This is the second article in a series on the particulars of citizen’s arrests, including when, why and how these arrests are appropriately applied. Start with the first article in this series. This article series is not intended as legal advice. Readers should consult a licensed attorney with any specific questions or concerns on the subject matter.
In the previous article of this series, we defined the citizen’s arrest and discussed when it might be used. Now, we’ll look at additional particulars surrounding a citizen’s arrest, such as what needs to be said during an arrest and what happens if resistance is presented.
Miranda Rights Are Not Required
First, it’s important to remember that you are not law enforcement. As such, you are not making a formal arrest pursuant to a criminal charge. Therefore, you do not need to read any Miranda rights.
If a person demands to know why you are arresting them (as is often the case), you can tell them the reason why. Be calm and respectful. And listen to them if they have a good-faith explanation that might ameliorate your concerns that prompted the arrest in the first place. But this does not mean that you are required to enter a debate if they disagree with your reasons for arresting them.
The fact is people don’t like being arrested, especially by someone they don’t believe has a legitimate authority to do so, such as someone who is not a police officer. So resistance is actually fairly common.
There’s nothing wrong with respectful communication with the person you’re detaining, but if you’re confident that your citizen’s arrest is solidly supported by the evidence, you are not required to argue with them. The act of arresting the individual is, by definition, your decision to detain them (on legal grounds) whether or not they like it. But as we discussed in Part I, this is why you need to be sure about the grounds for your actions.
Physical Resistance Is Fairly Common with a Citizen’s Arrest
Physical resistance is a fairly common occurrence with a citizen’s arrest, for the reasons noted above. Again, an arrest is a non-negotiable detention. So if you’re confident in the legal grounds for your arrest, then you may use force that is proportional and reasonably necessary to effect a safe citizen’s arrest. Abusive or excessive force is never acceptable or justified.
What does proportional and reasonably necessary mean? It means the minimum amount of force necessary to safely detain the individual in question and nothing more.
So, for example, if you inform someone that you are placing him under arrest and he indicates that he is willing to comply without resistance, you may not need to use any physical force whatsoever. You may not even need to touch the person at all to effect the arrest.
On the other hand, if the person resists and attempts to fight, you may need to use safe self-defense and submission tactics to protect yourself and gain safe control of the aggressor and the situation. First, you should never aim to hurt someone in the process of effecting a citizen’s arrest, even when you’re defending yourself from attack. That is never the goal. But sometimes when encountering resistance, efforts to defend and gain control of the situation do inadvertently result in injury to the person being arrested.
For example, you may put your hands up to block an attack and end up injuring the aggressor in the contact. So long as the original citizen’s arrest was lawful and the force you used in defending yourself and gaining control of the aggressor is proportional and reasonably necessary, you probably won’t face liability for injuries sustained by the aggressor as a result of his refusal to cooperate.
If the resisting individual injures you in the process, then he may be liable to you for damages, provided that your arrest was lawful in the first place. If, however, your arrest was not lawful, the arrested person’s actions in self-defense and resistance may be justified, depending on the circumstances.
In the next part of this series, we’ll examine other important questions, such as how to handle a citizen’s arrest in a team environment.
About the Authors
Dr. Gary Deel is a Faculty Director with the Wallace E. Boston School of Business at American Public University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Public University, the University of Central Florida, Colorado State University and others.
Dr. Chuck Russo is the Program Director of Criminal Justice at American Public University. He began his career in law enforcement in 1987 in Central Florida and was involved all areas of patrol, training, special operations and investigations before retiring from law enforcement in 2013. Dr. Russo continues to design and instruct courses, as well as act as a consultant for education, government and industry throughout the world. His recent research and presentations focus on emerging technology and law enforcement applications, post-traumatic stress, nongovernment intelligence actors, and online learning.