Citizen's Arrest Laws Are a Mess - And Fixing Them Isn’t Vigilantism

How Performative Outrage May Scupper Much Needed Reforms

Note: another piece with much of the same reasoning is on X.

The Spinoff has published an item on the government’s proposed expansion of citizen’s arrest powers written by legal academics Andrew Geddis and Henry Benson-Pope. While I like Andrew Geddis and think he is clever (I have never corresponded with Benson-Pope), the whole piece is a masterclass in overreaction. We have to be really careful about laws allowing anyone to interfere with the liberty of anyone else, but that doesn’t justify the melodramatic freakout we have seen in social media and from journos.

The real issue is the unnecessary complexity and arbitrariness of the current law. That isn’t being addressed. Instead we are getting a deluge of hand-wringing about “vigilantism” and doomsday hypotheticals about how shopping in New Zealand is going to become like an episode of Dog the Bounty Hunter.

The premise of the government’s reform is simple: New Zealand’s current citizen’s arrest laws are inconsistent and random. Right now, whether a security guard or shopkeeper can detain a thief depends not just on the crime itself, but on the time of day it happens.

Tonight is late night shopping at The Plaza Shopping Centre here in Palmerston North. If go and steal something worth $800 at 8.59 pm, the store security guard cannot legally stop me. If he grabs my arm, he has committed assault, battery and false imprisonment. If I am running behind schedule on my crime spree and steal the item two minutes later, at 9.01 pm, the guard has some measure of protection in law.

Geddis and Benson-Pope don’t argue that this is defensible. They simply argue that changing it is too dangerous. And so, instead of engaging with how to fix the law, they resort to pure scaremongering. They warn that these changes could lead to “excessive force,” wrongful arrests or even racial profiling.

They even go so far as to suggest that Brian Tamaki being excited about the change somehow discredits it—because, as we all know, the validity of a law should be determined by the most annoying person who agrees with it.

So far, so dramatic.

But here’s the thing. Laws in line with what the government proposes already exist in other countries. In many jurisdictions—including most American states and Canada —store owners already have limited, reasonable powers to detain shoplifters.

The world has not collapsed into chaos - not as the result of shops arresting people anway. Security staff are trained to follow strict protocols, including verifying probable cause before detaining a suspect, when it is unsafe to act and the importance of immediately involving law enforcement.

If people want to drag the spectre of America into the discussion, let’s not cherry-pick horror stories from some lawless backwater. Let’s look at Massachusetts.

Massachusetts is one of the most liberal, Democrat-dominated states in the U.S. If you’re going to point to a state that takes a cautious, restrained approach to law enforcement, Massachusetts is the one. It’s hard to think of a jurisdiction that better embodies the soft-on-crime stereotype.

And guess what? Like a lot of places, it has a shopkeeper’s privilege law.

Under Massachusetts General Law ch. 231, s. 94B, store owners are allowed to detain a shoplifter for a “reasonable amount of time.” There’s no requirement that the theft be above a certain dollar amount. No special night-time rule. No arbitrary three-year penalty threshold. If a shopkeeper has probable cause to believe a theft has occurred, they can hold the suspect and call the police.

Massachusetts is a deep-blue, progressive state. Do people genuinely believes that New Zealanders can’t handle the same powers as store owners in Cambridge, Massachusetts? If so, that’s a remarkable vote of no confidence in our society.

The liberal reaction to the announcement hinges on the idea that allowing businesses to detain shoplifters is somehow a greater risk to society than shoplifting itself. But they completely fail to engage with the real-world problem this reform is trying to address.

One of the key reason this is an issue is the broadness of the legal concepts like assault, battery, and false imprisonment. Assault includes any act that causes someone to fear imminent contact, battery includes any unwanted physical contact and false imprisonment includes even momentarily forbidding somebody from leaving.

What this means is that a shopkeeper grabbing a thief’s backpack, even as a reaction of pure instinct, could constitute battery, as it involves unwanted physical contact. Blocking an exit after someone walks off with stolen goods can be considered false imprisonment, as it unlawfully restricts their movement, even if only temporarily.

There is good reason for these broad definitions. Clear boundaries prevent abuse. But they also mean that the law is not always intuitive in practice and needs to be qualified by reasonable defences that align with common sense to avoid a disconnect between legal rules and everyday expectations.

Persistent, low-level shoplifting is rampant in New Zealand. Police don’t have the resources to respond on the spot to every instance of theft. Retailers are left watching thousands of dollars in stolen goods walk out the door every week, powerless to do anything about it.

Providing more clarity to store owners and employees about what they can do and when should not be read as creating a duty to intervene. The legal option to use reasonable and proportionate measures to stop thieves without facing legal consequences themselves does not make it compulsory for employees to put themselves in harms way. Any store that delegated such a task to anyone not specially trained would run the risk of ruinous fines under health and safety laws.

Anti-discrimination laws would still apply. Profiling someone based on race would still be illegal. The onus would be on store personnel to show their intervention was based on evidence. The law would only protect reasonable actions, not reckless accusations.

So far, we have not seen a serious engagement with the issue. Just John Oliver-esque performative outrage. Over-the-top doomsaying and dystopian fantasies without real-world evidence that such laws have led to actual harm.