Is there really any such thing as a citizen’s arrest? If I, Joe Schmoe, see a crime, can I arrest the offender, or would that be kidnapping? Also, what exactly does it mean to ‘press charges’?
A citizen’s arrest is “an arrest of a private person by another private person on grounds that (1) a public offense was committed in the arrester’s presence, or (2) the arrester has reasonable cause to believe that the arrestee has committed a felony.” Black’s Law Dictionary 104 (7th ed. 1999). The law varies from jurisdiction to jurisdiction–particularly with regard to the level of offense that can be the subject of a citizen’s arrest, and the manner in which the arresting can detain or restrain the arrested citizen–but most jurisdictions allow a citizen’s arrest in some form.
If a private citizen unlawfully detains or restrains another citizen in an attempted “citizen’s arrest,” then he or she may be guilty of kidnapping, but would more likely be subject to civil or criminal liability for false imprisonment or false arrest, or for assault or battery.
To “press charges” means to invoke or engage the state’s prosecutorial power against criminal conduct. Most jurisdictions give the district attorney (or local equivalent) some leeway, known as “prosecutorial discretion,” about which cases get prosecuted. A prosecutor can press charges against a suspected criminal by exercising that discretion in favor of prosecuting, or a private citizen can press charges by asking or insisting that the prosecutor or police charge a suspect with a crime and set in motion the machinery for a criminal trial. Some district attorneys and police departments, as a matter of resource allocation, generally will not pursue certain crimes unless a citizen presses charges.
IANALNAIASLBRP*
I’m not sure what you mean by “*s there really any such thing as a citizen’s arrest.” What the concept of a “citizen’s arrest” is normally the affirmative defense provided to non-law enforcement persons who participate in apprehending or stopping an offender, under certain circumstances that vary by jurisdiction. Perhaps you think that if I yell, “Hey, you, stop mugging that old lady! I’m putting you under Citizen’s Arrest,” that it somehow means something. It does not. If I, however, tackle the mugger, knocking his gun to the ground and subduing him until the cops arrive, then I will be shielded from liability for assault. That affirmative defense is denominated “citizen’s arrest.”
As to your second question, to “press charges” can mean one of two things. First, it could mean that I, by “pressing charges” against you, intend to see you locked up in jail for committing the Heinous Crime of Not Capitalizing Your User Name or Location. In the US, individuals do not prosecute crimes; that is the purview of the local district attorney (state crimes) or local US attorney (federal crimes). DAs and USAs may prosecute a particular offender regardless of whether the victim cooperates – indeed, they may force the victim to cooperate by subpoena. To “press charges,” in criminal law parlance, refers to the practice by which the victim of a crime goes to the local police station and swears out a complaint, saying, for example, “I saw zimaane on SDMB without a capitalized user name.” The local prosecutor may then, on the basis of this complaint (and any subsequent investigation), choose to prosecute the complained of individual. Eventually, an indictment or information would be handed down, the accused would be arrested and arraigned, and a trial would ensue. To “press charges” means, essentially, to petition the government authorities to do Bad Things to a person one alleges to have violated a criminal law.
Second, I sometimes hear people refer to “pressing charges” in a civil law context, meaning “I’m gonna sue your pants off for calling me dirty names, you no good so-and-so!” This usage of “pressing charges” is far more idiosyncratic. According to the traditional definition of the phrase – which refers to the swearing out of a complaint – it is incorrect since it refers to a civil lawsuit rather than a criminal matter. Nonetheless, I’ve heard people use it this way, so perhaps it has indeed entered the vernacular. As such, it would refer to the filing of a civil complaint with the local courthouse. The civil complaint would consist of a plain statement of the facts underlying the complaint, asserting a cause of action (e.g., “he breached our contract,” or “he negligently drove his car over my neck”), and asking the court for a remedy (e.g., “please order the defendant to pay my medical expenses for my run-over neck”). After filing the complaint with the court, you, would be the plaintiff, and would then serve the complaint and summons on the defendant. And eventually, you could get a judgment on your civil complaint; i.e., the court hands you a piece of paper saying that you are entitled to, say, a sum of money from the defendant. You could then take this judgment and have it executed. This means showing the piece of paper to the sheriff, who will then go to the defendant and make him pay, perhaps by selling off the defendant’s Snazzy Automobile.
