DISCLAIMER -- This opinion piece is not intended nor should it be taken as legal advice.
"Citizen's arrest!" When can you make one, what force can you use and must you submit?
Recent headlines and a Sunday family dinner conversation had me thinking about this topic.
The headlines included:
Armed man who helped stop Anchorage mall robbery: 'I carry so I'm ready.'
Wasilla man fleeing troopers confronted and shot by homeowner he shoved.
The dinner conversation involved my brother asking about citizens' arrest powers and whether, as with police arrests, an arrestee had to submit. My initial response was, "If some strange guy says I'm under arrest and tells me to get into his car, I'm not doing it."
When can citizens arrest?
Alaska Statute (AS) 12.25.030 says a private person or a peace officer without a warrant may arrest a person:
If the crime is a misdemeanor, neither a citizen nor a peace officer may arrest without a warrant unless it was committed or attempted in their presence. If you think someone committed a misdemeanor but you didn't see it, call the police, tell them what you know and let them decide whether to try and get an arrest warrant.
What force can a citizen use to make an arrest?
Under the law, nondeadly force includes any bodily impact, restraint, or confinement or the threat of imminent bodily impact, restraint, or confinement. "Deadly force" includes force the person knows creates a substantial risk of causing death or serious physical injury but also includes intentionally discharging or pointing a firearm in the direction of another person and intentionally placing them in fear of imminent serious physical injury. Pointing a gun at someone and threatening to shoot them, regardless of whether you'd actually do it, may constitute deadly force.
AS 11.81.390 says a private person may use nondeadly force when they reasonably believe it's necessary to arrest or stop the escape or attempted escape of someone they reasonably believe has committed a misdemeanor in their presence or a felony (not necessarily in their presence).
A private person may use deadly force only when they reasonably believe such force is necessary to arrest or stop the escape or attempted escape of someone they reasonably believe has committed a felony involving the use of force against a person, or has escaped or is attempting to escape from custody while possessing a firearm.
Do I have to submit to a citizens arrest?
As a legal matter, AS 11.81.390 says you can't use force to resist personal arrest or interfere with the arrest of another by a peace officer regardless of the lawfulness of the arrest. We don't want the lawfulness of an arrest by an officer decided by trying to duke it out. You'll have your day in court. But the statute makes no mention of submitting to a citizen's arrest.
If someone places you under citizen's arrest, your choices are practical and tactical. Hopefully your conduct will be determined by common sense and a desire for your safety and the safety of others, including the citizen attempting to arrest you. As I told my brother at our Sunday dinner, I'm not getting into a car with a stranger who has placed me under citizen's arrest. I'm telling them to call the cops -- or I'll call them -- and we can wait there until the police arrive.
Whether I allow myself to be detained will be based on all the circumstances, including but not limited to:
I don't feel the need to prove myself the bigger dog. My brain and verbal communication are my first tools of choice. But if an arresting "citizen" decides to go vigilante, I won't hesitate to defend myself against unjustifiable force, and I'm almost always carrying.
When should a citizen arrest?
I don't intend to discourage or encourage citizens from exercising their lawful arrest authority. I do hope to get them thinking about it beforehand. I don't want them to end up seriously hurt. I don't want them to hurt someone else, perhaps even an innocent bystander, because they lacked the ability to safely arrest another.
If you don't know the four cardinal rules of firearm safety, you have no business carrying a gun, let alone drawing it. Matthew Willhite, who drew his gun to help stop the armed shoplifter, understands this. Afterwards, he said the readiness for such an encounter goes far beyond having a gun. He practiced safe gun handling for years. He knows the rules and applied them at the mall in making sure of his line of fire and anything behind his intended target.
Be aware that the "reasonableness" of your actions in making a citizen's arrest, or using force to do so, may end up being determined in a lawsuit. More important, as Sgt. Phil Esterhaus said at the end of every "Hill Street Blues" roll call, "Hey, let's be careful out there."
Val Van Brocklin was a state and federal prosecutor in Alaska. She now trains and writes nationally on criminal justice and law enforcement topics. She lives in Anchorage.
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