Citizen’s Arrest – Who Is Heir to Professor Bassiouni Today? And Can You Take Action re Port Arthur?

by Mary W Maxwell

In 1977 Cherif Bassiouni, a law professor at DePaul University,  published Citizen’s Arrest. For decades it was the only book on that topic, as far as I know. I will outline his theme below. I have re-iterated it in several of my books. Long story short: it is legal in the US to perform a citizen’s arrest. Same for Australia, as it is based on the common law.

Sorry to say, Cherif Bassiouni  died last year at age 79. His website (which he says he got “dragged into” making, by law students) starts with a quote from the Holy Koran:

Indeed, We [Allah] honoured the progeny of Adam, and bore them across land and sea and provided them with good things for their sustenance.   — Surat 17:70.

Bassiouni did not stay in the field of citizen’s arrest. He specialized in human rights and international criminal law. I believe he influenced the Rome Treaty that led to the establishment of the International Criminal Court.

Very likely the professor has many disciples in that area, but has anyone persisted with the citizen’s arrest theme?

I have not found such a person and I suspect there are two reasons for this:

1. The original common law is so well-conceived that a scholar can’t do much to improve on it.
2. The subject of holding government officers accountable for their crimes (a subject dear to us here at GumsheNews.com) is considered unpleasant in academic circles, so there hasn’t been any expansion on that.

A trek through Google Scholar under the heading “citizen’s arrest” does yield many articles from law journals. But these tend to be on specific problems, for example: Can citizen’s arrest be used at the Mexican border to refuse illegal entry? Can a victim of domestic violence sign a “citizen’s arrest form” at the request of police, to overcome his restriction on making a warrantless arrest? (In California that is called “delegated citizen’s arrest” – the citizen delegates her powers to a cop.)

The Original Law As Stated By a NSW Judge in 17854

The following is a quick summary of the relevant part of the law of England, which we inherited via the common law. This is a quote from Chief Justice Burton of New South Wales, in his ruling for the Court in  R. v. Elliot. The judgement was given on 18 February, 1854 and reported in the Sydney Herald on 20 February, 1854 – with my bolding:

“The Law of England makes every man an officer to arrest a Traitor or Felon, and all persons of Competent Age, who are present where treason or felony is committed or a dangerous wound is given, are bound to apprehend the Offender on pain of being fined and imprisoned for their neglect; they are also bound to raise Hue and Cry, and pursue him; and every private person is bound to assist an officer demanding his help for the taking of a Felon suppressing an affray or apprehending the affrayers.

In such cases they are under the same protection of the Law as Officers of Justice; if they are resisted and killed, it is Murder in the party resisting and Slaying; if the Offender flees and cannot be otherwise apprehended, and is killed, it is in them Justifiable Homicide, but in all these cases it is essential that a Felony should have been committed, or that a Hue and Cry has been raised.

Private persons are also permitted by Law (but not enjoined) to arrest without Warrant, upon sufficient causes of suspicion of Treason or Felony, but in such cases if an innocent person has been arrested, and it be proved that no Treason or Felony has been committed, the party arresting or causing the arrest does so upon his own responsibility….”

Note: That case, R v Elliot, ended with a statement that you cannot arrest someone you suspect of being a transportee at large, as that is a misdemeanor, not a felony. But don’t worry about that as we don’t have any more transported convicts around. (But did you see my 2018 Adelaide Fringe show on MK-Ultra? Or Dee McLachlan’s movie “The Jammed” about trafficking in Melbourne?)

In any case, be aware that the crime you are making a citizen’s arrest for must be a felony (a crime with a prison sentence) not just a lowly misdemeanour.

Port Arthur

Yesterday (April 2, 2018) at GumshoeNews.com, the editor, Dee McLachlan made a startling remark. She said, in the Comments section:

“Start by citizen-arresting everyone that maybe complicit in the Port Arthur Psy-op. If the activist gets arrested and finds him/herself in court, then the PA evidence begins to surface. If 5 citizens arrest one person, and this is duplicated 20 times, this could be “embarrassing” for the government. Another embarrassment for [ex-prime minster] John Howard.”

Dee and I are co-authors of the book Port Arthur: Enough Is Enough.  Most Gumshoe readers are aware that the patsy who is in prison for committing the Port Arthur massacre in Tasmania in1996, Martin Bryant,  is definitely innocent. But somebody did commit the massacre.

In 1996, many residents of Tasmania were aware of the thinness of the evidence against Bryant and were alert to the anomalies in the case, but they could not get the police to look around for any other suspects.

You may pardon the authors of Port Arthur: Enough Is Enough for thinking that the reason police won’t get involved in naming suspects for the massacre is that they themselves are the most likely suspects.

Distinction from Self-Defense

If someone is hurting you, or hurting another person, you can take defensive action. Say he raises a baseball bat with clear intention to smash your head. You can do whatever is necessary to prevent that, including killing him.

My article today is not about  self-defense. I want to just state how clear the law is on self-defense, as it does come into one aspect of citizen’s arrest.  It is a completely natural law – one can’t very well tell a person to refrain from protecting his own life.

The High Court of Australia ruled in 1987 in the case of Zecevic v DPP:

“The question to be asked in the end is simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal.”

