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

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Gunnut17

Moderator
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.
 
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.
 
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.
 
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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.
 
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?
 
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.
 
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.
 
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.
 
Is this true, can a BG simply leave by stating he is doing so?
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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.
 
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.
 
Yes, unless there is the potential of stolen property. Texas comes to mind on this instance.
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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?
 
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.
 
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. :D

***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).
 
Glenn E. Meyer said:
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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Since Glenn mentioned the quote above, and others have mentioned other states then NM, I will share my view, and experience.


http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_15A/GS_15A-404.html said:
§ 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.)
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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.
 
Fishing Cabin said:
First, as far as NC, there is no "arrest" allowed by statute, only detention. There IS a difference...
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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.
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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?
 
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.
 
Aguila Blanca said:
...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?
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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...​
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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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