel them and drag them to the nearest cop are definitely on an upswing. While the Globe is shocked at this healthy trend, students of the law should note that both a statutory and common law basis for a certain degree of vigilante behavior is well founded. Indeed, in an era of lawlessness it is important that readers be advised as to their lawful right to protect their communities, loved ones and themselves by making lawful citizens' arrests. The purpose of this essay is to simply explain the law and the historical context of the citizen's arrest.

First, what is an arrest?

We can thank Black's Law Dictionary for a good definition: The apprehending or detaining of a person in order to be forthcoming to answer an alleged or suspected crime. See Ex parte Sherwood, (29 Tex. App. 334, 15 S.W. 812).

Historically, in Anglo Saxon law in medieval England citizen's arrests were an important part of community law enforcement. Sheriffs encouraged and relied upon active participation by able bodied persons in the towns and villages of their jurisdiction. From this legacy originated the concept of the posse comitatus which is a part of the United States legal tradition as well as the English. In medieval England, the right of private persons to make arrests was virtually identical to the right of a sheriff and constable to do so. (See Inbau and Thompson, Criminal Procedure, The Foundation Press, Mineola, NY 1974.

A strong argument can be made that the right to make a citizen's arrest is a constitutionally protected right under the Ninth Amendment as its impact includes the individual's natural right to self preservation and the defense of the others. Indeed, the laws of citizens arrest appear to be predicated upon the effectiveness of the Second Amendment. Simply put, without firepower, people are less likely going to be able to make a citizen's arrest. A random sampling of the various states as well as the District of Columbia indicates that a citizen's arrest is valid when a public offense was committed in the presence of the arresting private citizen or when the arresting private citizen has a reasonable belief that the suspect has committed a felony, whether or not in the presence of the arresting citizen.

In the most crime ridden spot in the country, our nation's capitol, District of Columbia Law 23- 582(b) reads as follows:

(b) A private person may arrest another -

(1) who he has probable cause to believe is committing in his presence -

(A) a felony, or

(B) an offense enumerated in section 23-581 (a)(2); or

(2) in aid of a law enforcement officer or special policeman, or other person authorized by law to make an arrest.

(c) Any person making an arrest pursuant to this section shall deliver the person arrested to a law enforcement officer without unreasonable delay. (July 29, 1970, 84 Stat. 630, Pub. L. 91-358, Title II, § 210(a); 1973 Ed., § 23-582; Apr. 30, 1988, D.C. Law 7-104, § 7(e), 35 DCR 147.)

In Tennessee, it has been held that a private citizen has the right to arrest when a felony has been committed and he has reasonable cause to believe that the person arrested committed it. Reasonable grounds will justify the arrest, whether the facts turn out to be sufficient or not. (See Wilson v. State, 79 Tenn. 310 (1833).

Contrast this to Massachusetts law, which while permitting a private person to arrest for a felony, permits those acquitted of the felony charge to sue the arresting person for false arrest or false imprisonment. (See Commonwealth v. Harris, 11 Mass. App. 165 (1981))

Kentucky law holds that a person witnessing a felony must take affirmative steps to prevent it, if possible. (See Gill v. Commonwealth, 235 KY 351 (1930.)

Indeed, Kentucky citizens are permitted to kill fleeing felons while making a citizen's arrest (Kentucky Criminal Code § 37; S 43, §44.)

Utah law permits citizen's arrest, but explicitly prohibits deadly force. (See Chapter 76-2-403.)

Making citizen's arrest maliciously or without reasonable basis in belief could lead to civil or criminal penalties. It would obviously be a violation of a suspect's civil rights to use excessive force, to torture, to hold in unsafe or cruel conditions or to invent a reason to arrest for the ulterior motive of settling a private score.

Civil lawsuits against department stores, police departments, and even cult deprogrammers for false imprisonment are legend. Anybody who makes a citizens arrest should not use more force than is necessary, should not delay in turning the suspect over to the proper authorities, and should never mete out any punishment ... unless willing to face the consequences.

As the ability of the powers that be to hold society together and preserve law and order diminishes, citizen's arrests will undoubtedly be more common as a way to help communities cope with the wrongdoers in out midst.

