The Problem with SC’s Citizen’s Arrest Laws (and how to fix it)
SC’s citizen’s arrest laws, like Georgia’s laws that were used to attempt to justify Ahmaud Arbery’s murder, authorize anyone to kill a person if 1) they look suspicious, 2) after dark, and 3) they run “when hailed.”
The law makes no sense in today’s society, and it is a relic of a racist past where 1) there was not a police officer on every corner, and 2) white men were expected to take the law into their own hands to protect their families and neighborhoods from the lurking threat of black thieves and rapists.
Sound like an outrageous exaggeration? Read SC’s citizen’s arrest laws. Look at the history of these laws.
Why does the SC legislature leave this law on the books?
Why aren’t SC’s residents raising Hell to make them change it?
What are SC’s Citizen’s Arrest Laws?
SC’s citizen’s arrest laws allow anyone to make an arrest when they see certain crimes being committed.
They also allow anyone to kill a person if they look suspicious after dark – for example, if you have “just suspicion of [their] design to steal or to commit some felony,” and the suspicious person “flees when… hailed.”
When You Can Arrest Someone
SC Code § 17-13-10 says that you can make a citizen’s arrest if you:
- See a felony being committed (do you know what crimes are misdemeanors and which are felonies? Most people don’t…),
- See a larceny being committed, or
- Have “certain information that a felony has been committed.”
Under this law, you don’t have to call the police – if you see a felony or larceny or if you have information that a felony has been committed, you are authorized to “arrest the felon or thief and take him to a judge or magistrate, to be dealt with according to law.”
This law 1) deputizes every person in the state, giving them the powers of arrest, and 2) authorizes vigilantes to investigate criminal activity (how else would you get “certain information that a felony has been committed), locate the suspects, presumably bind them or incapacitate them somehow, and physically carry them to a magistrate’s office…
You really can be Batman, the Arrow, or Daredevil:
You could build an underground lair, stock it with high tech electronics including police scanners, make friends with a few law enforcement types, outfit yourself with legal weapons and gadgetry to help you locate, subdue, restrain, and, when it is efficient and necessary due to the darkness, kill criminals.
When You Can Kill Someone Who Looks Suspicious
After dark, however, the rules change…
SC Code § 17-13-20 says that, after sunset, you can make a citizen’s arrest when a person:
- Has committed a felony (how do you know? Presumably you saw it, or you have gathered sufficient evidence that you are reasonably certain?),
- Has entered a dwelling house without permission – any dwelling house, apparently. It’s not limited to your dwelling house,
- Has broken into an outhouse (a storage shed) “with a view to plunder” (any storage building – it’s also not limited to your own),
- Has stolen property in their possession (your stuff or someone else’s stuff, it does not matter), or
- “Being under circumstances which raise just suspicion of his design to steal or to commit some felony, flees when he is hailed.”
How do you arrest them?
Presumably, you can bind them and carry them to a magistrate’s office just as in the daytime – of course, the magistrate’s office will most likely be closed at night, so you will need to wait until morning (the law does not require or even suggest that you call the police).
The law, however, does provide a solution, authorizing you to arrest the person “by efficient means as the darkness and the probability of escape render necessary, even if the life of the person should be taken.”
Are SC’s Citizen’s Arrest Laws Racist?
Are all citizen’s arrest laws racist? Where did these laws come from, and what purpose do they serve? Do they encourage “vigilante justice?”
Ahmaud Arbery’s murder in Georgia provides a clue – his killers, recently convicted of murder, attempted to rely on Georgia’s citizen’s arrest law at trial. As with SC’s citizen’s arrest laws, Georgia’s law (which was changed after the Arbery murder) allowed anyone to arrest a person they “reasonably suspected” of trying to escape from a felony.
Georgia’s law, passed in 1863, “was basically a catching-fleeing-slave law.” The killers, three white men (at least one of whom was a former police officer) saw Arbery, a black man, jogging through a neighborhood. Without any evidence that Arbery had done anything wrong, they “hailed him,” and he “fled” from the three white men in pickup trucks.
So, they ran him down, shot him, and, as he lay on the ground dead or dying, one of the men exclaimed, “fucking nigger:”
“Mr. Bryan said that after the shooting took place before police arrival, while Mr. Arbery was on the ground, that he heard Travis McMichael make the statement: fucking nigger,” Dial said in testimony…
Dial said he had evidence from social media and elsewhere that Travis McMichael had used racial slurs in the past. McMichael, a former U.S. Coast Guard boarding officer, once told a friend that he loved his job because he “was on a boat and there weren’t any N-words anywhere,” Dial testified.
And what should we expect when there are laws on the books that authorize people (“decent white folk” at the time the law was written by SC’s white male legislators) to arrest anyone who looks suspicious (black people at the time the law was written) and arrest them “by efficient means as the darkness and the probability of escape render necessary, even if the life of the person should be taken?”
How Easy Would it be to Fix SC’s Citizens Arrest Laws?
How easy would it be to fix our citizen’s arrest laws?
We should have a citizen’s arrest law, but what if it was a bit more specific about when you could make an arrest and how the arrest was to be made? What if, instead of authorizing someone to kill a person (when it is efficient and necessary because of the darkness), it only authorized citizens to detain a person when necessary?
What if, instead of instructing citizens to take a suspect to the magistrate, it required that you call the police?
NC’s citizen’s arrest law may be a good example to look to. Under NC’s law, no private citizen is permitted to arrest another person unless they are formally deputized. You are authorized to detain a person when necessary, but only until law enforcement arrives to take over:
15A-404. Detention of offenders by private persons.
(a) No Arrest; Detention Permitted. – No private person may arrest another person except as provided in G.S. 15A-405. A private person may detain another person as provided in this section.
(b) When Detention Permitted. – A private person may detain another person when he has probable cause to believe that the person detained has committed in his presence:
(1) A felony,
(2) A breach of the peace,
(3) A crime involving physical injury to another person, or
(4) A crime involving theft or destruction of property.
(c) Manner of Detention. – The detention must be in a reasonable manner considering the offense involved and the circumstances of the detention.
(d) Period of Detention. – The detention may be no longer than the time required for the earliest of the following:
(1) The determination that no offense has been committed.
(2) Surrender of the person detained to a law-enforcement officer as provided in subsection (e).
(e) Surrender to Officer. – A private person who detains another must immediately notify a law-enforcement officer and must, unless he releases the person earlier as required by subsection (d), surrender the person detained to the law-enforcement officer. (1973, c. 1286, s. 1.)
Other states, including Georgia, have revised their citizen’s arrest laws. Is SC waiting for the next Ahmad Arbery style murder by some good ol’ boys in a SC neighborhood?
Criminal Defense Lawyers in Charleston, SC
Charleston, SC criminal defense attorney Grant B. Smaldone represents people charged with crimes in SC state and federal courts.
If you have been charged with a crime or believe that you are under investigation in the Charleston, Georgetown, or Myrtle Beach areas of SC, call now at (843) 808-2100 or send an email to schedule a free consultation.