REGULATORY ENVIRONMENT
States
If a health care facility employs certified peace officers, they are typically governed by the laws affecting all law enforcement officers in the state. In most cases, they would be permitted to handcuff any individual whom they are arresting. The legality of a private security officer using handcuffs to detain a person or detaining a person at all is more complex. Rules, statutes and case law vary by state, but in most cases, a private security officer is seen as a private citizen with the right to affect a citizen’s arrest. A citizen’s arrest is defined as “an arrest made by a private individual who has witnessed, or has reasonable belief that the detained person has committed a crime.”[9] For the purpose of this article, the terms arrest and detain will be used interchangeably.
The use of handcuffs is considered a use of restraint and force, subject to the constitutional objective reasonableness standard of the Fourth Amendment. Even if a hospital uses security officers, as opposed to certified peace officers, it is likely it would be held to this standard from a civil perspective in evaluating the appropriate application of handcuffs.[8]
In many states, an individual may be detained by citizen’s arrest for a felony, by force if necessary, which would include the use of handcuffs, regardless if the crime occurred in the presence of the arresting individual. In most states, lesser offenses such as misdemeanors or disrupting the peace must occur in the presence of the person making the arrest or are not subject to citizen’s arrest at all. Actions that may be considered disrupting the peace could include fighting in public and shouting or yelling for an excessive period of time. In nearly all states, a proprietor of goods may detain and arrest individuals suspected of shoplifting, though the specific rules vary.
The following table was compiled using data from four sources and independent research by the author of this article.[10], [11], [12], [13] Specific statutes vary. This table is intended to be a starting point for additional research and may not be comprehensive.
| State | Statues/Case Law
Citizen Right to Detain/Arrest |
Statues
Right to Detain Shoplifting |
| Alabama | AL Code § 15-10-7 | AL Code §15-10-14 |
| Alaska | AS 12.25.030 | AS 11.46.220 |
| Arizona | AZ Rev Stat § 13-3884 | AZ Rev Stat § 13-1805 |
| Arkansas | Ark. Code Ann. § 16-81-106(c) | § 5-36-116 |
| California | CA Penal Code § 834
CA Penal Code § 837 |
CA Penal Code § 490.5 |
| Colorado | CO Rev Stat § 16-3-201 | CO Rev Stat § 18-4-407 |
| Connecticut | Malley v. Lane, 97 Conn. 133 (1921); State v. Ghiloni, 35 Conn. Sup. 570 (1978); Wrexford v. Smith, 2 Root 171 (1795)
Connecticut Code § 53(a)-22(f) |
Connecticut Code § 53a-119 |
| Delaware | 11 DE Code § 2514 | 11 DE Code § 840 |
| Florida | FL Stat § 941.14 | FL Stat § 812.015 |
| Georgia | O.C.G.A. § 17-4-60 | O.C.G.A. § 51-7-60 |
| Hawaii | HI Rev Stat § 803-3 | HI Rev Stat § 663-2 |
| Idaho | I.C. § 19-604 | I.C. § 18-4626 |
| Illinois | 725 ILCS § 5/107-3 | 720 ILCS § 5/16-26 |
| Indiana | IC 35-41-3-3; IC 35-33-1-4 | IC 35-33-6-2 |
| Iowa | IA Code § 804.9 | IA Code § 808.12 |
| Kansas | KS Stat § 22-2403 | KS Stat § 21-5411 |
| Kentucky | KRS § 431.005(6) | KRS § 433.236 |
| Louisiana | LA Code Crim Pro § 214 | LA Code Crim Pro § 215 |
| Maine | 17-A ME Rev Stat § 16 | 17 ME Rev Stat § 3521 |
| Maryland | Great Atlantic & Pacific Tea Co. v. Paul, 256 Md. 643, 261 A.2d 731 (1970); Stevenson v. State, 413 A.2d 1340 Md | Maryland Code, Courts and Judicial Proceedings § 5-402 |
| Massachusetts | Commonwealth v. Lussier, 128 N.E.2d 569 | MA Gen L Ch 231 § 94B |
| Michigan | MI Comp L § 764.16
In Michigan a single code covers citizen’s arrest and shoplifting |
|
| Minnesota | Minn Stat § 629.37 | Minn Stat § 629.366 |
| Mississippi | MS Code § 99-3-7 | MS Code § 97-23-95 |
| Missouri | State v. Morris, 680 S.W.2d 315 Mo. App; State v. Gay, 629 S.W.2d 470
MO Rev Stat § 563.051 |
MO Rev Stat § 537.125 |
| Montana | MT Code § 46-6-502 | MT Code § 46-6-506 |
| Nebraska | NE Code § 29-402 | NE Code § 29-402.01 |
| Nevada | NRS § 171.126 | NRS § 597.850 |
| New Hampshire | Common law: Moebus, 62A. 170 N.H.