So, in short, to “press charges” means to invoke the power of the state to do Bad Things to a person you say deserves it, by reference to some positive rule of law. But I would so it refers only to criminal matters, and means going to the police station and swearing out a complaint.
- I Am Not A Lawyer Nor Am I A Smart Law Book Reading Person
For being neither of the above, that was a pretty durned good answer.
What exactly you can do varies by state; AFAIK pretty much anywhere in the US you can detain someone for comitting a felony in your presence until the police arrive. Whether you can do the same for a lessor crime, or move them anywhere, or what kind of force you can use to hold them in place varies dramatically. By far the most common use for citizen’s arrest, at least in areas I’ve read about, is for stores to hold shoplifters that they’ve caught until the police arrive.
Out of curiousity, do you have a legal obligation not to resist citizen’s arrest?
Jonathon’s question highlights a problem I have with Mr. Hand’s answer. If a “citizen’s arrest” is just an affirmative defence to an assault charge, then the individual being arrested has no obligation to submit and can lawfully fight back. My understanding of a citizen’s arrest is that it is a positive power granted to citizens to arrest in certain circumstances. I read brianmelendez’s citation from Black’s Law Dictionary as supporting that interpretation, which would suggest that it would be an offence to resist a citizen’s arrest.
However, I’m working from Canadian law, where a citizen’s arrest is a positive authority. (See Criminal Code of Canada, s. 494.) Is it different in the U.S.?
Please allow me to reiterate that IANALNAIASLBRP.
The treatment of the concept of “citizen’s arrest” varies by jurisdiction, and further, by time period. First, let’s talk a bit about the rights of law enforcement personnel to use force to prevent crime or to apprehend criminals, and the relationship between that right and the criminal’s right to use force in self-defense.
At common law (think 18th Century England), police officers could use nondeadly force when necessary to make a reasonably lawful arrest for any crime, misdemeanor or felony. I used the word “necessary” because a police officer using gratuitous nondeadly force to arrest a person or to stop a crime would lose the affirmative defense provided to law enforcement personnel. I used the phrase “reasonably lawful” because the police officer only had to have a reasonable belief that the person they’re arresting committed a crime. In other words, police officers’ use of nondeadly force would be permitted even if they made a reasonable mistake.
At common law, a police officer could also use deadly force, but only with respect to felons – as opposed to persons they suspect of committing only a misdemeanor (aka, a “misdemeanant”). Further, the police could only use deadly force on felons if they reasonably believed that it was necessary to prevent the felon from escaping.
OK, now let’s talk briefly about the right to use force in self defense. At common law – and today – one only has the right to use force in self defense if one reasonably believes that the threatened harm would be unlawful. While I can’t find any good caselaw on the subject from Ye Olde England, I’ll just jump ahead to a provision of the Model Penal Code (which was drafted, IIRC, in the 1960s and which hasn’t been adopted wholesale by any jurisdiction). This provision is section 3.11(1), which, AFAIK, every jurisdiction has adopted or has mirroring provisions. This section explains that “unlawful force” is any force that would constitute a tort or a crime. So generally speaking, whenever the police officer’s conduct falls within the affirmative defense accorded to their use of force in affecting an arrest, the person being arrested cannot lawfully resist arrest by using force. But if the police officer can’t invoke the affirmative defense – say, because he’s using unreasonable force, or using deadly force to capture a misdemeanant, then the person being arrested can use force to resist, and the use of such force would not be a crime because it would be privileged as self-defense.
If the person unlawfully uses force to resist arrest, then that person’s conduct can actually give the cop the right to use deadly force. In Durham v State, Ind Supreme Ct, 1927, a deputy game warden was trying to arrest a guy for illegal fishing, a misdemeanor. The guy jumped into his boat and tried to escape. The game warden pursued, grabbing at the boat, and the guy started banging the game warden with an oar. After the guy smacked the game warden in the head with an oar, the game warden shot him in the arm, a use of deadly force. The game warden was then convicted of assault and battery. On appeal, the Indiana Supreme Court reversed the conviction. The court agreed that an officer normally may not use deadly force to affect the arrest of a misdemeant. However, an officer is justified in using deadly force, the court explained, if the misdemeanant physically resists, so long as the officer hadn’t used needless force to affect the arrest before being met by resistance from the misdemeanant. (I think I need to point out here that the rules for flight situations were a bit different from arrest situations. In flight situations, police officers cannot ever use deadly force to catch a fleeing misdemeanant. In an arrest situation, the cops can if the misdemeanant physically resists.)
