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.