You may or may not remember the episode of the Andy Griffith Show where Deputy Barney Fife stops and arrests Gomer Pyle for making an illegal U-Turn. Here’s the exchange between Barney and Gomer: Gomer, I have to uphold the law, no matter what! It’s only what any responsible person should do. Why, even if I weren’t a policeman, I would still arrest you for making a illegal U-turn… any person can do that, you know… it’s called a citizen’s arrest. After the arrest, Barney leaves the scene by making a U-turn with his squad car. As Barney drives away, Gomer yells: “Hey! HEEEYYYY – – BARNEY! You made an illegal u-turn YOURSELF! You’re breakin’ the law, and so I, as a responsible person, need to arrest you! Citizen’s arrest! Citizen’s arrest!” At common law, the authority of private citizens to arrest a person whose actions threatened public order was unquestioned.

In 1879, in the case of O’Connor v. Bucklin, the New Hampshire Supreme Court said: “A maniac, not responsible for his violence, who knocks down a man in the street without provocation or warning, commits no criminal violence. In no legal sense does he violate the criminal law, but a policeman who arrests him on view of that act, without a warrant, is not a trespasser, even if he is aware of the assailant’s innocence. Anyone not an officer could make the arrest for the protection of the community. Every member of the community has a right to do what is reasonably necessary for the protection of himself and others against apparent danger.” In the past few weeks, I raised the defense of Citizen’s arrest! Citizen’s arrest! The judge was annoyed with me for bringing it up. He told me he wasn’t about to enforce a law that was 150+ years old. I told him – “It’s still the law. If you don’t want to enforce it, then, we will take an appeal.”The case is now before the New Hampshire Supreme Court and we will soon find out if a judge can ignore a law simply because you don’t see it very often.

Here are the facts so you can be the judge. A middle-aged woman – resident of a local condominium complex – is driving home. A young man – in his early 20’s – is tailgating her. The woman takes a left hand turn into the condominium. The young man continues behind her – a few feet behind her. When the woman stops at a speed bump, the young man drives swiftly around the woman’s car. He then begins to drive rapidly (45+ mph) in a counter-clockwise circle around the condominium complex. The speed limit within the condominium is 25 mph. He drives around the circle 3 times. The woman sees this erratic behavior and drives her car near the entrance of the condominium. She intends to wait for the man to exit so she can scold him for his behavior.

The man comes around the circle and stops behind the woman’s car. He begins to berate her – calling her a variety of colorful and tasteless names (you can use your imagination, but they are off the scale words and phrases).  Another woman in the condominium complex – the vice-president of the condominium association – sees and hears the commotion. She calls the police to come to the scene. She walks over to the commotion. The man has the keys to his car in his hands. The man says the word “kill” so the woman from the condominium grabs at the man’s keys. The door to the man’s car is open. The man falls into the car and pulls the woman in with him – both still holding on to the keys. The man puts the woman in a headlock. The woman is extricated from the car by her husband who pulls her out and away from the man.

The police allege that the woman committed disorderly conduct in that she entered the man’s car and engaged in violent and tumultuous behavior. The judge then finds the woman guilty. What say you – is she guilty or not guilty? Could she arrest the young punk or not, who himself was found guilty of disorderly conduct? According to Barney, she could.