The Law and You: Citizen's arrest and self-defense - Plattsburgh Press Republican
Penny Clute
The Georgia trial of three men convicted of murdering Ahmaud Arbery centered on that state’s “citizen’s arrest” law, as well as self-defense. Wisconsin’s law of self-defense also was the focus there, when Kyle Rittenhouse was acquitted of all criminal charges related to his killing of two men and wounding another.
How do New York’s laws compare? There are a lot of complicated rules, which is probably why I had never even heard of a citizen’s arrest case in the 38 years I was a lawyer, prosecutor and judge.
New York, through Criminal Procedure Law 140.30 and Penal Law 35.30, permits any person to detain (arrest) another for an offense committed in your presence, and for a felony that the suspect actually committed, even though out of your presence. So, for a civilian to interfere with another person’s liberty and make an arrest, doing so is permitted only if the person is correct about the crime being committed.
The law requires you to tell the person the reason for the arrest, unless that is impracticable because of physical resistance or flight. Then you must take the arrested person to a police officer “without unnecessary delay.” But how do you do that when you are not law enforcement? How do you compel a person to stop and go with you?
The one making the “citizen’s arrest” can use physical force, but not deadly force, if they (1) “reasonably believe” that a crime was committed and (2) they are correct about that. In other words, the person detained must have in fact committed a crime, for a forceful “citizen’s arrest” to be lawful.
In New York, use of deadly force during a citizen’s arrest is limited to self-defense against deadly force or to making an arrest for the violent crimes of murder, manslaughter 1st degree, robbery (which is theft from a person by force), forcible rape or other forcible criminal sexual act, which the suspect actually committed and “is in immediate flight therefrom.”
A bill is pending in the New York State Assembly to further restrict the crimes subject to citizen’s arrest to a person who has actually committed a felony (not any lesser crime) and is fleeing from it. The bill passed in the state Senate earlier this year.
The present NY statute requires that the person arresting with physical force must have “reasonably believed” that the person they are detaining committed a crime and must be correct about that. This is a big difference compared to the now-repealed Georgia statute. In Georgia, you could be wrong; you could use force if you had “reasonable and probable grounds for suspicion” that the person committed a felony and was fleeing.
This “reasonable belief” standard is common in the criminal law in New York, as well as elsewhere. It is referred to as an “objective” standard, basically meaning that other people, not just the one accused, would also believe that the suspect committed the felony. So, there would need to be proof that the person who made the arrest (1) actually believed that the other person committed a crime plus (2) a “reasonable person” in their shoes, knowing what they knew at the time, would also believe it.
Self-defense in New York comes under the legal category of “justification.” Penal Law Article 35. Like in Wisconsin, this is a defense that the prosecution must disprove at trial. The general rule is that a person can use physical force in defense of themselves or another person, if they “reasonably believe it is necessary” to defend against the use of unlawful physical force from someone else.
Exceptions are if you provoked the incident with intent to cause injury, or if you were the initial aggressor and have not withdrawn. Under many circumstances, even deadly force is allowed if you reasonably believe the other person is using or about to use deadly force against you.
However, if you know that you can leave the situation with complete safety, you cannot legally stay and kill the other person. The only time you do not have to retreat in NY is if you are in your own dwelling and were not the initial aggressor.
Penny Clute was Clinton County district attorney from 1989 through 2001, then Plattsburgh City Court judge until her retirement in January 2012.
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source: https://www.pressrepublican.com/opinion/the-law-and-you-citizen-s-arrest-and-self-defense/article_88ebe6e0-53fa-11ec-a548-b3c4126aa670.html
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