A primer on Citizens Arrest

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Thread: A primer on Citizens Arrest

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    VIP Member Array matiki's Avatar
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    A primer on Citizens Arrest

    Of all the forums I frequent, D.C. has the most logical and well grounded membership. That said, a great deal of inaccurate information is posted by well-intentioned members regarding Citizens Arrest.

    My disclaimer: I am not a Laywer. I am a practitioner in the field of Corporate Security, specifically, Executive Protection. I am posting information based on my practical (anecdotal) experience, and utilizing information from Lawyers and Legal Scholars.


    The basic Myth(s):

    1.) No one can touch you unless you touch them first.

    2.) Only Police Officers can detain or arrest you.

    Background on Citizens Arrest:

    Citizens' Arrest

    CONSTITUTIONAL BUSINESS

    Published By Citizens' Justice Programs

    Post Office Box 90, Hull, Massachusetts 02045
    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.
    The author is an attorney in private practice in Boston.
    Knowledge Base: Citizen's Arrest
    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.
    Assessment (in General, some States may vary):

    Myth 1:

    False - if you commit a crime against a citizen, or a felony in their presence, most States allow more than just "touching", they allow arrest.

    Myth 2:

    False - see above.

    Common Truths:

    1.) If you make a false arrest - a citizens arrest that is determined to be unfounded, you can be sued and even prosecuted for that false arrest.

    To learn more about false arrest, there is a decent definition here:
    false imprisonment - legal definition

    2.) If you use more force than is necessary (prudent) you can be sued, and even prosecuted for that use of force. That can include "touching" - for example: you order someone (who is unarmed and/or not a threat) not to leave and they comply. It is not necessary to touch them to continue detaining them while awaiting the police.

    3.) If you arrest someone, you must turn them over to police custody as soon as possible.

    Important considerations:

    There is a great deal of gray area. Every State varies.

    My home state of Washington allows you to physically restrain shoplifters, and includes liability protection within the statute. Another state may only have citizens arrest - which would prevent physical restraint unless it was the least amount of force necessary to effect detention/arrest.

    In WA, trespassers are likewise subject to detention. Shoplifting and trespassing are not felonious in most circumstances. This is an exception, not the norm, but two exceptions to bear in mind before assuming citizens are powerless to act for the greater good (or their own good for that matter).

    The bottom line is almost always going to be: "Were you (the arresting party) right?"

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    VIP Member Array cdwolf's Avatar
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    Good post Thanks.
    The only way I would do this is if I seen it and, assault was involved!!
    I need to check MS law.
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    VIP Member Array Sheldon J's Avatar
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    that sounds real close to what I was taught about Mi's version. Good post and information.
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    VIP Member Array miklcolt45's Avatar
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    Depends on the state.

    A quick search found this from an attorney...

    In addition, Florida does not have a statutory guideline that permits a “citizen arrest” except in common law, and even in that situation it extends primarily to businesses wherein a business owner or staff member detects a theft or other crime on their owned premises and detains a party for that reason.
    So, little of what you mentioned may be applicable in many jurisdictions.
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    VIP Member Array Kerbouchard's Avatar
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    North Carolina is the only state without some sort of provision for citizens arrest.

    All other states vary in regards to:
    A. applicability
    B. burden of proof
    C. legal consequence if wrong
    D. level of force justified
    There are two sides to every issue: one side is right and the other is wrong, but the middle is always evil.

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    Member Array Con43's Avatar
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    As stated it depends on the juisdiction. It may sound good morally but the legal ramifications are endless. You have none of the protections that an LEO has in an arrest or detention. You can be sued or even charged with a crime depending on the local DA's mood if any little thing is wrong. Unless you have unlimited $ for defence in case of problems the best thing is call LE and be a witness. In the end it is a personal choice and one I would not take unless life or bodily injury was at stake.

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    VIP Member Array matiki's Avatar
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    The discussion of Florida is a good one. I found this from the Florida AG Office:

    http://www.flhsmv.gov/CASES/Furr.html

    Police officer's "citizen arrest"
    An officer who arrested a defendant outside his jurisdiction made a proper citizen's arrest, the 1st DCA held, reversing a trial court's conclusion.
    After receiving a dispatch to locate a man who was seen driving westbound in an eastbound lane, Gretna Police Officer Willie Mitchell stopped Jesse Furr for drunk driving. The officer was a half-mile outside the Gretna city limits when he made the stop. The trial court suppressed evidence related to the stop, concluding that Officer Mitchell lacked probable cause and could not make a valid citizen's arrest while in his patrol car. Reversing, the DCA concluded that the trial court "erred by holding that a citizens' arrest is void where the officer is in a patrol car and uses flashing lights to detain the arrestee. ... The trial court also erred by failing to recognize the legality of a citizen's arrest for a felony or a breach of the peace."
    Essentially the court supports citizen's arrest in Florida, the question was, can a Police Officer make a Citizens arrest? Answer: Yes.

