Georgia's citizen's-arrest repeal not a path for states to follow

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In February 2020, three White residents of Brunswick, Georgia, attempted what they claimed was a lawful citizen’s arrest of Ahmaud Arbery, a Black jogger they suspected of trespassing on a residential construction site. Armed with an assortment of guns, they chased Arbery down in their trucks, cut him off and fatally shot him in the ensuing confrontation.

The would-be arrestors now stand charged with murder. Their trial date is set for October.

Meanwhile, the public outcry over Arbery’s death brought the right of citizen’s arrest into the national spotlight. It has also brought legislative action. This May, a little over a year after the deadly encounter, Georgia officially repealed its citizen’s-arrest statute.

What should we make of this repeal?

In short, complete repeal works in Georgia, but it isn’t a path forward for other states.  

Citizen’s-arrest laws are deeply rooted in centuries-old Anglo-American concepts of law enforcement as a community responsibility. In a nation where most police departments employ fewer than 10 full-time officers, the ability of private citizens to detain criminals continues to play an important role in law enforcement and overall public safety.

While citizen’s-arrest laws are sometimes misused, these scenarios are rare. It is far more common that ordinary citizens act reasonably and responsibly to prevent actual criminals from fleeing until police can arrive.

Even so, many states maintain citizen’s-arrest statutes that would benefit from reform.

Undoubtedly, Georgia’s particular statute — confusing, poorly worded, and capable of justifying apparent acts of vigilantism — was among those in need of fixing.

Yet instead of reform, Georgia opted for straight repeal.

And while Georgia’s repeal of its distinctively awful citizen’s-arrest statute isn’t a total disaster, neither does it present a useful roadmap for other states looking to modernize their own citizen’s-arrest laws.

Repeal in Georgia was practicable only because, as its supporters repeatedly emphasized, repealing the citizen’s-arrest statute did not necessarily repeal citizen’s arrest in practice. Under other unique aspects of state law, residents independently maintain a right to detain criminals in a way that reasonably mirrors what they could do under a model citizen’s arrest statute.

Georgia courts have interpreted state law as protecting a broad right of self-defense that appears to permit private citizens to detain individuals for police custody in any situation where defensive force is justified. They may also use or threaten the use of deadly force to stop forcible felonies and apparently have a limited ability to pursue criminals in the immediate aftermath of forcible felonies.

Unfortunately, because these independent rights aren’t explicitly detailed in the state’s criminal code, laymen remain just as ill-equipped to understand which actions are or aren’t lawful as they were under the state’s now-repealed statute.

Moreover, it’s unclear how many other states, if any, maintain similarly broad rights of self-defense such that complete repeal of citizen’s-arrest statutes wouldn’t leave peaceable citizens without a means of preventing criminal assailants from fleeing the scene.

Instead of repeal, other states should look for reform.

That reform should focus on clarity, accessibility and reasonable limitations on the circumstances of arrest. Laws should emphasize and protect the primarily defensive nature of citizen’s arrests, with strict constraints placed on the ability of private individuals to actively seek out or pursue suspected criminals.

Clearer and modernized citizen’s-arrest statutes won’t prevent every conceivable abuse of the law any more than clearer self-defense statutes would prevent every case of questionable actions riding the line between lawful defensive force and murder.

But clarifying the lines between lawful citizen’s arrests and unlawful vigilantism is nonetheless in Americans’ best interests and would help minimize the likelihood of future confrontations like the one resulting in Ahmaud Arbery’s death.

• A legal fellow in The Heritage Foundation’s Meese Center for Legal and Judicial Studies, Amy Swearer is the author of a recent Legal Memorandum on citizen’s arrest.

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