Southern Gentleman, Marine, Germanic Tribalist -- A Different Point of View

"Both the Right and the Duty":

Bjorn Patsson has a note from Houston, TX:

Wielding baseball bats and sticks, a crowd in northwest Houston on
Sunday chased down a man suspected of preying on neighborhood children in recent weeks.

"We know him. The whole neighborhood knows him," said Carlos Gonzalez.

Residents told police the 44-year-old man tried to lure children into his van last week while it was parked at a nearby elementary school. They also accused him of hugging a 12-year-old boy on Saturday while he was wearing women's clothing....

The residents cornered the man in a fenced-in yard near Granite and Bolin until police arrived.

The homeowner called police and pleaded with the crowd to not harm
the man. Gonzalez said the man dropped a bundle on the ground that contained a girl's shirt wrapped around several pictures of small children.

Officers arrested the man when they discovered the van he was driving had been stolen. They found several pairs of socks, a boy's T-shirt and a pair of girl's underwear inside the vehicle.

Though arrested for car theft, detectives were attempting to determine if he had been under investigation on child molestation or related charges.

Outstanding. But what to make of the police's rather bureaucratic response?

While nobody was hurt during Sunday's pursuit, officers said residents shouldn't take the law into their own hands.

"You need to call law enforcement and let us handle that," said
Houston police officer S.A. Burk.

Actually, "the law" says specifically that citizens may arrest suspected felons and hold them for peace officers. This is called a "citizen's arrest," and it has roots as deep as the Anglo-Saxon legal system that predates the Norman Conquest. Far from 'taking the law into your own hands,' this is merely doing your duty as a citizen:

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, NY 1974.

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 presence -

(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, ss. 210(a); 1973 Ed., ss. 23-582; Apr. 30, 1988, D.C. Law 7-104, ss. 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. [The Official Code of Georgia, Annotated, says the same thing: this is "both the right and the duty" of the citizen--Grim] (See Gill v. Commonwealth, 235 KY 351 (1930.)

Indeed, Kentucky citizens are permitted to kill fleeing felons while making a citizen's arrest (Kentucky Criminal Code ss. 37; S 43, §44.) [Aside: Georgia's law permits citizens to use the same degree of force as peace officers in making arrests. Neither are permitted, however, to shoot fleeing suspects in the back.--Grim]

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.

Attempting to protect and defend the common peace is both the right and the duty of a citizen. The important thing is to make certain that you are aware of the specifics of your own state's laws on the subject, and to act in accord with them.