In the wake of cases like that of Ahmaud Arbery’s murder in Georgia, many are complaining about 1) citizen’s arrest laws and 2) stand your ground laws, claiming that they allow – even encourage – unjustified killings and assaults.
SC has both types of laws, and they are very different.
Stand your ground laws are a common-sense revision of what were previously common law self-defense rules – if you are attacked by someone in a place where you have a right to be, you do not have to retreat and you have the right to stand and defend yourself.
What are SC’s citizen’s arrest laws, though? Are they a common-sense statement of when and how a citizen can stop a dangerous criminal?
Citizen’s Arrest Laws in SC
If you’re going to have a conversation about SC’s citizen’s arrest laws, you’re going to need to read them and understand what they actually say rather than what you see in blog posts and media reports.
There are two sections to SC’s citizen’s arrest laws: 1) when and how you can arrest a person during the daytime, and 2) when and how you can arrest a person after night falls.
In the Daytime
When can you arrest someone?
SC Code § 17-13-10 says any person can make a citizen’s arrest when they 1) see a felony being committed, 2) have information that a felony has been committed, or 3) see a larceny being committed.
How do you arrest them?
Common sense would tell you that you call law enforcement and force the person to wait for the police to arrive. What the statute actually says, however, is that you should “arrest the felon or thief and take him to a judge or magistrate:”
Upon (a) view of a felony committed, (b) certain information that a felony has been committed or (c) view of a larceny committed, any person may arrest the felon or thief and take him to a judge or magistrate, to be dealt with according to law.
SC’s Citizen’s Arrest Laws Authorize Anyone to be a Vigilante
This statute authorizes any person to become a vigilante – you can 1) investigate a crime without the involvement of law enforcement, 2) gather evidence (“certain information”) that a felony was committed by a person, 3) arrest that person – presumably by holding them at gunpoint and/or binding their wrists with handcuffs or zip ties, and 4) deliver that person to the local magistrate. Again, without the involvement of law enforcement.
In the Nighttime
When can you arrest someone?
SC Code § 17-13-20 says that any person can make an arrest in the nighttime when someone 1) has committed a felony (no mention of the level of proof required before you make your arrest), 2) has entered a dwelling house without permission, 3) has broken into an outhouse “with a view to plunder,” 4) has stolen property in their possession, or 5) looks suspicious – as if they are about to “steal or commit some felony,” and “flees when… hailed.”
How do you arrest a suspicious-looking person who runs away from you at night?
You make the arrest “by efficient means as the darkness and the probability of escape render necessary, even if the life of the person should be taken:”
A citizen may arrest a person in the nighttime by efficient means as the darkness and the probability of escape render necessary, even if the life of the person should be taken, when the person:
(a) has committed a felony;
(b) has entered a dwelling house without express or implied permission;
(c) has broken or is breaking into an outhouse with a view to plunder;
(d) has in his possession stolen property; or
(e) being under circumstances which raise just suspicion of his design to steal or to commit some felony, flees when he is hailed.
This statute is filled with problems but consider the most glaring one: it authorizes any person to kill another person based on a suspicion that they are going to steal or commit some felony in the future if the person runs when you confront them.
Does the law really say you can kill a person?
Yes, it does – if it is “efficient” and rendered necessary by the “darkness and the probability of escape,” this law says that you can make an arrest by taking the life of the person you are arresting.
SC’s Citizen’s Arrest Laws and SC’s Stand Your Ground Law
SC’s stand your ground law is not in the same ballpark as SC’s citizen’s arrest law – the stand your ground law makes sense and removes the nonsensical duty to retreat from self-defense law, while SC’s citizen’s arrest laws authorize what most people would consider unjustified killings based on suspicion of conduct that hasn’t even occurred yet.
There is some intersection of these two laws that may result in injustices, but it is the citizen’s arrest laws that result in the injustice, not the stand your ground law.
For example, you may decide to be a vigilante, gather evidence on an individual whom you believe has committed a felony, and then show up at their home to arrest them. You are in a place you have a right to be because the citizen’s arrest laws authorize you to make the warrantless arrest without the involvement of law enforcement.
While you are making your arrest, however, your suspect is probably going to resist. When they, predictably, attack you, you now have a right to defend yourself without retreating under SC’s stand your ground law – probably not the way the law was intended to work.
Can We Fix SC’s Citizen’s Arrest Laws?
Georgia’s citizen’s arrest law was repealed and replaced after Ahmad Arbery’s murder. Other states, including NC, have passed common-sense citizen’s arrest laws that 1) prohibit citizen’s arrests unless the person has been formally deputized, but 2) authorize private persons to detain someone if there is probable cause that they committed a felony, larceny, breach of peace, destruction of property, or injury to another person, and 3) require the person to call law enforcement and turn over the suspect to the police:
15A-404. Detention of offenders by private persons.
(a) No Arrest; Detention Permitted. – No private person may arrest another person except as provided in G.S. 15A-405. A private person may detain another person as provided in this section.
(b) When Detention Permitted. – A private person may detain another person when he has probable cause to believe that the person detained has committed in his presence:
(1) A felony,
(2) A breach of the peace,
(3) A crime involving physical injury to another person, or
(4) A crime involving theft or destruction of property.
(c) Manner of Detention. – The detention must be in a reasonable manner considering the offense involved and the circumstances of the detention.
(d) Period of Detention. – The detention may be no longer than the time required for the earliest of the following:
(1) The determination that no offense has been committed.
(2) Surrender of the person detained to a law-enforcement officer as provided in subsection (e).
(e) Surrender to Officer. – A private person who detains another must immediately notify a law-enforcement officer and must, unless he releases the person earlier as required by subsection (d), surrender the person detained to the law-enforcement officer. (1973, c. 1286, s. 1.)
SC’s stand your ground law makes sense both on paper and in practice, and it was a considerable improvement over common law self-defense rules.
SC’s citizen’s arrest laws, however, do not make sense in 2021.
We do not want or need vigilantes in SC.
We do not want non-law enforcement to have the authority to arrest or kill others based solely on a suspicion of future behavior.
We do not want the next Ahmaud Arbery murder to be in our state because we did not take the time to revise these laws.
Criminal Defense Lawyers in Conway, SC
Attorney Johnny Gardner has over twenty years of trial experience defending violent crimes, including murder and all levels of assault charges. We understand SC’s self-defense laws, SC’s Stand Your Ground law, and SC’s citizen’s arrest laws, and we are committed to providing the best defense possible to our clients.