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by JOSH

How To Perform A Citizen’s Arrest, And Why You Really Shouldn’t

POSTED May 1, 2013
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We all have issues we have to work out, and as a result some of us may one day find that the urge to act as an amateur crime fighter will become irresistible. That’s crazy, you may say, I would never become one of those nuts. Take heed, however; this urge may enter the mind in a relatively undetectable manner. We all in some form or fashion identify with Charles Bronson. Each of us has some line toward which we may be pushed, beady-eyed, mumbly-mouthed, feather-haired, by crime and criminals. Perhaps you live in a high crime area where the police are unresponsive and find you are sick of bad guys carrying out their deeds unmolested by the long arm of the law. Perhaps one evening you find you have had enough and decide to take the law into your own hands. Perhaps you may even self-identify as the leader (although also the sole member) of the neighborhood watch. A circumstance such as this is an extremely dangerous one. People often die in situations where people desperate to gain control over their lives intervene in law enforcement.

Typically, most of us rely on sworn law enforcement to handle our policing activities. That’s the standard and rational thing to do. And yet the citizen does have some sort of right to apprehend criminals. In fact, there are laws that protect and even encourage vigilantism and they are not of recent provenance. Places like the United States, Canada and other geographic regions once controlled by the British crown, trace the concept of the citizen’s arrest back to medieval English law. The concept of the ordinary person possessing the right to detain a criminal dates back to a time when, according to constitutional attorney David Grossack, the local sheriff routinely relied on anyone who could reasonably be expected to apprehend a criminal to do just that. Grossack points out that the tradition of the posse comitatus, the legal concept of an officer of the law’s ability in a time of emergency to deputize friends and neighbors who were handy at wielding a torch and/or a weapon while on horseback, is also born from this era and cultural attitude toward the citizen’s obligation to protect and defend the peace. It bears reminding, however, that we have, as societies, moved away from calling on citizens to act as enforcers of the law. It is one of the perks of the police states.

Under U.S. federal law, there is no explicit mention of citizen’s arrest, but a group called CrimeFighters (for which we could find no website) interprets Title 18, Section 2236 to give at least tacit permission for any normal citizen to arrest another, depending on the circumstances. Here’s the statute:

Whoever, being an officer, agent, or employee of the United States or any department or agency thereof, engaged in the enforcement of any law of the United States, searches any private dwelling used and occupied as such dwelling without a warrant directing such search, or maliciously and without reasonable cause searches any other building or property without a search warrant, shall be fined under this title for a first offense; and, for a subsequent offense, shall be fined under this title or imprisoned not more than one year, or both.
This section shall not apply to any person—
(a) serving a warrant of arrest; or
(b) arresting or attempting to arrest a person committing or attempting to commit an offense in his presence, or who has committed or is suspected on reasonable grounds of having committed a felony; or
(c) making a search at the request or invitation or with the consent of the occupant of the premises.

If you’ll notice, the first paragraph makes explicit mention of agents of federal law enforcement. When the statute lists the exceptions, however, the wording becomes more vague, mentioning instead “any person.” Laziness? Who cares, says CrimeFighters. It says “any person” right there in the text. A citizen qualifies as “any person,” of course, and so that would mean that if an average citizen could get his or her hands on a real, live arrest warrant (as is typically the case with bounty hunters), they would be able to make an arrest within the limits of the law. But it would be difficult, CrimeFighters admits, for the average citizen to get that warrant (even despite wanting one really, really badly), and so we drop down to part (b). It is in this section that we find what’s considered federal justification for the citizen’s arrest. The idea that it is a legal right for anyone who witnesses a felony carried out in their presence to arrest that person seems to be widely agreed upon, at least by people who spend their time interpreting such things. CrimeFighters also believes this right is extended to a situation where a reliable third party has witnessed the felony and convinces the citizen crime fighter they have probable cause to arrest the suspected criminal.

