So You Say You Want to be a Vigilante...

We’ve all heard the phrase “legal fiction,” but today I’d like to talk about something else: a legal fantasy. A legal fantasy is something like Bigfoot or the Loch Ness Monster--everyone has heard of it, but [almost] nobody thinks it’s actually real. And the legal fantasy I’m thinking about right now is citizen’s arrest. Though it exists elsewhere, citizen’s arrest feels so quintessentially American. There’s an evildoer in the street doing his evil, and in walks a brave citizen, a John Wayne-type. “Stop,” he says. “I’m making a citizen’s arrest.” And then our quintessentially American hero hands over the evildoer to the local constabulary and peace is restored to the town.

We all know that story, and we all think of it as just that, a story. Yet as we learned with the discovery of the ancient city of Troy in 1870, the thing about fantasies is that sometimes they turn out to be real. And citizen’s arrests are, in fact, real. They happen all the time, in every state and nearly every city in America. Just not in the way people think.

Let’s take a moment to understand what a citizen’s arrest really is. The concept likely dates back to medieval times, when governments were far smaller than today, employing far fewer agents like sheriffs and police officers. And in that setting, community order required that ordinary citizens would, from time to time, be called upon to apprehend a criminal. That detention is key to a citizen’s arrest, the word “arrest” being related to the French word “arrête,” which means “stop!” So it is an arrest, or a detention of a person, committed by a citizen. In this case we mean a private citizen as opposed to a public official, not citizen in the sense of legal immigration status. There’s no doubt that a person with a green card can conduct a citizen’s arrest.

To dig a bit further, let’s look at California’s Citizen’s Arrest statute, CA Penal Code 837:

"a private person may arrest another: (1) For a public offense committed or attempted in his presence. (2) When the person arrested has committed a felony, although not in his presence. (3) When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it."

So a private person can arrest somebody that has committed a felony, likely in her presence. But private citizens are not trained as law enforcement officers, so what if they get something wrong? What if the person did not commit the felony? What if there was a crime but it was just a misdemeanor? In these circumstances the person conducting the false imprisonment might be in huge trouble, and this is where we get into torts. Because a false citizen’s arrest looks and sounds an awful lot like a false imprisonment. A wrongly-accused person would likely have a cause-of-action against a mistaken would-be hero that conducts such an arrest. And if physical force is necessary to detain the person, assault and battery charges may also apply. Beyond tort liability, the citizen’s arrestor might also face criminal charges such as kidnapping. Perhaps this is why we relegate the concept to legal fantasy status.

But we wanted to know if that legal fantasy status is warranted. So we called the Cambridge Police Department to ask them about the particulars of citizen’s arrests. They did not know much, but they did point us to the one place where citizen’s arrests happen every single day: the shopping mall. Because nearly every day at the mall, somebody is detained for shoplifting. These detentions are usually made by mall security, people dressed an awful lot like police officers but operating with the legal authority of the private citizens described above. Shopping mall citizen’s arrests are distinct from the California statutory definition of citizen’s arrest in that the underlying crimes are often misdemeanors rather than felonies. In this instance, the mall security relies on an exception called the shopkeeper’s privilege.

The Massachusetts Shopkeeper’s Privilege statute says:

“In an action for false arrest or false imprisonment brought by any person by reason of having been detained for questioning on or in the immediate vicinity of the premises of a merchant or an innkeeper, if such person was detained in a reasonable manner and for not more than a reasonable length of time by a person authorized to make arrests or by the merchant or innkeeper or his agent or servant authorized for such purpose and if there were reasonable grounds to believe that the person...was committing or attempting to commit larceny of goods for sale...it shall be a defense to such action”

That is, a person making a citizen’s arrest of a shoplifter has an affirmative defense to a tort claim of false imprisonment. So citizen’s arrests are far more common than most people realize, even if they are almost all conducted by still-trained professionals (security guards) and a fairly-narrow class of untrained citizens (shopkeepers). There are likely other groups of people that conduct citizen’s arrests, such as bounty hunters. But the bulk of citizen’s arrests likely come in the context of shoplifting.

It is fascinating to think that this legal fantasy turns out to be a legal reality, although perhaps the increasing prevalence of online shopping and rapid demise of malls will spell the end of citizen’s arrest as we [don’t] know it. And it’s amazing to know that we are all truly empowered by our government to dutifully execute an arrest if presented with the right situation.  But even though we have the right, it’s probably best to leave crime fighting to the professionals. If you don’t and you’re wrong, you just might find yourself on the wrong side of a judgement for false imprisonment.

-Ellis & Acton