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Guantes
01-25-2005, 08:07 AM
Many, if not most states allow for a private persons (citizens) arrest in cases of felonies, robbery, rape, burglary, etc., especially if committed against or in the presence of the arresting party. I have not seen any of these that require the person making the arrest to retreat although there may be some. If this is the case would this not be a legal and proper way to aviod the legal necessity to retreat in the face of certain crimes and justify the force necessary to effect the arrest.

Opinions?

MarkBouquet
01-25-2005, 12:10 PM
Hi Guantes,


... would this not be a legal and proper way to aviod the legal necessity to retreat in the face of certain crimes and justify the force necessary to effect the arrest.

Opinions?

If you want to start relying on legal technalities of this nature, I believe you should get legal advice from a competent lawyer familiar with the laws where you live.

In general, though, you are probably talking about apples and oranges (or the legal equivalent thereof).

As an example, the situation where I live is as follows:

For a defence of "private defence" (i.e. self-defence) to succeed the victim/defender/accussed must prove on a balance of probabilities (as opposed to beyond reasonable doubt) that:


The person being defended was subject to an attack (an actual attack, objectively ascertained AFTER the fact)
The attack was unlawful (eg not a lawful arrest)
The attack has commenced, or was imminent
The defence was directed at the attacker
The defence was necessary to avert the attack (this implies a duty to retreat), and
The means to avert the attack was reasonable under the circumstances.

The test for reasonableness is whether a "reasonable man" would have acted similarily.

As technical as this sounds it is actually only a formulation of a position that is very simple to understand -You should only use force against an attacker when it is unavoidable and only to the extent that would be reasonable under the circumstances.

The requirements for an arrest to be legal, however are far more technical in nature. They do allow for the use of force, including lethal force, in order to effect the arrest. But, although the defence available still only has to be proven on a balance of probabilities, the facts that must be proved would now also include aspects related to the legality of the arrest. In order not to bore you with all of the details, I will mention only one of these aspects - the person claiming that he was making an arrest must prove that the person being arrested knew that an attempt was being made to lawfully arrest him.

In short, I do not believe that the procedural laws governing citizen's arrest would normally provide a viable shortcut to circumvent the requirements of a successful plea of "self-defence", unless one knew all of the related legal aspects and could successfully apply it.

Cold War Scout
01-25-2005, 12:21 PM
For a defence of "private defence" (i.e. self-defence) to succeed the victim/defender/accussed must prove on a balance of probabilities (as opposed to beyond reasonable doubt) that:


The person being defended was subject to an attack (an actual attack, objectively ascertained AFTER the fact)
The attack was unlawful (eg not a lawful arrest)
The attack has commenced, or was imminent
The defence was directed at the attacker
The defence was necessary to avert the attack (this implies a duty to retreat), and
The means to avert the attack was reasonable under the circumstances.


The above scares me. The liberals who too frequently run our world have ceded our ability to defend ourselves and made us the prey for any wolves who care to take.

MarkBouquet
01-25-2005, 12:32 PM
Hi Cold War Scout,


The above scares me. The liberals who too frequently run our world have ceded our ability to defend ourselves and made us the prey for any wolves who care to take.

Those requirements have actually been inherited from the Roman Empire and have as foundation the presumption of innocence. The intent is not to protect the "wolves" but to prevent spurious claims of self-defence being used by murderers.

The problem is that "liberal" policemen and prosecutors can abuse these requirements to intimidate the innocent and that "liberal" (ie the law is not what it is, but what it should be) judges can "mis-interpret" them to advance an agenda..

Guantes
01-25-2005, 02:40 PM
Mark,

Professional legal advice is never a bad idea, that being said being a retired LEO I have some knowledge re the laws of arrest. I cannot comment on the laws where you live but using the state were I live as an example:

1) The crime or attempt is nearly always determined by authorities after the fact.

2) The unlawfulness of the crime (attack) is generally determined by if the elements of the statute are present.

