Carry Incident help please

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Eghad said:
you must have probable cause....i.e. someone had to personally observe you stealing the item. The proper thing would have been to say "Sir, may I please see your receipt". If he says no the store could legally ban him from shopping there again if he said no.
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Eghad has hit the nail right on the head!

There seems to be an awful lot of "armchair lawyers" chiming in here but what I can't understand is everything I read on this forum is about how everyone is always in "condition Red" and how they will react to being attacked, what they will do to their assailant yada, yada, yada. You know, double tap this, two to the chest and one to the head!

So this guy gets TACKLED FROM BEHIND, in a dark parking by some unknown assailant and draws his weapon because he was fearful for his life and you guys want to draw and quarter him. Isn't this exactly why everyone carries a concealed weapon? Read half of the scenarios posted here asking what would you do if you were "attacked from behind, unprovoked in a dark parking lot"?


I think "New Master" did exactly the right thing regardless of what precipitated the event. This store should be apologizing to him and begging him not to sue them and that so called "security goon" should be fired immediately.

The only thing I can say is, for those people out there who carry a firearm and aren't ready to use it when attacked with deadly physical harm should probably not be carrying it because it will most likely be taken away from you and used against you.
 
Don't throw everybody in the same boat!

He did the right thing by drawing his weapon. There is no question about it. If he was tackled from behind (with or withour warning we will never know) then he was well within his rights to draw on the threat. He didn't pull the trigger, thank God! Both of them are ok. No one died. He got a few scrapes on his arm. Who cares? Big boys don't cry right? This lawsuit stuff is just plain ridiculous. Master's last post was so typical it's not even funny. "yes, now my hip area does hurt (some what bruised)." "but with back injuries in the past, neck injuries" "I have scrapes down my arm from being on the cement." I can see you walking into the courtroom right now all bandaged up and with a neck brace!:rolleyes: "The reason I am pursueing legal action is not to make a quick buck, but more to make sure this type of thing does not happen again" I'll bet!:rolleyes: You know you're right. I'll bet CNN picks this thing right up and every rent-a-cop in the whole world knows not to be an idiot and tackle someone!:rolleyes: It was an isolated incident. Be grateful that both of you left the situation unharmed. They forgot about it, the police forgot about it, and you should (IMHO) forget about it. If you do go ahead and file suit, then maybe you should give up this whole "gun lover" thing and start filing class action lawsuits against gun makers. There is a lot of money to be made in that market. Oh yeah, I forgot. You aren't interested in money!:rolleyes:
 
Interesting situation.

Situational awareness is key. I can't believe someone could run up on me in a parking lot without me hearing footsteps. I especially can't believe that the security didn't SAY something first. But even if he didn't say anything, if someone's running on concrete behind me, I'd turn to look.

As far as drawing your weapon, I would have absolutely secured the gun in MY hand if given the same sitauation. I might even draw and keep it at my side. As to whether I would draw it and aim it at a person, I would look in an instant to see who tackled me. Could be a friend playing a prank? Could be a police officer? Could be store security? Could be mugger? Don't know, but I don't point first, I look first to see if the target is an immediate threat.

Frankly, I would bet that Best Buy has a stern policy against physical confrontation over the price of a small item like a CD. Whatever their policy I would seriously consider a civil lawsuit against the store and the employee (you can always amend the complaint to drop the employee later but it just makes sense to include him as the tortfeaser and agent of the store) on the following grounds:

Assault and battery
False arrest

I personally know of instances where people have been wrongfully detained and even battered by store security and have sued and won large sums of money, generally from settlement.

As a result, most stores have a strict policy of letting merchandise walk out the door if there appears that there will be a physical confrontation where the security is uncertain whether it was paid for or stolen.
 
Third, the right to detain typically ends at the doors, just like your right to defend your home also ends at your doors. Shoot a burglar in your living room, and you are probably within your rights. Shoot that burglar on your front lawn, and you will probably face serious legal issues. Stores exercise no control over the ingress and egress of their parking lot, unlike their stores.
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I'm curious...what is your basis for this belief? If a burglar runs out the front door with your wife's $150,000 diamond tennis bracelet, are you just going to sit back and watch him go?
 
depends, not only on what state i reside in, but also what i am willing to use deadly force to stop.

theft is not something i am willing to shoot someone for. it doesnt threaten my life in any way.
besides, if my wife has a $150,000 tennis bracelet, that means i am 1. financially sound; and 2. smart enough to have it insured.
 
