The Citizen’s Arrest Law Cited in Arbery’s Killing Dates Back to the Civil War
Georgia has allowed its residents to arrest one another since 1863. But after the shooting death of Ahmaud Arbery, critics are calling for such laws to be repealed."
After Ahmaud Arbery was shot dead by two white men on a quiet residential road in coastal Georgia, a prosecutor cited a Civil War era state law to justify the killing.
The same law was invoked last year in suburban Atlanta after a white woman chased down a black man who left the scene of a car accident and killed him after starting a confrontation.
Since 1863, Georgia has allowed its residents to arrest one another — if they have witnessed a crime and the police are not around. Similar laws exist in nearly every state, and have been raised in courtrooms over the decades to account for actions in a range of criminal cases, including assaults and murders.
But after Mr. Arbery’s death, a growing chorus of critics are calling for the laws to be repealed. They say the laws are outdated, relics of the Wild West, and are ripe for abuse by untrained civilians in an age in which 911 is widely available and police response times are generally within minutes.
Like “stand your ground” and “castle doctrine” laws that allow people to use force to protect themselves or their homes — as in the case of a neighborhood watch volunteer in Florida who shot to death Trayvon Martin in 2012 — citizen’s arrest statutes have generated considerable controversy and cries of racism.
“Namely, 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,” Ira P. Robbins, a law professor at American University who wrote an academic paper on the issue, wrote in an email. “That’s why it is so dangerous for people to take the law into their own hands.”
Citizen’s arrest laws date back to medieval times. Absent an organized police force, in the late 1200s, King Edward I needed help fighting crime. The legal concept carried over to the United States, when in the country’s modern infancy, it could take days for a law enforcement agent to travel to a crime scene.
The use of the law, while not altogether common, is generally less problematic in its more frequent use by shopkeepers detaining shoplifting suspects, for example, or by trained security guards and police officers operating outside their jurisdiction, Mr. Robbins wrote.
Supporters of the law point to instances in which people who are committing crimes are thwarted and then held until the police arrive, such as muggers or shoplifters. They are relied upon by crime watch groups like the Guardian Angels to anti-immigrant patrols on the U.S.-Mexico border.
Still, Dana Mulhauser, a former civil rights lawyer at the Department of Justice who now runs the conviction integrity unit in St. Louis County, said citizen’s arrest laws had outlived themselves.
“These laws were created in a different time,” she said. “We are not in a time where we are lacking in police responsiveness in this country. You are asking for situations that cause trouble.”
In the case in suburban Atlanta, Hannah R. Payne, 22, is awaiting trial on murder charges for the shooting death of Kenneth E. Herring, a 62-year-old mechanic who left the scene of a fender bender last May. Ms. Payne, who was not involved in the crash, chased Mr. Herring in her Jeep.
Witnesses told police in Clayton County, Ga., that Ms. Payne blocked Mr. Herring’s truck, approached the open driver’s-side window of his vehicle and punched him with her left hand as she pointed a 9-millimeter firearm with her right.
A 911 dispatcher told her to stand down, but the police said the call recorded Ms. Payne’s demands: “Get out of the car,” she yelled, using a vulgarity. A single shot was fired, and Mr. Herring stepped out of the truck and died.
Ms. Payne, described by her lawyer as an “all-American girl” who “thought she was helping out,” is now facing a long prison term for a killing that shares eerie similarities to the shooting death of Mr. Arbery, who was killed in February after a father and son told the authorities they thought he was the suspect of a rash of recent break-ins in their neighborhood.
“When I saw that Arbery case, I thought, ‘Here we go again,’” Mr. Herring’s widow, Christine Herring, said in an interview.
To Ms. Herring, people like the young woman who killed her husband feel empowered by the law to handle criminal matters on their own.
A Georgia prosecutor, George E. Barnhill, cited the state’s citizen’s arrest law as the reason Gregory McMichael, 64, and his son, Travis McMichael, 34, should not be held responsible for Mr. Arbery’s death.
