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After the murder of Ahmaud Arbery, Governor Brian Kemp led a bipartisan campaign to repeal a Civil-War-era citizen’s arrest statute.

At the trial of three men charged with the 2020 murder of Ahmaud Arbery, a Black man who was jogging in Brunswick, Georgia, the defense hinged on an archaic legal standard: the defendants claimed they suspected Arbery of a burglary and were making a legal citizen’s arrest. The shooting, they argued, was in self-defense, as Arbery resisted arrest. [1]

The defense didn’t endeavor to prove that Arbery was, in fact, guilty of any crime (and there’s no evidence suggesting that he was), only that the three defendants reasonably suspected that he had committed one — the standard they believed met the then-current code. And long before the trial, prosecutors had used the law to explain why they did not initially charge the three men with a crime. [2]. Waycross Judicial Circuit District Attorney George Barnhill (who later recused himself from the case) wrote a letter to a police captain explaining why he didn’t see grounds to arrest the men for Arbery’s killing: Barnhill wrote that he believed the men had “solid first hand probable cause” to believe Arbery had committed a burglary. “It appears their intent was to stop and hold this criminal suspect until law enforcement arrived. Under Georgia Law this is perfectly legal,” he wrote, referring to Georgia’s citizen’s arrest law. [3]

That case, and the defense’s argument, brought that Civil-War-era statute into sudden focus — and prompted a bipartisan legislative effort to repeal and replace it.

What are citizen’s arrest laws?

Most every state has some version of a citizen’s arrest law. They differ in several ways: the category of crimes for which a citizen can detain someone; the degree of knowledge/belief the citizen must have that a crime has been committed (i.e. suspicion vs. eyewitness knowledge); the penalties for mistaken detention; how much force can be used; and how long a suspect can be detained. [4]

These are very old laws. Originally, they date back to 13th century England, when King Edward enacted the Statute of Winchester. He wasn’t impressed with the quality of policing in his realm, so he enjoined citizens to take up a “hue and cry” to prevent suspected miscreants from getting away. [5]

Similar laws crossed the Atlantic and occupied the colonies, at a time when little (if any) organized law enforcement existed. Such laws made sense then. But many of these old laws remain on the books and have not been updated. Still, some legal scholars argue in favor, citing the need for self-defense legal protections, or for the utility of the common law “shopkeeper’s privilege,” which gives business owners the right to detain people they suspect of shoplifting. But as the Arbery case demonstrated, these laws are often vague, and there’s a danger that they can incentivize vigilantism — and in some cases, that was, perhaps, by design.   

Georgia’s old law (see the repealed law below), enacted in 1863, allowed anyone to arrest a person they “reasonably suspected” of being a fugitive felon. Translation: a runaway slave, as Cornell University law professor Joseph Margulies told NPR: “It was basically a catching-fleeing-slave law…It is a legacy of a racist past.” [6]

Later, in the Jim Crow South, vigilante mobs sometimes claimed that the law justified lynching

§ 17-4-60. Grounds for arrest. (repealed)

A private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge. If the offense is a felony and the offender is escaping or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion.

“Ripe for Abuse”

In February 2021, Georgia Governor Brian Kemp launched a campaign to repeal and replace Georgia’s citizen’s arrest law. “Ahmaud was a victim of a vigilante style of violence that has no place in Georgia, and some tried to justify the action of his killers by claiming they had the protection of an antiquated law that is ripe for abuse,” said Governor Kemp at a press conference announcing House Bill 479. “This bill repeals the current Civil War-era statute to prevent the terrible consequences of a vague and outdated law.” [7]

“What we don’t need is all of us playing police in the streets. This may have worked in the 1800s, but it’s definitely not something you want to see today.” —GA State Senator Brian Strickland

The bill kept the right to self-defense and a version of “shopkeeper’s privilege” in place, reiterating legal protections for retailers detaining shoplifters, citizens acting in defense of themselves or others, and licensed private investigators and security professionals fulfilling their duties. But it narrowed those rights and defined them more clearly, allowing merchants and loss-prevention employees to detain people whom they reasonably believe have stolen goods or services, and only briefly— i.e., as long as it takes to question them — and then to release them or call law enforcement.

Note that the old statute’s language of “arrest” has been changed to “detain” — that’s because the overhauled law does not empower merchants to actually make arrests. And the use of deadly force is given only when defending oneself, others, or one’s home, or to prevent a forcible felony from occurring. “What we don’t need is all of us playing police in the streets,” said Brian Strickland, a Republican state senator. “This may have worked in the 1800s, but it’s definitely not something you want to see today.” [8]

HB 479 passed the Georgia House unanimously. At the signing ceremony, Governor Kemp said, “Today we are replacing a Civil War-era law, ripe for abuse, with language that balances the sacred right to self-defense of a person and property with our shared responsibility to root out injustice and set our state on a better path forward.” [9]

The bill became law on May 10, 2021, making Georgia the first state in the country to repeal its citizen’s arrest statute. Some other states are now taking a harder look at their own.

References:

[1]  “How do America’s Citizen’s Arrest Laws Work?,” The Economist, Nov. 22, 2021, available at: https://www.economist.com/news/2021/11/22/how-do-americas-citizens-arrest-laws-work

[2]  Maya T. Prahbu, “Kemp unveils overhaul of ‘ripe for abuse’ citizen’s arrest law,” Atlanta Journal Constitution, Feb. 16, 2021, available at: https://www.ajc.com/politics/politics-blog/kemp-to-unveil-overhaul-of-ripe-for-abuse-citizens-arrest-law/TOQP2U3VD5GMXFOMZ4CVUGZWVQ/

[3] The Associated Press, “Ex-Prosecutor Accused Of Interfering With Investigation Into Ahmaud Arbery’s Killing,” NPR, Sept. 2, 2021, available at: https://www.npr.org/2021/09/02/1033809949/ahmaud-arbery-former-prosecutor-indicted-misconduct-georgia

[4]  Stanford Law School, Memorandum Regarding Citizen’s Arrest Laws., available at: https://www-cdn.law.stanford.edu/wp-content/uploads/2022/02/Survey-on-Citizens-Arrest-Laws_SCRJ-Final.docx.pdf

[5]  Bill Rankin, “Georgia’s citizen’s arrest law can be traced back to the 13th century,” Atlanta Journal Constitution, Feb. 16, 2021, available at: https://www.ajc.com/politics/georgia-state-legislature/georgias-citizens-arrest-law-can-be-traced-back-to-the-13th-century/P7D7XZSAPFBL5K7Y3EV5BHVCKM/

[6]  Ashish Valentine, “What is the citizen’s arrest law at the heart of the trial over Ahmaud Arbery’s death?”, NPR, Oct. 26, 2021, available at: https://www.npr.org/2021/10/26/1048398618/what-is-the-citizens-arrest-law-in-the-trial-over-ahmaud-arberys-death

[7]  Supra, note 2.

[8]  Supra, note 2.

[9]  Emma Hurt, “In Ahmaud Arbery’s Name, Georgia Repeals Citizen’s Arrest Law,” NPR, May 11, 2021, available at: https://www.npr.org/2021/05/11/995835333/in-ahmaud-arberys-name-georgia-repeals-citizens-arrest-law

This content was originally published here.

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