Superheroes and Citizen’s Arrest

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.

III. Conclusion

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.

15 Responses to Superheroes and Citizen’s Arrest

  1. Since you mention Manhunter, her predecessor (Mark Shaw, a former defense attorney) went into the bounty hunting business in the ’80s. Presumably, that has some relationship to a Citizen’s Arrest. Is that something you could talk about? Does the (I’m assuming) issued warrant change Mark’s typical situation from Kate’s?

    • Assuming you mean bounty hunter to mean bail bondsman (and not, for example, “wanted: dead or alive” type bounties), that works a little differently. The bondsman’s authority stems from a contract. When you take out a bail bond, you usually agree that if you skip bail the bondsman can come get you, forcibly if necessary. This language is fairly typical:

      “If I depart the jurisdiction of the court wherein my bail bond is posted, for any reason, and I am captured by Acme, or its agent, the Surety, or its agent, or any law enforcement agency, in any state other than the one which the bail bond(s) was posted, I hereby agree to voluntarily return to the State of the original jurisdiction, and I hereby waive extradition and further consent to the application of such reasonable force as may be necessary to effect such return.”

      Generally speaking, warrants do not give private individuals authority to arrest the named suspect. The citizen’s arrest power is defined by statute, so it doesn’t extend beyond that, even if a warrant has been issued. Bright v. Ailshie, 641 N.W.2d 587 (Mich. 2002). In some states a private individual can effect a valid arrest under a warrant if they are specifically named on the warrant. See, e.g., Linder v. State, 734 S.W.2d 168 (Tex. App. Waco 1987).

      • I wasn’t clear enough. Shaw would sift through the Wanted posters looking for rewards, and then, for example, go after Captain Cold while he was in town (New York, as it turns out).

        (I highly recommend the series. The early issues are the Ostranders at their finest, around the time of their marriage.)

  2. Martin Phipps

    What if someone is about to commit a crime? The police have to wait until a crime is committed before acting (right?) but what about the private citizen who shoots somebody trespassing on his property? Trespassing is a crime but firing a gun a somebody would surely be using deadly force against someone who has yet to commit a violent crime.

    Oh and this also relates to Flash’s Zoom murder trial. The Flash killed Zoom to protect his fiancee. Now the Flash may be justified in using deadly force because he had good reason to believe his fiancee was in imminent danger. Right?

    I remember from an old CSI episode that when state actors use deadly force an inquest is usually (always?) held to determine if the act was justified, excusable or criminal. I imagine private citizens would enjoy the same consideration so that a killing would be considered “excusable” if the killer can show that he had good reason to believe he or someone he knew was in imminent danger.

    • It depends on what you mean by “about to commit a crime.” If someone hasn’t actually committed a crime yet a police officer reasonably believes they have, then the police officer can arrest them. Of course, they’ll go free once they’re shown to be innocent, but the arrest would be lawful. But a private citizen who arrested someone in the same circumstances would run the risk of a false arrest charge.

      Bear in mind, however, that many people who are “about to commit a crime” have actually already committed the crime of attempt (specifically, the crime of “attempted X” where X is whatever they were attempting). It’s completely valid to arrest someone for attempt.

      The specific example of shooting trespassers is complicated. Traditionally deadly force was not allowed in defense of property. Obviously if the trespasser presents an imminent danger of deadly harm then self-defense or defense of others comes into play. This is further complicated by “castle doctrine” laws in many states that expand the justification for the use of force or deadly force to include many situations where there is no imminent danger of harm. But I don’t think any of them cover shooting someone who simply trespasses on to another person’s property.

      As a procedural issue, these are defenses. That means that the prosecution can still bring criminal charges against the defender and require them to prove in court that they were acting in self-defense, defense of another, properly invoking the castle doctrine, etc. Prosecutors have the power of prosecutorial discretion, so they may choose to bring charges or not.

  3. An interesting example in the film Hancock – during a robbery the leader of the gang reveals that he has several hostages wired with explosives, which will detonate if he releases a “dead man switch;” Hancock deals with this by cutting off his hand with a sharp disk thrown at super-speed and (presumably, since this happens off-screen) pressing the trigger before the criminal’s hand releases it. Would this count as excessive force?

