Is a citizen’s arrest still legal?

Posted by Jay Anthony

In April of last year, a gentleman in Catawba named Michael was driving down the road when, suddenly, a truck slammed into his car and then sped away. Not content to simply call the police, Michael gave chase. He followed the truck to a residence and, after the other driver swung at him, Michael subdued him with a TASER. Officers arrested Michael, explaining that he had no right to make a citizen’s arrest. But did he?

A citizen’s arrest is, in general, the detaining of a private person by another private person on the grounds that an offense was committed. The idea pre-dates the birth of our nation, extending back as far as medieval times. Citizen’s arrest originated in our judicial systems through the common law – that body of law derived from judicial decisions, rather than by statutes or constitutions.

Under the common law, a citizen could arrest another citizen even for a misdemeanor, if he witnessed the offense and it involved a breach of the peace. Typically, breach of the peace offenses involved violence, and thus crimes such as shoplifting did not qualify. In the late 1800s, the State legislature made citizen’s arrest a part of state law and the doctrine began to evolve, or in some cases, devolve. In 1865, bigots in the General Assembly changed the doctrine, allowing that “[u]pon view of a misdemeanor committed by a person of color, any person present may arrest the offender and take him before a Magistrate, to be dealt with as the case may require.” The same statute provided that if a person witnessed the same crime committed by a white person, that person “may complain to a Magistrate, who shall cause the offender to be arrested.”

Today, the law allows for citizen’s arrests if a citizen either witnesses the commission of a felony or has certain information that a felony has been committed. Felonies are the most serious crimes and include offenses such as murder, kidnapping, and criminal sexual conduct. A citizen’s arrest is also appropriate when a person witnesses the commission of a larceny, which is stealing someone’s property. This makes good sense, as we cannot fault a person for stopping someone from walking away with his property.

While the law gives citizens general arrest powers with regard to felonies and larcenies, the list expands after dark. State law provides that in the nighttime, if a person has (1) committed a felony, (2) entered a dwelling house without permission, (3) broken or is breaking into an outhouse with a view to plunder, (4) has in his possession stolen property, or (5) under circumstances which raise just suspicion of his design to steal or commit some felony, flees when he is hailed, then a citizen may arrest that person. The statute goes even further, and says that the arrest may be made by whatever means necessary to prevent escape, “even if the life of the person should be taken . . . .”

In the situation above, the officers correctly concluded that Michael did not have the right to make a citizen’s arrest. This is because the offense of hit-and-run without great bodily injury resulting is a misdemeanor. Consequently, Michael could be arrested and charged with assault and perhaps even be sued by the driver. The example makes clear how complex the question can be and why it’s best to leave arrests to the professionals.

Super Lawyers AV PREEMINENT American College of Trial Lawyers Listed in Best Lawyers