Monday, May 16, 2022

Ahmaud Arbery murder trial will investigate use – and abuse – of ‘outdated’ civil arrest laws

The murder trial of three men accused of the death of unarmed black jogger Ahmaud Arbery is underway on October 18, 2021, with the issue that the arrest of a lawful citizen is central to the court’s arguments.

Arbery was shot and killed after being chased from a residential area in Brunswick, Georgia, on February 23, 2020.

The three men accused in her murder – Greg McMichael, Travis McMichael and William Bryan – argue they had reason to believe that Arbery was responsible for the domestic break-in in the area. They claim that Arbery was shot as he tried to resist the arrest of a legal citizen by wrestling Travis McMichael with a shotgun.

Whether the defendants acted legally will depend, in large part, on the strength of their citizen’s arrest claim. At a pre-trial hearing in July, prosecutors noted that Arbery was not carrying anything at the time of his death. He is expected to argue at trial that there was no basis for the attempted arrest of a civilian.

The controversy surrounding Arbery’s murder led to the repeal of Georgia’s nearly 150-year-old civil arrest law. But as a law professor and former police officer, I know that most states maintain similar, outdated laws that set the stage for vigilance.

From ‘vigilant snorers’ to police officers

So-called “civil arrest” laws, which allow private individuals to apprehend an alleged wrongdoer, have existed for centuries. Such laws protect people from civil or criminal liability if they “arrest” someone.

In principle, this is understandable. After all, the safety of the public is everyone’s responsibility. In practice, however, civil arrest theories set the stage for tragic, unnecessary and avoidable confrontations and deaths.

Modern civil arrest rules can be traced back to 1285, when the Statue of Winchester of England directed that citizens “not spare anyone or conceal any felony” and ordered that citizens “fresh trial”. Bring – sue – whenever they see “robbery and felony”.

At the time, there was no “law enforcement” as we understand it today – no police, no prosecutors. It was largely left to private citizens to apprehend and prosecute the goons.

Before the development of professional police agencies in the mid to late 1800s, there was no distinct legal distinction between arrests made by private citizens and arrests made by public officials.

In English towns and large towns, able-bodied men were expected to patrol unpaid shifts, usually as night watchmen. Watchmen were often appointed, and citizens of the instrument could hire someone to serve on their behalf, resulting in a questionable devotion to duty.

This practice extended beyond England to its colonies. An article published in the New York Gazette in the mid-18th century described the Night Watchers as “a parcel of idle, drunken, watchful snorers who have never quelled any night noise in their lives.”

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When guards took action, they often did so in problematic ways. In New England, that often involved enforcing ethnic segregation between different neighborhoods. In the mid-1600s, the slave code of the colonial American South declared that controlling the slave population was a matter of public responsibility—the “public” here was exclusively white people. As noted by author Christian Williams, the work was accompanied by paid and volunteer militiamen, “routing patrols to capture fugitives, stopping the gathering of slaves, searching slave quarters … and blacks in general.” scare the population.”

A patrol team looks at the pass of the plantation slaves.
Corbis via Getty Images

Shopkeeper’s Privileges and Security Guard

Today more than 18,000 local, state, and federal agencies provide police services in the US but remain as a national patchwork of civilian arrest statutes and common law principles.

Most states have “shopper’s privilege” laws that provide a defense for business owners and employees who arrest someone for theft as long as they have probable cause. Opposing such an arrest is an offense in some states. Similarly, private security guards may be authorized to make arrests, at least on the property they are hired to protect. And when bounty hunters capture someone who has been out on bail, the Supreme Court has said the arrest is compared to “an arrest made by a sheriff of an escaped prisoner.”

People who are not shopkeepers, security guards or bounty hunters may still be able to make an arrest under more general civil arrest rules.

Civil arrest rules are not the same as legal regulations that govern arrests by police officers. In some ways, private individuals have a more limited authority to make arrests than do officers.

In many states, for example, an officer can make an arrest for offenses classified as a misdemeanor — petty crimes typically punishable by up to one year in prison — but a private citizen cannot.

In other states, a private citizen can make an arrest only if they witness or have direct knowledge of a crime. This was the case in Georgia, at least with regard to misdemeanor offenses, until public pressure following Arbery’s death led to the 2021 repeal of the state’s civilian arrest statute. Under the laws in effect at the time, Arbery’s followers would only be able to arrest a civilian if they had probable cause to believe that he had committed a felony.

Similarly, some states only allow individuals to invoke “citizen arrest” as a defense of civil or criminal liability if the person they arrested has actually committed a crime, while officers are protected. if they have probable cause to believe that the person committed the crime (even if that belief was false).

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But in other ways, private actors have more authority than executives. Perhaps most obviously, constitutional rules that limit police authority to search, seizure, and interrogation do not apply when “a private party … commits an objectionable act.”

Depending on state law, citizens may have more authority to use force than law officers.

In South Carolina, a citizen can use deadly force to effect an overnight arrest of someone who has stolen property or, more problematically, someone who is “when he is welcomed”. “runs away” if circumstances “only raise suspicion of his design” to steal.

If an officer in South Carolina did the same, he would likely run away from state law or the Fourth Amendment, which the Supreme Court called probable cause “that the suspect is at a significant risk of death or serious bodily injury.”

caste and status

No one knows how many civilian arrests occur each year in the US because usually the police are called and an officer processes the arrest, leaving little evidence of private involvement.

However, we do know that private arrest authority is often abused by those who believe that their high social status gives them authority over someone they view as low status.

Often, this comes along racial lines, as seen in situations such as the detention of immigrants by militias on the US border, the attitude of nightwatchmen in gated communities, and the Arbery case.

The three defendants say they pursued Arbery because they believed he was behind the neighborhood burglary and allege they saw him trespassing before the incident. Of course, Arbery had committed no crime; Under Georgia’s “criminal trespass” law, entering “land or premises” including a construction site is a crime only when done “with an unlawful purpose” or when “no trespassing” signs are posted. There is no evidence for both in this case.

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And even if Arbery did steal, his death would still be the result of an unseemly act of vigilance. As the Supreme Court said in the context of the use of police force, “it is better not that all felony suspects die than that they are spared.” Remembering that as the US considers reforming civilian arrest statutes could go a long way in preventing further unnecessary deaths.

This is an updated version of an article originally published on May 29, 2020.

This article is republished from – The Conversation – Read the – original article.

Nation World News Desk
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