Now let’s jump to the modern era. Today, cops can’t use deadly force to arrest any felon when they think it is reasoanbly necessary to affect the arrest. Instead, the use of deadly force by police officers is restricted to “dangerous” felonies – i.e., one that involves a risk of physical harm to others, such as murder, manslaughter, kidnapping, or rape. Notably, burglary, which at common law was a felony punishable by death, is not deemed a “dangerous” felony. See Tennessee v Garner, US Supreme Ct, 1985.
OK. Now let’s jump to the rights of private citizens to use force to affect a “citizen’s arrest.”
The common law approach gave almost exactly the same defense to private citizens as it did to police officers. Probably the reason private citizens enjoyed such a right is because there were fewer cops back then, and they did much less “stuff” than today’s cops. But that’s extraneous. The big difference between private citizens’ privilege to use force and police officers’ privilege to use force was in the context of deadly force: private citizens were subject to strict liability for mistakes. Private citizens could not rely on reasonable appearances. If a private person uses deadly force to make a citizen’s arrest, he’s going to jail for murder unless the guy he was arresting had actually committed a felony. This strict liability for mistakes didn’t apply to nondeadly force. There, a reasonable and honest mistake would exculpate; i.e., the private citizen’s conduct would still be shielded by the law enforcement privilege.
Now let’s take a look at what courts do today. There’s a bit of variation. AFAIK, some states still follow the common law approach. However, some states follow the Model Penal Code approach, which is much more stingy about privileging private law enforcement conduct than the common law. Section 3.07(2)(b)(ii) of the MPC denies a defense to a private citizen using deadly force unless that citizen was assisting a police officer.
I’m getting tired of typing, but I hope this helped dispel Northern Piper’s concerns.
Mr. Hand, personally I find your posts really informative and interesting, and I thank you for them.
I do have a few questions for you:
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Can you define the difference between an “affirmative defense” and a “non-affirmative” one? It seems to me that a defense is a defense. I know some punishable crimes can claim ‘self defense’ as an “affirmative defense” yet involuntary manslaughter is different.
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What is “common law”? Am I correct in understanding that it’s “common sense” law or legal principles that are uncodified yet held as general belief?
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You claim not to be a lawyer, and hey, that’s fine. What jurisdiction are you in, so’s I can look up my own legal statues (purely for comparison)?
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Thanks bub.
Tripler
I’m not a lawyer but I play one on TV.
Tripler, let me second your comment on the quality of Mr. Hand’s posts. As he may have signed off for the moment, let me take a shot at your first two questions:
The primary distinction between an affirmative defense and any other defense is that the defendant bears the burden of proof.
Each crime or civil cause of action consists of “elements” that the prosecution or plaintiff must prove in order to prevail against the defendant. A general or “non-affirmative” defense simply denies the factual basis for one or more such elements on which the prosecution or plaintiff bears the burden of proof, with the result that the prosecution or plaintiff cannot prove its case unless it proves up each such matter denied. An affirmative defense is one on which the defendant bears the burden of proof, and which ordinarily constitutes an excuse or justification for the alleged misconduct.
For example, if a plaintiff sues a defendant for wrongful death in the killing of plaintiff’s spouse, the general defense will deny some element of the plaintiff’s case–the spouse isn’t actually dead, he is dead but I was somewhere else when he was killed, he got killed while I was there but I didn’t do it, that sort of thing. An affirmative defense involves some excuse or justification that negates an element of the plaintiff’s case even though the plaintiff can prove it: yes, the spouse is dead; yes, I killed him; but I was acting in self-defense. Yes, the spouse is dead; yes, I killed him; but I’m the sheriff and I was carrying out a valid death warrant.
