By Daisy Ni (PO ’21)
“A government of the people, for the people, and by the people” emblemizes American democracy, and indeed many other democracies around the world today. The United States’ government draws its legitimacy from its citizens, holding a duty first and foremost to the population that constitutes it. Popular sovereignty, however, can sometimes come apart from the government which it creates. Vigilante justice, for example, represents a debate over the extent to which people can exercise individual will. As John Adams declared in the Massachusetts constitution, we live under a “government of laws, and not of men,” illustrating a tension between the two concepts. What role does vigilante justice play in American society and law, and what does this mean for its legitimacy?
Vigilante justice, as defined by the Legal Information Institute, is the “actions of a single person or group of people who claim to enforce the law but lack the legal authority to do so.” Vigilantism itself is not illegal under U.S. law but involves actions that are oftentimes illegal. It is notably associated with Ku Klux Klan lynching, which clearly demonstrates its dangers. Differences in perceptions of justice—often based on preconceived world views—can lead to horrific abuses and widespread discrimination, promoting a system based on revenge and retaliation and the rise of anarchy. Even when vigilantes are well-intentioned, vigilantism can undermine or disrupt actual law enforcement operations to maintain order.
However, it can also have more nuanced causes and effects. The San Francisco Committee of Vigilance was formed in 1851, for example, in response to the rampant crime and corruption in the municipal government following the rapid population growth during the gold rush. Involving a system of incarceration, trial, and punishment (commonly referring to expulsion from California or rarely, execution), the committee disbanded when the city restored order. In fact, vigilante justice is often justified by the notion that proper forms of law enforcement and criminal justice systems are nonexistent or insufficient.
As such, vigilantism can be harnessed by law enforcement in valuable ways. The U.S. Department of Justice found, for example, that citizen policing programs contribute to a significant reduction in crime. In the United Kingdom, a court allowed “pedophilic hunters,” posing as children online in order to apprehend and pass child predators to legal authorities, to remain in operation.
Paul H. Robinson, author of Shadow Vigilantes: How Distrust in the Justice System Breeds a New Kind of Lawlessness, ties vigilantism closely with the origins and values of the United States. He argues that the American Revolution represents an act of vigilantism. Colonists detached from the British rule to instate their own government through the Declaration of Independence, denouncing existent laws after claiming victimization of then-current treatment. The U.S. Constitution’s establishment of the right to revolution, which grants a right and duty of the people to overthrow government that “evinces a design to reduce them under absolute despotism,” thus can be interpreted as a recognition of the legitimacy and necessity of some forms of vigilantism.
More tangibly, there are already applications of law that seem to encroach within the realm of vigilante justice. For example, citizen’s arrest, permissible in most states under varying degrees, describes an arrest made by a private individual without a warrant. California Penal Code Section 837 states that “a private person may arrest another: 1) for a public offense committed or attempted in his presence. 2) when the person arrested has committed a felony, although not in his presence. 3) when a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.”
Citizen’s arrest seems to speak to the validity of vigilantism, suggesting that individual involvement within law enforcement could be necessary or even desirable at times. However, a legitimate citizen’s arrest must adhere to a stringent set of qualifications, limiting it in the scope of application. Citizen’s arrest commonly permits only reasonable, or not more than necessary, use of force, used only in the process of subduing the other person. Additionally, its validity is contingent upon the actual occurrence of a crime. Individuals invoking citizen’s arrest have less leniency for mistake and are held to a higher standard of accuracy when compared to law enforcement. Those who exceed the permitted limit of force, or those who arrest someone who has not actually committed a crime, risk criminal and civil liability.
Citizen’s arrest, as well as the previously described neighborhood watching programs and pedophilic hunters, thus all fall short full vigilantism. Each case involves only the apprehension of others, stopping before the implementation of extrajudicial punishment. They ensure that the individual safeguarding of laws does not veer into the realm of actuary enforcement, establishing an orderly and systematic approach to control their effects by involving repercussions for the abuse of power. These applications thus escape much of the dangers associated with vigilante justice.
Aspects of vigilantism seem embodied and in fact promoted in our society, tracing its days in history back to the very creation of our nation. However, there are other components that the law explicitly disavows, allowing our system of governance to channel vigilante enthusiasm and willingness into a positive force.
* An earlier version of this article incorrectly stated that citizen’s arrest in California only applies to felonies. However, Penal Code Section 837(1) allows private individuals to arrest other private individuals for misdemeanors that were committed in their presence as well.