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 Abstract

Excerpted From: Roger M. Stevens, A Legacy of Slavery: The Citizen's Arrest Laws of Georgia and South Carolina, 72 South Carolina Law Review 1005 (Summer, 2021) (218 Footnotes) (Full Document)

The killings of Ahmaud Arbery, Kenneth Herring, and Derrick Grant during citizen's arrests in Georgia and South Carolina illustrate the clear and present danger of citizen's arrest laws. All three of these men were shot and killed by private persons acting under color of state law: the statutory right of private persons to make citizen's arrests.

On February 23, 2020, Ahmaud Arbery was shot and killed while jogging in a Georgia neighborhood after an altercation with two men, Travis McMichael and Greg McMichael. The incident was captured on video by a third individual, William Bryan. The initial district attorney on the case, George Barnhill, believed Bryan and the McMichaels “were following, in 'hot pursuit,’ a burglary suspect[, Arbery], with solid first hand probable cause, in their neighborhood, and asking/telling him to stop.” Barnhill also believed the arrest was “perfectly legal” because “their intent was to stop and hold this criminal suspect until law enforcement arrived.” Barnhill refused to prosecute Arbery's killers, concluding “there [was] insufficient probable cause ....” After a public outcry, the Georgia Bureau of Investigation assumed control over the investigation, and Bryan and the McMichaels were indicted on multiple charges, including felony murder.

The killing of Ahmaud Arbery and the societal outrage that followed pushed the Georgia and South Carolina legislatures to closely examine their citizen's arrest statutes. Citizen's arrest--the ability of private persons to arrest each other under certain conditions--has a long and well-documented history as a component of English common law, but state citizen's arrest laws are not nearly as old. Georgia codified citizen's arrest in 1863, and South Carolina followed in late 1865 by including citizen's arrest as part of its Black Code--a series of laws meant to allow whites to control newly freed slaves.

Why look at Georgia and South Carolina together when examining citizen's arrest statutes? The answer revolves around the dark history of slavery in America. By the early 1700s, American colonists in South Carolina were looking for a cash crop that “would grow well in the moist, semitropical country bordering their coastline[,]” and they settled on rice. South Carolina planters had limited to no experience with the cultivation of rice but found this expertise among African slaves. Plantation owners procured slaves from all over Africa, “but they greatly preferred slaves from what they called the ' Rice Coast’ or 'Windward Coast'--the traditional rice-growing region of West Africa ....”

Rice cultivation is extremely tough, labor-intensive work, and without slavery, the crop probably would not have taken hold in South Carolina. Over time, South Carolina planters grew wealthy and began to look for expansion opportunities, eventually settling on the Georgia Lowcountry. There was a problem with this plan, though: in the early 1700s, Georgia prohibited slavery.

Despite this prohibition, South Carolina planters decided to “recreate the slave-based plantation economy of South Carolina in the Georgia Lowcountry [,]” move to Georgia, and push the Georgia legislature to allow slavery. In the mid-1700s, the Georgia legislature acquiesced, passing a new slave code “that was virtually identical to South Carolina's.” South Carolina planters not only paved the way for slavery in Georgia but also introduced and encouraged its use. It is this dark history that forever links Georgia and South Carolina and directly led to the passage of citizen's arrest laws during the Civil War era.

Citizen's arrest laws were a key component of Georgia's and South Carolina's efforts to control their black populations--both enslaved and free--in the 1860s, and their current status as enforceable law is a continual reminder of slavery's legacy. The citizen's arrest laws of these states are not what they ostensibly appear to be, and existing statutory language fails to provide their original intent. Exploring historical context and the intended meaning of statutory language is essential to understanding why Georgia and South Carolina initially codified citizen's arrest laws.

This Note explores the origin and use of citizen's arrest laws in Georgia and South Carolina. Part II discusses the current citizen's arrest laws in these states and includes a review of relevant case law. Because Georgia and South Carolina relied on slave labor as their primary economic engine in the 1860s, Part III explores the methods developed by each state to control their slave populations. Part IV examines the codification of each state's citizen's arrest laws with a particular focus on the South Carolina Black Code. Finally, Part V explores the legacy of slavery and describes how continued use of citizen's arrest laws are an ever-present reminder of their origin.

[. . .]

Citizen's arrest laws were a key component of Georgia and South Carolina efforts to control the black population, both enslaved and free, in the 1860s. Their status as enforceable law today is a continual reminder of slavery's legacy. Rooted in slavery laws that were first passed in South Carolina in 1691 and in Georgia in 1755, the modern citizen's arrest laws of both states are irretrievably linked to a legacy of slavery.

The original intent and meaning behind statutory language matters. The evolution of that language and, in this case, the ways in which the citizen's arrest laws evolved from the Civil War era to the present day demonstrate that seemingly simple words matter. Examples include the meaning of the word “person” and the application and subsequent removal of race as a statutory element. These words were written by the preeminent lawyers and legislators of their day who knew exactly what they were doing.

The slavery laws in Georgia and South Carolina were specifically designed to allow whites to control their slave populations through law enforcement power. This power was exercised not only by statutorily designated law enforcement officers but also by private persons acting in a quasi-law enforcement capacity. Quasi-law enforcement units, primarily slave patrols manned by whites, grew to become critical factors in maintaining white control over the black population.

The Civil War forced an end to slavery and, with it, the existing official and quasi-official methods of maintaining white control. The statutory codification of citizen's arrest laws during the Civil War era were intended to fill the void left by emancipation, and their purpose was clear: to continue white control over the black population. When first introduced, the clear racial components of Georgia and South Carolina citizen's arrest laws left no doubt of this intent. After substantial pressure from the U.S. Army and Congress, South Carolina eliminated the racial component of its citizen's arrest laws. But the replacement of words alone could never remove their original purpose.

Today, Georgia and South Carolina citizen's arrest laws are problematic not just for their racist roots but because they allow private persons to decide “who has the authority to commit violence--and who that violence should be directed against.” When private persons have such power, they literally have “the power of the state” to mete out violence against other private persons. In her powerful dissent in State v. McAteer, South Carolina Court of Appeals Judge Carol Connor emphasized: “[A]llowing untrained citizens to confront and arrest each other for violations of the ... law[] invites anarchy and potential tragedy.” The unvarnished truth is that the violent killings of Ahmaud Arbery, Kenneth Herring, and Derrick Grant show the danger of allowing an armed, largely untrained civilian population to arrest other private persons.

This is not to say that law enforcement officers are infallible: they make mistakes, sometimes egregious, and have the capacity to commit crimes just like any other member of society. However, law enforcement officers are specifically trained in making arrests, using force, and employing a multitude of other specialized skills. Despite this stark difference, Georgia and South Carolina citizen's arrest laws currently give private persons and trained law enforcement officers the exact same ability to make warrantless arrests. Because private persons are--for the most part--untrained, arrests should be “left to experienced law enforcement officers.”

Regardless, the statutory right of private persons to arrest other private persons is about more than a lack of training: it is about a legacy of slavery. There is no place in our society for citizen's arrest laws as they exist today. Georgia and South Carolina citizen's arrest laws have “all the benefits of the British liberal tradition along with the violent privileges of American slavery” and must be revisited. Without a deep understanding of historical context and legislative intent, the insidious, dark history of these laws remains hidden beneath the surface.

J.D. Candidate, May 2022, University of South Carolina School of Law.

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