Should States Have Citizens Arrest Laws?

Photo by Bill Oxford on Unsplash

Chloe Knue, Blog Editor, University of Cincinnati Law Review

I. Introduction

In February, Ahmaud Arbery, a black man, was killed by three white men while out for a jog through a neighborhood.[1] Gregory McMichael and Travis McMichael, father and son, started chasing Mr. Arbery in their truck, armed with a firearm.[2] William Bryan Jr. saw the commotion, started his truck, and assisted the aggressors.[3] The three men have subsequently been indicted for murder in the state of Georgia.[4] In all likelihood, Mr. Arbery’s killers will try to escape liability by relying on citizen’s arrest as an affirmative defense.[5] This prediction stems from comments allegedly made by Mr. Gregory McMichael at the scene of the crime.[6] He reportedly said: “‘He had a gut feeling that Mr. Arbery may have been responsible for thefts that were [committed] in the neighborhood previously.’”[7] This has led to debate about whether citizen’s arrest laws should exist in the first place.[8] This post will weigh in on that discussion and place a special emphasis on race in light of the fact that Mr. Arbery was a black man, and Mr. Travis McMichael allegedly used a racial slur.[9]

Part II will focus on Ohio law, summarizing two cases. Although neither case mentions race, the cases are included to illustrate how the law is applied. Part III argues that citizen’s arrest laws should be abolished for a number of reasons, including, racism. Part IV concludes by acknowledging a separate, but related, issue—police brutality.

II. Background

The Ohio citizen’s arrest statute is located in O.R.C. § 2935.04. A concise restatement of the law is as follows: “there [must be] reasonable grounds to believe that the arrestee committed a felony.”[10] The law is applied in the cases that follow.

In State v. Rogers, the Supreme Court of Ohio laid out the notice requirement for citizen’s arrest.[11] In Rogers, Johnny James Goodwin Jr. (“the decedent”) shot Steven Rogers in the face twice.[12] Despite his injuries, Steven was able to drive off in search of his father, the defendant.[13] When the defendant was unable to reach police, he decided to detain the decedent himself.[14] He and his son drove back to the decedent’s location, and once again, things became physical between Steven and the decedent.[15] The second interaction ended with the decedent running away as the defendant shot at his back.[16] One of the shots was fatal.[17] The defendant tried to rely on citizen’s arrest as an affirmative defense.[18] Part of his burden, according to the court, was to show that he gave the appropriate notice.[19] “‘When a person is engaged in the commission of a criminal offense, it is not necessary to inform him of the cause of his arrest.’”[20] This is because it is clear to the person why they are being arrested.[21] However, when you arrest someone after the fact, like in this case, the arrestor must communicate: “‘[1] the intention to arrest him and [2] the cause of the arrest.’”[22] The defendant was unable to meet that burden.[23] Thus, the killing of the decedent was not excused.[24]

The Jackson v. Gossard court laid out the law for misdemeanors.[25] The plaintiff was exiting a parking lot when a third party driver struck the back of his car.[26] When he got out to see if there was damage, the defendant began tampering with the plaintiff’s license plate.[27] The plaintiff tried to effectuate a citizen’s arrest.[28] He grabbed the defendant’s arm, and in response, the defendant punched him in the nose.[29] The court found that this was an illegal citizen’s arrest.[30] Tampering with a license plate is not a felony: “it cannot be disputed that a citizen’s arrest may not be lawfully made for the commission of a misdemeanor.”[31] The appeals court remanded the case based on a procedural error.[32] The plaintiff should have been able to present evidence to determine whether the resistance was necessary under the circumstances.[33]

III. Discussion

The proceeding sections raise two important questions. First, are citizen’s arrest laws more harmful than helpful? And if so, are these concerns only amplified when racism is involved? Each question will be addressed in turn.

One of the biggest problems in this context is ignorance, and both Gossard and Rogers speak to this point. In Gossard, the plaintiff thought he could arrest someone for a mere misdemeanor—someone tampering with his license plate. And similarly, in Rogers, the defendant failed to give notice; presumably, because he did not know that notice was required. These factual circumstances are akin to someone operating a piece of heavy machinery without reading the owner’s manual. And alarmingly, life and liberty are at stake. A person should be required to give some sort of assurance that he or she knows the law before being empowered to enforce it.

Another downside of citizen’s arrest is violence. According to one viewpoint expressed in an American Bar Association article, “citizens arrest laws . . . caus[e] dangerous situations and sometimes lead[] to assaults and killings.”[34] And Rogers and Gossard also reinforce this view. In both cases, the end result of an attempted citizen’s arrest was worse than the underlying crime. In Rogers, a man was killed, and in Gossard, the conflict escalated to a physical confrontation. The same was true in the case of Mr. Arbery. Even if Mr. Arbery was responsible for a theft in the neighborhood, brutal murder was not the appropriate remedy. The days are over when we, as a society, praised the gun-slinging vigilante. A true hero, in 2020, is someone who is a source of de-escalation in a time of conflict. And citizen’s arrest laws are not aligned with this modern perspective.

