Citizen's Arrest In South Carolina Shield or Sword?, 0121 SCBJ, SC Lawyer, January 2021, #21

AuthorBy T. Jarrett Bouchette
PositionVol. 24 Issue 4 Pg. 21

Citizen's Arrest In South Carolina Shield or Sword?

No. Vol. 24 Issue 4 Pg. 21

South Carolina BAR Journal

January, 2021

By T. Jarrett Bouchette


"Citizen's arrest! Citizen's arrest!" Fans of "The Andy Griffth Show," will remember the classic scene of the lovable Gomer Pile calling out Barney Fife, the town deputy, and placing him under "Citizen's arrest" for an illegal U-turn. In the real world, the term at most conjures up a vague notion that rarely makes its way into daily conversation or the nightly news. That is, until this year. The killing of Ahmaud Arbery in neighboring Georgia—and the controversy surrounding the reported attempt at a Citizen's arrest at the time of his death—sparked conversations among citizens' groups and legal communities regarding the neces-sity or wisdom of maintaining the doctrine.1 Opponents claim that the doctrine encourages vigilantism that will disproportionately affect minority communities. Supporters point to the fact law enforcement, no matter how well trained or how well funded, cannot be at all places at all times and that someone who is witness to a crime (perhaps also the victim of the crime) should not be compelled to stand by and allow the perpetrator to evade justice simply because the witness is not employed by a state agency.

This controversy provides an opportunity to examine the law of Citizen's arrest in South Carolina and answer the question: Is the law a protective shield for those who a id in the administration of justice, or a sword to be wielded by those who desire to commit what would otherwise be an unlawful battery?

I. Brief background

South Carolina frst enacted a Citizen's arrest statute in 1866 and the current statute was last modifed in 1962.2 The timing of the legislative action in each instance, post-war Reconstruction and early civil rights movement, has caused some observers to conclude that the entire concept was one conceived from racial animus. Though one can never detach laws from the people and time in which they were created, especially when considering race during these respective periods, the general concept of granting non-law enforcement off-cers the authority to make arrests actually pre-dates the settlement of America.

Though it is easy to assume that police forces of the same type that are ubiquitous in modern life have always been present, the reality is that community reliance on modern-style policing did not become prevalent until the rise of urbanization that took place in the early to mid-1800s.3 The frst publicly-funded organized police force with offcers on duty full-time was created in Boston in 1838. The City of New York followed soon after. Prior to that, law enforcement was largely an endeavor undertaken by part-time offcials such as sheriffs or constables with the aid of either paid or volunteer private citizens. Indeed, in colonial and early America, many communities were patrolled by "night-watchmen," which in some instances was a compulsory service.4 This system not only permitted the involvement of everyday citizens, but in fact relied upon it.

Such practices arose under the British common law. In 1285, the Statute of Winchester not only gave citizens the right to arrest those who had committed crimes, but required it whenever the "hue and cry" was raised.5 Failure to participate was itself a punishable offense. This principle traveled to the Amer-ican colonies, and as the common law developed, American courts began to convert the obligation to make an arrest to that of a right.

Over time, this right became one which contained numerous subtle distinctions and nuances. For example, there were distinctions between the rights afforded a non-citizen making arrest and a government offcial, when the suspect was an accused felon versus a non-felon, as well as the level of force that could be used. There was even law that addressed what happened when the arrest resulted in the death of a suspect. In 1833 the Court of Appeals of Law and Equity of South Carolina noted in State v. Anderson6 that "private persons have a right to arrest on suspicion that a felony has been committed" but also that a "party had no right, either to break the doors or to kill— and if they have transcended their power, and in consequence, one is killed, it is only manslaughter."

Eventually, the states began to codify...

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