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Who Can Execute A "Citizen's Arrest" In Michigan?

Since the turn of the millennium, there has been an explosion in interest for superhero media. Many of the highest-grossing movies in the last several years were superhero movies such as The Avengers, Wonder Woman and Black Panther. The popularity to this genre is due, in part, to ordinary people imagining themselves in a fantasy role where they can fight crime and save the day. But can ordinary people act as vigilantes and take matters into their own hands if they see a crime in progress?

Michigan codifies the statutory right for private persons to make a "citizen's arrest" even if that person is not a sworn police officer. According to MCL 764.16, a private person may make an arrest in the following situations:

  • (a) For a felony committed in the private person's presence.
  • (b) If the person to be arrested has committed a felony although not in the private person's presence.
  • (c) If the private person is summoned by a peace officer to assist the officer in making an arrest.
  • (d) If the private person is a merchant, an agent of a merchant, an employee of a merchant, or an independent contractor providing security for a merchant of a store and has reasonable cause to believe that the person to be arrested [has committed retail fraud-first degree, retail fraud-second degree or retail fraud-third degree], in that store, regardless of whether the violation was committed in the presence of the private person (also known as "shopkeeper's privilege".

Furthermore, MCL 764.20 requires "[a] private person, before making an arrest, shall inform the person to be arrested of the intention to arrest him and the cause of the arrest, except when he is then engaged in the commission of a criminal offense, or if he flees or forcibly resists arrest before the person making the arrest has opportunity so to inform him."

Michigan law prohibits the citizen's arrest power for misdemeanor apprehensions UNLESS it is a store employee making an arrest on reasonable cause that the person to be arrested committed retail fraud-second degree or retail fraud-third degree in that store. A person who makes an unlawful arrest can be subject to civil liability if the person apprehended sues for assault and battery, unlawful imprisonment, civil rights violations or other intentional torts. This can result in a substantial monetary judgment against the arresting person. There may also be criminal liability for assault and battery, unlawful imprisonment or kidnapping leading to fines and imprisonment if the prosecutor believes that the statutory arrest power doesn't apply to the situation.

The following cases concern the application and interpretation of the citizen's arrest statute by Michigan's appellate courts:

  • People v Meyer, 424 Mich 143; 379 NW2d 59 (1985) - The Michigan Supreme Court held "[p]olice officers who make a warrantless arrest outside their territorial jurisdiction are treated as private persons, and, as such, have all the powers of arrest possessed by such private persons." In those cases, the police officer's action is lawful if private citizens would have been authorized to do the same.
  • People v Couch, 436 Mich 414; 461 NW2d 683 (1990) - The Michigan Supreme Court held that a private citizen may use deadly force to prevent a fleeing felon from escaping because there are "practical limitations on the ability of law enforcement authorities to arrest every felon." However, the use of deadly force is not justified if the person to be arrested is not in fact a felon.  Also, the use of deadly force must be necessary either to meet deadly force or to prevent the felon's escape.
  • People v Hamilton, 465 Mich 526; 638 NW2d 92 (2002) - The Michigan Supreme Court held that police officers making a warrantless arrest outside of their territorial jurisdiction for operating while intoxicated, a misdemeanor, are subject to civil liability because MCL 764.16 only provides a private citizen exception for an arrest for felonies in the officer's presence. However, the fact that the arrest was made by an officer outside his jurisdiction does NOT require exclusion of the evidence obtained as a result of the arrest under the Fourth Amendment. While that police officer may be subject to civil liability, his unlawful arrest does not affect the admission of evidence in the criminal prosecution against the accused.
  • Bright v Ailshie, 465 Mich 770; 641 NW2d 587 (2002) - The Michigan Supreme Court held that a "bounty hunter" is not shielded from civil liability for assault, battery and false imprisonment where he arrests someone on the basis of a Missouri warrant but the arrestee did not actually commit a crime. A private person may make an arrest for a felony committed outside of his or her presence if the person to be arrest actually committed a felony. It is not enough that the private person believed he or she had probable cause that a felony was committed or there was an out-of-state warrant issued. Before making an extrajudicial arrest, a private person must be certain that the person committed a felony or else that arrest can result in substantial civil and criminal liability.
  • People v Passage, 277 Mich App 175, 180; 743 NW2d 746 (2007) - The Michigan Court of Appeals held that store employees are engaged in the administration of justice for the purpose of scoring ten points for OV 19 in the defendant's sentencing guidelines (for interfering with the administration of justice) when they act under MCL 764.16(d) to arrest a person against whom they had reasonable cause to believe committed retail fraud in their store. This means that the potential penalty could be higher if the defendant resists or tries to escape a lawful arrests by store employees.

The Michigan Legislature recognizes the role of ordinary citizens in fighting crime, but everyone should be aware of their limits before engaging in conduct that amounts to a tortious or criminal act. If you have questions about the citizen's arrest power or you need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC today.

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