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July|August 2004

Playing Police

Every state in the union recognizes the right of citizens to make arrests. If only every citizen recognized the proper situation in which to exercise it.

By Katherine Marsh

ON A SUMMER EVENING A FEW YEARS AGO, Harry Wyant was walking through Shappell Park in Phillipsburg, N.J., a town near the Pennsylvania border. It was there that he spotted Kimberly Montesano flouting the town's pooper scooper ordinance, which calls on citizens to pick up after their dogs. Wyant, who happens to be the mayor of Phillipsburg, confronted her, and when Montesano refused to take the cleanup job into her own hands, Wyant decided to take the law into his. He called the police, who arrived on the scene and took down Montesano's name. The next day, Wyant filed a citizen's complaint against her and, on the strength of his testimony, Montesano was fined $100.

Phillipsburg had its heyday as an industrial town in the 1940s and 50s, but by 1999, when Wyant was elected, it had fallen not just on hard times but on smelly ones. He inherited a city where the sidewalks of Main Street were covered in dog feces, a quality-of-life issue the new mayor feared might augur more serious crime. Wyant, who displays a photo of Rudy Giuliani on his website, had found his own version of the broken windows Giuliani mended in New York City. Wyant wanted to clean up the streets, and when he caught Montesano and her dog in the act, he felt it was his civic duty to intervene.

Emboldened by his success in the Montesano incident, Wyant began confronting other lawbreakers. In 2003, he took on a litterbug who hurled a soda can out of his car and a guy drinking an open container of beer during movie night in the park. "Citizens have to be our eyes and ears," he explained recently. "Some people say that's not your job, but I say it's part of every citizen's job."

Every citizen's job description has been expanding over the last decade, as law enforcement officials and lately the Department of Homeland Security have asked citizens to play a greater role in fighting crime and, increasingly, terror. In 1994, New Jersey implemented Megan's Law, which gives citizens the authority to monitor convicted sex offenders living in their neighborhoods. Congress adopted a version of Megan's Law in 1996. In 2000, Oklahoma launched the first statewide Amber Alert plan, which allows law enforcement to broadcast information about abducted children and encourages the public to assist in the capture of their abductors. Thanks to a bill signed by President George W. Bush in spring 2003, it is also now a national program. Since September 11, the Department of Homeland Security has called on citizens to help prevent terrorism by submitting tips about suspicious activities or perceived threats to public health or safety.

This push toward greater citizen involvement runs counter to a long-held view among law enforcement officials that citizen crime fighters do more harm than good. Officer Shawn Carmody, the head of Phillipsburg's community policing program, reported that the police there discourage citizens, including mayors, from playing police officer. "We don't want people taking the law into their own hands," he said. Law enforcement officials want citizens who are vigilant, but they fear vigilantism.

American law, however, has long allowed a form of vigilance that is closer to vigilantism than you might think. In every state in the union, a private citizen has the right to arrest, and in some cases physically restrain, a person he has reason to believe has committed a felony. The District of Columbia and states such as Virginia and Louisiana limit citizen's arrests to felony-level crimes only, but other states, such as California, permit a private person to make an arrest for a misdemeanor, so long as it's been committed in his presence. As a result, the number of citizen's arrests differs wildly from state to state and even from city to city. The Washington, D.C., police reported no citizen's arrests over the past year; the LAPD reported 6,441—all for misdemeanor offenses.

THE IDEA THAT CITIZENS ARE RESPONSIBLE for policing their communities dates back to before the Norman Conquest of 1066, when the sheriff, or "Shire Reeve," could call on any free male subject to serve on a posse. Free male subjects were expected to constrain felons and in some cases to administer justice. Once a representative of the king declared someone to be an "out-law," anyone could kill or capture that person without further intercession from the authorities.

Police forces are actually a relatively recent development: Up through early 19th-century America, the only forces were private ones hired by the wealthy to protect their interests. In the tradition of British common law, it was considered a citizen's duty to step in and make an arrest when he witnessed a crime. Magistrates and sheriffs were employed to help citizens process criminals; it was not the job of the former to catch the latter.

Even after the birth of urban American police forces in the 1840s, cops primarily handled misdemeanor-level crimes such as public drunkenness and gambling. Dealing with felonies, including rape, murder, and assault, often fell to the citizens who witnessed them. This was the case particularly in smaller towns and in the West, which was slower to develop police forces.

According to Roger Lane, a historian at Haverford College and author of Violent Death in the City: Suicide, Accident, and Murder in Nineteenth-Century Philadelphia, the majority of murderers in late 19th-century Philadelphia were arrested not by cops but by citizens. "There were relatively few patrolmen, no radios, no phones: It wasn't easy to call a cop," he said.

Near the end of the late 19th century, as cities became larger and more anonymous, people became hesitant to intervene in the affairs of unfamiliar neighbors. As a result, citizens began to depend more on police forces. Over the course of the 20th century, the powers of the police expanded and cops gained legal protection against liability, which ordinary citizens didn't have. As police forces became more institutionalized, they claimed an exclusive capacity to deal with crime.

These days, the police view citizens who confront criminals not as fellow enforcers of the law but as meddlers—and as potential victims. One justification they give for discouraging citizen crime fighters is the danger (apparently ignored when 19th-century Philadelphians were intrepidly nabbing murderers) that untrained citizens could get hurt in the process. This was one of the concerns that the Phillipsburg police voiced about Wyant's actions. As Officer Carmody explained, "What if you go up to a person whose dog is defecating and that person is high on cocaine or heroin, and they beat you?"

