Help Clear Up a Legal Question: Holding a BG at Gunpoint

[Gunnut17]

Hi, me again.

So, me and My Dad sometimes get into small debates over gun laws and castle doctrine, et cetera. (He, unfortunately, is for 'reasonable restrictions' and gun laws 'keeping with the times'.) Anyway, during one of these quote on quote debates. He claims that if I were to find a BG in my home, (Robbing me, attempting to shoot me, whatever the case may be.) I would, if they say something to the tune of, "I am going to leave now.) I could not do anything whatsoever to keep him there to later be put under arrest by the police that hopefully have been summoned via the 911 system sometime earlier.

Is this true, can a BG simply leave by stating he is doing so? All input (On aforementioned legal question, don't want this closed.) is welcome.

Oh, if it helps, I live in NM.

[jmortimer]

I believe that in most/all states you can effect a citizens arrest and detain/restrain a person who commits a crime in your presence. As for shooting someone attempting to flee, that is a no-go.

[Fishing_Cabin]

What can be the sticky point to it, is that the person detaining another "may" be held responsible for any injuries to the other person that occur to detain them, or to hold them.

Generally its best to just be a good witness instead.

[Glenn E. Meyer]

Let's stick to the legalities for this subforum, please.

The technical details of restraining someone are for T and T. It would be difficult for a novice or even for a single LEO if you tried it or read that literature. So, we will pass on that.

So can you do it legally - that's the issue. If they try to leave what force can you use? That sort of thing, please.

[Skadoosh]

Why would you want to detain someone in the first place? Is it not the goal in any self-defense situation to get the threat to leave your immediate vicinity with the least amount of violence possible?

[BarryLee]

Yes, I have also thought about this and it seems like there really would be little you could do on your own from a legal standpoint to stop them. Obviously you can’t shoot someone just because they are trying to get away. Now, if you had other people with you and could use “reasonable” force to detain that person for the LEOs - I would think that was OK.

Just a side note three Wal-Mart employees forcibly detained a fleeing shoplifter over the weekend in suburban Atlanta and the guy died. As of now I’m not sure of all the circumstance, but it appears he was placed in a choke hold.

So, I know some may disagree, but as angry as I might be I don’t think from an ethical or legal standpoint that I want to kill someone over property.

[jmortimer]

Bystanders hold people all the time. Here in So Cal frequent reports of people fleeing car accidents and other crimes and being detained by citizens.

[spacemanspiff]

Been a few years since I dusted off my internet-law-degree. Its my belief that if I am justified to use deadly force on someone committing a violent act, I am also justified to detain them, and its my personal creed that every attempt shall be made by myself to exhaust nonlethal use of force options, if feasible in that situation.

So, my states laws say I am justified to use deadly force to stop an arson of a dwelling or occupied building, carjacking (either as first party or third party), sexual assault, kidnapping, and robbery, in addition to the threat of serious injury or death to myself or to someone else.

However, if it is a trespass, or theft of property/services, the law states I can use nondeadly force. Holding a trespasser or thief at gunpoint would not be justifiable by my interpretation of my states laws.

[Tom Servo]

Is this true, can a BG simply leave by stating he is doing so?

Yep. You can use deadly force to stop an imminent attack, but if the perpetrator says he's leaving, let him go.

If you use any degree of force to restrain him when he's not actively threatening you, the matter could quickly escalate to use of deadly force. Then things will get problematic when it goes before a grand jury. If you harm him in any way, there could also be repercussions in civil court.

New Mexico doesn't have an actual castle doctrine. They have an old law dating back to 1907 that precludes a duty to retreat, but caselaw is sparse and unclear.

[Aguila Blanca]

You effect a citizen's arrest by stating, "You're under arrest."

It is my understanding from something I read years ago that making a citizen's arrest does NOT grant me any more authority than I already have under the law to use force to detain a suspect/perpetrator. And if the suspect/perpetrator is not CURRENTLY an imminent threat to me or a third party bystander, the laws of my state do not allow me to use force. And certainly not lethal force, which is what the law considers pointing a gun at someone.

[Gunnut17]

Still does seem a little silly that I have to let him go, and cause more damage to society.

[Dr Big Bird PhD]

Is this true, can a BG simply leave by stating he is doing so?

Yes, unless there is the potential of stolen property. Texas comes to mind on this instance.

