Opinion: An alternative to repealing citizen’s arrest laws

The Georgia State Capitol. (Bob Andres / bandres@ajc.com)

Credit: bandres@ajc.com

Credit: bandres@ajc.com

The Georgia State Capitol. (Bob Andres / bandres@ajc.com)

The Georgia Legislature is right: it is time to revisit its citizen’s arrest law and its potential to encourage domestic terrorism. But there is an alternative to the total repeal called for in HB 45. Citizen’s arrest might be amended so that it remains a useful tool to the very communities seeking its repeal.

Undeniably, a culture of vigilantism looms over America. During the insurgence of the Capitol, members of the Oath Keepers called out: “You are executing citizen’s arrest. Arrest this assembly, we have probable cause for acts of treason, election fraud.” Pundits claim that Kyle Rittenhouse’s murder of Kenosha protesters was a legitimate attempt to protect his town from BLM. Local Sheriff Dar Leaf argued that the actions of Michigan Governor Gretchen Whitmer’s would-be kidnappers were sanctioned by citizen’s arrest. And Greg and Travis McMichael defend their murder of Ahmaud Arbery as the result of a legitimate attempt to question him for suspected trespass.

Citizen’s arrest has its origins in feudal England and early America, when policing was so ineffective that courts felt the need to deputize citizens. But perhaps its time has passed. Regardless of the law’s actual requirements, its very existence emboldens angry individuals like the McMichaels. Police are more available today than in the days of Wyatt Earp, and although their power is frequently abused, police are generally better trained than the average citizen to make an arrest without causing unnecessary physical harm.

Jonathan and Mia Cardi

Credit: contributed

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Credit: contributed

Jettisoning citizen’s arrest might be a step too far, however. If cities dismantle or defund police departments, Americans will insist on the ability to protect their neighborhoods themselves. In fact, even now citizen’s arrest might serve as an important tool for public safety, particularly in vulnerable communities. Imagine a person who lives in an area in which police do not respond quickly to 911 calls. The person witnesses a masked man breaking into a neighbor’s house, alerts other neighbors, and together they catch the burglar and hold him until the police arrive. Or suppose a driver had witnessed James Fields speeding toward the crowd of protesters in Charlottesville and had collided with him, blocking his path. Without citizen’s arrest laws, each of these good Samaritans will have committed a crime, avoiding liability only by the grace of police, prosecutors, and juries — a grace often denied many Americans. Worse yet, without citizen’s arrest, these Samaritans might not have acted at all.

For these reasons, citizen’s arrest statutes might be preserved, but amended to avoid the worst cases of misuse. Here are four steps the Georgia legislature might take:

First, citizen’s arrests should be limited to cases in which they are necessary. If calling the police is a viable alternative, vigilantism is simply not justified.

Most citizen’s arrest statutes prohibit the use of “force likely to cause death or serious injury,” but they do not expressly prohibit the threat of such force. Angry, bored vigilantes can prowl the streets with guns, threatening others; and when a suspect responds in reasonable self-defense by attempting to disarm the vigilante, the vigilante might be within his rights to shoot the suspect, themselves claiming self-defense. This deadly escalation is precisely what led to the alleged actions of Rittenhouse and the McMichaels, and very likely the 2012 killing of Trayvon Martin by George Zimmerman. Such escalation is assured if threatening deadly force is an acceptable means of arrest. It should not be.

Arrests should be limited to cases in which the citizen witnesses the crime. If a citizen is justified in arresting on mere “reasonable belief,” as most statutes provide, mistaken arrests are inevitable. This danger is of course amplified by the prevalence of racial and socioeconomic bias.

Most significantly, citizen’s arrest should be limited to serious crimes. The enforcement of nonviolent felonies or misdemeanors is simply not worth the risks inherent in such arrests and might more easily be leveraged for personal vendettas. Imagine, for example, a gang of white supremacists legally using force to arrest BLM protesters committing a misdemeanor by marching without a permit.

There is no perfect solution to the citizen’s arrest conundrum, as there is no ready cure for its underlying societal ills. But the threat of vigilantism is real and imminent. In their current form, citizen’s arrest laws cannot stand.

Jonathan Cardi is a professor at Wake Forest University School of Law and associate reporter for the Restatement Third of Torts, which incorporates provisions on citizen’s arrest. Mia Cardi is his daughter and an undergraduate student at Wake Forest University.

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