Whatever their policy I would seriously consider a civil lawsuit against the store and the employee (you can always amend the complaint to drop the employee later but it just makes sense to include him as the tortfeaser and agent of the store) on the following grounds:

Assault and battery
False arrest

I personally know of instances where people have been wrongfully detained and even battered by store security and have sued and won large sums of money, generally from settlement.
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Yeah, why not? Even though the guy suffered NO damages, maybe he can extort a few bucks out of Costco. And we wonder why the cost of everything we buy keeps going up and up...
 
Theft is not something i am willing to shoot someone for.
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This discussion really isn't about shooting someone over a theft, it's about detaining someone you think might have stolen something. While I agree that it's generally not appropriate (and not legal) to shoot someone for theft where your life is not in danger, there's nothing that says you can't stop and restrain him using other means, e.g., a flying tackle...
 
It's irresponsible of a corporation (this isn't personal property afterall) and a violation of your rights to be tackled for a crime you didn't commit. There are better and safer ways to accomplish this type of situation from a security guard standpoint. Here are several alternatives: 1) talk to the customer and ask him to stop and show his receipt. 2) get the persons plate number with parking lot cameras as he leaves and record that information 3) review store surveillance to see if he did purchase the item in question. If not, report him and his plate number and identification to the police who will issue an arrest warrant on BBs behalf. 4) run out past the customer, with backup, and approach the customer from the front about the merchandise....

Price of a cd to Best Buy is probably about $5. What if the innocent customer broke a finger, wrist, leg, or neck as a result of the tackle? How about the employee? Workmans' comp!?

I worked for a retailer that allowed its store security to use force to detain for any dollar value. A mans neck was broken and he was paralized during a scuffle over a pack of $5 batteries he had stolen. He sued and WON millions from the store. New policy: if you can't safely detain a person, let the merchandise walk. Our store suffered $1,000,000 in retail fraud per year but still managed to make enormous profits (some of that was theft, 1/2 or more was employee theft, some was credit card and check fraud).

Do I AGREE with this from a fiscal standpoint? Absolutely. All it takes is one person being beat down by RAMBO store security and that criminal could win millions and the store could go bankrupt.

Do I AGREE with this from a social disease standpoint? I think this policy encourages shoplifting. If shoplifters know the policy, then stores are in trouble and merchandise walks.

Bottom line: If I ran a store I would not let anyone use force to detain shoplifters. If I were wrongly accused of shoplifting and detained, I would seriously consider suing the store, depending on how the store handled it. If I were tackled without warning in the parking lot, they'd be receiving a legal summons in the morning.
 
think it through a little further.

you sprain your ankle or break a bone while tackling the suspected thief. you think you'll get anything out of suing him to cover your medical bills? lost wages at work? suppose you injure him, whats to prevent him from slapping you with a civil suit?

or suppose the suspected thief produces a weapon that was concealed. now you have become a bullet catcher, good job!
 
AFAIK, store "security" are not law enforcement. They do have the right and ability to detain you. However, I think you can definitely charge them with assault. There are some here that would say that if this were a police officer who tackled you from behind without warning, identifying themselves, and calling after you, then that officer should be fired immediately and then thrown in jail. I see no difference here.

Curious, does anyone think that store "security" has the right to tackle you? I can come up with a couple of reasons for that to happen, but they involve much higher danger situations.

And sure it may be store policy, however, you sign no contract upon entering, unlike some place like a Sams Club which requires membership and agreement. IIRC another TFL member a few years ago was "detained" by some chain store's security and successfully reported the "security" to the police and had that individual arrested for unlawful detainment. I'll see if I can find it.
 
I don't believe some of you guys....

You think that by entering a store you somehow become their property?

I buy stuff... I walk out, if they can't get the gig right be the time I'm at the door, I don't give a rip about their "store policy". Like maybe I have a 32" plasma TV stuck down my pants? A gallon of olives?

Any of you want to tackle a 50+ yr old stranger from behind on the street and see what happens? Try it and get back to me.

"An old friend playing a prank on you"? Really reaching....
My old friends stopped talking to me when I bought my first gun. My new friends know better.

If I am tackled from behind, day or night, busy or deserted, sidewalk or corporate property, I'm going down hard, and I'm taking damage. I'm drawing, if I'm still at all functional, and absolutely justified in firing.