[BarryLee]

Yes, unless there is the potential of stolen property. Texas comes to mind on this instance.

Can someone expand on this just a little? My memory is a little fuzzy, but does Texas allow the use of deadly force to stop a property crime?

[Glenn E. Meyer]

Very specific circumstances which are little understood by some views of TX. I have to go, so I can't reference it now but it's easily accessible.

Don't think TX is an open fire for your twinkie state.

[Technosavant]

This scenario seems to depend on someone having committed a felony*, been discovered, and is currently facing down the business end of a lethal weapon** deciding that he's feeling lucky and disobeying the person with the weapon.

IMO, that's making a big assumption. But let's make it.

Depending on the perp's escape route, his escape might make him a BIGGER threat. For example, if I or a loved one is between him and the door/winder, I'm not going to take his word for it that he's leaving. Any closure of distance to someone in my home is going to be seen as a threat, and in Missouri, the law has my back.***

IMO, if he's leaving in a direction away from everybody in the home and is no threat, then keep him covered as he runs, but let him go. The rule of thumb for me is that unless someone innocent is in danger, the consequences of even a legally justified shooting are worse than not shooting. If I can avoid shooting, I will, UNLESS it means a loved one is likely to be harmed.


*A felony that in states with Castle Doctrine laws gives the homeowner the benefit of the doubt should something happen to the perp, mind you.

**When I first typed this, I said "lethal women." Depending on who finds him, this could very well be the case.

***Castle Doctrine states will likely have different legal ramifications than others unless it's a pretty egregious shooting (such as shooting a perp in the back as he exits the front door).

[Tom Servo]

Still does seem a little silly that I have to let him go, and cause more damage to society.

The alternative is vigilantism, and a civilized society tends to frown on that. And with good reason.

[Fishing_Cabin]

Originally Posted by Glenn E. Meyer

So can you do it legally - that's the issue. If they try to leave what force can you use? That sort of thing, please.

Since Glenn mentioned the quote above, and others have mentioned other states then NM, I will share my view, and experience.

Originally Posted by http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_15A/GS_15A-404.html

§ 15A‑404. Detention of offenders by private persons.

(a) No Arrest; Detention Permitted. – No private person may arrest another person except as provided in G.S. 15A‑405. A private person may detain another person as provided in this section.

(b) When Detention Permitted. – A private person may detain another person when he has probable cause to believe that the person detained has committed in his presence:

(1) A felony,

(2) A breach of the peace,

(3) A crime involving physical injury to another person, or

(4) A crime involving theft or destruction of property.

(c) Manner of Detention. – The detention must be in a reasonable manner considering the offense involved and the circumstances of the detention.

(d) Period of Detention. – The detention may be no longer than the time required for the earliest of the following:

(1) The determination that no offense has been committed.

(2) Surrender of the person detained to a law‑enforcement officer as provided in subsection (e).

(e) Surrender to Officer. – A private person who detains another must immediately notify a law‑enforcement officer and must, unless he releases the person earlier as required by subsection (d), surrender the person detained to the law‑enforcement officer. (1973, c. 1286, s. 1.)

First, as far as NC, there is no "arrest" allowed by statute, only detention. There IS a difference...

Secondly, the person who decides to detain another must have probable cause, not just in their eyes, but at the end of the cycle, in the eyes of the court.

Third, they have to notify law enforcement immediatly, which may be difficult if its a forceful detention.

Fourth, they can only hold someone a "reasonable time" until a law enforcement officer arrives. Which leads to the question what is a reasonable time? I dont ask what one of us here thinks, its up to the court since that is where it will be decided.

Fifth, when you detain someone, and take away certain freedoms, you can therefor be deemed responsible. Kind of a slipery slope.

Sixth, if the court later finds that there was no probable cause, then the person who detained another may be held responsible, both criminally and civily, for that action and any injuries from that.

Hence why I said earlier that its better to be a good witness unless your, or anothers life is threatened in an immediate fashion.

[Aguila Blanca]

Originally Posted by Fishing Cabin

First, as far as NC, there is no "arrest" allowed by statute, only detention. There IS a difference...

Not so fast, Mate -- you're only showing us part of the loaf. The statute you cited specifically begins with:

§ 15A‑404. Detention of offenders by private persons.

