Citizen’s Arrest, Citizen’s Arrest!

Have you ever made a citizen’s arrest or know someone who has?

Here are some examples from the internet of people who have: 

I was walking up the road on my way home, and a little bit up ahead I saw a guy step out and grab a womans handbag and start to run away. I started chasing after him, as well as two other guys that saw it. We were all pretty much running from different directions. The guy took off down the road with us in pursuit, and we managed to catch him, and took the bag off him. Suddenly he twisted free and ran away down the road again. So we chased him again. We ended up chasing him for 5 blocks, down the middle of a 4 lane major road, during rushhour, and finally caught him again and made sure he couldnt get free. Luckily an off-duty policeman had witnessed the chase and turned around to help us.

And from the merchant perspective: 

I do it all the time. I work in Loss Prevention. The only reason stores are allowed to have LP departments is because just about every city and state has laws that allow people to make a “citizen’s arrest” of someone who has stolen from them. Where I live, if someone steals from you, whether you are a store or a private citizen, you have a legal right to detain them until police can arrive. It is the same in most of the U.S. And don’t believe that BS about store LP not being allowed to touch you. Many companies have policies that try to avoid physical detainment of shoplifters, but most laws actually authorize reasonable physical force when detaining a thief.

But… Why can you do it? When can you do it? Where can you do it?

I. The Common Law

At common law, a private person can:
  • arrest
  • without warrant
  • for a felony or
  • breach of the peace 
  • committed in his or her presence.

A. “In presence” requirement

“In presence” means that the  arrestor actually saw acts that made it pretty clear cut that a crime was either about to happen, was happening, or was just ending. Under some statutes, if the felony is actually committed in the presence of a private person, they can arrest any person they have reasonable ground to believe guilty.

B. Reasonable Belief

Actual knowledge of the commission of the felony is not required to authorize a valid citizen’s arrest, as all that is required is reasonable grounds to believe that: (1) a felony had been committed, and (2) that the person arrested was the responsible agent.

C. Misdemeanor Citizen’s Arrests

In some jurisdictions, a private person may arrest for any misdemeanor committed in his or her presence. But, under the common-law rule, which is codified in some states, such arrests can be made only for a misdemeanor constituting a breach of the peace. A private person’s right to arrest for an affray or breach of the peace exists only while it is continuing, or immediately after it has been committed, or while there is a continuing danger of its renewal, and does not include the right to pursue and arrest for the purpose of insuring the apprehension or future trial of the offender. A private citizen cannot arrest without a warrant for a misdemeanor previously committed, unless pursuit for the purpose of arrest is begun immediately.
Arkansas does not provide for misdemeanor citizen arrests, with a couple of exceptions.

II. Current Arkansas Statutory Law

Arkansas has codified the common law: 

Arkansas Rule of Criminal Procedure 4.1(b) provides in pertinent part: A private person may make an arrest where he has reasonable grounds for believing that the person arrested has committed a felony.

Additionally, Arkansas recognizes motel keepers rights: “There was common-law right for motel manager, although private citizen, to detain traveler suspected of theft.” Partin v. Meyer, 1982, 277 Ark. 54, 639 S.W.2d 342

III. What if Someone Puts You Under a Citizen’s Arrest Unlawfully? 

The English common-law right to resist an unlawful arrest became established at least by 1710, and during the nineteenth and early twentieth centuries, it became the established rule in the United States as well. In Bad Elk v United States (1900) 177 US 529, 44 L Ed 874, 20 S Ct 729, for example, the United States Supreme Court held that the defendant, whose murder conviction was reversed, had the right to use such force as was absolutely necessary to resist an attempted illegal arrest.
In the modern American decisions on the question, a number of courts from a variety of jurisdictions have applied or recognized the traditional common-law rule that a person may resist an unlawful arrest by the use of reasonable force, while the courts in a few jurisdictions have modified that rule. Thus, although the statement in some cases that there is a trend toward limiting the right of resistance to illegal arrest is true in the sense that the common-law rule has recently been modified in some jurisdictions, it is not true that the common-law rule has been abandoned more often than upheld in the modern cases.
Assuming that the use of reasonable force to resist an illegal arrest is permissible, the question arises as to how much force is reasonable. The answer most frequently given in the modern cases is whatever force is necessary to avoid the arrest, short of homicide. Of those jurisdictions in which the common-law right to resist an unlawful arrest has been altered, most have adopted the view that a private citizen may not use force to resist a peaceful arrest by one he knows or has good reason to believe is an authorized peace officer performing his duties. This is the best description of current Arkansas law on this topic.
In other jurisdictions, the courts have made exceptions to the common-law rule where the basis for resistance is that the law allegedly violated is invalid, or that the arrest warrant is technically defective.

