There is an interesting element of criminal law that often goes undiscussed because it is so seldom used. The power of a citizen, to arrest another, for the commission of a felony, or other crime committed in his presence, is poorly understood, but was widely recognized by the common law. Citizen’s arrests are so rare now that, when they are in fact challenged in court, it is usually because a police officer is making one.
You just read that and you’re shaking your head. You’re thinking “how can a police officer make a citizen’s arrest?” When he is not in the capacity or jurisdiction of his police department, a police officer has no arrest power greater than that of the ordinary citizen unless a specific statute gives him one. In one case a police officer chased a man from his small town in Missouri a long way down the road to the point where he pulled over and was arrested for a narcotics violation. The Missouri court held that, being absent jurisdiction to make the arrest on the roadway, the police officer had powers no greater than a citizen, and as a result, suppressed evidence of narcotics unlawfully seized.
Privilege to Arrest
Generally, if you see a person committing an assault or an armed robbery, you are privileged to make an arrest under the law. The law in most states requires you to turn the offender over to the police or the courts immediately. But there is ample authority in most states for the idea that you can act to stop a criminal act. This makes perfect senses because the country is big and there isn’t a policeman on every street corner (until you’re going 6 mph over the speed limit, and then there is). We want citizens to act responsibly and restrain criminal activity. But the power is limited. You can’t get in your car and chase down someone who ran a stop sign. Vehicular offenses are, for the most part, not the kinds of things for which citizen’s arrest is permitted. Some Supreme Court precedent calls into question the citizen’s right to make an arrest for a misdemeanor punishable only by a fine. But irrespective of the nature of the crime, the power of arrest resides with the private citizen.
Make Sure You’re Right
Power, of course, must be balanced by responsibility, and trial lawyers make their money off people’s irresponsibility. So, for example, if you arrest someone for the “felony” of assault that turns out in retrospect to be a simple misdemeanor assault, you could be liable for false arrest under the civil law. There are, as near as I can tell, two stark situations where it is safe for the concealed carrier to make a citizen’s arrest, by force if necessary. The first of those is where the person to be arrested has used a firearm in the commission of crime that the arresting person has witnessed.
Suppose you walk into your QT and find Homer with his hands up and Cleetus with a .357 stuffed up Homer’s left nosril. Even if we simply look at the issue of assault with a deadly weapon, a felony is in progress. It’s also pretty reasonable that a person using a handgun in this manner is a felon, and therefore, a felon in possession. Two felonies. Add armed robbery to the list, and now you have a trifecta situation where you can be reasonable sure that your arrest of this person is unlikely to lead to civil liability.
The other situation is where the media announces that someone is on the loose, has a warrant for his arrest, and you recognize him. Consider, for example, Robert William Fisher. Here we have a guy who worked in health care as a respiratory therapist, and who murdered his family and then blew up his house. Not only did he lose his nomination for Father of the Year, he earned police attention. However, before he could be arrested, he took flight and has not been seen since. If you wandered into your local Starbucks and saw the fellow sitting there, you would be privileged to arrest him. Why? Because on July 19, 2001, an Arizona Superior Court state arrest warrant was issued in Phoenix, charging Fisher with three counts of first-degree murder and one count of arson. So the state of Arizona has privileged you to make the arrest if you find him.
Sure You Can, But, Is It Smart?
Does that mean it’s smart to do that? No. It is not smart to arrest someone on the FBI’s Ten Most Wanted list because, if they have stayed off the list this long it’s because they have every reason to stay out of jail, and no reasons to go to jail. People like this tend to carry handguns, and then tend to react badly when cornered. So the best possible thing a person could do in that situation is to (a) not act with suspicion (i.e., don’t point at him and let him see you using your phone to google “FBI Ten Most Wanted”); (b) pay for your inordinately expensive cup of coffee; (c) go outside and more than 25 yards away from the Starbucks (reducing the risk from ricochets); and (d) call 911, and tell them to send the SWAT team.
The best reason to do this is that you are not a trained killer, and you have not already taken lives. You actually have something to lose. The felon does not. You are going to be just a split second behind the power curve if ol’ Bobby decides to whip out a gun and shoot it out with you. And of course, in a crowded starbucks you could hurt innocent people, or at least, people who’s only crime was paying too much for bad coffee.
The second best reason for this is that the guy might not be Robert William Fisher, and if the cops throw him to the ground, cuff him, and drag him off to the pokey, if they’re wrong, it’s on them, not on you.
There has never been a child who read a Batman comic book that didn’t dream of being the guy that nabbed a bad guy. And the FBI files are full of people who called the FBI and were responsible for the arrest and prosecution of every kind of reprehensible criminal known to man. Tips to law enforcement help ensure everyone’s safety.
Sadly, the files are also full of people who tried to make arrests on their own, without backup. Many of them are police officers. Officer Baxter in Kissimmee, Florida was shot down in the line of duty by a former Marine, and his sergeant, Baker, who was responding as backup was killed before he could even return fire. If armed, trained police officers cannot survive these kinds of encounters in situations where they are already on guard, it is foolhardy for the civilian in that situation to engage in risky behavior and play Rambo.
A Time For Action?
Does that mean there is not a time and a place to pull your weapon and stop a criminal act? Of course not: that’s why you carry. But remember that your first duty is to stay alive, and your second duty is to preserve innocent life. If all you can do is ensure that the criminal cannot escape until the police get there, and you can do that without firing a shot, you should.
You should shoot only where you absolutely have to shoot. The reasons are numerous, the first being that the very people you’re trying to help (the police) are apt to be put off that you didn’t call them first (assuming that was an option). Second, while dead men tell no tales, live ones frequently do, and the story will not be “there I was robbing this woman…” it will be “I was helping this lady with her purse, and my gun fell out, and the next thing you know some clown was shooting at me.”
You laugh now, but the fact is, criminals are often very good, very believable liars because they have so much practice.
The key to surviving any encounter with a criminal is outthinking them from the beginning. Situational awareness is an important part of that. If you can avoid the problem in the first place, that’s always the best approach. And if you have time to think, you have time to call the cops.