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November 26, 2012, 03:01 PM | #1 |
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Help Clear Up a Legal Question: Holding a BG at Gunpoint
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. |
November 26, 2012, 03:06 PM | #2 |
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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.
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November 26, 2012, 03:30 PM | #3 |
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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. Last edited by Fishing_Cabin; November 26, 2012 at 03:47 PM. |
November 26, 2012, 04:43 PM | #4 |
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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.
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November 26, 2012, 04:44 PM | #5 |
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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?
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November 26, 2012, 04:52 PM | #6 |
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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.
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November 26, 2012, 05:09 PM | #7 |
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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.
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November 26, 2012, 05:17 PM | #8 |
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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.
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November 26, 2012, 05:50 PM | #9 | |
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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.
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November 26, 2012, 06:33 PM | #10 |
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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. |
November 26, 2012, 06:56 PM | #11 |
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Still does seem a little silly that I have to let him go, and cause more damage to society.
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November 26, 2012, 07:01 PM | #12 | |
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November 26, 2012, 07:13 PM | #13 | |
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November 26, 2012, 07:52 PM | #14 |
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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.
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November 26, 2012, 09:12 PM | #15 |
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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). |
November 26, 2012, 09:17 PM | #16 | |
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November 26, 2012, 09:38 PM | #17 | ||
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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. |
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November 26, 2012, 11:37 PM | #18 | ||
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November 26, 2012, 11:42 PM | #19 |
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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.
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November 27, 2012, 12:03 AM | #20 | ||
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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.
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November 27, 2012, 09:11 AM | #21 | |||
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Quote:
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Edit to add: Quote:
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. Last edited by Fishing_Cabin; November 27, 2012 at 10:57 AM. |
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November 27, 2012, 09:36 AM | #22 |
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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.
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November 27, 2012, 11:21 AM | #23 | ||
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[ETA]Well, finding out was a lot easier than I expected. From Wikipedia ( http://en.wikipedia.org/wiki/Citizen%27s_arrest ) Quote:
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November 27, 2012, 11:30 AM | #24 |
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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! |
November 27, 2012, 07:22 PM | #25 |
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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. |
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castle , doctrine , home defense , self defense |
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