Citizen’s Arrests, Hues and Cries, and the Porcupine Emergency Broadcast System

[mackler]

What's the deal is with making a citizen's arrest anyway?  Is it for real?  I've heard the term on TV, but I've never heard of anyone doing it.  When I went to answer this question, I came across a fascinating bit of legal history that seems relevant in the context of the vaunted and effective Porcupine Emergency Broadcast System.

Citizen's Arrests

I have a strong distaste for calling the police for help.  Sometimes one must, for example when an insured vehicle is stolen.  But when I'm the victim of crime, I would prefer to take care of problem myself as much as possible.

A private citizen may legally arrest a felon, and when this happens, it's usually done by private security guards.  Arrest by private citizens is part of our legal heritage as we'll see, and it not only comes from the common law, but in New Hampshire it is also provided for by statute.  This law basically says that as a private person you may legally make an arrest so long as (1) you reasonably believe the person whom you're arresting committed a felony, (2) the person actually did commit the felony, and (3) you don't use deadly-force unless you reasonably believe it's necessary to save your life or someone else's.

Years before the New Hampshire legislature put this into the State Criminal Code, the State Supreme Judicial Court had already recognized the right to make a citizen's arrest in the 1869 case of Levi Holmes (48 N.H. 377).  Young Mr. Holmes had stolen a cow, a felony, and was sent to juvenile detention center.  Before he had served his whole sentence, he "escaped" by walking out, which was a misdemeanor and not a felony.  A non-police officer saw him and tried to make a citizen's arrest. Holmes defended himself with a knife.

Mr. Holmes was tried for stabbing the guy who was trying to arrest him, and his defense was that since escaping from juvie isn't a felony, it wasn't a lawful citizen's arrest, and he had the right to defend himself with the knife.  The New Hampshire Supreme Court didn't buy this, and said that if a private citizen can arrest someone who is suspected of a felony, he can sure arrest someone who has been convicted of a felony and has also committed an additional misdemeanor.

What is most interesting about this case, is the losing argument that Holmes made.  He tried to claim that the common-law right to make a citizen's arrest originated in the fact that back in merry old England, in the early days of our legal system, a citizen could be punished for ignoring a "hue and cry."  What is a hue and cry?

Hue and Cry

"Hue and cry" is a legal term.  You'll find it in Black's Law dictionary. It is the old Common Law mode of pursuing, "with horn and voice," persons suspected of felony.  In the early days of our legal system, a Common Law citizen was expected to initiate an uproar after discovering a crime.  When such a hue and cry was raised, all were obliged to pursue the criminal, and individuals, towns, and counties could be fined if the duty was neglected.

Nowadays, the hue and cry has been replaced by dialing 911.  Rather than pursuing a felon ourselves, we citizens are encouraged to call the authorities and let them handle it.  Thinking about how things have changed reminds me of the porcupine emergency broadcast system.  It's really a hue-and-cry system. 

Notice in the Manchester open-carry video, the cops want to know who the leader is (6:50).  But there is no leader.  I could see a Porc911 system run by a particular entity such as a private security firm.  But this is different.  Dave wasn't calling anyone in particular, he was putting out a hue-and-cry, and anyone who felt so obliged might respond.  It's not really Porc911; it's more like Porc-HAC.

Back to the case of Levi Holmes: in reaching its decision, the New Hampshire Supreme Judicial Court called it a "well settled doctrine that a private person may, after the commission of a felony, arrest an individual whom he has reasonable cause to believe guilty."

[J’raxis 270145]

The "citizen's arrest" concept comes from English common law, where there is technically no distinction between ordinary citizens and "professional" police. As you said, any and all ordinary people are supposed to stop crimes in progress, and not wait for a professional élite to do it for them. The modern concept of the full-time police force evolved in the eighteenth century from this group.

[David]

Interesting.  I am in favor of people policeing themselves but had long believed that it would be persecuted as 'vigilanteism', and that the citizens trying to protect themselves would in fact be arrested by the enforcers of gov't law.  I don't generally pay much attention to the 'law', because so much of it has become whatever the enforcers want it to be.  But this is an old precedent, which may or may not carry some weight in court when inevitably some person is persecuted for doing a citizen arrest.  A person who makes a mistake and wrongfully hurts or imprisons an innocent person should be held liable for the violations of the innocent persons rights, so I am not bothered by the liability. 

[J’raxis 270145]

Interesting.  I am in favor of people policeing themselves but had long believed that it would be persecuted as 'vigilanteism', and that the citizens trying to protect themselves would in fact be arrested by the enforcers of gov't law.  I don't generally pay much attention to the 'law', because so much of it has become whatever the enforcers want it to be.  But this is an old precedent, which may or may not carry some weight in court when inevitably some person is persecuted for doing a citizen arrest.  A person who makes a mistake and wrongfully hurts or imprisons an innocent person should be held liable for the violations of the innocent persons rights, so I am not bothered by the liability. 

It's only "vigilanteism" nowadays because people have come to perceive the police as there to protect you, and anyone taking things into their own hands as illegitimate and dangerous. States have worked very hard over the past few hundred years to push this perception.

[David]

People fear what they cannot control.  Gov't employees are no different.     Although the uncertainty of decentralized policing works more to our favor in a way similar to concealed carry does.  The criminal never knows if he is messing with a pushover or a very determined 700 pound gorrilla. 

[d_goddard]

In the 2008 session there will be legislation put forward calling for an expansion of the Citizen's Militia.
This presumably could also include provisions for citizens' arrests.
I know some discussion has been around including "civilians" in the same training programs as police, etc.

More info as the legislation gets filed....