IV. Merchant Rule (Common Law)

The right of a merchant to detain a suspected shoplifter if they have reasonable grounds to believe the person is committing or attempting to commit theft or shoplifting derives from the common law right of citizen’s arrest

A. Statutory Right to Detain Suspected Shoplifters

Various state statutes giving a merchant a qualified privilege to detain suspected shoplifters usually provide that merchants or their employees or agents may detain, in good faith and upon probable cause or reasonable grounds, any person believed to be removing goods for sale from the store without paying for them, provided that the detention is for a reasonable time and in a reasonable manner. In Arkansas, a suspected shoplifter “may be detained in a reasonable manner and for a reasonable length of time by a law enforcement officer, merchant, or merchant’s employee in order that recovery of a good may be effected.” § 5-36-116.

B. Presumptions of Shoplifting 

A statute may state a presumption that a person concealing unpurchased goods is taking the goods with the intention of depriving the owner of them, thus warranting a reasonable detention by a merchant. This is the current presumption in Arkansas under  § 5-36-102(c)
In Arkansas, a presumption of shoplifting also arises if an antishoplifting or inventory control devices goes off as someone is exiting the store. Sufficient notice must be posted to advise patrons that the device is in use and that activation of the device constitutes reasonable cause for detention. 

C. Procedure After Detention

Arkansas law provides a pretty straightforward for what comes next. First, the merchant calls the police, who may arrest the person without a warrant, if they believe that there is probably cause that a shoplifting has occurred. Then, the police officer and the merchant or merchant’s employee (whoever witnessed the incident) must provide a written statement, explaining the circumstances that led to the arrest. Then, the suspect must immediately be brought before a magistrate and given the chance to make a bond or recognizance. 

D. Immunity

The detention by a law enforcement officer, merchant, or merchant’s employee does not render the law enforcement officer, merchant, or merchant’s employee criminally or civilly liable for false arrest, false imprisonment, or unlawful detention.

E. What’s Reasonable? Murray v. Wal-Mart

Murray, a black female, was shopping at an Arkansas Wal–Mart on June 14, 1986, with her daughter and grandchildren. During her visit to the store, she put one hundred dollars’ worth of merchandise on layaway, purchased fifteen dollars’ worth of other items, and left the store with $207 in her possession. While shopping, Murray had been observed by Dana Elliot, a Wal–Mart loss prevention employee. Elliot testified at trial that she had seen Murray take a bottle of cologne, valued at $5.87, out of its box and place the bottle inside her halter top. As Murray was leaving the store, Elliot, store manager, Harris, and an assistant store manager detained Murray and inquired about the cologne. Murray denied the accusation of shoplifting and pulled her halter top down to show that she was not concealing any merchandise. Harris directed Murray to accompany him back into the store. Profane and racially derogatory comments were made by Harris at this time.
Murray was escorted to the second floor of the store. Harris or Elliot emptied the contents of Murray’s purse onto the floor. More derogatory statements were made to Murray while this episode unfolded. The Wal–Mart employees then telephoned the local police and, based upon the advice of a local prosecutor, requested prosecution of Murray for shoplifting. Murray was taken into custody and was searched by a female officer at the station. The search revealed no concealed items. Murray was denied access to her heart medication when she requested it for pain. Following her release, she sought medical attention because of her nervous condition.
Wal–Mart has an established shoplifting policy which provides that (1) Wal–Mart employees should treat a suspected shoplifter with courtesy, (2) employees should let suspected shoplifters go when in doubt or when unable to find items on the person, and (3) store managers should check with the regional supervisor before prosecuting doubtful cases. Despite this established policy, and notwithstanding the fact that a thorough search of Murray revealed no concealed merchandise, Wal–Mart continued to pursue Murray’s prosecution. Subsequently, Murray was charged with shoplifting but, after trial, was acquitted.
Addressing the merits, the district court found that Wal–Mart had pursued prosecution without probable cause, that the intentional and outrageous conduct of the Wal–Mart employees caused Murray to suffer severe emotional distress, and that the conduct was willful, wanton, and malicious. Furthermore, Harris physically pushed Murray back into the store, even after she warned him of her heart condition. Also, the fact that Wal–Mart continued to detain, search, and prosecute Murray without probable cause and in violation of its own policy smacks of exactly the type of “intentional infliction” to which this cause of action refers. The evidence of the Wal–Mart employees’ outrageous behavior toward Murray sufficiently supports the district court’s finding of intentional infliction of emotional distress.
Consequently, the court awarded Murray $15,000 in actual damages, $10,000 in punitive damages, and $7850 in attorney fees.

VI. Not Available in Some States

Citizen’s arrest is prohibited in North Carolina, Oklahoma, Pennsylvania, and Washington State under any circumstances.
And no state actually requires that you yell, “Citizen’s arrest, citizen’s arrest!” but you obviously try to, if you get the chance.

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