However, that’s not the law that particularly applies to the matter of citizen’s arrest.

What Is an Arrest?

The verb to arrest mean simply to stop. “The antibiotics arrested the spread of the rash.” In regard to police-type arrest, the thesaurus offers such synonyms as:

To collar, capture, bag, nail, nick, grab, retain, hook, bust, or pickle.  The thesaurus also provides “to sequester” as a synonym.

I think an amateur doing a citizen’s arrest should envision both a stoppage and a sequestering.

By stoppage I mean that you have to try to stop him from doing what he is about to do. But, if he has already completed the crime, the stopping is merely the type of stopping that happens when a cop comes up to you to question you, or asks a driver to pull over. If he is running away or driving away you have not succeeded in arresting him.

As for the sequestering, this is your problem to deal with until the authorities arrive. You have to keep him in your custody.

Let us remember that this whole thing has to do with conforming to the law of the land. The criminal has broken the law. He needs to be brought to book. The typical way is for our paid policepersons to observe activity in the community and actually capture someone in flagrante delicto, or else act on information received.

The cop has all that is needed by way of weaponry to subdue a person. Anyway, in most instances all it takes is for him to flash the badge — the person will cooperate.

According to Cherf Bassiouni’s 1977 book, the 50 states have varying details about the carrying out of a citizen’s arrest so he has called for a uniform law. (The US does not have uniform law for all states of course; he means a model law that they could adopt.)

In his proposed model law, Bassiouni asks that the arrestor be required to tell the arrestee her proposed action and state the reasons. Example:

“Mr Smith I am arresting you, as a citizen’s arrest, for shooting a customer at the Broad Arrow Café in Port Arthur on April 28, 1996.”

Bassiouni also says it should be the responsibility of the citizen arrestor to “do the Miranda’s”: “Mr Smith, You do not have to say anything but anything you do say may be used in court against you.” Per Bassiouni:

“The arrestor may in effectuating the arrest use any reasonable amount of force necessary and warranted under the circumstance other than deadly force and force causing great bodily harm, but without prejudice to ‘self-defence.’.”

As you may have guessed, that last part means “This wording does not ‘prejudice’ – does not rule out or infringe – the usual law of self-defense.”  Thus, even if you are arresting someone for a cold crime, rather than one the miscreant is presently engaging in, and he resists arrest to such an extent that he is about to harm you greatly, your “Zecevic rights” kick in.

To be cautious, Bassiouni also wanted the model law to say:

“The arrestee shall not resist the arrest unless he knows it to be unlawful. This shall not, however, prejudice the arrestee’s right to ‘self-defence’ in preventing any unauthorized harm from occurring to him or her.” [and]

“An arrestor must upon performing the arrest notify a peace officer and deliver the arrestee … without delay.”

I recommend that you have the sequestering factor well-organized in advance. What are you going to do if the police refer to deal? I recommend you put the captive in a place that is not uncomfortable or humiliating. I realize the very thought of this is peculiar and off-putting. We are pioneering here.

Who is Immune from Capture?

In Australia the only person immune form arrest is the monarch. Since the queen only rarely visits Australia the matter should never arise, but let’s be clear: Her Majesty is legally, legitimately protected from arrest.

In the United States, the Constitution specifically says that Congresspersons may not be arrested on their way to or from a session of the legislature. The purpose of that was to prevent their political enemies from keeping them away from Congress on an important vote. (Did I ever tell you, the Constitution is top job when it comes to finding antidotes for moral hazard?)

When it comes to keeping your mitts off of prominent persons I can only say why pick the most controversial for arrest when there are so many eligible? Use a modicum of diplomacy or this whole thing will scare the public out of their wits.

By the way, in his proposed law, Bassiouni recommends as follows:

“The following categories are immune from citizen’s arrest: a. law enforcement agents (local, state, federal) b. members of the judiciary c. members of the legislature.”

Please note: he was trying to make his new law acceptable to a broad public. His words did not become law.

Massachusetts Law in Effect Today

Besides the common law of citizen’s arrest, many states have enacted statutes in this area. The following was very likely written for the benefit of store owners who hire security personnel to prevent shop-lifting. When such security guards – uniformed or plain-clothed – arrest you, they are making a citizen’s arrest.

In Massachusetts law, Chapter 231, Section 94B. we see that the emphasis is on providing the arrestor with a defense of he is accused of having done wrong to the arrestee.

I retrieved this from the website MAlegislature.gov under the heading“False arrest; shoplifting; defrauding innkeepers; defenses”:

“In an action for false arrest or false imprisonment brought by any person by reason of having been detained for questioning on or in the immediate vicinity of the premises of a merchant or an innkeeper, if such person was detained in a reasonable manner and for not more than a reasonable length of time …

and if there were reasonable grounds to believe that the person so detained was committing or attempting to commit a violation of section thirty [etc] or attempting to commit larceny of goods for sale on such premises [etc] it shall be a defense to such action.” [Emphasis added]

That is (I interpret): if you meet the requirements, such as a reasonable manner of holding him, and he sues you, a Massachusetts judge will not award damages to him.

Over to you, Tasmania.

— Mary W Maxwell invites everyone to download our Port Arthur book. Search this website for ‘books’ and it will jump out at you.