Detaining a Suspect or Effecting a Citizen's Arrest

[OldMarksman]

From time to time, the subject of the detention of a suspect by a private citizen at gunpoint has come up in discussion here. That, and the related subject of citizen's arrest, should be well understood and very carefully and thoroughly thought out before anyone attempts to undertake such an action.

The act of attempting to "hold" a suspect is fraught with risks of several kinds, and the "rewards", if any, may not turn out to be at all what the actor had envisaged.

First, it is important to understand the legal aspects of the subject.

In all states except one, there is some provision in the statutes or at common law that provides for the arrest of a suspect by a citizen. The circumstances under which such an arrest would be lawfully permitted vary among jurisdictions. Also, there are differences among jurisdictions concerning when and whether the threat of force, or the threat or use of deadly force, may be used. It is extremely important that citizens understand the laws in their states, and in the states in which they may visit. We cannot address those in detail here.

Failure to act strictly within the law can lead to criminal prosecution and can expose the actor to serious civil liability.

That's just one consideration. It is important to understand that civil liability can also exist even if the actor does everything properly and in accordance with the law. A state website in Illinois explains that, while citizen's arrest is lawful within that state under certain circumstances, it is not recommended. The reason given is the actor could be held personally liable for any injuries or other medical consequences to the suspect that may come about during the time that the suspect is being held. That is not peculiar to Illinois.

One must also understand that a citizen may not lawfully arrest or otherwise detain a person simply for being a "bad guy", even if he has committed a crime. In Texas, for example, the common law provides for citizen's arrests for certain crimes, but only if the citizen actually and personally witnessed the commission of the crime. His word on that subject may not suffice. Absent sufficient evidence that the arrest had been lawful, a citizen may well be charged with the crime of unlawful restraint.

It is important that anyone considering holding someone by force or threat of force understand not only which crimes may constitute justification, but how those crimes are actually defined in local law.

It is worth pointing out that simple trespass is usually not on the list of offenses for which detention would be proper. In most cases, arriving first responders would just tell the offender to leave. Also, people have been charged and convicted for pointing guns at trespassers--in "gun friendly" jurisdictions. Put simply, you want them gone.

The idea of "holding" someone at gunpoint brings up the subject of whether the threat, or the use, of deadly force would be lawful to prevent the departure of the suspect. In most cases, the answer to that is an emphatic "NO!". There a few exceptions, but in most cases, should the detainee elect to disobey the commands of the citizen and flee, there is little that can lawfully be done to prevent him from doing so.

That leads to an issue that is even more serious. When one is pointing a gun in the direction of another person, there is always the possibility that one will fire it, perhaps because of an improper reaction to a movement made by the suspect. That is particularly true under conditions of stress. It should not be necessary to go into the potential consequences, should something like that happen.

The citizen detaining someone else faces another very serious risk. While he may have both of the suspects about whom he is knowledgeable right there on the ground where he can see them, there may be a third--the driver, or another accomplice. Should that person come in when the citizen has his attention focused on the persons he is trying to hold, the citizen could easily be shot.

As if that were not enough, we should also consider the fact that, if we have a desperate violent criminal actor in our presence, he may pose a serious danger even if he has a gun pointed at him. Some years back, two FBI agents arrested two suspects and had them on the floor while waiting for backup. Somehow, one of them had kept a gun that had not been discovered. When the opportunity presented itself, he was able to shoot and kill both agents.

In the MAG-20 Classroom course, Massad Ayoob discusses how best to go about safely detaining a violent criminal actor should it become necessary, and how one should not try to go about it. I will say that what Mas teaches is a lot different from what we see in screen fiction, and more importantly, from what people are likely to do themselves without the benefit of proper training. Mas explains his reasoning quite thoroughly.

Given all of that, most prudent people would almost always be best served to let the suspect depart, and to let law enforcement personnel equipped with cell phone images of the suspect hunt him down.

There is, of course, the very remote possibility that a circumstance may arise in which a suspect could reasonably be believed to pose a very serious and immediate threat to others if he is not held for police.

As a practical matter, however, the physical and legal risks, along with the reality that detaining someone is unlikely to help much on the enforcement front, would almost always mitigate against such a course of action. It is best to leave the matter to sworn officers who are trained and duty bound to enforce the law.

