After the 2020 death of Ahmaud Arbery, state laws allowing citizen’s arrest were reconsidered. This leads members to question what to do if they stop a crime. For this edition of our Attorney Question of the Month column, we asked our Network Affiliated Attorneys the following question:
In your state, may an armed citizen arrest a violent attacker at gunpoint and detain him or her until law enforcement arrives? Is this allowed for crimes that are not violent?
If the crime occurred inside one’s home, are allowances to use deadly force to effect a citizen’s arrest broader than out in public?
What do armed citizens in your state need to know about citizen’s arrest?
Our Affiliated Attorneys’ responses follow:
Roland S. Harris IV, Esq.
Cohen|Harris LLC
40 York Road - 4th Floor, Towson, MD 21204
888-585-7979
https://cohenharris.com/
In Maryland, a citizen may use a “citizen’s arrest” as long as its use does not constitute a breach of the public peace.
Use of force in Maryland is determined using the self-defense standard of using no more force than is reasonably necessary, but is complicated by the fact that deadly force can only be “used” after attempting to retreat unless an avenue of retreat is unknown to the user, the user is the victim of a robbery or the user is using the force within their own home. The determination of whether the force is reasonable will be made by the fact finder, either the judge or jury, at trial and not likely through a pre-trial motion. The more force used, i.e. pointing versus discharging, will play a big factor in the determination as to whether the force was unreasonable.
So, for example, a woman hears a window break in her home and catches a man inside her apartment and detains him at gunpoint until the police arrive – likely a good detention.
Whereas a woman hears a window break in her home and catches a man inside who attempts to flee so she shoots him – very likely a bad detention.
Ultimately, these examples show the conundrum most homeowners face using firearms to defend their homes in Maryland, since most burglars are going to try to flee and it’s likely unlawful to actually shoot them or at them – so you can use the weapon to encourage a person to stick around and get arrested or they just run and face a much lower chance of apprehension. Most criminals go with the second option.
Speaking in terms of specifically “citizen’s arrest,” a citizen should keep in mind that a citizen’s arrest within the home is unlikely to be a breach of the public peace because obviously it is far less likely the public is around to have their peace breached, but once in public, even within the yard of a home, any place the public can be can constitute the presence of the public. For example, Maryland’s appellate courts have held a pretty much empty road was enough to constitute the presence of the public for the purposes of disturbing the peace. Often when the police can’t charge anything else, they will opt to charge disturbing the peace because it is so vague and operates as a legal catch-all.
Overall, Maryland has a very convoluted criminal law book and anytime someone in Maryland is using force, of any degree, they should be prepared to defend their actions in the field and again in a courtroom.
Ralph D. Long, Sr., Esq.
Ralph D. Long, Attorney
80 Cypress Forrest Drive, Florence, AL 35633
256-335-1060
Before I answer these questions, I urge everyone in every case where waiting would not put innocent life in jeopardy to wait, take a position of tactical cover, arm yourself and call 911. Never risk your life over property. Whenever possible, wait for the police to handle the situation.
In your state, may an armed citizen arrest a violent attacker at gunpoint and detain him or her until law enforcement arrives?
“Yes” in Alabama, BUT be certain that if you are not the subject of the attack, that the person you intend to bring into custody is not a private citizen defending him/herself or a plainclothes peace officer attempting to arrest a person you wrongly believe to be a victim. The effects of adrenaline (auditory blockage and tunnel vision) and factors you may know nothing of can lead you to take action that you cannot take back. During my time as a police officer in a Birmingham, Alabama suburb, a husband and wife who both happened to be off-duty police officers were engaged in a domestic dispute on the shoulder of Interstate 59. An on-duty plainclothes Jefferson County deputy pulled over to see what was happening. The deputy recognized neither of the officers in the domestic dispute. He was accosted by the male spouse and ended up shooting and killing him during an ensuing struggle.
Another issue to be considered is whether you have the means to restrain the arrested individual(s) until the police can arrive and take charge. Never try to zip tie or handcuff a violent offender by yourself. Even if the subject were to escape, keep your distance. You must never forget that a person interrupted during the commission of a violent crime, is dangerous even if he/she initially appears to comply with your demand to stop the violent act.
Is this allowed for crimes that are not violent?
