Updated: May 13
A private citizen is authorized to make an arrest of another person in certain situations even if the person making the arrest is not associated with law enforcement. A citizen’s arrest does not mean that a citizen is arrested, but rather, it means that a private citizen, not law enforcement, is making the arrest of another person.
The laws related to citizen arrest usually comes up as part of a defense to a criminal prosecution where the defendant is charged with the crimes of assault, battery, or false imprisonment.
California’s citizens’ arrest law can be found at California penal code section 837. PC 837 provides that a private person may arrest another in the following circumstances:
For a public offense committed or attempted in the arresting person’s presence
When the person arrested has committed a felony, although not in the arresting person’s presence
When a felony has been in fact committed, and the arresting person has reasonable cause to believe the person arrested to have committed the felony
Public Offense: A public offense, for purposes of PC 837, includes any misdemeanor or felony crimes.
The arresting person’s presence means that the arresting person can describe every element of the offense first hand because he personally witnessed the offense. This includes personal knowledge of sights, sounds, smells, etc. associated with the offense.
Felony Crimes: A private citizen may arrest another person who has committed a felony even if the felony was not committed in the arresting person’s presence. This include crimes that could be charged either as felonies or alternatively as misdemeanors (wobblers). Also, a private citizen may lawfully arrest another person if the arresting person reasonably believes that the person he is arresting has committed a felony, even though the arresting person is wrong about that fact, so long as an actual felony was committed. If no felony has actually been committed, the citizen making the arrest can be criminally and civilly punished.
For example, if Albert witnesses people running from a bank while yelling that the bank is being robbed, and Albert makes a citizens’ arrest of Bob because Albert reasonably believes that Bob is the robber, then Albert is not criminally liable for false arrest of Bob even if Bob is not robbing the bank. This is because a felony is actually being committed (bank robbery) and Albert reasonably, but incorrectly, believed that Bob was the robber. On the other hand, if the bank was not in fact being robbed (false alarm), then Albert would be criminally punished and civilly liable to Bob for false arrest, false imprisonment, battery, and more.
Arrest Defined: For purposes of citizens’ arrest law, an arrest means to apprehend or detain a person using a reasonable amount of force as necessary under the circumstances. Excessive use of force is not lawful. Every citizens’ arrest case is different; therefore, whether the force used to detain or apprehend a person is reasonable under the circumstances is determined on a case-by-case basis. The length of detention should be no more than necessary then that which is necessary to contact the police under the circumstances.
Using Police Help: A private citizen making a citizens’ arrest may incorporate the use of law enforcement to assist in the arrest. This is common where the suspect is not actually detained by the citizen for safety reasons. For example, in a driving under the influence of alcohol (DUI) case, a private citizen might follow a suspected drunk driver to the driver’s home while calling 911 to report the drunk driver; however, the private citizen may request that the police make the actual apprehension based on the citizen’s arrest for DUI. In fact, in many situations, a private person can make an arrest of another person even when a police officer cannot. This is because, with some exceptions, a police officer cannot arrest a suspect for misdemeanor crimes that did not occur in the officer’s presence.
Note: A private person making a citizen’s arrest need not physically take the suspect into custody, but may delegate that responsibility to an officer, and the act of a citizen’s arrest may be implied from the citizen’s act of summoning an officer, reporting the offense, and pointing out the suspect.
Notice to Suspect: The person making a citizen’s arrest must inform the arrested person of the reasons for the arrested person’s arrest. There is an exception to this rule if the suspect is detained while in the act of a criminal offense (Fresh Pursuit Exception to Citizen’s Arrest Notice).
Wrong Crime: If the citizen’s arrest is premised on the arresting person’s belief that a particular crime was committed, when in fact a different crime was committed by the arrested person, then the arrest is still valid. For example, if a private citizen makes an arrest of another person because the arresting person believes that the suspect has committed the crime of vandalism then the citizen’s arrest is still valid even if the arrested person did not actually commit the crime of vandalism, so long as some other crime was actually committed by the arrested person, such as DUI. In fact, in many situations, the citizen making the arrest might not even know the name of the actual crime that is being committed by the suspect but the citizen knows enough to know that the suspect is committing some sort of crime.
Note: A citizen should transfer an arrested person to law enforcement without delay. Also, there should be no delay in the citizen’s arrest from the time the suspect committed a crime. In other words, the law only protects a citizen’s arrest if the citizen does not delay in the arrest of the suspect from the time the crime was committed and the citizen does not delay in delivering the suspect to the police. Also, a private citizen does not have the right to issue a citation to appear in court (summons).
Right to Search Suspect: A private citizen making a citizen’s arrest does not have the right to search the detained suspect; however, a weapon may be taken from the suspect if the force used to take the weapon from the suspect is reasonable under the circumstances.
Exception: A merchant making a citizen’s arrest may search the suspect, including shopping bags, purses, etc., if the merchant reasonably believes that the suspect has shoplifted merchandise and the search of the suspect is limited to a search of the stolen items. In any event, the search should be reasonable under the circumstance. If the merchant’s suspicion of shoplifting is reasonable under the circumstance then the short detention required to search the suspect is not illegal even if the person suspected of shoplifting was not actually shoplifting.
Informing Police: A private citizen who has make a citizen’s arrest should inform law enforcement of the details that support the citizen’s arrest. If law enforcement officers are not convinced that the suspect arrested has actually committed a crime the officer may release the suspect over the arresting citizen’s objection.
Important: Making a citizen’s arrest can be dangerous for persons not trained on how to arrest a person or how to handle a possible violent situation. A citizen’s arrest should be avoided when police are available to handle the matter. Force should be avoided if possible when making a citizen’s arrest and the citizen making the arrest should be certain that a public offense has been committed and that the person who is arrested is the one who committed the public offense before attempting a citizen’s arrest. Also, a suspect should not be questioned upon a citizen’s arrest except in emergency situations where harm could result to the public if information must wait to be learned.
To learn more about making a citizen’s arrest, or defense to any misdemeanor or felony charge, contact our criminal defense lawyers today for a free consultation. Call today!