The author would like to thank Theodore Feitshans, North Carolina State University, Shannon Ferrell, Oklahoma State University, William Pons, University of Maryland School of Law, and Kimberly Manuelides, Saul Ewing LLP, Baltimore, MD for their input on this column.
Recently I was asked a simple question during a workshop session, “Do I have the right to make a citizen’s arrest in Maryland?” Many of you live in rural areas and have serious concerns about trespassers coming on your property (such as kids on ATVs, etc.), or about thieves stealing materials from your barns. In these cases or many others where you were witness a crime you may wonder if you have the right to detain an alleged criminal until local law enforcement can arrive. The answer is “Maybe, sometimes, but DON’T do it!” Call 911 instead. The reasons for the answer are complex.
Please NEVER attempt a citizen’s arrest. I’m not sure I can state enough that attempting one is a bad idea. Law enforcement officers never recommend that you make a citizen’s arrest. If you think you are witnessing a crime, always contact local law enforcement to make the arrest. To make a citizen’s arrest is to put your own life, the lives of others, and everything that you own, including your farm, at risk. Law enforcement officers have governmental immunity when making arrests and are trained to make arrests. You have no such immunity. If the local prosecutor chooses not to prosecute the perpetrator (a likely outcome for simple trespass) or if the alleged perpetrator is not convicted, that leaves you open to a civil suit for false imprisonment among other torts. That’s right; the perpetrator could actually sue you. False imprisonment is an intentional tort that entitles the jury to award punitive damages and could force you to sell the farm to cover the damages.
Maryland’s Court of Appeals has found that at common law private citizens and peace officers have the right to make arrests of those suspected of committing a crime. In Maryland in order to have the authority to make a citizen’s arrest, a public citizen must meet some qualifications: 1) a felony (such as murder in the first degree or theft of at least $1,000) was committed in their presence; 2) the public citizen has reasonable grounds to believe the detained person committed a felony; or 3) the person committed a misdemeanor (such as trespass, or thefts under $1,000) which amounts to a breach of the peace in the presence or sight of the arresting citizen.
In making these arrests, force must not be used. Deadly force may never be used. If the person flees your property, you should not pursue but allow law enforcement to pursue. As stated above if the person is not convicted or you used excessive force you are open to a successful lawsuit. Remember you could be forced to sell your farm to cover litigation expenses and damages.
Law enforcement officers have a qualified immunity that protects them from liability when preforming discretionary duties, such as arresting individuals. Law enforcement officers also have the right to use deadly force when making an arrest if the situation justifies it (although they use every effort to avoid it). You, as a private citizen, do not. For example, Charlie witnesses Doug taking pictures of Charlie’s poultry houses and assumes Doug is trespassing and with a local animal rights group. In reality, Doug is considering getting into the poultry industry and Charlie’s wife gave Doug permission to be on the property to take the photos. Charlie grabs Doug, restrains Doug, and holds Doug in his car till the police arrive. Police realize the mistake and let Doug go. Doug could press criminal charges against Charlie for assault, battery, and kidnapping and may have civil claims for the civil torts of false imprisonment, battery, and others as the result of his detention by Charlie. Charlie could possibly have to sell his poultry farm in order to cover the litigation costs and damages associated with a simple mistake. Popular culture often neglects this aspect of citizen’s arrests, but you would be wise to consider it.
Although in Maryland you have the right to perform a citizen’s arrest having a right does not mean that you should ever exercise it. In addition to all of the above, the alleged perpetrator may be armed, be a better shot than you, or just lucky on the day that you make your first and last citizen’s arrest!