Citizen's arrest in the United States

In the United States a private person may arrest another, without a warrant, for a crime occurring in his or her presence.

Common law

Most states have codified the common law rule that a warrantless arrest may be made by a private person for a felony, misdemeanor or "breach of peace".[1] A breach of peace covers a multitude of crimes in which the Supreme Court has even included a misdemeanor seatbelt violation punishable only by a fine. The term historically included theft, "nightwalking", prostitution and playing card and dice games.[2]

State statutes

California Penal Code section 837 is a good example of this codification:

837. A private person may arrest another:

  1. For a public offense committed or attempted in his/her presence.
  2. When the person arrested has committed a felony, although not in his or her presence.
  3. When a felony has been in fact committed, and he or she has reasonable cause for believing the person arrested to have committed it.

"Public offense" is read similarly as breach of peace in this case and includes felonies, misdemeanors and infractions.[3][4] Note that there is generally no provision for an investigative detention by a private person under the law. With certain exceptions (see below) an arrest must be made. "Holding them until the police get there", is simply a form of arrest. The officer is accepting the arrest and processing the prisoner on behalf of the private person.[5]

In no state may an arrest for a misdemeanor be made without the misdemeanor occurring in the presence of the arrestor.[6] In the case of felonies, a private person may make an arrest for a felony occurring outside his presence but the rule is that a felony must have, in fact, been committed. For example, imagine a suspect has been seen on surveillance video vandalizing a building to the extent that the arrestor believes the damage amounts to a felony. If he finds the suspect and makes the arrest but it later turns out that it was misdemeanor damage, the arrestor is liable for false arrest because a felony had not, in fact, been committed.

Because most states have codified their arrest laws, there are many variations. For example, in Pennsylvania, the courts have ruled that a citizen cannot make an arrest for a "summary offense".[7] In North Carolina, there is no de jure "citizens' arrest". Although it is essentially the same, North Carolina law refers to it as a "detention".[8]

Other states seem to allow arrests only in cases of felonies but court decisions have ruled more broadly. For example in Virginia, the statute appears to only permit warrantless arrests by officers listed in the Code.[9] However Virginia courts have upheld warrantless arrests by citizens for misdemeanors.[10]

Use of force

In general, a private person is justified in using non-deadly force upon another if he reasonably believes that: (1) such other person is committing a felony, or a misdemeanor amounting to a breach of the peace; and (2) the force used is necessary to prevent further commission of the offense and to apprehend the offender. The force must be reasonable under the circumstances to restrain the individual arrested. This includes the nature of the offense and the amount of force required to overcome resistance.[11][12]

Shopkeepers' (Merchants') privilege

In some jurisdictions of the United States, the courts recognize a common law shopkeeper's privilege, under which a shopkeeper is allowed to detain a suspected shoplifter on store property for a reasonable period of time, so long as the shopkeeper has cause to believe that the person detained in fact committed, or attempted to commit, theft of store property. The purpose of this detention is to recover the property and make an arrest if the merchant desires.[13]

Differing liability from police

Private persons do not enjoy the same protections as the police in arresting others. While the powers to arrest are similar, police are entitled to mistake of fact in most cases, while citizens are held to a stricter liability. Police can also detain anyone upon reasonable suspicion.[14]

References

  1. ↑ Daily, JD, James. "Superheroes and Citizen's Arrest". Law and the Multiverse.
  2. ↑ "Atwater v. Lago Vista ( No. 99-1408 )". Supreme Court of the United States.
  3. ↑ "California Penal Code Section 16".
  4. ↑ "People v. Landis". Appellate Division, Superior Court,Orange County. “Public offenses” include infractions.
  5. ↑ "Citizens' Arrest" (PDF). Alameda County District Attorney's Office.
  6. ↑ "Atwater v. Lago Vista ( No. 99-1408 )". Supreme Court of the United States.
  7. ↑ Legg, Jason. "From the Desk of the DA" (PDF). Susquehanna County Office of the District Attorney.
  8. ↑ "Detention of offenders by private persons.". North Carolina General Statutes.
  9. ↑ "§19.2-81 Arrest Without a Warrant". Code of Virginia.
  10. ↑ "Edward Thomas Wilson v. Commonwealth of Virginia". Court of Appeals of Virginia,Richmond.
  11. ↑ "Use of Force for Law Enforcement Purposes". Criminal Law Capsule Summary. LexisNexis.
  12. ↑ Flynn, Michael W. "Citizen's Arrest". Legal Lad.
  13. ↑ W. Page, Keeton et al., Prosser and Keeton on the Law of Torts § 22, at 142 (5th ed. 1984)
  14. ↑ "Terry v. Ohio (392 U.S. 1 (1968))". Supreme Court of the United States.
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