In a letter to the Glynn County Police Department, Mr. Barnhill, who eventually recused himself from the case, wrote that the men were in “hot pursuit” of Mr. Arbery, and that they had “solid first hand probable cause” that he was a “burglary suspect.”
There is no evidence that Mr. Arbery had committed a burglary, and he was not armed when he was chased down.
The McMichaels were arrested last week and charged with aggravated assault and murder, more than two months after the shooting death and after a different prosecutor asked the Georgia Bureau of Investigation for assistance.
According to Mr. Robbins’ research, some states do not allow citizen’s arrest of misdemeanors unless the misdemeanor involves a “breach of the peace.” Others only allow citizens to make the arrest if they witnessed the crime themselves. The laws vary across the country regarding the level of probable cause that is required, and how long a person is allowed to detain someone.
In Massachusetts, Pennsylvania and Wisconsin, an arrest is allowed if a citizen personally witnesses a felony. California allows a citizen’s arrest of a misdemeanor even if the person did not directly witness it.
Statutes also differ on how certain the citizen has to be that the crime was committed, Mr. Robbins wrote. In Arkansas, the citizen can be “reasonably sure,” but in New York, if the felony was not actually committed, someone who wrongly takes a person into custody can wind up liable for false arrest.
In Gary, Ind., last fall, a city councilman who apprehended a teenager he believed had stolen his car days earlier was charged with kidnapping.
“It can get messy,” said Ronald L. Carlson, a law professor at the University of Georgia. “A citizen who is being arrested is much less inclined to be cooperative if it’s not somebody with a blue uniform on.”
In Georgia, the law states that a private person may arrest someone if a crime is committed in his presence or “within his immediate knowledge.”
But if it is a felony, the citizen can stop someone from escaping if the citizen has “reasonable and probable grounds of suspicion.”
The current Georgia law is about a decade old, but versions of a nearly identical statute have existed in the state since 1863.
In the Clayton County case, leaving the scene of an accident with no injuries is a misdemeanor, so Georgia law would not have authorized Ms. Payne to chase down Mr. Herring.
Further, Mr. Herring initially stopped at the accident scene, but he apparently was having a diabetic episode and got back in his car and left, his wife said, so it was unclear whether he would have been charged with any crime at all.
Ms. Payne and her lawyer, Matt Tucker, did not respond to requests for comment.
At her bond hearing last year, Mr. Tucker said his client was “not a menace to society as people want to portray her.”
“She’s a young individual that got on the phone with 911 and thought she was helping out,” the Clayton News Daily quoted him saying. “At her age, she learned a very valuable lesson.”
In the killing of Mr. Arbery, someone called 911 beforehand to say that a man was inside a house under construction. If that man was Mr. Arbery, and he was there without permission but stole nothing, then he could have been charged with trespassing, a misdemeanor, said Lawrence J. Zimmerman, the president of the Georgia Association of Criminal Defense Lawyers. That means, Mr. Zimmerman said, the men who went after him would not have been authorized to give chase,
Force can only be used to prevent a violent felony, Mr. Zimmerman said, adding, “What is not lawful is, you can’t detain somebody and then use force.”
But a person making a citizen’s arrest who is then attacked could try to claim self-defense, he said, as the McMichaels have claimed — although it would not necessarily be successful.
On Tuesday, Georgia lawmakers said they would move forward with proposals to strip that protection from state law.
“The citizen’s arrest has to be abolished in this state,” State Representative James Beverly, a Democrat, said at a news conference in Brunswick on Tuesday. “We can’t have this happen again in this country and certainly not in the state of Georgia.”
Ms. Herring said she would love to see the law abolished. “The law is protecting them for some reason,” she said of those who had cited it as a defense. And of the woman accused of killing her husband, she added, “What gives her the right? Let me tell you, she is not the police.”