(a) No Arrest; Detention Permitted. – No private person may arrest another person except as provided in G.S. 15A‑405. A private person may detain another person as provided in this section.

It would appear that arrests by private persons ARE contemplated, but under a separate section of the statutes. So what does Section 15A-405 say about arrests by private persons?

[jmortimer]

As a practical matter the difference between arrest and detention is that arrest is done under color of law. A citizen's arrest is authorized in some/most states, but I believe if you witness a crime, you can either detain or arrest in all states.

[Frank Ettin]

Originally Posted by Aguila Blanca

...It would appear that arrests by private persons ARE contemplated, but under a separate section of the statutes. So what does Section 15A-405 say about arrests by private persons?

What is says it (G.S. 15A‑405, emphasis added):

§ 15A-405. Assistance to law-enforcement officers by private persons to effect arrest or prevent escape; benefits for private persons.

(a) Assistance upon Request; Authority. – Private persons may assist law-enforcement officers in effecting arrests and preventing escapes from custody when requested to do so by the officer. When so requested, a private person has the same authority to effect an arrest or prevent escape from custody as the officer making the request. He does not incur civil or criminal liability for an invalid arrest unless he knows the arrest to be invalid. Nothing in this subsection constitutes justification for willful, malicious or criminally negligent conduct by such person which injures or endangers any person or property, nor shall it be construed to excuse or justify the use of unreasonable or excessive force...

So in North Carolina in order for a private citizen to perform a lawful arrest he must be assisting an LEO, and only when requested by an LEO.

[Fishing_Cabin]

Originally Posted by Aguila Blanca

Not so fast, Mate -- you're only showing us part of the loaf. The statute you cited specifically begins with:

AB, I understood the OP to say that:

Originally Posted by Gunnut17's OP

I could not do anything whatsoever to keep him there to later be put under arrest by the police that hopefully have been summoned via the 911 system sometime earlier.

which is about a person on their own property either detaining a person his/herself without law enforcement there, so § 15A-405 was not relevant to the situation (and is why I didnt mention it), as it deals with assisting a law enforcement officer, who requested said assistance. I see Frank was quicker then I was able to be to post that statute.


Edit to add:

§ 15A-405. Assistance to law-enforcement officers by private persons to effect arrest or prevent escape; benefits for private persons.

(a) Assistance upon Request; Authority. – Private persons may assist law-enforcement officers in effecting arrests and preventing escapes from custody when requested to do so by the officer. When so requested, a private person has the same authority to effect an arrest or prevent escape from custody as the officer making the request. He does not incur civil or criminal liability for an invalid arrest unless he knows the arrest to be invalid. Nothing in this subsection constitutes justification for willful, malicious or criminally negligent conduct by such person which injures or endangers any person or property, nor shall it be construed to excuse or justify the use of unreasonable or excessive force..

To my knowledge there is no "citizens arrest" statute in North Carolina at this time. 15A-405, and the arrest powers mentioned comes from the officer requesting assistance, and not from the non-law enforcement person that is giving assistance. Also, the bolded part in the statute above is what the statute itself says, "Private persons may assist law-enforcement officers in effecting arrests." Meaning, the private person must be assisting the officer making the arrest.

The private person may not make an arrest on his/her own, since that would not be within the power vested by this statute that allows a private person to assist.

[OuTcAsT]

If he wants to exit the scene, your best option is to let him. However, I am going to make sure he has left, and is no longer a threat.

[Aguila Blanca]

Originally Posted by Fishing Cabin

which is about a person on their own property either detaining a person his/herself without law enforcement there, so § 15A-405 was not relevant to the situation (and is why I didnt mention it), as it deals with assisting a law enforcement officer, who requested said assistance. I see Frank was quicker then I was able to be to post that statute.

But we don't know that the OP is in North Carolina, so we don't know that NC law applies. In fact, I was surprised to see the section Frank Ettin cited, because I was under the misapprehension that all states provide for citizen's arrests. NC is the first I (now) know of that specifically does not. Unfortunately, I don't know an easy way to see which other states do and do not.

