2021 Georgia Code
Title 17 - Criminal Procedure
Chapter 4 - Arrest of Persons
Article 5 - Detention by Private Individuals

- False imprisonment, §§ 16-5-41,16-5-42.

Right of action for false arrest and false imprisonment generally, § 51-7-1 et seq.

- Ga. L. 2021, p. 625, § 8/HB479, not codified by the General Assembly, provides, in part, that: "This Act shall not apply to rights and duties that matured, penalties that were incurred, or proceedings that were begun before the effective date of this Act." This Act became effective May 10, 2021.

ANALYSIS

• General Consideration
• Offense Committed in Presence or Within Knowledge

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, annotations decided under former Code 1882, § 4724, former Penal Code 1895, § 910, former Penal Code 1910, § 921, former Code 1933, § 27-211 and former O.C.G.A. § 17-4-60 are included in the annotations for this article.

- Private person has the right to arrest under certain circumstances in order to prevent a felony from being committed, which felony has not yet been attempted. Johnson v. Jackson, 140 Ga. App. 252, 230 S.E.2d 756 (1976) (decided under former Code 1933 § 27-211).

- When a felony has been committed, a private person acting upon a reasonable and probable ground of suspicion may apprehend a suspect without a warrant, but it is only for the purpose of taking the offender before a magistrate. The suspect may be taken and detained until the suspect can be committed to the custody of the law. Croker v. State, 114 Ga. App. 492, 151 S.E.2d 846 (1966) (decided under former Code 1933 § 27-211).

To avoid liability for false imprisonment, it must be shown not only that the arrest was valid but also that the arresting officer had probable cause to believe the charged offense had been committed. Amason v. Kroger Co., 204 Ga. App. 695, 420 S.E.2d 314 (1992) (decided under former O.C.G.A. § 17-4-60).

In a false imprisonment case, the existence of probable cause standing alone was not a complete defense because, even if probable cause to believe a crime has been committed existed, a warrantless arrest would still be illegal unless the arrest was accomplished pursuant to one of the "exigent circumstances" applicable to law enforcement officers enumerated in O.C.G.A. § 17-4-20 or applicable to private persons as set forth in former O.C.G.A. § 17-4-60. Arbee v. Collins, 219 Ga. App. 63, 463 S.E.2d 922 (1995) (decided under former O.C.G.A. § 17-4-60).

- Trial evidence showed that the defendant confined the victim in the bedroom without lawful authority. In light of the defendant's testimony that the victim had not been confined at all, trial counsel was not ineffective in failing to pursue jury instructions based on an inconsistent theory that the defendant had in fact confined the victim, but was legally authorized to do so. Smith v. State, 314 Ga. App. 583, 724 S.E.2d 885 (2012) (decided under former O.C.G.A. § 17-4-60).

- Private citizen who forcibly detained a man on the grounds that he had indecently exposed himself to the victim four days previously, when the arrest did not occur until four days after the alleged offense, was guilty of falsely imprisoning the plaintiff. McWilliams v. Interstate Bakeries, Inc., 439 F.2d 16 (5th Cir. 1971) (decided under former Code 1933, § 27-211)).

- Although a private person may make a citizen's arrest under former O.C.G.A. § 17-4-60, only force that was reasonable under the circumstances may be used to restrain the individual arrested; an alleged assault of an individual with a baseball bat entailed unreasonable force and could not have been part of a legitimate citizen's arrest. Carter v. State, 269 Ga. 891, 506 S.E.2d 124 (1998) (decided under former O.C.G.A. § 17-4-60).

In defendant's trial on a charge of felony murder, defense counsel was not ineffective for failing to request an instruction on citizen's arrest under former O.C.G.A. § 17-4-60 as the defendant used more force than was reasonable in making such an arrest when the defendant shot an intruder through the wall of a storage building. Patel v. State, 279 Ga. 750, 620 S.E.2d 343 (2005) (decided under former O.C.G.A. § 17-4-60).

- Whoever arrests a person without a warrant is guilty of a tort, unless the person can justify under one of the exceptions prescribed by law; and the burden of proof that the case lies within the exception rests upon the person making the arrest. Piedmont Hotel Co. v. Henderson, 9 Ga. App. 672, 72 S.E. 51 (1911) (decided under former O.C.G.A. § 17-4-60).

- Private citizen, who in arresting a person, kills an innocent bystander, is guilty of a tort, unless the arresting party can justify actions under one of the exceptions prescribed by law; and the burden of proof that the case lies within the exception rests upon the person making the arrest. Piedmont Hotel Co. v. Henderson, 9 Ga. App. 672, 72 S.E. 51 (1911) (decided under former Penal Code 1910, § 921).

- Mere possession of a warrant does not authorize a private person to arrest the person named therein. Coleman v. State, 121 Ga. 594, 49 S.E. 716 (1905) (decided under former Code 1882, § 4724).

- What are reasonable and probable grounds for suspicion is for the determination of the jury as is whether the circumstantial evidence was sufficient to establish the commission of a burglary. Johnson v. Jackson, 140 Ga. App. 252, 230 S.E.2d 756 (1976) (decided under former Code 1933, § 27-211).