Yes, BUT one should have confirmed there is a current arrest warrant for the offender (and be able to confirm that the person to be arrested is actually the person named in the warrant), OR the arresting citizen should have seen the offense committed and knows the person to be arrested is, in fact, the perpetrator. Even if the arrested person is not injured, the likelihood of an expensive false arrest lawsuit by a wrongly arrested innocent person is very high. You must never use deadly force to stop an offender who is fleeing or who does not put you or other innocents in a position of imminent serious physical injury or death. In a case of mistaken identity by you, the innocent subject of your arrest has a right to believe he or she is authorized to use deadly force to stop an unwarranted attack or attempted false imprisonment by you. “Whoops, my bad, I’m sorry,” has no legal merit.
If the crime occurred inside one’s home, are allowances to use deadly force to effect a citizen’s arrest broader than out in public?
Yes. Much more latitude is granted in the use of deadly force once a burglar or home invader has actually gained access to the home. Never fire through a door or window unless deadly force is being used against you (shooting through your door at you). From the legal and moral standpoints, the least amount of force necessary to thwart the attack is best. During my time as a peace officer, I saw at least three incidents where drunk or otherwise impaired individuals entered or tried to enter a citizen’s home late at night, thinking he was at his own residence. In each case the home-owner called the police and used discretion, but that is not required if an intruder gains entrance to an occupied dwelling (house, apartment, motel room, RV, houseboat, etc.). In every case, if the intruder is not actually attacking you or a member of the household, one must make every attempt to ensure the person you are about to shoot is “other than friendly.” Again, being sorry for shooting one’s teen-aged child slipping back into their home after slipping out, will not bring him/her back to life.
What do armed citizens in your state need to know about citizen’s arrest?
Generally, a private citizen may arrest for a breach of the peace or for a crime that occurs in his/her presence and offenses for which a warrant has been issued. The caveats above regarding waiting for law enforcement to take a person into custody and ensuring the identity prior to arrest apply in every situation.
Justin L. Ward
The Ward Firm
Attorneys & Counselors at Law
4600 Northgate Blvd., Suite 210, Sacramento, CA 95814
916-443-2474
https://www.jlwardfirm.com/
In your state, may an armed citizen arrest a violent attacker at gunpoint and detain him or her until law enforcement arrives? Is this allowed for crimes that are not violent?
Yes, in California the armed citizen may do so if they are threatened with great bodily injury or death. You can only use or threaten to use deadly force if you or someone else is threatened with great bodily injury or death. You can not use a gun to detain someone breaking into a car, for instance.
If the crime occurred inside one’s home, are allowances to use deadly force to effect a citizen’s arrest broader than out in public?
Yes. You can use or threaten to use deadly force to effect an arrest in your home for an intruder. If an invited guest creates a situation, then deadly force cannot be used unless the homeowner/dweller is facing great bodily injury or death.
Steven M. Harris
Attorney-At-Law
14260 W. Newberry Road - #320, Newberry, FL 32669-2765
305-350-9150
Regarding citizen’s arrest in Florida, please see my article on the subject, available online, here, at page 8 https://www.8jcba.org/resources/Documents/Oct%202020%20Newsletter.pdf .
There is a pending pretrial self-defense immunity writ appeal in Florida. The opinion will likely shed light on some aspects of the law of citizen’s arrest. I expect the opinion will be published in 2023. The case is Raulerson v. State, see https://acis.flcourts.gov/portal/court/b82b30d5-bd3c-46d7-9451-1cb05e470873/case/e5799aba-d2b4-4ca7-958e-e1a78b21ce79 .
I also wrote on citizen’s arrest at Modern Service Weapons. See http://modernserviceweapons.com/?p=18687 .
Nabil Samaan
Law Office of Nabil Samaan
6110 Auburn Folsom Road, Granite Bay, CA 95746
916-300-8678
The analysis would have to be facts that establish a continuing fear of severe bodily harm. I would analogize it to chasing down an assailant if there are factual reasons to do so, for example, to prevent further physical imminent harm, to prevent a hostage taking.
Robert E Calesaric
Calesaric Law
35 S Park Pl Ste 150, Newark, OH 43055
740-973-6800
https://www.calesariclaw.com
In your state, may an armed citizen arrest a violent attacker at gunpoint and detain him or her until law enforcement arrives? Is this allowed for crimes that are not violent?
Yes, and must be a felony.
If the crime occurred inside one’s home, are allowances to use deadly force to effect a citizen’s arrest broader than out in public?
Yes.
What do armed citizens in your state need to know about citizen’s arrest?
You have no legal protections so be cautious.
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Thank you, affiliated attorneys, for sharing your experience and knowledge. Members, please return next month when we have a new question for our affiliated attorneys.