The name “common law” does come from its basis in the “common” sense or understanding of right and wrong. But the term has taken on a much more specific meaning: the common law is law based not on statute but on judicial precedent (which is technically “uncodified,” in the sense that it hasn’t been reduced to positive statutes, but which is readily discoverable from reported opinions and the vast array of legal resources collecting, organizing, or commenting on them). If the law treated an earlier case in a certain way, then I can expect that it will treat a pending case according to the same principles–not because the legislature has laid down that law as a matter of deliberate, positive public policy, but because a judge in the earlier case laid down what fairness and justice require, and other judges will strive for a similar result.
The common law originated in the English royal courts following the Norman Conquest, and within a few centuries had developed into a great body of precedent on which judges relied. (For a history of the common-law legal system, see the thread What is a Court of Chancery?) Those medieval decisions are still technically good law in most common-law jurisdictions, which include the jurisdictions whose legal systems descend from England, Great Britain, or the United Kingdom–including the United States (although Louisiana follows a mixed body of civil law, based on the Napoleonic Code, and common law). Several states of the United States have explicitly adopted the British common law as it stood at the time of independence, after which point each state’s common law evolved on its own based on its own courts’ precedents. For example, unless a statute has regulated the subject (a statute can override judicial precedent), the law of citizen’s arrest derives from the “common law” as it was received and has evolved in each jurisdiction. Thus, a judge today will treat as precedential in a pending case a decision from an English judge from the time of Queen Elizabeth I.
Here is an example, from the Indiana Code, of a now-independent common-law jurisdiction receiving the British common law into its own law:
Tripler and brianmelendez, thank you both for the kind words. (If I possessed the technical savvy and weren’t already an egomaniac, I’d use 'em for a sig.) Remember always that flattery will get you everywhere.
Since your first two questions, Tripler have already been ably answered, the answer to your last question is that I’m a particularly dumb and lazy law student in Chicago. I wasn’t basing my answers on Illinois law, but just (1) parroting back things I sort of remember hearing smarter people say when they didn’t think I was listening, and (2) filling in the gaps by calling upon several thousand monkeys sitting in front of typewriters. Reading back upon some of my posts, I’m convinced that they could be produced by just a single monkey pecking at a typewriter missing the top middle row.
Looking up the statutes in your jurisdiction may not be particularly helpful in answering questions like this, because a lot of the gaps are filled in by courts applying common law. Another reason not to rely on statutes has to do with the fact that you just can’t rely upon 'em. If you make any mistake in understanding how the statute works – oops, you’re SOL.
Case in point: People v Marrero, NY Court of Appeals, 1987. The defendant was a corrections officer at a federal penitentiary in New York. He really wanted to carry a gun, so he looked up state statutes on the matter. He found a law that stated that “peace officers” – a term the statute defined as including correctional officers at state facilities – are exempted from the general “it’s a crime to carry a gun” law. He thought, “Gee, I’m a corrections officer in a prison in the state, so I get to carry a gun.” So he did… right until he was arrested for illegally possessing a gun. Turns out that the law actually didn’t apply to corrections officers at federal correctional facilities. The court explained that even if the defendant honestly and reasonably believed that the law permitted him to carry a gun, his misunderstanding did not excuse his criminal conduct. (An important part of the case, however, was that the defendant was a jerk; an unwritten legal rule observed in all jurisdictions, as far as I can tell, is that jerks lose their appeals.)
So while I don’t want to hijack this thread into a general discussion of the scope of the ignorance of the law defense to criminal liability (it’s already been covered in other threads), I do want to caution you not to go overboard in reading statutes and thinking that you understand things.
Hey, brian and Mr. Hand, I don’t want you thinking that I’m going to saw off shotguns and secede from the union in my own compound or anything. . . I totally understand and respect where Mr. Hand is coming from on interpretation of law. I thank you both.
So, it seems that a lot of “common law” is derived from written, inherited decisions before certain legislature was enacted. (Disregarding legislature) It’s common law that you can shoot someone in self defense. Makes sense.
Tripler
Much oblgiged, to both of you.
So, summarizing, common law is based on jurisprudence rather than actual legislation, n’est-ce pas?
And allow me to continue with the adulation of Mr. Hand. Those are rather witty and enlightening posts.
So, can I arrest someone who I believe is guilty of a misdemeanor?
Why does the law concerning citizen arrest differentiate between felony and misdemeanor?