The forcible detaining of an individual suspected of having committed a crime by a person who is not a police or otherwise certified law enforcement officer, such as a private citizen, a private security firm employee or a store employee or cashier, and without the authority of an arrest warrant issue from a court of law.
The authority for physically detaining another person varies from jurisdiction to jurisdiction but in most cases, involves the surrender of the suspect to the police as soon as possible as well as use of only such reasonable force as is necessary to contain the individual and prevent escape.
Using excessive force may expose the arresting person to a charge of assault or a tort liability claim, although some states were quite liberal in terms of encouraging the use of deadly force in some situations (see, for example, Dumb, Crazy or Stupid Laws Around the World).
In US v Atwell, the Maryland Court referred to the:
“... common law rule whereby a private citizen may effectuate an arrest under two circumstances: there is a felony being committed in his presence, or when a felony has in fact been committed whether or not in his presence and the arrester has reasonable ground (probable cause) to believe the person he arrests has committed it; or a misdemeanor is being committed in the presence or view of the arrester which amounts to a breach of the peace....”
Some American states specify the crimes for which a citizens arrest is allowed (eg. public drunkenness).
In Canada, the law in regards to a citizen's arrest is codified at ¶494 of the Criminal Code as follows:
“Any one may arrest without warrant a person whom he finds committing an indictable offence; or a person who, on reasonable grounds, he believes has committed a criminal offence, and is escaping from and freshly pursued by persons who have lawful authority to arrest that person.
“Any one who is the owner or a person in lawful possession of property, or a person authorized by the owner or by a person in lawful possession of property, may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property.
“Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer.”
“Reasonable grounds” includes having witnessed the person commit the crime such as observing a customer shoplift.
As a matter of practicality, it does not appear worth the physical or tort liability risk of false imprisonment if you are not sure of the suspect’s conduct or identity, or if in arresting the individual, your personal safety would be compromised, or if you are well familiar with the suspect and quite likely able to track him down anyway by contacting the police; in other words, where time is not of the essence terms of the arrest.
A proper citizen's arrest ought to be accompanied by clear words to the suspect to the effect that he or she is being placed under arrest. Some police departments have special forms to be filled out when there has been a citizen's arrest.
By way of an example of a wrongful cirtizen's arrest, in a 1969 decision of the British Columbia Supreme Court, Bahner v Marwest Hotel, a restaurant patron was rudely detained for failure to pay for a bottle of wine he had ordered, but was unable to consume given that it was closing hour. The Court found that it was false imprisonment and the restaurant was condemned to pay $3,500 punitive damages.
References or further reading:
- US v Atwell 2007 U.S. Dist. LEXIS 4089
- Criminal Code of Canada , published at canlii.com/ca/sta/c-46
- Bahner v Marwest Hotel (6 DLR 3rd 322)