Worst-case scenarios aside, police today are also wary of one-man crime fighting units like Wyant because they represent "amateur night," in the words of Michael Buerger, a professor of criminal justice at Bowling Green State University and a former police officer. It's not uncommon for people who make citizen's arrests—some of whom seem to have only reruns of Cops to draw upon for their knowledge of due process—to get in trouble for making false or otherwise improper arrests.

Last year, Frank Prince of Bloomer, Wis., flashed the lights of his car, pulled out a gun, and handcuffed Richard Jones, telling him he was under citizen's arrest. Jones's crime? Squealing the tires of his sports car and playing his music too loud. For his attempt to tame the young American male, Prince ended up being charged with disorderly conduct with use of a dangerous weapon.

Citizens making arrests don't just risk breaking the law; they risk offending propriety. Only a small percentage of cases seem to fit the popular idea of citizen's arrest, in which a sober, upstanding Clark Kent witnesses an illegal act and changes into a heroic enforcer. More often, it seems, the arresting citizens are either humorless do-gooders or overzealous wannabes. "When a citizen intervenes on low-level stuff, you want to ask, 'For god's sake, who are you?'," said Buerger.

Since just about anyone can make a citizen's arrest, many situations quickly devolve into free-for-alls. According to Jason Lee, a public information officer at the LAPD, the parties involved in a citizen's arrest frequently wind up trying to arrest each other.

In November 2002, an angry motorist in Sacramento tried to make a citizen's arrest of Jason Meggs, who was demonstrating to promote the rights of cyclists, as a member of an organization called Critical Mass. Meggs and his cohorts, in turn, retaliated by trying to arrest the motorist. Meggs, who has tried and failed to make three citizen's arrests during similar protests, said they often turn into a he-said, she-said. "The police want things like that to go away," he noted.

AS MUCH AS COPS CONSIDER the citizen's arrest a nuisance, though, they concede there are situations when they hope that citizens will step in. In the mid-1980s, the police began to encourage citizens to monitor their neighborhoods through community policing programs. In some violent urban areas, citizens took a more active role in crime fighting, participating in neighborhood patrols and even picketing drug houses and confronting dealers.

But the events that seem to have most changed the public's perception of its role were the attacks of September 11. In May 2003, Don Belew was working at Steve's Auto Sales in Norfolk, Va., when he witnessed a drunk driver slam into another car, killing a teenage boy. When the driver fled the scene, Belew and another man chased him down and made a citizen's arrest. Belew claimed to have been inspired by the example of Todd Beamer, one of the passengers who rushed the cockpit of hijacked United Airlines Flight 93, which crashed in Pennsylvania.

Attorney General John Ashcroft made vigilance a policy when he urged citizens to report suspicious activity through "a National Neighborhood Watch Program," spurring the formation of dozens of new local watch groups. The Department of Homeland Security has made repeated pleas to citizens to help fight terrorism, pushing the pendulum back toward the era of citizen involvement. Secretary Tom Ridge created a Citizen Corps Program, which will convene local councils to inform citizens about their role in homeland security and crime prevention. "It is essential to communities across the country to involve all citizens at the state and local level in our national preparedness and prevention efforts," he said.

BUT BRINGING CITIZENS BACK into the crime fighting equation poses new risks in 21st-century America. In its spoof of Ridge's department, the parody website whitehouse.org warns "aspiring citizen informants" to contact the FBI if they notice "brown-skinned persons conversing in heated gibberish."

The joke highlights the concern that civil rights lawyers and activists have about the re-emergence of the citizen crime fighter in our post-9/11 age. America is a lot more diverse than it was when English common law dictated that citizens police the streets. Ethnic and racial tensions heighten the dangers of vigilantism. "In a polyglot society like ours, citizen's arrest could be a real nightmare if citizens go around imposing their own standards," said Roger Lane.

Worry over racial bias extends to private police forces, which lack formal arrest powers and often rely on the citizen's arrest. Citizens and corporations continue to be disenchanted with the services provided by public police departments. The result, according to David Sklansky, a professor of criminal law at the UCLA School of Law, is that over the last three decades, the number of private police forces has increased significantly. By 1999 there were roughly three private guards for every two sworn-in officers in the country. Private police are now patrolling everything from the grounds of corporations like Microsoft to theme parks to gated communities. Even the New York Stock Exchange employs private security police who man blockades protecting the exchange and inspect vehicles in its vicinity.

Private police forces, though, lack the regulatory oversight that has helped expose problems like racial profiling among traditional police forces. Their ascendance represents a return to the way of doing business in the 19th century, when catching criminals was a private affair entrusted to citizens, or to forces hired by the wealthy. "The rise of private security is a throwback to the old days of constables and night watches," Sklansky explained.

Yet there are plenty of communities where policing is still public work and where individual citizens consider it their duty to intervene when someone breaks the law. No one wants a nation of tattletales, but even the Phillipsburg police admit that there are situations when citizen law enforcers help protect the community. A week after Officer Carmody explained his feelings about Mayor Wyant's capers, he announced that another citizen's arrest, this time not involving Wyant, had occurred in the town. After a motorist ignored the red stop signal on a school bus, another motorist followed the offender into a doctor's office parking lot and blocked her car in until the police arrived. Carmody would have felt differently if the incident had ended in a high-speed chase or a violent confrontation, but he acknowledged that, all things considered, the crime-fighting motorist had acted properly. No one was injured, and the careless driver learned that someone who cares was watching.

Katherine Marsh last wrote for Legal Affairs about the judicial nomination of Miguel Estrada.

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