by Phyllis Raybin Emert and Jodi L. Miller
Have you ever heard the phrase “I’m making a citizen’s arrest?” Citizen’s arrest laws date back to 13th century England. They were a way of helping local sheriffs enforce the law because often they couldn’t get to the crime scene for hours or even days.
Forty states, including New Jersey, still have some form of citizen’s arrest laws on the books; however, the language of these statutes varies from state to state. For example, New Jersey’s law states “A citizen has the right to arrest without a warrant where it appears that a crime had actually been committed, and that there was probable or reasonable cause to fairly suspect the person arrested to be guilty.”
With law enforcement more accessible—especially with the advent of 911—it leaves many to wonder why citizen’s arrest laws still exist and point to their racist origins.
For example, Ahmaud Arbery, a 25-year-old African American jogger in Georgia, was killed by two white men—a father and son—in February 2020. The men thought he was a burglar though they did not witness him committing any crime. The shooting was videotaped by a third white man, and all three were eventually charged with felony murder.
The defendants in the case cited Georgia’s 1863 Citizen’s Arrest Law as their defense. At the time, Georgia’s law stated, “A private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge. If the offense is a felony and the offender is escaping or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion.”
The jury was not swayed by the defense’s argument. In November 2021, all three men were convicted on felony murder charges, as well as other charges. The state of Georgia sentenced the father and son to life in prison with no possibility of parole, while the man that shot the video was sentenced to life with the possibility of parole after 30 years. In February 2022, a federal jury convicted all three of hate crimes and violating Arbery’s civil rights by targeting him because he was Black. On the federal conviction, the son was sentenced to life plus 10 years, the father was sentenced to life plus seven years and the man who shot the video was sentenced to 35 years.
In May 2021, the state of Georgia repealed its 1863 Citizen’s Arrest Law, passing a new version of the law. Georgia’s new citizen’s arrest law mandates that citizens “shall not use force which is intended or likely to cause great bodily harm or death but may use reasonable force to the extent he or she reasonably believes necessary to detain an individual.”
Making a citizen’s arrest
Ira P. Robbins, a professor at American University Washington College of Law wrote an academic paper in 2016 on this subject titled Vilifying the Vigilante: A Narrowed Scope of the Citizen’s Arrest. Professor Robbins told The New York Times, “A member of the public doesn’t know—and likely cannot understand—the nuances of citizen’s arrest, particularly when it comes to the use of deadly force. That’s why it’s so dangerous for people to take the law into their own hands.”
Bruce Morgan, president of the New Brunswick Area chapter of the NAACP (National Association for the Advancement of Colored People), says, “Citizen’s arrest laws have, for a long time, been conducted under the guise of the average Joe Citizen ‘aiding the police,’ when, in truth, it’s been citizens acting as the police.”
An article in the Harvard Political Review connects citizen’s arrest laws to slavery. The article explains that when citizen’s arrest laws came to the colonies, they “became a convenient legal pretext for the persecution of the enslaved population.” The article points out that during that time enforcing the subjugation of the enslaved was thought of as a public responsibility. It also connects citizen’s arrest laws to “volunteer militias which gave way to formal slave patrols.” Those slave patrols, according to the article, morphed into the “organized American police forces” we have today.
Joseph Margulies, a professor at Cornell Law School, told the Pennsylvania Capital-Star that citizen’s arrest laws “derive from a racist past,” advising that they were “slave-catching laws for slaves who attempted to flee.”
Watching the neighborhood
In his paper, Professor Robbins takes issue with neighborhood watch groups that “are functioning as police officers without the requisite training that police receive.” He points to the example of George Zimmerman fatally shooting 17-year-old Trayvon Martin in February 2012.
“George Zimmerman is a contemporary example of a neighborhood watch group member taking the law into his own hands,” Professor Robbins wrote. “Despite instructions from a police dispatcher to refrain from following Trayvon Martin, he continued to pursue the unarmed teenager, eventually killing Martin.”
Zimmerman, who served as the neighborhood watch coordinator in his gated community, was charged with second degree murder and manslaughter. In July 2013, a Florida jury acquitted Zimmerman of all charges. The U.S. Department of Justice investigated the case for three years but did not bring civil rights charges against him.
Professor Robbins advocates for drastically limiting the scope of citizen’s arrest laws, confining it to three exceptions. He devised model legislation, called The Anti-Vigilante Act, which would allow shopkeepers to detain shoplifters, private security guards to do the same, and allow police officers to arrest suspects outside of their jurisdiction when they are in hot pursuit. So far, no state has implemented Professor Robbins’ model legislation.
Discussion Questions
- Do you think citizen’s arrests laws are still needed? Explain your answer.
- What would your model legislation to curtail citizen’s arrest laws look like? Would you provide more exceptions or less than Professor Robbins’ legislation? How would you address the enduring racial component of these laws? Explain your answer.
Glossary Words
acquitted — cleared of a criminal offense.
felony — a serious criminal offense usually punished by imprisonment of more than one year.
manslaughter—unlawful killing of a human being without premeditation.
repealed—revoked. A law (or amendment) that is repealed has been withdrawn or cancelled and is no longer a law.
second degree murder—typically murder with malicious intent but not premeditated.
subjugation—the action of bringing someone or something under domination or control.
warrant—a written document from a judge authorizing anything from a search to an arrest to the obligation to pay a fine.
This article originally appeared in Respect’s Special Issue: Challenging Racism from Past to Present.