I'll press charges for battery, if the punk is still alive, and I'll tell my attorney to hurt the store BAD.

Incidents like this are exactly why stores have "hands off", and "no pursuit" policies. They got cameras? They got witnesses? They follow you and ID your vehicle, police stop you and discuss the matter.

Even genuine videotaped shoplifters get careful treatment. They get TOUCHED and they can sue and win BIG.

If you don't think being tackled from behind is a violent attack, putting a person in legitimate fear of grievous injury, when do you figure he's justified in drawing his weapon? The third bounce of his skull on the pavement? The second stab wound?



EC
 
+1 Edison Carter. Well said.

What if New Master had been seriously injured in the fall like hitting his head on a car door or the pavement or even just busting his nose? He is an innocent man.
It used to be, when my mother and father were in grade school, you could be expelled or worse from school for just tripping someone because you could kill someone by tripping them. It was considered deadly assault.
 
"""Thanks for the explanation on social contract, but I'm not sure I completely believe you. You say that social contract is used in gray areas of the law - both civil and criminal. I was under the impression that almost all states have codified their criminal law. Do some states still prosecute criminals based on the common law?"""

brufener.....

Based on case law, which is essentially our common law in America, yes. Basically it is safe to say that some behavior not explicitely outlawed can be deemed illegal under what is more or less an umbrella to keep social order. For example, even if there is no law against picking your nose and eating your boogers as a patron in a restaurant, if you went in there and intentionally were doing that expressly to gross other people out you could reasonably be charged under a disorderly conduct or criminal mischief statute. Look at the show "Jackass" if you want some many examples of people doing things that in and of themselves are not expressly illegal but still could result in valid criminal charges because of when and where and with what intent they were done. Intent to disrupt the civil order is 'mischief' and actually doing it is disorderly conduct. What is was you did might in other circumstances actually be totally legal.

The store employee definitely broke the law here and I am not arguing that. I am also positive that the shopkeeper's rule does not apply in this scenario in any way so the store pretty much had no rights here to detain, let alone use force, whatsoever. Each State varies on that of course but the basic concepts are pretty uniform. But, knowing that walking out like that might insight a response, however illegal that response may be, I think it was entirely inappropriate to draw his weapon when such a response came. Maybe he forgot or never realized such a response might happen? Well, that is just negligent IMO and that would likely mitigate his claim of battery. You have to expect something might happen when you do something like that AND ESPECIALLY when you are armed with a deadly weapon you need to be extra careful and diligent not to help create bad situations - even when you are acting within your legal rights otherwise. I am such a nicer guy since I started carrying a gun it isn't even funny. It really troubles me a lot when someone who is carrying has the attitude of the original poster. His rights were no doubt violated but he himself is not exactly innocent here and maybe, just maybe, a reasonably valid criminal charge could even be brought here if someone really wanted to.

I will concede that even well-schooled legal scholars could debate this scenario all day and not come to a consensus on who was violating the law and if so what laws they were violating (both criminal and civil laws). I have a feeling that issues like the scope of the Shopkeeper's Rule in this type of scenario will only be settled in courtrooms across this country. Checking receipts at the door is relatively new and basically as such it will be up to someone who feels their rights were violated (like someone detained for not stopping at the line for example) to really see how these issues play out in the courts. Is it reasonable to detain on suspicion of theft for subverting the line at the door? I don't think so personally but I see the argument the other way as well. And to answer definitively your question about common law - Yes, "case law" (the courts determining the scope of a law when the legislature left room to do so) is essentially for all intents and purposes American "Common Law." When there is too much room for interpretation a law may be deemed unconstitutional because of vagueness but there is very often at least a little room allowed for courts to play with. In fact legislators deliberately often leave a little vagueness (they hope just not too much) to avoid people getting away with things by using loopholes.

I appreciate your comments as well and this thread is IMO, despite the sometimes unpleasant tone these conversations sometimes take, a very good example of what is good about these forums. I do see the points all around and they are mostly valid. I think this is just a matter of where each of us stands on how far you should go to avoid potential conflicts if you choose to be armed. I think the scenario in the original post is right on the edge for me. I almost think he was justified to draw his gun but just not quite given his actions prior to the parking lot.
 