3) Verbage and actions will determine when the crime (attack) has commenced

4) Common sense would dictate that the defense or attempted arrest be directed at the perp.

5) Self defense might dictate retreat, but to arrest for the crime does not usually require it.

6) A reasonable use of force would be required.

"Reasonable man" and reasonable force are widely referred to doctrines.

In referrence to the person being arrested knowing that an attempt was being made to lawfully arrest him, there are limitations to this. From Idaho State Statutes, "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 to be arrested is actually engaged in the commission of , or an attempt to commit, an offense, or is pursued immediately after its commission, or after an escape."

This is the case in many arrests made by LEOs where the notice of arrest is not made until after the fight stops.

Every citizen in good standing has, if not the duty, the right to make an arrest in the presence of a felony. In most legitimate cases of self defense the perp will be arrested, charged, and tried for the offense/attempt anyway. Obviously it would behoove one to know the elements of the crime he is arresting one for.

The purpose of the originally post was no to suggest a way to circumvent self defense law but a defferent way to approach it.

Regards, Guantes

InTheBlack
01-25-2005, 03:46 PM
Of course, claiming that you are making an arrest opens you up for civil liability even if the underlying criminal act justified an arrest. If you don't follow the correct form for making the arrest, you can be screwed by the J. Cochrane legal team even though the perp is in jail for _his_ crime.

banzai7
01-25-2005, 04:51 PM
I'm currently a LEO in the state of Connecticut. We've got so many leftists here it should be spelled Konnektikut. I would never, ever advise a private party to attempt arrest. Not because they're not competent to do so, but because they will be dragged, gutted, castrated and eaten alive by the courts, and the civil lawsuit that follows. The media will have a field day with you too. Picture your face on the front page with the headline reading " Wanna be cop" or "Vigilante". And that my friends is what will happen if the arrest didn't involve you injuring the suspect.

Screw it !! Let 'em go and you be a good witness. Let the ones who are indemnified by their employers go hands on with the criminal.

MTS
01-25-2005, 07:28 PM
Ohio law permits citizen arrests for felonies. I always advise people that it is probably not a good idea to do so.

As banzai7 points out it can go backwards on you in a hurry.

You position will look much better as the good citizen by detaining the suspect and immediatly notifying the police to respond.

At which point you become a good witness. I observed this person do this, this is what I did and I contacted 911.

Guantes
01-25-2005, 08:32 PM
Mark,

As you probably know California permits private persons arrests for both felonies and misdemeanors. Any misdemeanor such as a righteous battery, not committed in the presence of the officer or a DV battery, can only involve an arrest if it is a private persons arrest. In LA it was and still is policy to advise citizens of that right.

Virtually all shoplifting arrests are private persons arrests.

Prior to the evolution of DV laws, most of the arrests were private persons arrests, many of those after advisement of that right by LEOs.

We never looked down on a good citizens arrest and I don't recall any making media headlines.

Several neighbors chasing and dataining a burglar. I think it is a fine line b/t detention and arrest. Officers can make the arrest because it is a felony. If on the other hand it is a prowler the only way an arrest can be made is if it is a private persons arrest.

I am not suggesting that it should be an always thing, but i don't think it should be a never thing either.

MTS
01-25-2005, 08:39 PM
Guantes,

I was speaking of Ohio law in general and I should have added that merchants etc. have the right to detain shoplifters.

IIRC though the state statutes allowing citizens to make misdemeanor arrests were overturned by SCOTUS some years ago.

Can anyone confirm that? Erich?

Guantes
01-25-2005, 08:56 PM
Mark,

If that is the case, I stand corrected re misdemeanors.

Ragsbo
01-25-2005, 09:09 PM
Citizen arrest laws vary from state to state. Before contemplating making one, I advise seeking legal advice from a competent source. And that might not be the local States Attorney; I know some who couldn't tell you the legal way to pour a cup of coffee.

