The right of average citizens to make arrests dates to 1285, when a crime spree in England prompted King Edward I to issue the Statute of Winchester. The law required townspeople to possess weapons like knives and lances — and empowered them to help take into custody “strangers” who “will not suffer themselves to be arrested.”
Seven centuries later, governments need to be sending a different message to concerned citizens: Call 911 and leave it to professionals.
The ancient notion of “citizen’s arrests” has come under harsh, and well deserved, scrutiny after the killing of a Georgia man in February. Two men, a father and son, have been arrested and charged with murder after a prolonged delay. They were purportedly seeking to make a citizen’s arrest of an unarmed jogger they believed was involved with a burglary, but ended up shooting and killing their “suspect” instead.
The victim, Ahmaud Arbery, was Black, and the two defendants, Gregory and Travis McMichael, are white. No actual burglary had been reported. The fact that it took months to bring charges, after local prosecutors initially declined to pursue the case, has only added to the outrage. A local prosecutor who eventually recused himself from the investigation (because his son had worked with Gregory McMichael) advised law enforcement that he saw no reason for arresting the McMichaels because they were making a citizen’s arrest.
Citizen’s arrests are rare, the rules governing them are widely misunderstood and vary between states, and they are prone to misinterpretation. The very existence of the citizen’s arrest, which endures in all 50 states either in statute or common law, makes incidents like the confrontation with Arbery more likely while also making cold-blooded murder more difficult to prosecute. Allowing everyday citizens to use their discretion about whether someone else is committing a crime can magnify the role of implicit bias or explicit racism, whereby people stereotype certain other people as criminals. Along with “stand your ground” statutes, states need to get rid of the concept of the citizen’s arrest so that nobody is under the impression they’re allowed to play police officer and instigate encounters that could end in tragedy — and so that a citizen’s arrest cannot be invoked to excuse people who shoot an unarmed person without just cause.
In Massachusetts, there is no statute governing citizen’s arrests, but the courts have said it’s allowable for a citizen to arrest someone “who in fact has committed a felony," while forbidding citizen’s arrests for misdemeanors. That’s more restrictive than some states but still places too much power in the hands of average citizens who aren’t trained to know felonies from misdemeanors or how to safely make an arrest. Unlike New York, which specifically rules out use of deadly force to make a citizen’s arrest, Massachusetts has no law on how much force is permissible for a citizen to use to make an arrest.
Clarifying the rules around citizen’s arrests might help, but as long as any form of citizen’s arrest exists, it’s likely to be misinterpreted.
“[C]onfusion and risk of misuse presents an insurmountable barrier to a clear and effective citizen’s arrest doctrine,” concluded a 2016 law review article. With a few narrow exceptions, including trained security guards, “jurisdictions should abolish the doctrine.”
Stand-your-ground statutes are a more recent invention, but belong to the same category of misguided laws that encourage vigilantism. All states allow people to use violence in self-defense. But in most cases, the law expects citizens to exhaust their options, including retreating from the threat. States with stand-your-ground laws remove the duty to retreat, and allow people who feel threatened to use lethal force. The combination of citizen’s arrests, which allow non-trained citizens to initiate police-like encounters, and stand-your-ground laws that let them use lethal force, is a recipe for disaster. It would be outrageous indeed if the two suspects in Georgia were able to use a stand-your-ground defense to avoid accountability for an encounter they chose to initiate.
Citizen’s arrests may well have been an effective way to stop Plantagenet highwaymen. But now their existence just creates confusion and encourages dangerous vigilantism. We’ll never know whether Arbery would still be alive or whether the McMichaelses would have been arrested sooner if Georgia didn’t permit citizen’s arrests. But if every state abandoned King Edward’s ideas on criminal justice, it would certainly prevent future tragedies.
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