Friday, April 14, 2023

Robbins on Citizen's Arrest and Race

Ira P. Robbins, American University Washington College of Law, has posted Citizen's Arrest and Race, which appears in the Ohio State Journal of Criminal Law:

I 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 came in off the street and 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 is not that I had intentionally ignored the issue. Rather, my research stopped short and I failed to consider the bigger picture. Until three men killed Ahmaud Arbery in Brunswick, Georgia on February 23, 2020.

In this Article, I examine the history of citizen’s arrest laws through a racial lens, drawing 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. I consider the background and context of Georgia’s codification of citizen’s arrest in 1863—the first state statute of its kind in the United States—enacted just thirteen years after the repeal of the Fugitive Slave Acts and the same year as the Emancipation Proclamation. The deeply rooted racism that permeated this enactment almost 160 years ago must inform the use of any law giving private individuals the right to arrest others. 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 Ahmaud Arbery and so many others. Under the pretext of citizen’s arrest, what happened to each of these individuals was nothing short of a modern-day lynching. This point is too obvious to ignore.
--Dan Ernst