Guantes
01-25-2005, 09:10 PM
Mark,

I just went and did a search on Idaho Statutes. Under Title 19 Criminal Procedure, Chapt 6, 19-504, private persons arrest.

It lists, 1) Public offense committed in presence, (paraphrased),
2) felony not committed in presence (paraphrased), 3) RC felony (paraphrased).

I don't know how current this is. I would think the public offense refers to a misdemeanor.

InTheBlack
01-25-2005, 09:47 PM
>>>
You position will look much better as the good citizen by detaining the suspect and immediatly notifying the police to respond.
>>>

What's the difference between legal detention and arrest?

How do you make a detention legal so you don't get sued successfully, and how would the lawsuit differ from a claim of improper arrest?

Guantes
01-25-2005, 11:04 PM
In The Black,

I think we are talking a very fine line here b/t detention and arrest depending on the definition of arrest where the activity is taking place. I would think this would be a small matter in relation to the matter of you cutting, stabbing or shooting the perp in self defense of the attempted crime.

MTS
01-26-2005, 07:11 AM
What's the difference between legal detention and arrest?

How do you make a detention legal so you don't get sued successfully, and how would the lawsuit differ from a claim of improper arrest?
It is a fine line. If you are the arresting officer (citizen?) then you should be the one to write out and sign the complaint(s) charging the person with what ever crime(s) they may have commited.

You are now also acting as an agent of the state. I do not know if this opens you up to a federal charge if the suspect claims that you violated his "rights" acting under color of authority.

If your defense is ignorance of the proper procedures you then leave yourself open to the the question of why you were preforming the act in the first place.

MarkBouquet
01-26-2005, 11:26 AM
Hi Mark,


If your defense is ignorance of the proper procedures you then leave yourself open to the the question of why you were preforming the act in the first place.

Where I live failing to follow the proper procedures for an arrest, or being unable to prove any of the elements required for a lawful arrest and the lawful use of force to effect the arrest, makes the arrest unlawful and the use of any force unjustifiable. You now have NO defence against a charge of murder, culpable homicide or assault. In addition you now have no recourse against the suspect if he injured you during the "arrest", provided he acted reasonably.

Stickman
01-26-2005, 09:47 PM
Any time I've rolled up on this type of situation I've usually obtained the private citizens' name and address to be listed as witnesses, advised them they may be called to testify on behalf of the state, and thanked them for their help. That's usually the last they hear of the entire matter. If the thug in question wants to know who it was that detained him until I arrived, I tell him he'll probably find out at some point during the trial and that he has bigger things to worry about at the moment. I don't recall any of them taking it past that point in the conversation. I've never had one of the witnesses contact me later and say "that guy is suing me for detaining him till you got there."

Guantes
01-27-2005, 10:16 AM
Are these detentions not really arrests that are allowed to pass without some of the formalities of an arrest?

A search for "arrest" will reveal at constitutional.org/grossack/arrest.html an article on private persons (citizens) arrest by one David C. Grossack, Constitutional Attorney. Within this article is related a new trend in Massachusetts, citizens fed up with crime making citizens arrests. Also a definition of "arrest" It goes on to relate the protection of the right to citizens' arrest under the Nineth Ammendment and relation to the Second Ammendment in addition to other details.

From: utahsecurityspecialists.com/Shoplifting an article on "SHOPLIFTING FALSE ARREST". Several paragraphs in this article relate to merchants using "detention" instead of "arrest" and legislation along those lines not being a protection from liability.

I would submit that these detentions are in reality arrests and if they are being called detentions merely to avoid civil liability one is on shaky ground.

MTS
01-27-2005, 05:11 PM
I would submit that these detentions are in reality arrests and if they are being called detentions merely to avoid civil liability one is on shaky ground.
Anytime you deprive someone of their freedom to come and go you start going out on a limb.

Another example I have seen is where a place of employment prevents an employee from leaving if they wish to do. Unless the employee is trying to leave with company property an employer has no legal right to prevent an employee from leaving. They still have the right to disipline the employee of course.

