COLUMBIA — In 1866, South Carolina lawmakers gave residents authority to detain and even kill nighttime intruders who were merely suspected of committing a felony.
There it has sat, virtually untouched, since its inception, buried in the state’s code of laws and with no record of it ever being used as a legal defense for murder. So why, 154 years after its adoption, is a growing chorus of lawmakers saying the time has come to amend or eliminate altogether S.C.'s citizen’s arrest law?
“Now people are thinking about it, and you bet your bottom dollar that there are people in South Carolina who are looking at that who maybe didn’t have an understanding of citizen’s arrest statute before that understand it now,” state Rep. Justin Bamberg, D-Bamberg, who on May 14 introduced legislation to repeal the measure.
Last amended in 1962, the law gives cover to people who confront a suspect in darkness who they presume to have committed a felony, “even if the life of a person should be taken.”
In the aftermath of 25-year-old Ahmaud Arbery’s February roadside slaying in his hometown of Brunswick, Ga., state policymakers say removing the language, or at least tightening it up, will help eliminate the possibility of such an event ever happening here.
Arbery was killed Feb. 23 after a confrontation with two white men. Police arrested 64-year-old Gregory McMichael and his son, Trevor, 34, on May 7 — 74 days after the incident and only after leaked video was aired by a local TV station. The McMichaels could face federal hate crime charges, a U.S. Department of Justice spokesman said, though the agency is still evaluating the case.
South Carolina’s citizen’s arrest code is broader than Georgia’s, which doesn’t authorize deadly force.
Bamberg quickly found support for his proposal, with Charleston Democratic state Rep. Marvin Pendarvis signing on as a co-sponsor.
“I’m tired of vigilante justice, it’s simple as that. Police are trained, and even they don’t do a good job,” Pendarvis said. “Now we’re trying to empower regular citizens to take action into their own hands who may have an entirely different agenda? That’s only going to lead to anarchy and chaos.”
According to the National Conference of State Legislatures, South Carolina is one among 22 states that allow for immunity under certain self-defense circumstances. Unlike “stand your ground” laws, which the state also has, a citizen’s arrest can take place on public property and with only a suspicion of wrongdoing.
As wider efforts to enact hate crimes legislation in South Carolina stall, Bamberg and others say striking the citizen’s arrest law from the statutes could be a compromise. South Carolina is one of four states without a hate crimes statute on the books.
Bamberg, who has a B+ rating from the National Rifle Association and calls himself “pro-Second Amendment,” said he’s not in favor of lifting self-defense protections completely, but believes the citizen’s arrest provision is too easy to exploit.
“I am one of the biggest advocates for the ability to protect your own life, to protect the lives of those you love and to protect innocent people in society,” he said. “But what I am not for is people taking the law that’s used to preserve life as a sword to take life.”
Thomas Aveni, executive director of the Police Policy Studies Council and an expert on use of deadly force, said states open themselves up to problems when such latitude as offered by broadly written citizen's arrests laws are given to non-law enforcement personnel.
“That’s where things get dicey. I wouldn’t want to strip a citizen of the wherewithal to arrest somebody that committed a felony in his presence,” Aveni said.
Lancaster Democratic state Rep. Mandy Powers Norrell is carrying legislation in line with Aveni’s philosophy, looking to limit use of the citizen’s arrest only to situations where a person attempts to break into a dwelling.
“To make the statute so clear that it’s not readily misunderstood, I think that’s not a bad move,” Aveni said.
During the 1866 legislative session in which the law was adopted, W.D. Porter, a pro-secession Democrat who would turn down his party’s gubernatorial nomination in 1868, was Senate president. Porter instead encouraged people to vote against the newly ratified state constitution that expanded rights for blacks.
“People seem to forget that the laws, at any given point in time, are written and passed by people who are living in that time,” Bamberg said. The citizen’s arrest law “was geared toward race, and it was geared toward poverty.”
Ira Robbins, a professor of law at American University and co-director of its criminal justice practice and policy institute, said in a 2016 article for the Cornell Journal of Law and Public Policy that citizen’s arrest laws in general are anachronistic.
Their origins lie in medieval times, when organized police forces didn’t exist, Robbins said.
“Citizen’s arrest is a doctrine whose time should have passed many decades — or centuries ago,” Robbins wrote. “As official police forces became the norm, the need for citizen’s arrest dissipated. Yet these arrests are still authorized throughout the United States today, whether by common law or by statute.”
State Attorney General Alan Wilson hasn’t taken a position on whether the law should change, his office told The Post and Courier this week.
