Dear Straight Dope:
Suppose I'm fed up with Jehovah's Witnesses and door-to-door salespeople knocking on my door at all hours. So I post signs on the edge of my property similar to the "POSTED" signs landowners use in rural areas to keep hunters off their land. The signs clearly say "no soliciting" and "no trespassing." A pair of JWs marches right past my sign and knocks on my door. Do I have the right to make a citizen's arrest of them? If not, can I have the police arrest them?
Gfactor and guest contributor pravnik reply:
Let’s start with the basics, Mr., uh, Dripping. The legal significance of citizen’s arrest is that it gives you a defense in lawsuits and criminal cases where you’re accused of things like assault, battery, false imprisonment, or kidnapping. In other words, you’d better make sure you’ve got legitimate grounds to arrest someone or you could be in big trouble. Even more important, the arrestee has a right to resist if you lack the right to hold him, so you could wind up with a literal black eye as well as a legal one.
Gfactor answered a related question in “Can I legally prevent people from putting flyers under my door or on my windshield?” If the Jehovah’s Witnesses refuse to leave your property, you can use reasonable force to expel them. Citizen’s arrest takes things a step further — you propose to detain them against their will on your property or forcibly transport them to the police station.
The right of citizen’s arrest dates back to the Middle Ages, when ordinary people rather than professional police officers were the primary law enforcers. At common law, you could arrest a person who committed a crime in your presence if the crime was a felony or a breach of the peace. There are many such survivals in modern law. In “Can cops really commandeer cars?” Gfactor discussed the practice of “hue and cry” in which bystanders were enlisted in catching lawbreakers. In “Who invented the grand jury?” Gfactor and Bricker explained how the grand jury was another example of citizen enforcement.
Every state recognizes some form of citizen’s arrest. North Carolina calls it “detention,” which means you can hold a person at the scene of the crime but you can’t take them elsewhere by force. Many states have expanded the right of citizen’s arrest to all misdemeanors, and have special statutes that cover citizen’s arrests by merchants.
What’s tricky is that the right of citizen’s arrest must be balanced against the other person’s right to freely come and go. It’s not always obvious, for example, what constitutes criminal trespass. As one court noted: “We realize that a citizen’s arrest or attempted arrest can create a dangerous situation and that one who attempts it does so at his peril.”While you may have a right to use reasonable force to arrest someone who’s committed a crime in front of you, they’ve got a right to use reasonable force to avoid arrest if in fact they’ve committed no crime.
Some jurisdictions prohibit self-defense if the arresting party is a law enforcement officer, but since you’re freelancing, you could legally be subjected to a beating by someone trying to avoid your clutches, or liable to charges of false arrest or assault. Even if you’re in the right, you might still be sued or prosecuted; citizen’s arrest is merely an affirmative defense, meaning the burden is on you to prove you had the right to make the arrest. If the judge or jury is unconvinced, you lose.
Can you make a citizen’s arrest for trespassing? It depends. In most jurisdictions, criminal trespass is a misdemeanor, so first you need to determine whether your jurisdiction permits citizen’s arrest for all misdemeanors. If it does, you next have to establish what constitutes criminal trespass in your locality. At common law criminal trespass required that the entry onto land be manu forti — by force of arms. Early cases held that an otherwise peaceful trespasser did not breach the peace simply by refusing to leave when asked. Few jurisdictions rely on common law notions of criminal trespass nowadays, but many require formal notice to the trespasser. It’s not clear whether your sign would be sufficient to make the JW’s entry criminal.
What if you live in a jurisdiction that permits citizen’s arrest only for breaches of the peace? Does that mean the trespasser must invade by force of arms, as breach of peace was defined under the common law of trespass? Probably not. A Texas court reviewing the law of citizen’s arrest suggests that any trespass could be a breach of the peace:
The term “breach of the peace” is generic, and includes all violations of the public peace or order, or decorum; in other words, it signifies the offense of disturbing the public peace or tranquility enjoyed by the citizens of a community; a disturbance of the public tranquility by any act or conduct inciting to violence or tending to provoke or excite others to break the peace; a disturbance of public order by an act of violence, or by any act likely to produce violence, or which, by causing consternation and alarm disturbs the peace and quiet of the community. By “peace,” as used in this connection, is meant the tranquility enjoyed by the citizens of a municipality or a community where good order reigns among its members. Breach of the peace is a common-law offense. It has been said that it is not a specific offense, yet it may be, and at times is, recognized as such by statute or otherwise; and only when so regarded will it be considered in this article.
The offense may consist of acts of public turbulence or indecorum in violation of the common peace and quiet, of an invasion of the security and protection which the laws afford to every citizen, or of acts such as tend to excite violent resentment or to provoke or excite others to break the peace. Actual or threatened violence is an essential element of a breach of the peace. Either one is sufficient to constitute the offense. Accordingly, where means which cause disquiet and disorder, and which threaten danger and disaster to the community, are used, it amounts to a breach of the peace, although no actual personal violence is employed. Where the incitement of terror or fear of personal violence is a necessary element, the conduct or language of the wrongdoer must be of a character to induce such a condition in a person of ordinary firmness.
Of course, that case involved a trespasser who tried to conceal himself on property belonging to the arresting party during a manhunt, after he’d been told to leave earlier in the day. But previously a Texas court had upheld dismissal of false imprisonment and false arrest claims following a finding that the plaintiff trespassed when he returned to the defendants’ office building after being refused permission to distribute his circulars. So it looks like you’d probably be OK, at least in Texas.
While we’re at it, we should point out that many citizen’s arrests are made by law enforcement officers who are off duty, out of their jurisdiction, or making an arrest for a minor crime they didn’t witness. A common scenario involves traffic stops by law enforcement personnel not assigned to traffic enforcement.
The law imposes some requirements on those making a citizen’s arrest. Common law and many state statutes require that the arresting person tell the arrestee he’s performing a citizen’s arrest, and some require that the crime be specified. As a general rule, you can use reasonable force to complete the arrest, although there’s some variation among states on this point, and also on whether you can break into buildings while in hot pursuit. If you’d rather not risk messing up, you’d be smarter just calling the police.
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