Legal Trouble from Citizens’ Arrests

Private citizens should think twice before acting as de facto cops.

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All states authorize private citizens to make arrests. For example, a car owner may arrest a teenager trying to break into her car, and a store security guard may stop and detain a shoplifter. Citizens who arrest others sometimes do good, but oftentimes create a heap of trouble.

Leave it to the Pros

In order to encourage citizens to leave arrests to the professionals, laws in almost all states afford less protection to private citizens who make mistakes during the arrest process than they do to police officers.

Most states authorize private citizens to make arrests if the suspect:

  • has actually committed a felony, or
  • is committing a breach-of-the-peace misdemeanor in the presence of the citizen. Whether a misdemeanor breaches the peace is typically a case-by-case determination—for example, illegally carrying a firearm might qualify. (But it’s generally not a good idea to try to personally arrest someone carrying a gun!)

In some circumstances, it’s considered a citizen’s arrest (and the appropriate course of action) for a citizen not to confront the suspect, but rather direct an officer to make an arrest and observe the officer complete it. For example, suppose Wachit, a store security guard, sees a suspected shoplifter and calls the police. In response, a police officer arrests the suspect. Even though the officer didn’t personally witness the theft, the arrest is valid. Yes, a rule forbids police officers from making warrantless arrests for misdemeanors that aren’t committed in their presence. But in this scenario, the security guard is the one who technically made the arrest.

Better Be Right

Police officers have much more leeway in conducting arrests. For example, if they arrest someone they reasonably but mistakenly believe to have committed a felony, they’re probably in the clear. But a private citizen who arrests someone for an apparent—but not actual—felony may be liable to the arrestee for a tort like false imprisonment.

Example 1. While eating lunch in the park, Ella Mentry thinks she has overheard two people talking about a plan to rob Haro’s Jewelry Store. As the two people walk away, Ella realizes that one is her nextdoor neighbor. About an hour later, Ella sees a crowd and two police officers gathered in front of Haro’s. She immediately rushes to the neighbor’s house and places him under arrest for robbery. It turns out, however, that there was no robbery—the police and crowd had gathered for a diamond-cutting demonstration. Ella is civilly liable to her neighbor and may have to pay damages to compensate for the time, trouble, and distress of the improper arrest.

Example 2.  Same case. Assume that after overhearing her neighbor talking about what she thought was a plan to rob Haro’s, Ella tells Officer Chang what she heard. About an hour later, Officer Chang sees a large crowd gathered in front of Haro’s and Ella’s neighbor running away from the store. He runs after and arrests the neighbor. Again, it turns out that Haro’s wasn’t robbed. Rather, the neighbor was late for a nearby appointment. Since Change had probable cause to believe the neighbor was involved in the robbery, he is immune from liability in a subsequent lawsuit for wrongful arrest.

Using Force? Think Twice

Private citizens roll the dice by trying to arrest others. Not only can they expose themselves to grave danger that only police officers are appropriately trained for—they also may be subject to civil liability and criminal prosecution. The legal ramifications are heightened when private citizens use deadly force to make arrests. Courts are rightly fearful that any encouragement of this kind of behavior will lead to armed vigilantes roaming the streets. That's why a private citizen’s use of deadly force in making an arrest isn’t justified unless that force was necessary to protect him or herself or others from extreme harm.

Almost always, the best course of action is to get the police involved. Private citizens should turn their information over to the cops rather than personally make arrests. If they end up making an arrest, they must contact the police as soon as possible.

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