[ETA]Well, finding out was a lot easier than I expected. From Wikipedia ( http://en.wikipedia.org/wiki/Citizen%27s_arrest )

Each state, with the exception of North Carolina, permits citizen arrests if the commission of a felony is witnessed by the arresting citizen, or when a citizen is asked to assist in the apprehension of a suspect by police. The application of state laws varies widely with respect to misdemeanors, breaches of the peace, and felonies not witnessed by the arresting party. For example, Arizona law allows a citizen's arrest if the arrestor has personally witnessed the offense occurring.

[Fishing_Cabin]

AB,

No problem...Alot of people do not understand that NC is the lone state that does not have a form of "citizens arrest" per se. Since others had spoke of other states, I just wanted to try to inform them that NC is slightly different in that respect, so as to hopefully keep someone out of trouble.

Enjoy the day!

[SHR970]

First, you must understand the laws of YOUR jurisdiction. Things like reasonable force and length of detention come into play.
God forbid we even get into case law.

For example in California: CPC

198.5. Any person using force intended or likely to cause death or
great bodily injury within his or her residence shall be presumed to
have held a reasonable fear of imminent peril of death or great
bodily injury to self, family, or a member of the household when that
force is used against another person, not a member of the family or
household, who unlawfully and forcibly enters or has unlawfully and
forcibly entered the residence and the person using the force knew or
had reason to believe that an unlawful and forcible entry occurred.
As used in this section, great bodily injury means a significant
or substantial physical injury. You can quickly invalidate your protection here depending on what you say.

692. Lawful resistance to the commission of a public offense may be
made:
1. By the party about to be injured;
2. By other parties.

693. Resistance sufficient to prevent the offense may be made by
the party about to be injured:
1. To prevent an offense against his person, or his family, or
some member thereof.
2. To prevent an illegal attempt by force to take or injure
property in his lawful possession.

694. Any other person, in aid or defense of the person about to be
injured, may make resistance sufficient to prevent the offense.

837. 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.

839. Any person making an arrest may orally summon as many persons
as he deems necessary to aid him therein.

841. The person making the arrest must inform the person to be
arrested of the intention to arrest him, of the cause of the arrest,
and the authority to make it, except when the person making the
arrest has reasonable cause to believe that the person to be arrested
is actually engaged in the commission of or an attempt to commit an
offense, or the person to be arrested is pursued immediately after
its commission, or after an escape.
The person making the arrest must, on request of the person he is
arresting, inform the latter of the offense for which he is being
arrested.

844. To make an arrest, a private person, if the offense is a
felony, and in all cases a peace officer, may break open the door or
window of the house in which the person to be arrested is, or in
which they have reasonable grounds for believing the person to be,
after having demanded admittance and explained the purpose for which
admittance is desired.

845. Any person who has lawfully entered a house for the purpose of
making an arrest, may break open the door or window thereof if
detained therein, when necessary for the purpose of liberating
himself, and an officer may do the same, when necessary for the
purpose of liberating a person who, acting in his aid, lawfully
entered for the purpose of making an arrest, and is detained therein.


846. Any person making an arrest may take from the person arrested
all offensive weapons which he may have about his person, and must
deliver them to the magistrate before whom he is taken.

847. (a) A private person who has arrested another for the
commission of a public offense must, without unnecessary delay, take
the person arrested before a magistrate, or deliver him or her to a
peace officer. You can't wait an hour to call the cops. If it takes
them an hour to get there, so be it.
(b) There shall be no civil liability on the part of, and no cause
of action shall arise against, any peace officer or federal criminal
investigator or law enforcement officer described in subdivision (a)
or (d) of Section 830.8, acting within the scope of his or her
authority, for false arrest or false imprisonment arising out of any
arrest under any of the following circumstances:
(1) The arrest was lawful, or the peace officer, at the time of
the arrest, had reasonable cause to believe the arrest was lawful.
(2) The arrest was made pursuant to a charge made, upon reasonable
cause, of the commission of a felony by the person to be arrested.
(3) The arrest was made pursuant to the requirements of Section
142, 837, 838, or 839. That means you are liable for the false arrest suit.

854. If a person arrested escape or is rescued, the person from
whose custody he escaped or was rescued, may immediately pursue and
retake him at any time and in any place within the State.

855. To retake the person escaping or rescued, the person pursuing
may break open an outer or inner door or window of a dwelling house,
if, after notice of his intention, he is refused admittance.

Of course there are so many places where you assume civil liability throughout this. Again this is California and these aren't all of the applicable laws. YMMV due to location.