- There was no evidence that the defendant, who murdered the victim with a rifle, was attempting to effect a valid citizen's arrest and, hence, the defendant was not entitled to an involuntary manslaughter charge. It was not reasonable for the defendant to attempt an arrest with a semi-automatic weapon which the defendant was not licensed to carry as deadly force in effecting an arrest is limited to self-defense or to a situation in which it is necessary to prevent a forcible felony. Hayes v. State, 261 Ga. 439, 405 S.E.2d 660 (1991) (decided under former O.C.G.A. § 17-4-60).

Offense Committed in Presence or Within Knowledge

Admission of offense by defendant.

- Offense is within the presence of the arresting party when, although the arresting party cannot be cognizant of the offense by means of the arresting party's senses, the defendant actually admits that the offense is in fact being so committed. Moore v. State, 128 Ga. App. 20, 195 S.E.2d 275 (1973) (decided under former Code 1933, § 27-211).

Admission of an offense by an accused to the arresting party is tantamount to the commission of the offense in the presence of the party making the arrest. Young v. State, 238 Ga. 548, 233 S.E.2d 750 (1977) (decided under former Code 1933, § 27-211).

- Whether an arrest by a private citizen is lawful depends on whether the offense was committed in the person's presence or within the person's immediate knowledge. Walker v. State, 144 Ga. App. 838, 242 S.E.2d 753 (1978) (decided under former Code 1933, § 27-211).

- Like other police officers or private persons, a sheriff has the power to arrest an offender without a warrant if the offense is committed in the sheriff's presence. Elder v. Camp, 193 Ga. 320, 18 S.E.2d 622 (1942) (decided under former Penal Code 1910, § 921).

- Private detective may arrest offenders who commit crimes in the detective's presence. DuPre v. State, 153 Ga. 798, 113 S.E. 428 (1922) (decided under former Penal Code 1910, § 921).

- A night watchman of a railroad may arrest offenders who commit crimes in the watchman's presence. Hickman v. State, 142 Ga. 630, 83 S.E. 508 (1914) (decided under former Penal Code 1910, § 921).

- Officer of a railroad with probable cause may arrest a person to prevent the person from stealing a ride and use reasonable means to prevent the person's escape. Summers v. Southern Ry., 118 Ga. 174, 45 S.E. 27 (1903) (decided under former Penal Code 1895, § 910).

- When the defendant's shoplifting offense was committed in the presence of the food manager, and within the immediate knowledge of the store manager, both were authorized by law to arrest the defendant, and the trial court did not err in refusing to give requested jury instructions regarding the unlawful arrest by a private person and defendant's alleged right to use force to resist the attempted arrest. Merneigh v. State, 242 Ga. App. 735, 531 S.E.2d 152 (2000) (decided under former O.C.G.A. § 17-4-60).

- When the arrest was made without a warrant, and the only basis for the arrest without a warrant was that the crime was being committed in the presence of the person making the arrest, whether the defendant acted as an officer or as a private citizen was immaterial, since the person's authority as either was the same; therefore, the charge injecting this issue in the case could not have been confusing to the jury or harmful to the defendant. Atlantic C.L.R.R. v. Wegner, 90 Ga. App. 267, 83 S.E.2d 58 (1954) (decided under former Code 1933, § 27-211).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions decided under former Code 1933, § 27-211 are included in the opinions for this article.

- While it is true that a private citizen may effect an arrest under this section, only a peace officer has the authority to make an arrest by serving a warrant. 1973 Op. Att'y Gen. No. 73-93 (decided under former Code 1933, § 27-211).

- Drug inspectors do not have official authority to make arrests nor to carry weapons in the performance of the inspectors' duties; inspectors would not be considered arresting officers. 1962 Op. Att'y Gen. p. 413 (decided under former Code 1933, § 27-211).

- Municipal police officer may make an arrest upon property under the jurisdiction of the Board of Regents in the officer's private capacity as an individual citizen. 1970 Op. Att'y Gen. No. 70-69 (decided under former Code 1933, § 27-211).

District attorney possesses no greater powers than those possessed by ordinary citizen in making an arrest. 1980 Op. Att'y Gen. No. U80-33 (decided under former Code 1933, § 27-211).

RESEARCH REFERENCES

ALR.

- Constitutionality of statute or ordinance authorizing an arrest without a warrant, 1 A.L.R. 585.

Degree of force that may be employed in arresting one charged with a misdemeanor, 42 A.L.R. 1200.

Right to arrest without a warrant for unlawful possession or transportation of intoxicating liquor, 44 A.L.R. 132.

Information, belief, or suspicion as to commission of felony, as justification for arrest by private person without warrant, 133 A.L.R. 608.

Liability, for false imprisonment or arrest, of a private person answering call of known or asserted peace or police officer to assist in making arrest which turns out to be unlawful, 29 A.L.R.2d 825.

Liability, for false arrest or imprisonment, of private person detaining child, 20 A.L.R.3d 1441.

Private person's authority, in making arrest for felony, to shoot or kill alleged felon, 32 A.L.R.3d 1078.

Escape from custody of private person as criminal offense, 69 A.L.R.3d 664.

Power of private citizen to institute criminal proceedings without authorization or approval by prosecuting attorney, 90 A.L.R.6th 385.