This post is about a fundamental issue for superheroes: when can they arrest the bad guys? The answer is clear enough in some situations: a superhero working for the police can arrest someone whenever a police officer can, and when a villain is threatening a superhero or another person with physical harm then the superhero can act in his or her own defense or in defense of the third person. But what about regular superheroes who see a non-violent crime being committed or know it’s about to happen? For example, in the movie Batman Begins, Batman uncovers local mobsters receiving a shipment of drugs in a cargo container. Can he arrest them and leave them for the police to find?
Before we go into detail, we should say that by “arrest” we mean to restrain or confine; this is the arrest of “false arrest” and doesn’t include things like reading the suspect his or her rights. Those are issues for the police, not private individuals acting as superheroes. It’s one of the many benefits of not being a state actor.
I. The Law of Citizen’s Arrest
At common law, both police officers and private individuals could arrest someone without a warrant for a felony or breach of the peace committed in their presence (i.e. they had to actually see it happen). However, police arrests and private arrests differed if it turned out no crime had been committed. As long as the police officer was acting reasonably, he or she was protected, but a private individual acted at his or her own risk (e.g. there might be a false arrest claim).
These days, citizen’s arrest is typically addressed by statute rather than common law rules. Many states essentially codified the common law approach, but other states have broadened the law a bit, such as New York’s statute, N.Y. Penal Law §35.30(4) :
A private person acting on his or her own account may use physical force, other than deadly physical force, upon another person when and to the extent that he or she reasonably believes such to be necessary to effect an arrest or to prevent the escape from custody of a person whom he or she reasonably believes to have committed an offense and who in fact has committed such offense; and may use deadly physical force for such purpose when he or she reasonably believes such to be necessary to:
(a) Defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of deadly physical force; or
(b) Effect the arrest of a person who has committed murder, manslaughter in the first degree, robbery, forcible rape or forcible criminal sexual act and who is in immediate flight therefrom.
There’s a lot going on here, so let’s break it down a bit.
The general rule in New York is that a private person may use reasonable non-deadly force to arrest someone that the person reasonably believes has committed an offense and who has in fact committed that offense. It might seem strange to require both reasonable belief and actual commission of the offense, but this belt-and-suspenders approach covers the case of someone falsely arresting a person who, by sheer happenstance, has committed an offense. In other words, lucky coincidence is not a defense to false arrest.
Note, though, that reasonable belief is required, not that the private person witnessed the crime being committed. This is a significant difference from the common law. However, actual commission is still required, so if the private actor gets it wrong, they’re on the hook.
The statute also gives two exceptions allowing the use of deadly force when reasonably necessary. First, self-defense and the defense of others while carrying out the arrest, which is sensible enough. Second, to arrest someone who is in immediate flight from the commission of a serious violent crime: murder, manslaughter in the first degree, robbery, forcible rape or a forcible criminal sexual act.
II. How Does This Work For Superheroes?
Right off the bat it’s apparent that superheroes had better know their criminal law. Since they’re risking criminal and civil liability if they arrest someone who hasn’t actually committed a crime, they need to be sure of the situation before swinging into action. And this is probably a good thing; we wouldn’t want superheroes smashing heads or tying people up in webs on a hunch.
What’s more, superheroes need to know what kind of crime has been committed, what evidence is required, and what kind of force they can use. The New York law is very broad, covering all offenses (i.e. anything punishable by imprisonment or a fine), but other states only allow citizen’s arrest in cases of a felony. See, e.g., Ind. Code Ann. § 35-41-3-3. Some states (e.g. Colorado) require, like the common law, that the crime actually be committed in the arresting person’s presence. C.R.S.A. § 18-1-707. The rules for the use of deadly force also vary from state to state.
Practically speaking, citizen’s arrest isn’t very practical in the real world because it’s so dangerous to try, criminals aren’t likely to respect a private individual’s attempt to arrest them, and because the police and the courts generally frown on ‘self-help.’ The first two issues aren’t problems for superheroes: they can handle themselves and criminals will respect them one way or the other. But staying on the good side of the police and courts is important for most superheroes. That’s another reason it’s so important for superheroes to get it right when they arrest people: too many screw-ups and the police will be after them instead.
Of course, most of this only applies when superheroes are dealing with more-or-less regular criminals. When Doomsday or Darkseid come to town, all bets are off.
As for the Batman example from the beginning of the post: Falcone and his men were clearly in the middle of committing numerous felonies, so Batman was justified in using non-deadly force to arrest them. Since this meets the restrictive common law standard, it would work in just about any state.
Citizen’s arrest is an effective legal justification for a lot of what superheroes do, but it has some important limitations that often vary from state to state and superheroes should definitely think before they arrest. This is one area where the legally-educated superheroes like Daredevil, She-Hulk, and Manhunter are at a distinct advantage.