NH Rev Stat § 627:4 |
NH Rev Stat § 627:8-a |
| New Jersey | N.J. Rev. Stat. § 2A:169-3 | NJ Rev Stat § 2C:20-11 |
| New Mexico | State v. Johnson, NMSC-075, 22 N.M. 696, 930 P.2d 1148 | NM Stat § 30-16-19 |
| New York | NY Crim Pro L § 140.30 | NY Gen Bus L § 218 |
| North Carolina | NC Gen Stat § 15A-404 | NC Gen Stat § 14-72.1 |
| North Dakota | ND § 29- 06-20 | ND § 12.1-23-14 |
| Ohio | ORC § 2935.04 | ORC § 2935.041 |
| Oklahoma | 22 OK Stat § 22-202 | 22 OK Stat § 22-1343 |
| Oregon | OR Rev Stat § 133.225 | OR Rev Stat § 131.655 |
| Pennsylvania | Commonwealth v. Chermansky, 242 A.2d 237, 239–40 (Pa. 1968); Commonwealth v. Corley, 462 A.2d 1374 (Pa. 1983); Samuel v. Blackwell, 76 Pa. Super. 540, 547 (1921) | 18 Pa Code § 3929 |
| Rhode Island | Monteiro v. Howard, 334 F.Supp. 411-D.C. R.I. | Staples v. Schmid, 18 R.I. 224, 26 A. 193, 19 L.R.A. 824 (1893). |
| South Carolina | SC Code § 17-13-10 | SC Code § 16-13-140 |
| South Dakota | SD Codified L § 23A-3-3 | SD Codified L § 22-30A-19.2 |
| Tennessee | Tenn. Code Ann. § 40-7-109 | Tenn. Code Ann. § 40-7-116 |
| Texas | TX Crim Pro § 14.01 | TX Civil Prac. & Rem. § 6-124 |
| Utah | Utah Code § 77-7-3 | Utah Code § 77-7-12 |
| Vermont | State v. Barber, 596 A.2d 237 Vt | 13 V.S.A. § 2576 |
| Virginia | Moore v. Oliver, 347 F.Supp. 1313 Va.; Tharp v. Commonwealth, 270 S.E.2d 752; United States v. Mullen, 278 F.Supp. 410; Lima v. Lawler, 63 F.Supp. 446 D.C. Va.; Montgomery Ward & Co. v. Freeman, 199 F.2d 720 C.A. Va | Code of Virginia § 9.1-146 |
| Washington | Jack v. Rhay, 366 F.2d 191 9th Cir; State v. Bonds, 653 P.2d 1024 Wash. 1982 | WA Rev Code § 9A.16.080
WA Rev Code § 4.24.220 |
| West Virginia | Allen v. Lopinsky, 94 S.E. 369 W. Va.; State v. Sutter, 76 S.E. 811 W. Va | WVC §61-3A-4 |
| Wisconsin | Keenan v. State, 8.Wis. 132 | WI Stat § 943.50 |
| Wyoming | WY Stat § 7-8-101 | WY Stat § 6-3-405 |
[9] “Citizen’s Arrest.” Legal Dictionary. https://legaldictionary.net/citizens-arrest/
[10] “Scope of Legal Authority of Private Security Personnel” US Department of Justice/National Institute of Justice Private Security Advisory Council, report 146908, 1976, pp. i-C-1. Retrieved August 2, 2018 from https://www.ncjrs.gov/pdffiles1/Digitization/146908NCJRS.pdf
[11] Robbins, Ira P. “Vilifying the Vigilante: A Narrowed Scope of Citizen’s Arrest.” Cornell Journal of Law and Public Policy, vol. 2 5, 2016, pp. 57-599. https://digitalcommons.wcl.american.edu/facsch_lawrev/545
[12] “Legal Authority of the Security Officer.” Thomas Protective Services, Inc. Retrieved September 22, 2018 from http://thomasprotective.com/userfiles/files/oct2016_LegalAuthSecOfcr.pdf
[13] “Shoplifting Law: Constitutional Ramifications of Merchant Detention Statutes,” Hofstra Law Review, vol. 1, iss. 1, article 18, 1973. Retrieved September 28, 2018 from: http://scholarlycommons.law.hofstra.edu/hlr/vol1/iss1/18