Mr. Arbery’s death makes it necessary to examine citizen’s arrest laws through a racial lens. There is now “[w]idespread support . . . for the . . . [Black Lives Matter] movement[.]”[35] This is because people recognize that racism still exists. As long as racism is still a factor, we cannot trust all citizens to do good. The risk that black men and women will be detained, and harmed, because of the color of their skin is too great. White people should not be permitted to patrol, armed with citizen’s arrest as a tool in the toolkit. One black life lost, under the veil of a citizen’s arrest, is too many. But these tragedies are likely to continue to happen as long as this purported protection is still in place.

A second consideration, aside from physical harm and death, is psychological harm. Many people, rightfully so, fear the police. While there are a finite number of police officers, visibly identifiable in uniform, there are an infinite number of citizens dressed in sheep’s clothing. Imagine being a black parent who watches their son or daughter walk out the door—fearful that any person could escalate a conflict and attempt to arrest their child. As a white person, this is unimaginable. But as long as citizen’s arrest laws exist, everyone is a potential cop. Of course, there is a lot that needs to change for black people to feel safe in America. But abolishing citizen’s arrest is one step in the right direction.

IV. Conclusion

This post argues that citizen’s arrest laws should be abolished. Although not explicitly addressed, there is another extremely important issue lurking in the sub-text of this article: If not citizens, then who should be making the arrests? Most people would say the police, of course. But this has come into question as of late in response to recent events. George Floyd and Breonna Taylor, a black man and a black woman, were both killed by police officers in 2020.[36] Thus, it is imperative to note in closing that questions related to police brutality demand separate, extensive scholarship and inquiry.

[1] Eliot C. McLaughlin,, CNN (June 4, 2020).

[2] Id.

[3] Id.

[4], Daily Mail (June 24, 2020) (“Prosecutor Joyette Holmes said . . . a Glynn County[, GA] grand jury has indicted Travis, 34, and Greg McMichael, 64, and William ‘Roddie’ Bryan Jr., 50, on charges including malice and felony murder in the death of the unarmed jogger.”).

[5] Debra Cassens Weiss,, ABA Journal (May 15, 2020) (“A prosecutor who reviewed the killing of Georgia black jogger Ahmaud Arbery had opined that Arbery’s alleged killers should not be held responsible for his death because they were acting under Georgia’s citizens arrest law.”).

[6] McLaughlin, supra note 1; Cassens Weiss, supra note 5 (“Someone had [also] called 911 to report a man inside a home under construction before the two men, Gregory McMichael and his son, Travis McMichael, confronted Arbery.”).

[7] McLaughlin, supra note 1 (quoting Georgia Bureau of Investigation agent Richard Dial).

[8] Cassens Weiss, supra note 5 (“Critics are calling for the repeal of citizens arrest laws . . .”).

[9] McLaughlin, supra note 1 (“Bryan told police Travis McMichael said [omitted] after three blasts from his shotgun left Arbery dead . . .”).

[10] § 89:3. Use of force—Citizens arrest, Baldwin’s Oh. Prac. Crim. L. § 89:3 n. 2 (3d ed.).

[11] State v. Rogers, 330 N.E.2d 674, 677 (Ohio 1975) (citing O.R.C. § 2935.07).

[12] Id. at 675.

[13] Id.

[14] Id.

[15] Id. at 675-76.

[16] Id. at 676.

[17] Id. at 675 (convicted of second degree murder) (citing O.R.C. § 2901.05).

[18] Id. at 677 (“The defense of using reasonable force to effect a citizen arrest necessarily involves an allegation of excuse or justification, and is, therefore, an affirmative defense . . .”) (citing O.R.C. § 2901.05[C][2]).

[19] Id. (citing O.R.C. § 2935.07; O.R.C. § 2901.05[A]; State v. Seliskar, 298 N.E.2d 582 (Ohio 1973); supra note 10 n. 3-4.

[20] Id. (quoting O.R.C. § 2935.07).

[21] Id. (quoting Wolf v. State, 19 Ohio St. 248, 259 (1869) (“‘When both the official character of the party making the arrest, and the charge upon which it is made, are known to the party arrested, notice would be an idle form, and is not required, at least, without demand.’”); supra note 10 n. 4.

[22] Id. (quoting O.R.C. § 2935.07).

[23] Id.

[24] Id. at 678.

[25] Jackson v. Gossard, 549 N.E.2d 1234, 1235-36 (Ohio App. 1989).

[26] Id. at 1235.

[27] Id.

[28] Id.

[29] Id.

[30] Id. at 1236.

[31] Id.

[32] Id. at 1236-37 (“[W]e are convinced that the trial court was not in a position to apply any standard of resistance to the facts which plaintiff offered to prove by his opening statement.”).

[33] Id. at 1236 (“[A] person being unlawfully arrested may, in preventing such illegal restraint of his liberty, use such force as may be necessary.”) (citing Columbus v. Holmes, 152 N.E.2d 301 (Ohio 1958), aff’d, 159 N.E.2d 232 (Ohio 1959); 5 Am. Jur. 2d Arrest § 94 (1962); 5 Ohio Jur. 2d Arrest § 52).

[34] Cassens Weiss, supra note 5.

[35] Grace Sparks,, CNN (June 18, 2020) (“A Pew Research poll from last week found 67% of Americans support the Black Lives Matter movement.”) (Kim Parker, Juliana Menasce Horowitz, and Monica Anderson,, Pew Research Center n. 3 (June 12, 2020).

[36] Alisha Ebrahimji,, CNN (June 3, 2020); AJ Willingham,, CNN (June 5, 2020).


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