All states permit citizens to make arrests--even New York
Sorry to have to disagree.
There is no 'citizen's arrest' in NC in the traditional sense of the phrase. If you were to modify the statement to "All states permit citizens to make arrests or detentions under certain circumstances..." then I wouldn't take issue.
In any case, attempting a citizen's arrest or detention should be undertaken only with a full understanding of the applicable laws in the jurisdiction in question. Otherwise the individual attempting the detention or arrest opens themselves up to potential legal difficulties.
lpl
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http://www.jus.state.nc.us/NCJA/!apr97.htm
JUST ANOTHER STATUTE AT LAW
COMMENTARY ON THE NORTH CAROLINA
GENERAL STATUTES OF INTEREST TO
THE LAW ENFORCEMENT COMMUNITY
Ralph B. Strickland, Jr.
Agency Legal Specialist
North Carolina Justice Academy
G.S. 15A-404
Volume 2 Number 4
April 1997
NO CITIZEN’S ARREST ALLOWED IN NORTH CAROLINA!
G.S. 15A-404 Detention of offenders by private persons.
(a) No Arrest; Detention Permitted. - No private person may arrest another person except as provided in G.S. 15A-405 [assisting law enforcement officers in making an arrest.] A private person may detain another person as provided in this section.
(b) When Detention Permitted. - A private person may detain another person when he has probable cause to believe that the person detained has committed in his presence:
(1) A felony,
(2) A breach of the peace,
(3) A crime involving physical injury to another person, or
(4) A crime involving theft or destruction of property.
(c) Manner of Detention. - The detention must be in a reasonable manner considering the offense involved and the circumstances of the detention.
(d) Period of Detention. - The detention may be no longer than the time required for the earliest of the following:
(1) The determination that no offense has been committed.
(2) Surrender of the person detained to a law enforcement officer as provided in subsection (e).
(e) Surrender to Officer. - A private person who detains another must immediately notify a law enforcement officer and must, unless he releases the person earlier as required by subsection (d), surrender the person detained to the law enforcement officer.
There is no citizen’s arrest in North Carolina; there is only a citizen’s detention. There are two reasons why you should know this: (1) so that you can tell nonsworn individuals what their rights are in these circumstances, and (2) so that you will know what your rights are outside yourterritorial jurisdiction. Now that most officers are allowed to carry a handgun concealed when they are outside their jurisdiction, it is more important than ever to understand what you have a right to do when faced with the criminal behavior of another. The key is to simply remember that the right to carry concealed outside your territorial jurisdiction is to allow you to defend yourself; not to make arrests, stop crime or act as a sworn officer would in a criminal situation.
Let’s look at the sections of 15A-404 individually. First, in section (a) we learn that citizens may NOT arrest in North Carolina. This myth of a citizen’s arrest is taught by television and the movies, but does not reflect reality here in our state. While citizen arrests may be legal in other jurisdictions, it is not available to us here. What can be done is a detention that is based on probable cause to believe that one of a limited number of crimes has been committed in your presence. A detention, like an arrest, is a seizure under the Fourth Amendment; but an arrest allows moving the arrestee without his consent to a judicial official. A detention is just that; the suspect is detained, and while he may not leave, he cannot be moved without his consent. It is essential that you understand this point. A detention is a seizure without movement of the suspect; an arrest is a seizure and involuntary movement of the suspect.
The next section, (b), allows a detention only when you have probable cause to believe that a person has committed in your presence one of the following crimes:
1. a felony
2. a breach of the peace
3. a crime involving physical injury or
4. a crime involving theft or destruction of property.
Section (c) requires that the force used to detain the suspect be reasonable. It is generally true that an officer in his jurisdiction may use more force in making a detention than a private person. The law allows you greater latitude in the use of force because your job is the enforcement of the law, and you have been trained to use force correctly. But if you are not in your jurisdiction, then your right to use force becomes that of a private citizen. As an example, when presented with danger from another in a public place, a private citizen is under a duty to retreat unless in doing so he would be placed in greater danger. A law enforcement officer is never under a duty to retreat when enforcing the law; we may retreat tactically, but we are not required to.
Sections (d) and (e) are very simple. The detention must be as brief as is reasonably practicable. If you determine that no offense has occurred, release the suspect. Otherwise, contact the authorities, and turn him over to them. Don’t arrest and don’t move him. Of course, you may move him out of the sun, or to a chair or seat, or from one room to another for security purposes. But no movement to a magistrate’s office is allowed.
Probably the best option in such circumstances is to become the best witness you can be. Call for a law enforcement officer, protect yourself and your family, and wait for help to arrive. Check with you legal advisor or district attorney’s office for specific advice in this area. Thank you and good luck.
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http://www.criminalattorney.com/pages/firm_articles_citizens_arrest.htm
August 21, 2006
What is a Citizens Arrest?
By: Collin McKibben, Attorney at Law & Ariella Rosenberg
Everyone is familiar with the term citizens arrest: we have seen it on TV, read about it in books, and even heard about it in social circles. Surprisingly, however, almost nobody really understands what a citizens arrest is, or legally, what it represents.
