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Hull, Massachusetts 02045
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Published By Citizens' Justice Programs
Post Office Box 90, Hull, Massachusetts 02045
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
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,
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
(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
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.
The author is an attorney in private practice in Boston.
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