Guantes
01-27-2005, 09:12 PM
Mark,

After giving it some thought I felt that being ...new... to the forum I should mention a few things. Initially let me say that none of what I have said was meant to be legal advice, it is for discussion purposes only. As I have said previously the seeking of proper legal advice is always prudent. That being said, my only purpose for posting is to promote thought, discussion, maybe research or study that would be of benefit and I enjoy the exchange. Each person must make their own decisions in an incident based on knowledge, training, experience and instinct.

In reference to personal activities, such as those mentioned previously by others. I was in law enforcement in a large metro area for in excess of twenty years prior to retirement. Ten years in the "field" in a high crime area. During that time I was involved in somewhere in the neighborhood (estimate) of fifteen hundred to two thousand felony arrests and I have no idea how many misdemeanor arrests.

Now for a few points of discussion:

1) The best way to avoid false arrest (be it for arrest or detention) or other civil liability is to have solid probable cause and not to use excessive force. This is accomplished by knowing the elements of the crime involved. The elements of most crimes such as robbery are fairly simple and available, along with the requirements of arrest, via state statutes. If knowing the laws of self defense is important so is knowing the laws of crimes and arrest.

2) Only involve yourself only in things you have personally witnessed or better yet been the victim of (if possible), do not go on he said she said.

3) Use only the force necessary.

4) Notify authorities as soon as possible.

5) Providing first aid would depend on your training.

6) Obtain legal advice.

7) Some if not many or most states have legislation and/or case law which does not hold citizens acting in "good faith" to the same standards as trained LEOs. This would be another area where study or legal advice would be prudent.

Sorry to be so wordy,

Jeff22
01-27-2005, 11:43 PM
Some states have specific statutory language about citizen's arrest and what is permitted and not under what circumstances.

Many other states rely on the "common law" (undefined) rulings about citizen's arrest, which allow for the citizen to arrest another citizen for a felony or a misdemeanor amounting to a breach of the peace that occurs in their presence.

Like many other legal issues, specifics depend upon what state you live in. The law from state to state is significantly different, and it is necessary for you to do research in your state statues and in the opinions of the attorney general for your state to get a feel for these issues.

Fortunately, state statutes are available on line, although it's sometimes hard to navigate around in there to find what you want.

The best advice in most circumstances would be "DON'T!!! ".

Guantes
01-28-2005, 03:10 PM
Ammo Lab,

No offense. During the comment on dentention and liability I was not thinking of a professional such as yourself that appears to have a specific mandate for detention. I am not that familiar with bond recovery. I was thinking more along the lines of an average citizen who as the victim of a crime might believe that because it is called a detention that might protect them from false arrest or false imprisonment liabilities. What do you think?

MDH
02-02-2005, 11:25 PM
Detention is interferring with persons freedom of movement. That is kidnapping.

Did you know that courts have ruled that when a cop shoots someone, the cop has arrested/seized that person for purposes of the 4th admenment?

It is hard for me to picture the scenario where I would try to hold someone for the cops. Unless the subject was no longer capable of movement. ;)

Guantes
02-03-2005, 01:46 PM
MDH,

Without getting into the debate of when detention would be prudent due to odds or personal safety concerns I would disagree with you that a dention is a kidnapping.

Refer: Revised Code of Washington (RCW)

RCW 9A.40.020 Kidnapping in the first degree.
(1) A person is guilty of kidnapping in the first degree if he intentionally abducts another person with intent:
(a) To hold him for ransom or reward, or as a shield or hostage;or
(b) To facilitate commission of any felony or flight thereafter; or
(c) To inflict bodily injury on him; or
(d) To inflict extreme mental distress on him or a third person; or
(e) To interfere with the performance of any governmenbtal function.
(2) Kidnapping in the first degree is a class A felony.

RCW 9A.40.040 Unlawful imprisonment
(1) A person is guilty of unlawful imprisonment if he knowingly restrains another person.
(2) Unlawful imprisonment is a class C felony.

