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10-17-2004, 12:10 AM

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.

Texas law for example is:
code of criminal procedure 14.01 A peace officer or any other person, may without a warrant,arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.

offenses against public

42.01 disorderly conduct , 42.02 riot , 42.03 obstructing a highway or other passageway , 42.05 disrupting meeting or procession , 42.08 abuse of a corps , 42.09cruelty to animals 46.08 hoax bomb 49.02 public intoxication , and so on basically any misdemeanor against or offends the public.

42.01 disorderly conduct

A person commits an offense if he intentionally or knowingly
1. uses abusive,indecent,profane,or vulgar language in a public place,and the languageby its very utterance tends to incite an immediate breach of the peace
2.makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace.
3. creates by chemical means,a noxious and unreasonable odor in a public place.
4. abuses or threatens a person in a public place in an obviously offensive manner.
5. makes unreasonable noise in a public place other than a sport shooting range,as defined by section250.001,local government code,or in or near a private residence that he has no right to occupy.
6. fights with another in a public place.
7. discharges a firearm in a public place other than a sport shooting range
8. displays a firearm or other deadly weapon in a public place in a manner calculated to alarm.
9. discharges a firearm on or across a public road.
10. exposes his anus or genitals in a public place and is reckless about whether another may be present who will be offended or alarmed by his act,or
11. for a lewd or unlawful purpose
a.enters on the property of another and looks into a dwelling on the property through any window or other opening in the dwelling.
b. while on the premises of a hotel or comparable establishment,looks into a guest room not the persons own through a window or other opening in the roon,or
c. while on the premis of a public place looks into an area such as a restroom or shower stall or changing or dressing room that is designed to provide privacyto a person using the area.

Think of it like this............... If a Walmart employee caught someone stealing,and confronted them as they were exiting the store,the crime would be theft,for whatever he had stolen. But if he decided to fight the charge would be robbery,and if by chance an elderly person was knocked down in the process,it becomes agravated robbery.

If you have the sand to confront people like this the law is behind you. But remember what I said law enforcement in some parts of north east texas (Dallas in most cases) does not even think a citizen can make an arrest,even if you show them in black and white. Usually they will write a ticket and tell you youre wrong,so be careful.

10-17-2004, 12:10 AM	#6
juvenile Posts: n/a	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. Texas law for example is: code of criminal procedure 14.01 A peace officer or any other person, may without a warrant,arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace. offenses against public 42.01 disorderly conduct , 42.02 riot , 42.03 obstructing a highway or other passageway , 42.05 disrupting meeting or procession , 42.08 abuse of a corps , 42.09cruelty to animals 46.08 hoax bomb 49.02 public intoxication , and so on basically any misdemeanor against or offends the public. 42.01 disorderly conduct A person commits an offense if he intentionally or knowingly 1. uses abusive,indecent,profane,or vulgar language in a public place,and the languageby its very utterance tends to incite an immediate breach of the peace 2.makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace. 3. creates by chemical means,a noxious and unreasonable odor in a public place. 4. abuses or threatens a person in a public place in an obviously offensive manner. 5. makes unreasonable noise in a public place other than a sport shooting range,as defined by section250.001,local government code,or in or near a private residence that he has no right to occupy. 6. fights with another in a public place. 7. discharges a firearm in a public place other than a sport shooting range 8. displays a firearm or other deadly weapon in a public place in a manner calculated to alarm. 9. discharges a firearm on or across a public road. 10. exposes his anus or genitals in a public place and is reckless about whether another may be present who will be offended or alarmed by his act,or 11. for a lewd or unlawful purpose a.enters on the property of another and looks into a dwelling on the property through any window or other opening in the dwelling. b. while on the premises of a hotel or comparable establishment,looks into a guest room not the persons own through a window or other opening in the roon,or c. while on the premis of a public place looks into an area such as a restroom or shower stall or changing or dressing room that is designed to provide privacyto a person using the area. Think of it like this............... If a Walmart employee caught someone stealing,and confronted them as they were exiting the store,the crime would be theft,for whatever he had stolen. But if he decided to fight the charge would be robbery,and if by chance an elderly person was knocked down in the process,it becomes agravated robbery. If you have the sand to confront people like this the law is behind you. But remember what I said law enforcement in some parts of north east texas (Dallas in most cases) does not even think a citizen can make an arrest,even if you show them in black and white. Usually they will write a ticket and tell you youre wrong,so be careful.