The LAWSUIT is Over-Kill

Having your attorney file a fricking LAWSUIT is definitely "Over-Kill".

For crying out loud, how about both sides just act like adults ???
How about both sides learn a lesson here, shake hands and go about their business with a "Lesson Learned".
 
But, knowing that walking out like that might insight a response, however illegal that response may be, I think it was entirely inappropriate to draw his weapon when such a response came. Maybe he forgot or never realized such a response might happen? Well, that is just negligent IMO and that would likely mitigate his claim of battery. You have to expect something might happen when you do something like that AND ESPECIALLY when you are armed with a deadly weapon you need to be extra careful and diligent not to help create bad situations - even when you are acting within your legal rights otherwise.
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Excellent point! I get very squeamish when I read some of the more bellicose posts...I have to work hard to shake off the impression that some folks would welcome the opportunity to be in a situation where they were forced to draw on and perhaps shoot another person...
 
CaptainMike...

thank you for a good post. Nevermind doggieman. Some of you guys flip flop as much as John Kerry. You are pro gun and pro frivilous lawsuit!:confused: You people are the reason everything cost more. You are doing the same thing as when people file lawsuits against gun manufacturers or insurance companies. No one was hurt. If he was hurt, then sue them for whatever the medical bills added up to. The point is that he wasn't harmed. The security officer was also not harmed. No one had any criminal charges filed against them. As a few have already said, walk away from this whole thing with nothing more than a lesson learned. As far as I'm concerned, I hope you guys who keep advising him to sue get whats coming to you. Maybe some crook will break into your house and fall and break his neck and sue you for everything you're worth. It would only serve you right!
 
Let's assume WORST case. Instead of a security guard, let's assume that this was an actual LEO doing the tackle.

What does TX law say about LEO's using force?

§ 9.51. ARREST AND SEARCH. (a) A peace officer, or a person acting in a peace officer's presence and at his direction, is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to make or assist in making an arrest or search, or to prevent or assist in preventing escape after arrest, if:
(1) the actor reasonably believes the arrest or search is lawful or, if the arrest or search is made under a warrant, he reasonably believes the warrant is valid; and
(2) before using force, the actor manifests his purpose to arrest or search and identifies himself as a peace officer or as one acting at a peace officer's direction, unless he reasonably believes his purpose and identity are already known by or cannot reasonably be made known to the person to be arrested.​

It would seem that even an LEO is required to announce his purpose to arrest and search before using force... A blindside tackle without giving the tacklee previous notice would even put a TX LEO in legal jeopardy.

BUT, let's say that a TX LEO DID give notice of arrest and then tackled a citizen, but in the absence of resistance or attempted flight. What would a citizen be justified in doing in those circumstances?

§ 9.31. SELF-DEFENSE. ...
(c) The use of force to resist an arrest or search is justified:
(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and
(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary.
(d) The use of deadly force is not justified under this subchapter except as provided in Sections 9.32, 9.33, and 9.34.​

So, even if this HAD been an LEO making the tackle, the citizen would have been justified in using force to resist given that he had not offered any resistance before the tackle.

But, is drawing force? Or is it deadly force?
§ 9.04. THREATS AS JUSTIFIABLE FORCE. The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.​

It would seem that merely drawing his pistol is justified if force (not even deadly force) is justified.

So, by the letter of the law, even if the tackler had been an LEO who announced his intent to arrest, New Master's actions are perfectly justified as long as he had not resisted or attempted to flee. Furthermore, the LEO would have acted in a manner that is clearly contrary to the law.

Given that it was NOT an LEO AND there was no notice prior to force being used AND there was no attempt to resist or flee prior to force being used, I would say that the person doing the tackling and his employers are almost certainly liable civilly, and had New Master known the law, he could probably have pressed charges against the tackler and had him arrested.

BUT, what if New Master really HAD been shoplifting--and this is the kicker. Nothing changes!

There is absolutely no justification for what was done to New Master. Even if he HAD broken the law by shoplifting, that would not have allowed a security guard or even an LEO to tackle him in the absence of resistance or attempted flight. And, even as a shoplifter, under such an onslaught he would still be entitled to defend himself with force as described by § 9.31.
 
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Like was said before, we're only hearing one side of the story. I'd like to see the store video of the attack/tackle/assult or whatever it was in the parking lot. Or have we waited a sufficient time for that tape to have been recorded over?
 
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