A citizen's arrest is an arrest performed by a civilian who lacks official government authority to make an arrest (as opposed to an officer of the law). An arrest, as defined by Black's Law Dictionary, is "The apprehending or detaining of a person in order to be forthcoming to answer an alleged or suspected crime." Ex parte Sherwood, (29 Tex. App. 334, 15 S.W. 812).
Although generally the person making a citizens arrest must be a citizen, in certain states, a citizens arrest can be carried out by a civilian who is not a citizen (for example, an alien or illegal immigrant). A citizens arrest does not necessarily mean an arrest made by a single individual who happens to witness a crime. For example, a department store may also carry out a citizens arrest in the course of apprehending a shoplifter.
Legal Requirements for Making a Citizens Arrest
The right to making a citizens arrest goes back to our roots in English common law. Historically, before the modern infrastructure of police departments, citizen's arrests were an important part of community law enforcement. Today, citizens arrests are still legal in every state, although state laws pertaining to citizens arrests are not uniform. In general, all states permit citizens arrests if a criminal felony (defined by the government as a serious crime, usually punishable by at least one year in prison) is witnessed by the citizen carrying out the arrest, or if a citizen is asked to help apprehend a suspect by the police. Variations of state law arise in cases of misdemeanors, breaches of the peace, and felonies not witnessed by the arresting party.
For example, California Penal Code mandates:
A private person may arrest another: 1. For a public offense committed or attempted in his presence. 2. When the person arrested has committed a felony, although not in his presence. 3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it. (C.P.C. 837).
In contrast, New York State Consolidated Laws hold that:
Any person may arrest another person (a) for a felony when the latter has in fact committed such felony, and (b) for any offense when the latter has in fact committed such offense in his presence. (N.Y.C.L. 140.30).
Unlike the California statute, which only permits citizens arrests in cases of felony, New York law extends the possibility for making a citizens arrest to any offense committed in [ones] presence. Additionally, in cases where the citizen has not necessarily witnessed the crime being committed, California law allows citizens arrests when a citizen has reasonable cause for believing the person arrested to have committed [a felony], whereas New York law applies only to situations in which person has in fact committed a felony. Distinctions such as these are importantunwarranted citizens arrests can result in repercussions (such as law suits) for well-meaning citizens who attempt to make arrests without understanding local laws. It is important to be familiar with the laws in your particular state should you want to carry out a citizens arrest, or should a citizen try to unlawfully detain you.
Anatomy of a Citizens Arrest
Once a person has committed an offense meriting a citizens arrest (under the applicable state law), the arresting party must follow certain guidelines to detain and deliver to authorities the suspect in question. Acceptable guidelines for carrying out a citizens arrest also vary by state. In general, the arresting party must notify the suspect as to why he or she is being arrested, and may enter the building or private residence where the suspect is residing, using a reasonable amount of force to apprehend the suspect. In California, for example, To make an arrest, a private person, if the offense is a felonymay break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing the person to be, after having demanded admittance and explained the purpose for which admittance is desired. (C.P.C., 844). In New York, A person may arrest another person for an offenseat any hour of any day or night. 2. Such person must inform the person whom he is arresting of the reason for such arrest unless he encounters physical resistance, flight or other factors rendering such procedure impractical. 3. In order to effect such an arrest, such person may use such physical force as is justifiable pursuant to subdivision four of section 35.30 of the penal law. (N.Y.C.L. 140.35).
Once the suspect has been taken into custody (by the citizen), it is the citizens responsibility to deliver the suspect to the proper authorities in a timely fashion. In California, A private person who has arrested another for the commission of a public offense must, without unnecessary delay, take the person arrested before a magistrate, or deliver him or her to a peace officer. (C.P.C. 847). In New York, a citizen must also act without unnecessary delay to deliver a suspect to an officer of the law. (N.Y.C.L. 140).
Dangers of Making an Erroneous Citizens Arrest
Making a citizen's arrest maliciously or with insufficient evidence of wrongdoing by the arrested individual can lead to civil or criminal penalties. Additionally, it is in violation of a suspects rights for a citizen making an arrest to use unnecessary force, to intentionally harm the suspect, to hold the suspect in unsafe conditions, or to delay in turning the suspect over to authorities. A citizen making an arrest is acting in the place of an officer of the law, and as such, is required to uphold the same rights and civil liberties as an officer of the law must uphold.
A citizen who violates a suspects rights, or who violates the applicable state law in detaining the suspect, (for example, arresting a suspect for a misdemeanor when the state statute requires a felony for a citizens arrest), risks being sued or even charged with a crime. Additionally, if it is found that the arresting party did not meet the pertinent state requirements for a citizens arrest, any contraband found on the suspect will have been found illegally, and charges may be dropped entirely.
If you feel that you have been unfairly arrested by a citizen, or if you have been charged with illegally detaining a suspect during an illegitimate citizens arrest, it is important to seek the counsel of an experienced attorney. A good attorney will demonstrate familiarity with state laws, and as such will help you to ensure the best possible outcome of your case.
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