The above reflects input from Frank Ettin and Spats McGee; from valuable classroom training presented by Massad Ayoob; and from comments posted over the years by numerous qualified forum members, whose opinions are much appreciated.

[cjwils]

In all states except one....

Is that one state Washington State? Several years ago a lawyer in WA told me that the state did not recognize citizen's arrest.

[Gary L. Griffiths]

Is that one state Washington State? Several years ago a lawyer in WA told me that the state did not recognized citizen's arrest.

Err, no!

Department of Licensing
Summary of Citizen Arrest
October 11, 2005
Citizen Arrest in Washington State
Under Washington law, a private person can conduct a citizen’s arrest for a
misdemeanor if the misdemeanor: (1) was committed in the citizen’s presence and (2) constituted a breach of the peace.
State v. Gonzales, 24 Wn. App. 437, 439, 604 P.2d 168 (1979);
Guijosa v. Wal-Mart Stores, 101 Wn. App. 777, 791, 6 P.3d 583 (2000).

A person can also conduct a citizen’s arrest for felonies.
See State v. Malone, 106 Wn.2d 607, 724 P.2d 364 at FN1 (1986)
citing State v. Miller, 103 Wn.2d 792, 698 P.2d 554 (1985) and
State v. Gonzales, 24 Wn. App. 437, 604 P.2d 168 (1979).

The state of North Carolina does not recognize a "citizen's arrest" but does statutorily recognize a citizen's "detention," which amounts to the same thing.

[OldMarksman]

Gary nailed it.

It is probably a distinction without a difference, as long as things go well.

[Hal]

The state of North Carolina does not recognize a "citizen's arrest"

LOL! So that's why Barney Fife didn't stop when he made an illegal U-turn & Gomer Pyle was yelling, "citizen's arrest, citizen's arrest"

Sorry - that is a funny coincidence though.

[849ACSO]

I'm of the understanding (at least in my state, and most others) that a citizen's arrest/detention is lawful, however;

When a police officer arrests someone, their actions must rise to the level of PROBABLE CAUSE, meaning the officer must have a REASONABLE BELIEF that a crime has been, or about to be committed and the person arrest committed or was about the commit the aforesaid crime. That said, Probable Cause does not amount to proof positive (BEYOND A REASONABLE DOUBT).

In Missouri, a citizen who opts to detain/arrest someone has a higher standard. They MUST BE RIGHT in their belief and be right BEYOND A REASONABLE DOUBT or pay the consequences, whereas the police officer doesn't need to be right in their belief, only have a REASONABLE BELIEF.

Now we move onto the average citizen's knowledge of the law, which in my 23 years of LEO experience, is typically not correct in most cases. The average citizen knows it illegal to kill, rob, steal, etc., but most have absolutely no idea what words are actually used in the law/statute. For instance, in my state, Burglary can occur without stealing something. Most folks have NO CLUE that someone who breaks into a building/inhabitable structure with the intent to assault someone within has committed Burglary. They ASSUME that Burglary means someone broke in and stole something.

The law is a complicated thing, and the advice I give citizens is unless you feel you are FORCED to defend life or limb, your best bet to avoid becoming a DEFENDANT is to be a good WITNESS. I don't know that I have ever heard of a citizen's INACTION resulting in them being jailed or sued for everything they have, but the law books are full of cases where actions have lead to that very outcome.

[ShootistPRS]

Washington state allows for citizen arrest only if a felony has been committed.
You have to witness the felony and take immediate action.
I would not make a citizens arrest under any circumstances. It places you in a place that you must testify and justify your actions. As a witness you can do more to put the bad guy in jail with less personal danger.

[Gary L. Griffiths]

Washington state allows for citizen arrest only if a felony has been committed.

Wrong! Apparently you didn't read the statute cited in Post #3.

[ShootistPRS]

And how are you going to arrest the person? In the case of a misdemeanor you can't use any force so the perp would have to elect to go with you to the police station.
It is legal but virtually impossible to execute. You can call a LEO but you have to do the paperwork because the cop didn't witness the crime. Without evidence to show probable cause the cop can assist you but you have to do the paperwork, appear in court and you can easily lose the case and be sued for false arrest.
It is less problematic in the case of a felony.
The only way I would intervene is if deadly force was authorized.

[guncrank]

Thanks for info , but I am not a cop nor do I care to act like one.