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.