    The court relied upon what it termed the common-law rule that "a private citizen may arrest a person who in the citizen's presence commits a felony or breach of the peace, or a felony having occurred, the citizen believes this person committed it." Id. at 582.
    I'd love to have more FL residents add to this thread to help clarify the circumstances attendant to their State.

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    VIP Member Array matiki's Avatar
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    North Carolina is the only state without some sort of provision for citizens arrest.
    I had heard that multiple times but I believe that is not the case. I understand that there is a huge difference between detention and arrest but North Carolina does allow Detention (and Arrest when aiding an Officer) Was the law repealed?

    GS_15A-404

    § 15A‑404. Detention of offenders by private persons.

    (a) No Arrest; Detention Permitted. – No private person may arrest another person except as provided in G.S. 15A‑405. A private person may detain another person as provided in this section.

    (b) When Detention Permitted. – A private person may detain another person when he has probable cause to believe that the person detained has committed in his presence:

    (1) A felony,

    (2) A breach of the peace,

    (3) A crime involving physical injury to another person, or

    (4) A crime involving theft or destruction of property.

    (c) Manner of Detention. – The detention must be in a reasonable manner considering the offense involved and the circumstances of the detention.

    (d) Period of Detention. – The detention may be no longer than the time required for the earliest of the following:

    (1) The determination that no offense has been committed.

    (2) Surrender of the person detained to a law‑enforcement officer as provided in subsection (e).

    (e) Surrender to Officer. – A private person who detains another must immediately notify a law‑enforcement officer and must, unless he releases the person earlier as required by subsection (d), surrender the person detained to the law‑enforcement officer. (1973, c. 1286, s. 1.)

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    Distinguished Member Array kazzaerexys's Avatar
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    Quote Originally Posted by Kerbouchard View Post
    North Carolina is the only state without some sort of provision for citizens arrest.
    This has come up several times. I will look for a reference to NC law, but IIRC what showed up in earlier discussion is that NC law allows for citizen's detention, meaning you can stop and detain someone for the reasons matiki laid out. What you can not do is then transport the detained person. So you have to call the police to come pick the scumbag up. Once you move the detainee against his will, you are now kidnapping (or whatever charge they might bring).

    I will now go look for the reference...

    Edited to add: Found it here...

    North Carolina General Statues, Chapter 15A.

    § 15A‑404. Detention of offenders by private persons.

    (a) No Arrest; Detention Permitted. – No private person may arrest another person except as provided in G.S. 15A‑405. A private person may detain another person as provided in this section.

    (b) When Detention Permitted. – A private person may detain another person when he has probable cause to believe that the person detained has committed in his presence:

    (1) A felony,

    (2) A breach of the peace,

    (3) A crime involving physical injury to another person, or

    (4) A crime involving theft or destruction of property.

    (c) Manner of Detention. – The detention must be in a reasonable manner considering the offense involved and the circumstances of the detention.

    (d) Period of Detention. – The detention may be no longer than the time required for the earliest of the following:

    (1) The determination that no offense has been committed.

    (2) Surrender of the person detained to a law‑enforcement officer as provided in subsection (e).

    (e) Surrender to Officer. – A private person who detains another must immediately notify a law‑enforcement officer and must, unless he releases the person earlier as required by subsection (d), surrender the person detained to the law‑enforcement officer. (1973, c. 1286, s. 1.)
    G.S. 15A-405 is the provision for a private citizen assisting a sworn officer in executing an arrest.
    Last edited by kazzaerexys; April 16th, 2008 at 03:19 PM. Reason: Added reference.
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    VIP Member Array MitchellCT's Avatar
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    Unless operating in the capacity of a security guard or in assistance of law enforcement, why would you want to detain someone?

    Detaining people is dangerous.

    Our job as private citizens is to defend ourselves and those we deem necessary to defend; not bring into custody those who would harm us.

    Most officers are injured in the line of duty taking people into custody.

