The story seems familiar. In May 2019, 62 year old mechanic Kenneth Herring hit another vehicle while driving his pickup truck in Clayton County, Georgia. Allegedly suffering from a diabetic episode, Herring left the scene of the collision. 911 was called. Herring, who was Black, was shot in the abdomen and died. His killer was White.
There is a sinister twist, though: Herring died before police even arrived. Hannah Payne, another citizen, pursued Herring in her own car, ordered him to exit the vehicle, and then shot him. Payne now faces murder charges, but in hearings, her lawyer has claimed that she is simply a “good Samaritan” who “thought she was helping out.” In support of these claims, he cited an obscure clause in Georgia law that allows residents to arrest one another if a crime is witnessed and law enforcement is not present. This practice, otherwise known as a citizen’s arrest, was also used by a Georgia prosecutor as an initial justification to not charge Ahmaud Arbery’s assailants.
Though Georgia’s citizen’s arrest statute has received particular scrutiny, almost every state permits some form of citizen’s arrests. In many cases, the statutes date back to the 19th century, long before the concept of municipal law enforcement was born. They have lurked in the text of state laws, only becoming relevant in the rare case that a citizen’s arrest takes place, or as is often the case, escalates into a violent or criminal encounter. In these instances, private citizens like Hannah Payne as well as Travis and Gregory McMichael, Arbery’s killers, may find legal justification to use excessive levels of force.
This normalization of vigilante justice, especially at the expense of people of color, is unacceptable at a time when Americans are rejecting and repairing systematic flaws in law enforcement. Citizen’s arrest laws are anachronisms in an age when police should be more than capable of promptly serving justice. Abolishing the citizen’s arrest, or at least drastically restricting its use, is an important step in building a criminal justice system fit for today, not the 1800s.
A Racialized History
The citizen’s arrest dates to 13th century England—a time when modern-day cops would be unrecognizable. The practice immigrated to the American colonies and quickly became a convenient legal pretext for the persecution of the enslaved population. Beginning in the mid-1600s, enforcing the subjugation of Black Americans was a public responsibility: volunteer militias gave way to formal slave patrols, which wielded citizen’s arrest statutes to brazenly and legally intimidate the Black population. Here lies a common thread between the origin of citizen’s arrest legislation and today’s reckoning with racist policing: organized American police forces blossomed from slave patrols, which utilized the citizen’s arrest as an indiscriminate tool to cement white supremacy.
Some might argue that the intent of citizen’s arrests can be separated from its racist applications, but such a separation is impossible when the letter of the law is actively racist. In Georgia, the Law Code was formally codified in 1861 by Thomas Cobb, a lawyer and slaveholder who wrote that the Black race was “peculiarly fitted for a laborious class.” Georgia’s citizen arrest statutes were entered two years later, after Cobb had died, but the anti-Black legal framework that he constructed shaped their application. After the Civil War, this framework legalized KKK violence and lynchings in the name of citizen’s arrest. In one case, on July 25, 1946, two African American couples were hauled from their cars in Walton County and shot sixty times by a horde of white men making a “citizen’s arrest.”
Today’s Abuses
Today, it is unlikely that a lynching mob would be able to claim safety behind citizen’s arrest laws to escape prosecution, but the practice is still abused by individuals and groups alike. Take the case of Ron Brewer, the city council president of Gary, Indiana. Brewer allegedly spotted a group of teenagers driving his stolen car and fired a gun at the vehicle while giving chase. When the teens fled the car on foot, Brewer caught one of them and forced him back into the car at gunpoint, at which point Brewer drove back to his own home and questioned the defenseless teen. Brewer was charged with kidnapping, criminal confinement and intimidation. His lawyer’s defense? Citizen’s arrest.
Brewer’s case is not an anomaly. A Wisconsin man named Richard Lisko, who suspected that teenager Joel Kennedy had stolen from his home, tied up Kennedy by the ankles and periodically ordered his dog to attack. Lisko was convicted of false imprisonment, but the jury deliberated for six hours over whether he had legitimate reason to make a citizen’s arrest. In Michigan, a shopkeeper who shot and killed a robber who resisted arrest had his murder conviction overturned because the state allows for the use of deadly force by private citizens in order to prevent a perpetrator’s escape. This case illustrates the danger of giving private citizens the authority to act as police officers and assume the potentially fatal responsibilities that law enforcement takes on.
Calls for police reform have often highlighted the lack of effective de-escalation training, with police departments spending an average of 58 hours on gun training, 49 hours on defensive tactics, and merely eight hours on de-escalation and crisis intervention. If the men and women in uniform who are expected to protect us barely receive training on de-escalation (and the training that they do receive can be ineffective), how can private citizens be expected to successfully pursue and detain a suspect without the encounter escalating to violence?
Another crucial aspect of police reform is recognizing the role of implicit bias against Black Americans, which reinforces racist policing practices. Since implicit bias is widespread, these same forces also render Black Americans especially vulnerable to violence at the hands of regular citizens purporting to seek justice. Arbery’s killing, in particular, has been cast as a modern day lynching. Inherent in such an act is a presumption of guilt; prosecutor George E. Barnhill wrote that the McMichaels had “solid first hand probable cause” that Arbery was a burglary suspect when no such probable cause existed. This image, of a white prosecutor bending over backwards to use a Civil War era statute in order to justify a Black man’s extrajudicial killing by two white men, encapsulates the dire need to scrap citizen’s arrest laws immediately.
A Path Forward
In Georgia, the furor over Arbery’s and Floyd’s killings has led to a spate of criminal justice measures being floated, including a bill to eliminate the state’s citizen’s arrest statute. In other states, however, the citizen’s arrest is still treated as a curious relic of state law that could perhaps even be used to enforce COVID-19 regulations. Such speculation ignores the dangerous consequences of citizen’s arrests’ misuse. As police departments begin the long and necessary road to true reform, the laws dictating arrests by private citizens must be revised as well.
A good start for states would be to pass legislation resembling The Anti-Vigilante Act, a legislative model devised by Ira P. Robbins, a law professor at American University and a scholar of citizen’s arrest. Under this model, the citizen’s arrest by a private citizen would be eliminated save for merchants on their own premises, private security guards within their designated jurisdiction, and police officers operating outside their own jurisdiction. If multiple states were to pass legislation resembling this proposal, the messy patchwork of common law and codified statutes that has persisted for centuries could become a safe, uniform set of regulations preventing vigilante justice from finding safe defense.
Until lawmakers take on citizen’s arrests head on, it will be left to juries to interpret age-old statutes and hold private arrestors to account. Rewriting state laws to match the modern day’s realities would render Payne’s and McMichael’s citizen’s arrest defenses useless, and ensure that justice for Arbery and Herring is served. Taking away the atrophied tool of public safety that claimed their lives is the best way to ensure that vigilante justice remains a part of our country’s tortured past, not its future.
Image Credit: “Georgia NAACP Holds Protest For Shooting Death Of Jogger Ahmaud Arbery” by Sean Rayford is licensed under CC BY2.0
