Det. Harry Callahan:
‘You’ve got to ask yourself one question. Do I feel lucky?”
The power and process of arrest should never be taken lightly. By the person making the arrest, the person being arrested, and by the rest of us, in whose name someone’s liberty is abruptly taken away. The U.S. Supreme Court and many other courts have noted that an arrest is serious, traumatic, and never forgotten; even when no charges are brought, or an arrested person is acquitted. The handcuffs of a cop killed in the line-of-duty may be carried (with lights/siren activated) to the scene where the killer has been apprehended. They are ceremoniously ratcheted down on the murderer to confirm the arrest — in the name of the fallen officer. Even though the cop killer is being transported to the morgue.
I have argued in court (unsuccessfully) that a looming arrest serves no purpose and should be judicially preempted. I have surrendered clients for arrest and been granted unusual courtesy, being allowed to; confirm the cuffs are “loose,” remain during the “booking” process, and accompany the client into a holding cell. I have pleaded with prosecutors and LEOs (successfully) to “undo” the arrest of a client (sworn and nonsworn). I have accompanied cops as a civilian observer, and then, and otherwise, observed many dozens of arrests. I have assisted cops in several arrests, while armed myself. An arrest is of symbolic importance; it suggests that the law is irrefrangible.
The inspiration for this post is the recent homicide (resulting from two men fighting over a shotgun) which put the Georgia “citizen’s arrest” law into the spotlight on the self-defense stage for the nonsworn. “Citizen’s arrest” in this country derives from English common law more than 700 years old. When I last studied the subject, it was lawful in all or almost all states. Either by default to the common law (with or without nuances imposed by a state’s modern case law), or by statute. For this post, the term means the warrantles taking of another into physical custody and detaining the person against his or her will under threat of force, until custody can be transferred to sworn law enforcement personnel. (Discussion of aiding an LEO is the subject of a 2014 MSW post of mine, – HERE – ). Since the threat or use of force is intrinsic to every “citizen’s arrest,” the topic lends itself to analysis using my paradigm (the principal related MSW post is linked to open in a new browser page): CAN – MAY – SHOULD – MUST
The CAN (mindset, skill, equipment). No arrest is a simple matter. Consider that many arrests are choreographed and made by a “team” or a “task force.” Success in making a “citizen’s arrest” (defined as the arrest is effected safely, the arrestee fully submits, and the transition to law enforcement is without incident) involves skill and experience, and depends to a large extent on luck. Countless skilled LEOs have died or suffered serious injury while making an arrest (or shortly thereafter), including of unarmed (or thought to be unarmed) persons. In order to effect a “citizen’s arrest” successfully, the nonsworn (yes, retired and out of jurisdiction LEOs, that includes you) must posses a focused mindset, have currently practiced verbal and physical control/restraint skills (with hands and with nondeadly and deadly weapons), and have on hand the equipment that is usually employed, whether there is resistance or not (gloves, handcuffs (the universal symbol) or other restraint device, less lethal force weapon, firearm). For almost all situations, and all would be citizen arrestors, the analysis is complete right here. Just don’t. There is of course also the likelihood the person to be arrested will not submit. Or is armed. Make a mistake, you might die. And/or get another innocent killed. See – HERE –. So, just don’t. Pretty sure even if you have sufficient mindset, skill and equipment, you’re not likely to be lucky enough as well.
The MAY (the law). An unlawful “citizen’s arrest” can result in rather serious criminal charges. In play are false arrest/imprisonment, assault, battery, or kidnapping. Where a deadly weapon is used, or injury or death results, the ante is likely upped to a heightened battery or assault charge, manslaughter, or murder. Civil liability is also in play. Some states have broad statutes giving wide latitude in the “citizen’s arrest.” But the entirety of the statute may not be the subject of arrestor favorable case law. Unless statute or case law provides otherwise, the nonsworn arrestor must have observed the commission of the crime, and be correct; the person arrested must be the person who committed the crime, and the crime must be one for which “citizen’s arrest” is permitted. An arrestor may have to know the law sufficiently to distinguish between a felony offense and a misdemeanor and know other nuances of the law. For example, some thefts are misdemeanors, some are felonies. “Citizen’s arrest” is not for the research lazy; understanding both statute and case law is likely needed. Of note: A “citizen’s arrest” (like rendering defensive aid to a third party or preventing the commission of a crime against another), should not invoke “Stand Your Ground” (i.e., duty to retreat) analysis. One can always “retreat” in such circumstances. Some further considerations one might want to research:
- Must the citizen arrestor know and affirmatively invoke the law? Have present intent to effect a “citizen’s arrest?” Say magic words to inform the arrestee he/she is being arrested?
- What level of force can be used to perfect the arrest? To retain custody? To prevent escape?
- What may a citizen arrestor do in the event another person attempts to interfere with the arrest?
- Is there civil immunity when a valid “citizen’s arrest’ is made? What if the citizen arrestor has acted in good faith, but is simply mistaken as to identity or the law?
- What level of force is firearm display, gunpointing, warning shot? When are they legal?
- Is there any obligation imposed on the citizen arrestor after the arrested person is surrendered to law enforcement?
The SHOULD (the decision is yours alone; appreciate all the risks). I wrote in my initial introduction of the paradigm about this element – HERE – : “Everything you are/have and ever will be/have are at stake.” Head’s up: That is likely how the person to be arrested is thinking. Regular followers of MSW know I weasel out of advising on the SHOULD. I will, however, relate this for your contemplation: I was lecturing a group of federal agents and one asked about interdicting and arresting a DUI reckless driver clearly endangering innocent lives. (Under state case law, he could make that arrest as a private citizen, just like I or an out-of-jurisdiction local LEO could). I told him to “call it in and be a good witness.” He then said: “what if the drunk kills a child, and I didn’t arrest him, I don’t know if I could live with myself.” I knew he had a child, so I responded: “Where’s your kid?” He said, “at home.” I said, “same answer.”
The MUST (you or someone you cannot live without will die if you do not act). See above, my conversation with the federal agent. This element of the paradigm probably only gets invoked in the “citizen’s arrest” context when defensive force has been used and a malefactor is down but still a threat. If circumstances and the desire to render medical aid dictate, sure, declare a citizen’s arrest and proceed as permitted by law to restrain and render aid to someone against whom you have used lawful defensive force. Of note: Some mighty fine attorneys and use of force experts say don’t do either.
Takeaway: “For fools rush in where angels fear to tread.” Alexander Pope, An Essay on Criticism.
Disclaimer: No MSW post constitutes particularized legal advice, or creates an attorney-client relationship with a reader.