It’s within the states where the real money citizen’s arrest laws are to be found, however. Depending on where you live, they can be pretty close to those enjoyed by medieval English vigilantes. Kentucky is the standard-bearer for citizen’s arrest laws; Section 503 of the state’s penal code lists all manner of circumstances where a person could make an arrest and a court case from the 1930s is interpreted to mean Kentucky law calls on citizens to intervene when they see a felony, especially one where another person is in danger. Other states, like Massachusetts and Florida, allow for citizen’s arrests, but require that if the criminal isn’t convicted, the crime fighting citizen isn’t convicted of the crime.

So say you’re the type of person who really wants to arrest another person and you actually seem some heavy action go down right in front of you. CrimeFighters recommends that you first be aware of the difference between a felony and a misdemeanor in your state (and ostensibly, the differences between the two in any states where you plan to vacation and possibly fight crime while on vacation). Citizens’ arrests protections (where they do exist) don’t extend to misdemeanors and you will get in all sorts of trouble (see upcoming section) for attempting one under such circumstances. But if you see what is clearly a felony being carried out before you and you choose to act, here are the steps CrimeFighters suggests you take:

A CrimeFighter, when making an arrest, must tell the suspect being arrested of the intention to arrest and the cause of the arrest. That’s not necessary if the suspect is engaged in the commission of an offense, is chased after its commission, after an escape, or forcibly resists before the CrimeFighter has opportunity to inform the person. After making an arrest a citizen must, without unnecessary delay, deliver the suspect to a police officer, or take them to a magistrate or police station.

That’s pretty much it as far as the arrest goes, although there is all manner of fine-grained details involved. (Here is CrimeFighters’ full document on the subject.) No Miranda rights need be read, for example, since they only apply to the person’s right to remain silent among law enforcement officials. Even more, any admission of guilt expressed to you, the apprehending crime fighter, can likely be used in court, should you be willing to sit as a witness for the state (and I would guess that being the type to carry out a citizen’s arrest, you would be). It gets even more granular the more you look into it and, are you considering carrying out a citizen’s arrest, you should definitely look into it first. But let us attempt to persuade you otherwise.

It’s about here that we should take a breather, since we are clearly describing some genuinely attractive ideas for certain people. It is worth pointing out this very important fact: Performing a citizen’s arrest is pretty much always a bad idea, especially if no one is in immediate danger. Here are a whole bunch of reasons why:
* The person whom you intend to place under arrest may not recognize the authority granted you to make an arrest
* You’re not a cop
* The person whom you intend to place under arrest may be armed with a gun, knife or cudgel and may find it convenient to use it against you; as a result you, a bystander or both may become injured or killed
* You’re not a cop
* You may have to wait around for a taxi to arrive if you manage to convince the suspect to come with you peacefully, as CrimeFighters strongly suggests you not use your own car to deliver the person to the nearest police station
* Waiting around too long could lead to charges of false imprisonment, since by definition arresting a person requires their detainment, which is synonymous with imprisonment
* The act of arresting a suspect, especially when using physical force to do so opens up all manner of potential violations of the suspect’s civil rights, especially since, remember, you’re not a cop, including but not limited to:

-Charges of sexual assault resulting from a frisk or pat down

-Charges of assault and/or battery resulting from the use of force during arrest

- Charges of assault and/or battery charges resulting from any verbal abuse, especially threats of violence, used against the suspect

- Criminal charges in states where the suspect must be convicted for a citizen’s arrest to be considered legal (if the suspect isn’t convicted)

- A pretty hefty civil suit from the defendant and/or his or her family

Certainly, the threat of legal action isn’t reason enough for the average crime fighter to turn his back on several centuries of English common law, but it probably should be. And if a lawsuit Is not enough to deter you, perhaps the threat of real physical harm might deter you. Even a pack of Guardian Angels, whose organization has been meting out vigilante justice in 170 cities since its founding 1979, recently found that performing citizens’ arrests can get you stabbed. The Guardian Angels are the closest thing to professionals when it comes to citizens’ arrests and they still get stabbed.

Then there’s the fact that you are putting yourself in a very real position to take another person’s life. The killing of Trayvon Martin by George Zimmerman has garnered the most headlines, but killings during the commission of law enforcement by a citizen happens frequently. Adding to this frequency by actively looking for crime to fight seems like a tragically bad idea.

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