    • It’s been a little while since I saw the film, but I believe the gang leader could also have released the switch manually while he was alive, right? In that case, the hostages were clearly in imminent danger of deadly physical harm, which would justify Hancock’s use of deadly force in their defense.

    • Given if he’d killed him outright he’d probably be able to plead defense of others, I imagine just maiming the guy is still reasonable, particularly since it was obviously directly aimed at stopping the criminal act in question (i.e. didn’t cut off his hand just for giggles).

      On the topic at hand, this issue is probably why there’s a trend of heroes doing the “tying up the criminals and leaving them for the police” thing. Sure, I’ve heard that sort of approach is a good way to have any charges thrown out thanks to the lack of the superhero’s testimony (I rather like that Batman Begins lightly touched on that by having Rachel mention they had plenty of physical evidence anyway), but it does de facto prevent the heroes from getting grabbed by the cops themselves. I’d assume given even the possibility of false arrest the cops have to at least take you in for questioning, which is hardly conducive to maintaining a secret identity, and would probably get old fast if they had to drag you in every time you catch a purse snatcher.

  4. The threat of criminal and/or civil penalties for false arrest has little teeth in the multiverse. The issues associated with service and notice on a masked avenger would be numerous and severe, making it costly for all by an Osborne or Luthor to pursue. What does Spider-Man care if he is fleeing the police because they think he is a felon, or because he is dodging a complaint?
    Tying up the criminals and leaving them for the police also does little to hurt the prosecutor’s case, provided the vigilante establishes by pointing up evidence (the cynical would say “planting”) that connects trussed up criminal to the crime committed so that the officer freeing the suspects couldn’t help but make the case himself. I believe the current law from SCOTUS has the police able to use tainted evidence, so long as they are not the ones doing the tainting. Reasonable suspicion, say, a note from Batman saying “these are the guys who did the jewelry store robbery” pinned to a miscreant should give the police the ability to perform at least a Terry patdown.

    • “What does Spider-Man care if he is fleeing the police because they think he is a felon, or because he is dodging a complaint?”

      If a superhero irritates the police enough, then they might start releasing criminals that the superheroes catch. That would encourage the superhero to either shape up, face justice, or stop fighting crime altogether. Unless a superhero wants to be judge, jury, and executioner (and most evidently do not), he or she has to rely on the police and prosecution to take over after the arrest, so superheroes need the police and prosecution to be on their side.

  5. Christopher A.

    I am wondering exactly how this ends up working with civil liability. You are talking about the superhero being brought up on criminal charges. But I would think this wouldn’t be a major problem for an upstanding superhero who is liked by the authorities; they wouldn’t be inclined to charge him with false arrest for good faith mistakes while fighting crime. More likely is a criminal filing a civil suit against the hero. Does this use the same rules? It sounds like the hero will have to prove that the crime was in fact committed. How difficult is this? There could be many reasons that a criminal who “in fact has committed” an offense did not end up being convicted of it.

  6. Pingback: Delaware Campus Library Blogs » Blog Archive » New blog explains law and superheroes

  7. If a Citizen’s Arrest is supposedly valid ans binding, why isn’t there such a crime as “resisting a citizen’s arrest”?

    • Citizen’s arrest is a legal defense or privilege (depending on how it’s defined in a particular jurisdiction) that permits what would otherwise be a crime (i.e. physically restraining someone). Assuming someone were executing a perfectly lawful citizen’s arrest and the arrestee forcibly resisted that arrest, then the arrestee’s crime would be called “assault” (or perhaps battery, depending on the criminal code in question).

      Legislatures enacted special resisting arrest laws for lots of reasons, but even if there weren’t a specific crime called “resisting arrest” it would still be illegal to resist a lawful arrest by a police officer (indeed in many jurisdictions and circumstances it’s illegal to resist even an unlawful one).

      Resisting arrest is best thought of as a special case, a way to make the punishment for resisting arrest worse when the person carrying out the arrest is a police officer.

  8. Thanks James. Resisting arrest is much more cut & dry if the arrest is being made by a police officer than a citizen. It would be extremely difficult to successfully prosecute a person for battery against an individual for resisting a “citizen’s arrest” if the person executing the arrest makes the initial physical contact and the so-called “battery” is the act of the other person trying to flee. A person merely informing that someone is being placed under citizen’s arrest without any physical contact would preclude a battery charge against the arrestee if they flee.

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