    When the first cuff goes on and just before the second one clicks, or when they start to flee and you are standing between them and freedom with a gun saying "Stop" is when it may 'click' for them that they either go through you or go to jail, and unless you are ready to shoot without hesitation in a situation in which the threat is no longer a threat to you and is attempting to flee, it can turn very bad.

    Your money may not be worth the risk of getting shot once a criminal learns you are armed, but their freedom...oh boy.

    To badly paraphrase DeNero in HEAT "I am not going back."

    No matter if you are trying to lay hands on them or hold them at gunpoint, the situation where you are going to deprive someone of their freedom to hand them over to law enforcement is a very hazardous situation, probably more so than the actual incident which lead to your attempt to detain.

    In addition, their are likely provisions in your state laws regarding self defense which speak to an assailant "clearly communicating his desire to cease hostilities, ending his threatening behavior and taking unambiguous action to withdraw" which end your rights to use force, and should you pursue him, you become the aggressor entitling the initial assailant to use force to defend himself.

    This kind of situation rarely comes up, primarily because in self defense incidents most people are satisfied with the assailant running as if his ass was on fire and his hair was catching, or the assailant is dead; however, attempting to detain an assailant after the threat is stopped may, not definitely, but may enter into this area of self defense law.

    Obviously you don't have to let someone go if you reasonably suspect he is just using his retreat as a ruse or to obtain a weapon, but use common sense.

    Do not add more trouble to your plate.

    Unless directed to by law enforcement or in a capacity as private security, defend yourself...even if that means you don't engage the threat to your level of satisfaction.

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    VIP Member Array matiki's Avatar
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    Unless operating in the capacity of a security guard or in assistance of law enforcement, why would you want to detain someone? ... (snip)
    I appreciate your input and your candor. I agree, in general.

    However, this thread is intended to discuss whether or not you can. Not whether or not you should.

    I hope that through discussion on this thread, when other threads touch on the subject, blanket statements like: "They cannot put a finger on you, even if you do commit xyz crime" can be addressed with a referral link to this thread, rather than the lengthy, tedious, and repetitive debate that keeps coming up.

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    Member Array albundy's Avatar
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    I would not want to open myself up for lawsuits and or worse. I'm not a LEO.

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    Distinguished Member Array kazzaerexys's Avatar
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    Whether or not you want to do this, if you pull your gun prepared to shoot an assailant (say we are talking mugging), and the attacker just stops---drops the knife, doesn't run away, and maybe pees his pants---you are now detaining somebody caught in the commission of a felony. If you don't just tell him to run away, you are now, as a private citizen, performing a citizen's arrest (or, in NC, a citizen's detention), whether you like it or not.

    Look at it this way. You probably pay a lot of attention to lethal force law, and you do it not because you want or intend to shoot somebody, but because you want to know how to deal with the situation if it does come up. Well, as I pointed out above, whether or not you want to perform a citizen's arrest may become irrelevant based on cirsumstances, so you should know how that works, too.

    And if it is your considered, premeditated opinion that you won't leave a live BG to be arrested, I strongly suggest you not voice that opinion anywhere public.

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    I made many citizen's (or private person's) arrests in the 1980s while I was employed as Director of Security for the Portland Marriott Hotel. Oregon law required that the arrested person be brought before a Magistrate within a reasonable time.

    This was accomplished by turning the subject over to a Portland Police Officer, who could either issue a summons to appear in court, or physically book the subject into jail.

    Either way, it was then my responsibility to sign the formal complaint at the District Attorney's office within one business day. The DA could then decide whether to proceed with a prosecution. Most of my arrests were misdemeanors for trespassing, theft of services and prostitution and were usually settled by a civil compromise.


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    VIP Member Array matiki's Avatar
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    Quote Originally Posted by Captain Crunch View Post
    I made many citizen's (or private person's) arrests in the 1980s while I was employed as Director of Security for the Portland Marriott Hotel. Oregon law required that the arrested person be brought before a Magistrate within a reasonable time.

    This was accomplished by turning the subject over to a Portland Police Officer, who could either issue a summons to appear in court, or physically book the subject into jail...... (snip)
    When I worked for a major retailer as a Store Detective I did the same, except in Seattle. In Seattle I was an Agent (like a Special Police Officer) and I issued summons after running warrants on all my shoplifting and internal theft apprehensions and then cut them loose. Saved the Police a lot of time. On the other hand, when they asked me to hold the person for a Police Officer to pick up on warrants I would always get nervous... nothing like being unarmed and in the same room as a wanted criminal

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