Another "What If" question....

[jdrudd]

I’ll try to briefly summarize what went down:
About 4:30 pm in Harris County. BG was caught inside of co-workers car, trying to steal it. Upon being seen he ran off. I was not outside at the time, but walked out a few minutes later, less than 5. I do not have CHL (been waiting since 2/7/09 but that’s a different story), but did have gun in truck (castle law). I said “if he’s on foot, how far could he be? Let’s go find him!” Not really thinking, “what do we do if we do find him?” Sure enough we found him. He comes over to my truck, my hand is on gun “just in case” but outta sight. There are 3 of us, but on a public road, away from crime scene possibly in front of this guys house. He bids us farewell with sign language and pleasantries and walks off. We call cops. They come, a lot sooner than I expected, I might add. They question us and eventually catch him.
So, my questions are:
Could I have “held” him at gun point until cops arrived?
Could the people that caught him in the act physically held him until cops arrived?
I’ll admit feeling a little frustrated because here is this smart foot punk 2 ft from us and I felt like anything we did might/would cause us to be in trouble.

[seamusTX]

Could I have “held” him at gun point until cops arrived?
Could the people that caught him in the act physically held him until cops arrived?

Sure you could. It might even have been legally justifiable.

Motor vehicle burglary is a misdemeanor. Malicious mischief in the form of damaging a vehicle (which usually goes along with breaking into it) is also a misdemeanor. A non-LEO cannot legally arrest for a misdemeanor.

If the miscreant had stolen property, someone could have used force to recover it. However, according to what you wrote, it doesn't sound like he did.

Trying to apprehend or restrain a criminal is dangerous. You don't know if the guy is desperate to avoid being re-arrested (getting parole revoked), nuts, high on drugs, armed, or has reinforcement.

I think you did about as much as you could. This sounds like a savvy criminal who knows the law.

- Jim

[srothstein]

The problem with your attempting to hold him at gun point is what to do with him next. What do you do if he complies? What do you do if he says "no way" and takes of or starts fighting? Unless you have some training and have thought these things out in advance, I generally advise to not attempt to stop someone, just get them to stop their crime. A good witness can be invaluable.

Then you have the legal question of whether or not you could arrest him. The statutes for citizens arrest are not generally known, but they are covered in Code of Criminal Procedure Articles 14 and 18. As stated above, if not a felony it is much harder than TV shows. Article 14.01 says you can arrest for a felony or a breach of the peace committed in your presence or view. Article 18.16 says you can seize stolen property AND the person to prevent the consequences of a theft. In the case under discussion, you had neither of these authorities. Even the people who caught him in the act had neither and could not legally have arrested him. If you had done so, you could have been charged with unlawful restraint, which is generally a misdemeanor but would have been a felony if he was under 17.

The exception that would have given you or them the authority was if you could prove you knew he had taken something from the car he broke into and still had it. This exception is what lets security guards arrest shoplifters, as one example.

[Drewthetexan]

What's the difference between "citizen's arrest", detaining someone, or just using force to coerce someone not to leave, i.e. holding them at gunpoint and hoping they don't run off? Are these semantics? Is there a legal difference between physically restraining someone and holding them at gunpoint?

And then, if you are justified in using force, but not deadly force, in a situation - does the use of force constitute provocation if it causes the bg to escalate to the point where you have to use deadly force in self defense?

[seamusTX]

What's the difference between "citizen's arrest", detaining someone, or just using force to coerce someone not to leave, i.e. holding them at gunpoint and hoping they don't run off?

Detaining someone by force or threat of force other than a weapon is unlawful restraint or kidnapping.

Detaining someone by display of a weapon is aggravated kidnapping, aggravated assault, or deadly conduct (or all of these offenses).

If you do any of these things, you need a legal justification, which is only a defense to prosecution.

... if you are justified in using force, but not deadly force, in a situation - does the use of force constitute provocation if it causes the bg to escalate to the point where you have to use deadly force in self defense?

If your use of force is legally justified, the other party is not justified in using force or deadly force to resist. If the other uses or attempts to use deadly force, you are then justified in using deadly force to stop the the threat.

All of this stuff is bad ju-ju that can get you killed or land you in court, spending tens of thousands of dollars to defend yourself.

As usual, IANAL, etc.

- Jim

[tarkus]

Confinement is justified when force is justified by this chapter if the actor takes reasonable measures to terminate the confinement as soon as he knows he safely can unless the person confined has been arrested for an offense.

[mred]

On what grounds did Joe Horn get off on, I don't remember.

[seamusTX]

Confinement is justified when force is justified by this chapter if the actor takes reasonable measures to terminate the confinement as soon as he knows he safely can unless the person confined has been arrested for an offense.

This is Penal Code 9.03. It is one of many parts of the Texas Statutes that conflict with other statutes.

You can legally use confinement to stop a thief, for example. Can you confine a trespasser?

As I said, all these provisions are defenses to prosecution. If you don't have a rock-solid justification, you can get in a lot of trouble.

On what grounds did Joe Horn get off on,...

Probably PC 9.43, protection of third person's property.

We will never really know, because grand jurors are sworn to secrecy. Maybe they just didn't like illegal immigrant burglars.

- Jim

[mred]

OK now I remember, Thanks.

[srothstein]

What's the difference between "citizen's arrest", detaining someone, or just using force to coerce someone not to leave, i.e. holding them at gunpoint and hoping they don't run off? Are these semantics? Is there a legal difference between physically restraining someone and holding them at gunpoint?

Legally, there is no difference between detaining someone and arresting them for citizens. The difference for cops is a very gray area and was created by the Supreme Court in the case of Terry v. Ohio. Prior to this point, and even subsequently in some cases, SCOTUS said an arrest was any time a person was not free to leave. The latest decision to use this was last year os so when they ruled the passenger in a car the police stop was legally under arrest since no reasonable person would feel free to leave at that point. This was important because an arrest requires probable cause and this case actually allows a passenger to challenge the PC for the car stop.

In Terry, the SCOTUS said a cop could legally detain someone for investigatory purposes if they were acting suspiciously and the officer could properly explain why he thought the person was committing a crime. This has really confused things for cops on what is an arrest and what is a detention. Since citizens other than officers cannot investigate (yet), they do not (yet) have the power to detain. Thus, any time you stop the person from leaving, you have performed a citizen's arrest if done legally. If not done legally, you have committed a crime of unlawful restraint or some form of kidnapping.

And then, if you are justified in using force, but not deadly force, in a situation - does the use of force constitute provocation if it causes the bg to escalate to the point where you have to use deadly force in self defense?

This is another gray area that has not yet been defined by the courts. In general, your legal use of force is not considered provocation because it is a legal response to the bg's actions. But, if you are justified in using force, though not deadly force, and it is not enough to stop the problem, can you escalate? This is not clear in the law. If I am justified in using force and I draw a weapon, but the bg runs away, can i shoot him? Not the way I read the law. But if we turn it around and he comes at me (a la Joe Horn), I am now legally allowed to shoot. My theory is that a reasonable person would feel the bg was about to kill or injure me if he doesn't feel intimidated by my weapon and attacks. That would then justify the deadly force on its own.

But, being in this vague area, only the jury and appeals courts can say for sure. I can say a cop cannot shoot in those cases, but the Garner decision does not apply to citizens (it was based on 4th Amendment issues which can only restrict the government).