Excerpted From: Ira P. Robbins, Citizen's Arrest and Race, 20 Ohio State Journal of Criminal Law 133 (Fall, 2023) (148 Footnotes) (Full Document)


IraPRobbinsI begin with a mea culpa. In 2016, I published an article about citizen's arrest. The idea for the article arose in 2014, when a disgruntled Virginia citizen attempted to arrest a law school professor while class was in progress. I set out to research and write a “traditional” law review article. In it, I traced the origins of the doctrine of citizen's arrest to medieval England, imposing a positive duty on citizens to assist the King in seeking out suspected offenders and detaining them. I observed that the need for citizen's arrest lessened with the development of organized and widespread law-enforcement entities. I surveyed developments across the United States and highlighted numerous problems with the doctrine that led to confusion and abuse. I concluded by recommending abolition of the doctrine in most instances and proposed a model statute to address appropriate applications of citizen's arrest.

But I did not discuss race. Indeed, I did not even use that word in the entire forty-three-page article. It's not that I had intentionally ignored the issue. Rather, I was wearing blinders and failed to consider the bigger picture. Until three men killed Ahmaud Arbery in Brunswick, Georgia on February 23, 2020.

Standing in his front yard, Gregory McMichael spotted Arbery, a twenty-five year-old Black man, jogging through the Satilla Shores neighborhood. There had been a recent string of break-ins in the area and, according to the police report, McMichael thought that Arbery matched the suspect's description. McMichael quickly called to his son, Travis McMichael, proceeding to grab a shotgun and a .357 Magnum handgun as the men chased Arbery down in a pick-up truck. Their neighbor, William Bryan, also joined in the chase. The three white men quickly cornered Arbery; the encounter turned deadly in a matter of minutes.

After a string of prosecutorial recusals, the three were charged with one count of malice murder, four counts of felony murder, two counts of aggravated assault, one count of false imprisonment, and one count of criminal attempt to commit false imprisonment. In a Pre-Hearing Memorandum, Bryan's attorney argued that “[t]he law provides no right to resist a legal arrest.” The Memorandum, however, did not clearly identify what a legal arrest was. At trial, defense attorneys for the McMichaels argued that Georgia's Civil War-era citizen's arrest law gave his clients a duty to protect their neighborhood from so-called criminal activity. Under the now-repealed statute, a “private person” was permitted to arrest a fellow citizen if the individual had committed a felony and was trying to escape, even if the arrestor had only “probable grounds of suspicion.” In November 2021, a jury found the defendants guilty of murder, among other counts. In January 2022, the judge sentenced them to life in prison.

In addition to the state charges, in February 2022, a jury found the three men guilty of federal hate crimes. Evidence at that trial revealed that the defendants held strong racist beliefs that led them to make assumptions and decisions about Ahmaud Arbery that they would not have made if Arbery had been white. Witnesses testified to numerous comments made by the men, including offensive social media posts that included racial slurs. The jury ultimately concluded that race formed a but-for cause of the defendant's actions, meaning that the three men would not have chased down a Black man whom they assumed, without evidence, was a criminal.

The murder of Ahmaud Arbery may have received the most media attention, but this was not the first time that citizen's arrest had been used in an attempt to justify the killing of an innocent Black man. Derrick Grant, an unarmed fifteen-year-old, was confronted and fatally shot over an allegedly stolen vehicle in 2018, in North Charleston, South Carolina. Talking to Grant's family after the incident, the police stated that the shooter was within his legal right to make a citizen's arrest over a stolen car. No charges were filed in the case.

In 2019, Kenneth Herring, a Black man, was also shot and killed during the course of a citizen's arrest in Clayton County, Georgia. The attorney for Hannah Payne, the shooter, characterized the incident as “an act of self-defense in the course of a citizen's arrest.” Payne allegedly followed Herring after he had left the scene of a minor traffic collision and blocked his car at an intersection roughly a mile down the road. During the confrontation, Payne, a white woman, demanded that Herring return to the crash scene. Payne allegedly told him, “Get out of the f car, I'm going to shoot you,” and then she shot and killed him.

These racially motivated killings--the murder of Ahmaud Arbery, in particular-- thrust citizen's arrest laws into public discourse. The topic was no longer considered to be within the almost exclusive domain of lawyers, professors, and judges. People throughout the United States were actively learning about the doctrine, while quickly recognizing the obvious racial undercurrent in many of these cases. These developments led media outlets, as well as at least one member of Congress, to connect the longevity of citizen's arrest laws to our country's deeply engrained prejudice, bigotry, and out-and-out racism.

It is simply insufficient, however, and indeed highly misleading, to discuss the ramifications of the doctrine apart from its historical context, particularly its interconnectedness with continued and systemic racism in the United States. Indeed, one can draw a direct line from the slave patrol laws of the eighteenth and nineteenth centuries, to the Fugitive Slave Acts, to emancipation, to the discriminatory use and disparate impact of citizen's arrest laws today.

[. . .]

The dehumanization and over-criminalization of Black people did not disappear with the abrogation of slave patrol laws, the repeal of the Fugitive Slave Acts, and the Emancipation Proclamation. The deeply rooted racism that permeated Thomas R.R. Cobb's first codification of citizen's arrest in the United States almost 160 years ago must contextualize the use of any law giving private individuals the right to arrest others. The McMichaels seeing a Black man running on a Georgia street and assuming that he was fleeing from the commission of a crime evokes the image of a slave patrol chasing down a fleeing slave. While in my earlier article I did not discuss the racial aspects of the citizen's arrest doctrine, it is clear that citizen's arrest in this country has been mostly about race. Coupled with the reality of systemic racism, the perpetuation of citizen's arrest laws provides unwarranted justification for the vigilante justice--or, better said, the vigilante injustice--that killed Ahmuad Arbery, Derrick Grant, Kenneth Herring, and so many others. What happened to each of these individuals, under the pretext of citizen's arrest, is nothing short of a modern-day lynching. This point is too obvious to ignore. Mea culpa, mea culpa, mea maxima culpa.

Barnard T. Welsh Scholar and Professor of Law and Justice, American University Washington College of Law. A.B., University of Pennsylvania; J.D., Harvard University. 22 by Ira P. Robbins. All rights reserved.