SC law allows you to make a citizen’s arrest under certain circumstances, and SC’s citizen’s arrest laws also authorize you to kill a person under certain circumstances after dark.
We see a lot of commentary where people complain about SC’s Stand Your Ground law (the Protection of Persons and Property Act), and most of that criticism is baseless. SC’s stand your ground law is, for the most part, well-drafted and provides an important safe harbor for SC citizens who are put in situations where they must defend themselves.
SC’s citizen’s arrest laws, however, might be in desperate need of revision to bring them into the 21st century…
Let’s look at the basics of citizen’s arrest in SC, and you decide.
Citizen’s Arrest in SC: When You Can Take Someone into Custody
There are two parts to SC’s citizen’s arrest laws: 1) when you can “arrest a felon or thief” and “take him to a judge or magistrate,” and 2) when you can kill a person who has committed a crime or who you suspect is about to commit a crime.
SC Code § 17-13-10 says that:
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.
When You Can Make a Citizen’s Arrest
This provides for three situations where you can make a citizen’s arrest in the daytime:
- When you witness a felony being committed – of course, most people do not know which criminal offenses are felonies and which are misdemeanors, which provides quite a bit of ambiguity and risk (if you are wrong, you could be charged with assault, kidnapping, or other crimes and you can be sued civilly),
- When you witness a larceny being committed – larceny may be easier to identify (someone is stealing something), although, if you get it wrong, you won’t be protected from liability under SC law, and
- When you have “certain information that a felony has been committed.” But what does “certain information” mean? Presumably, if someone tells you that your suspect committed a felony, and if it sounds reasonable, you can then arrest that person under SC’s citizen’s arrest laws.
There is no requirement that you have probable cause that a person committed a felony or a larceny.
Presumably, however, if you witness what reasonably appears to be a felony or larceny, or if you have “certain information” that a felony has been committed, you are protected from criminal or civil liability (although the statute does not grant you immunity from civil or criminal liability, even if the arrest was objectively reasonable).
We can also presume that, even if your citizen’s arrest seemed reasonable, you will be subject to civil or criminal liability if you get it wrong. For example, at a moment’s notice, will you know if a simple assault and battery is a felony or a misdemeanor? Will you know what makes an assault change from a misdemeanor to a felony?
How You Make a Citizen’s Arrest in SC
How do you make the arrest?
The statute says you should take your suspect “to a judge or magistrate, to be dealt with according to law.” But how are you going to do that? Tie them up? Hold them at gunpoint as you drive them to the magistrate’s office?
The law needs to be more specific about the procedure for citizen arrests. I can tell you that, if you walk into an Horry County magistrate’s office with a “prisoner” at gunpoint, you are probably not going to get the welcome, grateful reaction you were hoping for…
Wouldn’t it make more sense to require a citizen to restrain the suspect in place while they contact law enforcement, and then turn the suspect over to a police officer?
Citizen’s Arrest in SC: When You Can Legally Kill Someone
After nightfall, the rules change…
SC Code § 17-13-20 says:
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.
When You Can Arrest Someone After Dark
Under this second part of SC’s citizen’s arrest laws, you can arrest someone after dark when they:
- Have committed a felony (presumably, you need to have “certain information” that they committed a felony before arresting your suspect, but the statute is not clear as to the level of proof required),
- Have entered a dwelling house without permission – it doesn’t necessarily have to be your dwelling house,
- Have broken into an outhouse (a storage building) “with a view to plunder” – again, it doesn’t have to be your storage shed, and the statute is not clear whether the suspect needed to actually have a “view to plunder,” if it needs to be objectively reasonable for you to conclude that they have a “view to plunder,” or how you could possibly know whether the person had a “view to plunder” or another reasonable explanation,
- Have stolen property in their possession – the statute’s ambiguous language means this could be as they are running from a storage building, walking down the street, or sitting in their living room. It doesn’t specify whether the property must actually be stolen or if you can just have a reasonable belief that the property was stolen, or
- 1) look suspicious, as if they are about to steal or commit a felony, and 2) run when you approach them. This sounds a bit like Minority Report for citizens – regardless, if someone looks suspicious and they run away, you are authorized to make a citizen’s arrest.
How You Make a Citizen’s Arrest in the Nighttime
This may be the most troublesome part of our citizen’s arrest laws. How do you make a citizen’s arrest after dark?
…by efficient means as the darkness and the probability of escape render necessary, even if the life of the person should be taken.
This means that, if you see someone who looks suspicious, after dark, and they run away from you, SC law authorizes you to kill them.
What is the most efficient means to arrest a potentially dangerous person in a dark and isolated location? Are they likely to escape if you don’t shoot them?
Assuming you don’t kill your suspect, you are authorized to take them “to a judge or magistrate, to be dealt with according to law.” But, if you didn’t know, there are no magistrate courts open in the middle of the night in Horry County…
Maybe SC’s Citizen’s Arrest Laws Need an Update?
What if our citizen’s arrest laws were more specific about the crimes for which you can arrest a person and the level of proof required?
Should probable cause, at a minimum, be required? Should we require that, at a minimum, a crime has been committed and we are not authorizing people to arrest and even kill others in situations where even law enforcement would not be permitted to make an arrest – based on suspicion alone?
Should we expect ordinary citizens to know when a crime is considered a misdemeanor, when a crime is considered a felony, and the precise definition of larceny in SC?
Maybe it’s time SC updated our citizen’s arrest laws to:
- Provide concrete guidance to citizens who find themselves in a situation where they need to make an arrest,
- Provide rational guidance to citizens so they know when it is reasonable to make a citizen’s arrest and when they should just call the police,
- Provide a reasonable procedure for citizens to follow when making an arrest – for example, detaining and turning a suspect over to law enforcement immediately, instead of attempting to transport a suspect to a magistrate’s office, and
- Providing reasonable guidelines for how to make an arrest, including when the use of deadly force is and is not appropriate?
Criminal Defense Lawyers in Myrtle Beach, SC
If you have been charged with a crime or are under investigation for following SC’s citizen’s arrest laws, the SC criminal defense lawyers at Coastal Law will investigate your case and raise all possible defenses as we work on getting your case dismissed and prepare it for trial, including compliance with the citizen’s arrest laws, self-defense, defense of others, and immunity under the SC Protection of Persons and Property Act.
If you’ve been charged with a crime in SC, call now at (843) 488-5000 or send us an inquiry through our website to talk with a Myrtle Beach criminal defense lawyer today.