In most states, a private citizen has the right to arrest someone who has committed a felony in his presence, and may even arrest someone he reasonably believes to have committed a felony, so long as the felony was in fact committed.
First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.
Today’s topic is citizen’s arrest, a topic of interest to many listeners...
Robin from California wrote:
Recently, some teenage hooligans defaced our letter box with spray paint. I often fantasize about catching them in the act and dishing out my brand of justice on the spot. But in reality I know that if I ever did see someone committing a crime, my first thoughts would be about any legal consequences of my actions. Suppose I did catch a teenager spray painting my letter box. Could I grab him and physically restrain him until police arrived? What if he resisted and tried to leave? If I'm strong enough I might be able to overcome that and still restrain him until the authorities came, but would I get in trouble if he were a bit bruised, scraped, or cut, say, in our struggle? I can imagine an angry father coming at me for tussling with his kid.
Many of us share this unpleasant experience of neighborhood hooligans. The short answer is that there are situations where a private citizen may arrest someone. But, as Robin fears, if you do not carry out the citizen’s arrest properly, you might be liable for false imprisonment, battery, assault, or other damages you cause in carrying out the arrest. The quick and dirty tip is to avoid making citizen’s arrests unless absolutely necessary. When possible, record as much information as you can and contact local police.
In most states, a private citizen has the right to arrest someone who has committed a felony in his presence, and may even arrest someone he reasonably believes to have committed a felony, so long as the felony was in fact committed. For a misdemeanor, the private citizen must actually witness the crime, and must make the arrest immediately. A citizen cannot arrest for a misdemeanor committed a long time ago. Also, the misdemeanor must constitute a “breach of the peace.”
In most states, no formal announcement or actions are required to perform the citizen’s arrest. The citizen must sufficiently convey, either through words or conduct, the intent to perform a citizen's arrest. A citizen may use force that is reasonable under the circumstances to restrain the individual arrested.
Let’s assume that defacing a mailbox constitutes a felony or a misdemeanor that is a breach of the peace. In Robin’s case, if she saw a neighborhood hooligan defacing her mailbox, she would have the right to approach the hooligan and execute a citizen’s arrest. She might place her hand on his shoulder and say, “I am making a citizen’s arrest.” Robin could then use enough reasonable force to detain the hooligan until police arrived. If the hooligan resisted, Robin could use enough force to protect herself and to ensure that the hooligan remained there, and would not be liable for any injuries that the hooligan sustained in his attempts to break free.
But, there are several reasons that conducting a citizen’s arrest is a bad idea. First, as Robin pointed out, the hooligan’s father is likely to be angry. Most parents do not want unnecessary police involvement in their kids’ lives. A more polite and practical course of action might be to approach the father and ask that he informally punish his son.
Second, Robin might face steep legal costs in defending herself, regardless of whether her actions were justified. For example, imagine that the hooligan ran when Robin approached, Robin tackled him and broke his wrist, and the father sued. Even if Robin’s actions were legally justified, she will have to spend considerable time and money to defend herself in the lawsuit.
Third, if Robin makes any mistakes, she bears the consequences. For example, assume that the hooligan was legally hired to spray paint all the mailboxes in an apartment complex. If Robin saw the hooligan and tried to arrest him, she would not be legally allowed to do so because the hooligan was not, in fact, committing a crime. Robin might be liable for false imprisonment, battery, or assault if she used force to detain him. There is generally no defense of a good-faith mistake for private citizens. When a private citizen makes a mistake about whether a crime has been committed, or whether the crime is one for which a citizen’s arrest is permitted, or tries to arrest the wrong person, the private citizen bears the consequences.
[[AdMiddle]As you can see, citizen’s arrests are not foolproof. The safer course of action is to record anything you can about the incident and contact police immediately. Police are trained in the use force to apprehend criminals.
There are situations where simply recording an incident will not help. A common example is catching a purse-snatcher. If you witness someone run by and grab someone’s purse, that purse is not likely to be recovered unless you act immediately. In that situation, you are legally entitled to conduct a citizen’s arrest. But, before you do, consider that the criminal might be armed or much stronger than you are. You must decide if recovering the purse is worth your health or even your life.
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