CITIZEN’S ARREST©
( by Judge Navin-Chandra Naidu)
The concept began in medieval England codified in the Statutes of Winchester of 1285
where citizens had the inalienable right to prevent a crime or misdemeanor from happening.
This was the age before the advent of law enforcement by police office or peace officers.
Primarily, anything that caused a breach of the peace could result in a citizen’s arrest. The
arrested person was usually hauled up before local magistrate for further action.
Today, evidence of breach of the peace can be witnessed with irresponsible government
action perpetrated by state and federal officials and government employees, and by other
private criminals. Today more than any other time in history, the power of citizen’s arrest
has become relevant.
In the United States of America, citizen’s arrest is sanctified in District of Columbia Law 23582(b), and California Penal Code Section 837. Most States have codified the power of
citizen’s arrest except North Carolina (nobody seems to know why this is so).
Case law confirming the power of citizen’s arrest can be seen in Wilson v. State, 79 Tenn.
310 (1833); Commonwealth v. Harris, 11 Mass. App. 165 (1981) (the acquitted person has
the right to sue the person who arrested him fro false imprisonment); Gill v. Commonwealth,
235 Ky. 351 (1930)(prevention of a felony being committed allowed a citizen to make an
arrest); Utah Criminal Code Chapter 76.2.403 (prevents the use of deadly force).
There is also a 9th Amendment right to effectuate a citizen’s arrest to secure self-preservation
and in defense of others (unenumerated rights cannot be denied or disparaged to the People).
The power of citizen’s arrest is also found in law encyclopedia like 5 Am. Jur. 2d § 57
“Arrest,” 6A Corpus Juris Secundum (CJS) §13 “Arrest,” 6A CJS “Arrest” §12 (not subject
to 4th Amendment challenge).
M.C. Bassiouni, Citizen’s Arrest (1977) at p. 66 writes: As long as a citizen’s arrest is lawful
and is not induced or supported by any government official, a search subsequent to arrest is
deemed reasonable and evidence is admissible in court.
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Read The Law of Citizen’s Arrest (1965), Columbia Law review 65, 502-513.
In the 1960’s and 1970’s a powerful activist in the person of Reies Lopez Tijerina (19262015) arose in Arizona and New Mexico dedicated to the restoration of land grants awarded
by the Spanish government in the early 1530’s under papal edicts and bulls. He advocated
and succeeded in encouraging home-schooling which attracted thousands to follow his
model. The state and federal governments kept up the pressure to harass and otherwise
discourage his movement including the Alianza which had almost 20,000 members in 1965.
Native Americans and Mexican Americans supported him and his cause. In June 5, 1967, he
and his supporters raided the Rio Ariba County Courthouse in an effort to release arrested
Alianza supporters. He arrested a deputy prosecutor and a journalist, and fled to the hills.
Gunfire was exchanged causing considerable structural damage to the courthouse.
Tijerina faced court on charges of destroying public property, and kidnapping where he
defended himself by asserting the supremacy clause which guaranteed treaty rights. The
media dubbed him as clever and brilliant as Clarence Darrow in his fiery defense as selftaught lawyer. He vehemently asserted his right to a citizen’s arrest supported by
applicable law. The judge would not hear of it. Hardly surprising as judges, defense
attorneys and prosecutors are afraid to touch the law that restricts excessive government
powers including, particularly, 42 U.S.C. § 1983, and advocates citizens’ rights and powers.
I am forced to think that our Constitution was ordained and established to entrench
government as the only authority, force and power in our midst. The Preamble of the U.S.
Constitution, of course, says otherwise.
Some records indicate that Tijerina wanted to effectuate a citizen’s arrest upon Chief Justice
Warren Burger of the U.S. Supreme Court. Burger apparently exited the Court using the
back door. He probably knew that Tijerina had a constitutional right and protection to a
citizen’s arrest.
Tijerina’s case is cited as State v. Tijerina, 84 N.M. 432, 504 P. 2d 642.
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