CITIZEN'S ARREST - from Study Guide
A citizen's arrest is a formal arrest by a citizen has no official government authority to make such an arrest as an agent of the government. The California Penal Code gives any citizen the right to make a citizen's arrest of another citizen in three alternative situations:

1. A public offense was committed or attempted in the citizen's presence.

2. The person arrested has committed a felony, although not in the citizen's presence.

3. A felony has been in fact committed and the citizen has reasonable cause for believing the person arrested has committed it.

Why do we need a statute like this? Why do we need a citizen's arrest ? Well, as the crime rate goes up, it becomes more and more important that good citizens come to the aid of one another in distress. Without such a statute, only government agents, such as police, would have the authority to stop a felon in progress. By creating the citizen's arrest statute we give ordinary citizens the authority to hold another citizen without fear of being sued for false imprisonment. Without the statute, the citizen who interfered in criminal activity would risk such a lawsuit.

Even with such a statute, the citizen still risks being sued if he/she is wrong on his assessment of the situation. Notice that the statute requires that the public offense be in the citizen's presence, or that the person arrested have committed a felony, that is, a crime punishable by one year or more in state prison. Do you know which crimes are punishable by one or more years in state prison? Can you be absolutely sure the person you are arresting is the one who committed the offense? What if there were three people involved? Can you be sure which one is the one you should arrest? At the very least, a defense lawyer is going to argue that the requirements for citizen's arrest were not met and that the arrest, and any consequent seizure of contraband, were illegal.

In a popular episode of the 1960s American sitcom The Andy Griffith Show , a gas station attendant named Gomer Pyle discovers the power of citizen's arrest. He spends the rest of the episode placing Mayberry citizens under arrest for the most minor offenses imaginable. While Gomer Pyle's intentions may have been honorable, the concept of citizen's arrest is not to circumvent legitimate law enforcement or arbitrarily detain people without proof of a crime. Today, citizen's arrest exists as more of an emergency or stop-gap power granted to ordinary citizens at the behest of law enforcement officers.

Citizen's arrest means that a private citizen has the right to detain suspected criminals until proper law enforcement personnel can assume custody. The practice can be traced back to English common law during the Middle Ages, although each country or state can modify the rules of engagement. During the earliest days of modern justice systems, performing a citizen's arrest was a much more common practice. Merchants would routinely detain shoplifters and thieves caught in the act, often bringing them directly to a local constable's office for trial. As criminals became better armed and law enforcement became more readily available, the popularity of citizen's arrest seemed to wane.

Modern law enforcement officers strongly discourage untrained civilians from making a citizen's arrest. The risk of bodily injury or death is much too high, and the average response time of trained police officers is significantly faster. But under certain circumstances, a citizen's arrest can provide enough time for the proper authorities to arrive. One of the main problems with a citizen's arrest, however, is the possibility of making a mistake. Unlike a failed attempt to resuscitate a victim through CPR, there is very little if any 'Good Samaritan' protection for private citizens who detain an innocent suspect.

One criteria for a legal citizen's arrest is the immediacy of the crime. The ideal circumstance is to catch the suspected criminal in the very act of committing a crime. A person witnessing a mugging can seize the mugger and hold him until a police officer arrives, for example.

Another scenario for a proper citizen's arrest would be a serious potential for a crime to be committed soon. If a person saw a masked man with a crowbar walking towards a vehicle, it can be reasonably assumed that a crime is about to take place. The witness can detain the masked man by making a citizen's arrest. This would still be true even if the 'crime' turned out to be a misunderstanding. If someone sees a man climbing through a broken window, he cannot be held responsible for false arrest if the man turns out to be the owner of the building who lost his keys.

Because the act of detaining an armed or physically powerful suspect can be extremely dangerous, police officers often suggest that citizens spend their time observing the suspect and the crime scene instead. If the witness can provide a physical description of the suspect or a license plate number, the police may be able to find the suspect themselves. The safer equivalent of a citizen's arrest is a signed statement, with the intention of pressing criminal charges later. Sometimes, a police officer will ask a witness or victim to tell the suspect that he or she has been placed under citizen's arrest. This gives the police more legal authority to detain the suspect until he or she can be properly processed into the legal system.