Law professor Seth W. Stoughton and law student Caroline McAtee, who is also a research assistant for the Excellence in Policing and Public Safety Program, write for The Conversation's Curious Kids series about whether a private citizen can make an arrest.
Can anyone make a citizen’s arrest, even me? – Henry, age 12, Winter Hill, Massachusetts
What does Spider-Man do when he sees someone commit a crime and there are no police officers around to help? He swings in, wraps the wrongdoer in his web and leaves them hanging from a telephone pole until the cops take over.
But is he allowed to do that? Are you?
Seizing criminals
Until about 200 years ago, uniformed police officers and police departments as we know them today didn’t exist in the United States. It was up to the citizens to arrest criminals.
In 1285, England introduced what we now know as “citizen’s arrests” in a law called the Statute of Winchester. It allowed any person to arrest – in other words, capture – lawbreakers. This concept spread throughout the English colonies, which ultimately became their own countries, including Australia, Canada and the United States. Other countries have adopted similar rules.
In the United States, citizen’s arrests have a pretty dark history. Originally, only white men could make citizen’s arrests. By the mid-1600s, many militias and city watchmen, especially in the South, used that power to intimidate and terrorize enslaved and free Black communities.
This practice continued through the Civil War, the Jim Crow era and even into the 1900s, with vigilantes – people who appoint themselves to catch and punish others – engaging in heinous abuses, including lynchings. Just recently, in 2020, Ahmaud Arbery, a Black man who was jogging around his Georgia neighborhood, was shot and killed by a group of white men who accosted him because they wrongly thought he had committed a crime.
Despite this history, most states still have citizen’s arrest laws on the books.
Making a legal citizen’s arrest
Arrest literally means “to stop.” If someone wants to leave, you usually can’t stop them – that could be considered false imprisonment or even kidnapping. Citizen’s arrest laws are an exception to that general rule; they allow everyday people to make an arrest.
When the police make an arrest, they typically handcuff the subject and take them in a secure transport vehicle to a booking facility, such as the county jail. When Spidey webs a wrongdoer, he can’t just take them back to Aunt May’s apartment. Making a citizen’s arrest means holding the lawbreaker in place until the police arrive and take over.
When can someone make a citizen’s arrest? The rules are a bit different in every state, which can make things confusing. You can ask a librarian to help you find information about the law in your state, but here are some common requirements to get you started:
Who can make a citizen’s arrest? Although some state laws use the word “citizen,” most states allow any “person” or any “private person” – as opposed to a public employee such as a police officer – to make a citizen’s arrest. Despite the name, you usually don’t have to be a citizen. And most states don’t require any minimum age, so it looks like high school student Peter Parker, Spider-Man’s alter ego, is good to go.
Did you see it, and how serious is it? Most states allow you to make a citizen’s arrest for a minor crime – those categorized as a misdemeanor – only if you actually saw the person commit the crime. Some states allow a citizen’s arrest for a minor crime only if it is considered a “breach of peace,” meaning the crime is likely to disturb other people, such as fighting in public. For felonies, a more serious category of crime, the law usually allows you to make a citizen’s arrest even if you didn’t see the person commit the crime.
You’d better be sure! In most states, citizen’s arrest laws apply only if the person actually committed a crime. If you make a mistake by making a citizen’s arrest of someone who didn’t actually commit a crime, the person you arrested can sue you. You might even get arrested yourself!
This is different from when police arrest someone. Law enforcement officers need “probable cause,” which is the legal standard for how sure you need to be that a person committed a crime before arresting them. As long as an officer meets the probable cause standard, they won’t get in trouble, even if they’re ultimately mistaken about the person committing a crime.
Try not to rough anyone up. Someone making a citizen’s arrest is usually allowed to use a reasonable amount of physical force to ensure that the lawbreaker stops committing the crime and can’t leave. But that doesn’t mean you can do anything you want. The type and amount of force you use must be closely related to whether the other person is trying to get away and, if so, what they’re doing.
Just because you can doesn’t mean you should. Making a citizen’s arrest is no joke. There’s the danger of making a mistake about what the person did and whether it was a crime. After all, most people don’t know exactly what the law allows or prohibits, so it’s easy to get something wrong.
And there’s the danger of getting hurt. Most people aren’t trained or equipped to arrest someone safely, and they rarely have backup available like the police do. If you see a crime occur, it’s better to call the police and be a good witness than it is to try to make a citizen’s arrest yourself.
So, what do you think: Is Spider-Man allowed to make a citizen’s arrest? And if he is, does that make him a hero or a vigilante?
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