RCW 9A.16.020 Use of force-- When lawful
The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases;
(1) Whenever necessarily used by a public officer..........
(2) Whenever necessarily used by a person arresting one who has committed a felony and delivering him or her to a public officer competent to receive him or her into custody;
(3)...........
etc.............

I tried to be accurate in transcribing but make no guarantees.

I think detaining someone, would fall more under the definition of Unlawful imprisonment as it, does not have the elements of kidnapping. The "restraining" in Unlawful imprisonment would seem to imply the use of force but would be trumped by section (2) of the lawful use of force, in the case of a felony, in Washington. One other point, kidnapping usually requires the movement to some degree of the victim not just detention. This is also the case in California statutes (refer Sec 207 PC).

jmho

Al Lipscomb
02-03-2005, 06:26 PM
Handcuffing can be a dangerous activity and it would not be something I would want to try alone. Trying to control someone at gunpoint can be a tricky activity with lots of risk. For example you have a problem in that you have to keep your attention on the BG but a second threat could make things complicated very fast.

If you think that you may want to get involved in this kind of activity you need to get the training and practice.

MDH
02-03-2005, 08:13 PM
I stand corrected. Unlawful imprisonment it is. Is that also covered in the federal CIVIL RIGHTS ACT?

Guantes
02-03-2005, 08:49 PM
MDH,

Not that I was able to find. Most things in the Civil Rights Act refer to rights to vote, get a job or housing etc.
Under Title 18 Part I Chapter 13
Section 241: Conspiracy Against Rights
Pertains to conspiracy (two or more persons) to deprive.......
Section 242: Deprivation of Rights Under Color of Law
Pertains to acts by officials (LEOs etc)

There may be something that pertains, I just didn't find it.

Treyarch
04-27-2005, 11:12 AM
I'm currently a LEO in the state of Connecticut. We've got so many leftists here it should be spelled Konnektikut. I would never, ever advise a private party to attempt arrest. Not because they're not competent to do so, but because they will be dragged, gutted, castrated and eaten alive by the courts, and the civil lawsuit that follows. The media will have a field day with you too. Picture your face on the front page with the headline reading " Wanna be cop" or "Vigilante". And that my friends is what will happen if the arrest didn't involve you injuring the suspect.

Screw it !! Let 'em go and you be a good witness. Let the ones who are indemnified by their employers go hands on with the criminal.

I agree. Especialy about the indemnity part...You don't want to be THAT on the hook.

Now...Why are you thinking of using force on this person?

Are you defending yourself against an attack from which you can not safely leave, or are you looking for an excuse that will allow you to mix it up so that you do not have to have had "retreated", or are you legitimately excercising what limited powers of arrest you do have as a citizen?

The after action paperwork and questioning will be BRUTAL, especialy if someone is injured.

"would this not be a legal and proper way to aviod the legal necessity to retreat in the face of certain crimes and justify the force necessary to effect the arrest."

How heavily insured are you? Health insurance? Liability insurance?

Have you got a lawyer? Because you will be needing one.

You can't just claim "I wanted to arrest him..." and expect that to make all the problems go away, just like you can't explain away some things with "I was defending myself"

I'm sure it can be done and successfuly defended, but you are going to be an exception which will make the State's Attorney very intrested and making a prosecutor intrested is NOT a good thing.

They are political animals and you don't want them looking at you like "Maybe I can get a mayoral or state rep job on this case...interesting..."

Its a terrible, messy area for non-leo's to get into and I would avoid it like I would skipping in a minefield on the Israel/Syria border.

MarkC
04-27-2005, 02:20 PM
#1 at gun point, shoot #1 before doing anything else. He's a dangerous pos, (or why do you have him at gunpoint, hmm?) So why not make sure of him, while you can, before diverting your attention elsewhere?

No wonder you went to prison. Felony stupid was it?

RMF
04-27-2005, 03:20 PM
should have gotten life. (or get one)