Situation at the Quickie Mart

[VAJay]

IMHO….At that point I do not think there is any imminent danger to you or anyone else. There are several cases that set legal precedence that you can not use deadly force in protecting private property. Ie. Someone stealing a car or jacking a bicycle out of your yard.

[vsp39o2]

The good guy wouldn't be protecting property given this scenario. He is protecting the shopkeeper from the turd pointing a firearm (real enough to cause that belief in grave personal injury) at him.
With apologies, this is not analogous to bike-jacking or the like.

[VAJay]

if you can not hear clearly and can not see a gun I do not see where deadly force is justified. I think we will have to agree to disagree on this. Without a weapon I would not draw my weapon in this. I would however move myself and other to a sheltered area in case the situation became worse.

I see your handle is VSP3902 are you a trooper?

[allingeneral]

The scenario says that the BG is "pressing his hand into his jacket pocket and pointing it at the clerk as if he has a gun in his pocket". This indicates that he *may* have a gun, but since you cannot verify the presence of a gun and therefore cannot determine that he is actually threatening the clerk with deadly force, then deadly force would not be authorized in this situation.

Now, if he's standing there and pulls a gun out of his pocket, this changes the scenario completely.

I think the point Jay was trying to make that deadly force has not been brandished by the BG and that means that you, the GG would not be authorized to use deadly force just to stop the theft of the store's property.

That's my take on it after reading the replies up to this point.

Everyone smile and be friendly now

[wylde007]

Given that same opinion of the situation, what would lead you to believe it is NOT a real gun?

You just don't know. The perp could fire the weapon through his hoodie pocket so that there wouldn't be any flash burns on the victim, which provide investigators add'l data to process and link someone to a crime.

I would not WANT to shoot someone... but I will.

[VBshooter]

All good points ,,I still think that if there is no visible weapon that your decision as a Civilian is to either wait or you could verbally challenge him with weapon drawn and hope that he will cooperate and either run or put any weapon down that he may be hiding. Then the police could be called,,, It would seem to me that a cop would have more choices here than a civilian,, with no visible threat , I think a civilian would have to act with more restraint than a cop may have to..

[wylde007]

Unfortunately, if you give warning, then he now has the opportunity to act first. That first act could be to pull the trigger. That's really not a scenario I see playing out in my favor.

If you're not going to act, the best option is to find a way to be somewhere else on the quick.

I would really need to read up on citizen's arrest and the authority vested in the people in absence of uniformed law enforcement.

[allingeneral]

I think that alerting might be a viable option if you're already drawn and have a good cover position. That puts you ahead of the curve in that regard. If he turns around and pulls a gun out of his pocket - be ready.

I don't know though...I would likely just take a cover position and watch the situation unfold - and if the BG specifically does draw a gun or fires through his jacket pocket, then game on.

[VBshooter]

This is turning out to be a great discussion topic... I love it when something can be analyzed like this and see just how many viable solutions there may really be.

[wylde007]

Update:

After a little research, at least as far as Virginia is concerned, it is a common-law right to perform a citizens arrest, assuming four (4) issues/items are prevalent or notable:

1) There is evidence of felonious or breaching of peace - this has held to include observing someone else driving under the influence... which is not a felony.
2) The authority to do so (citizen of Virginia arresting in Virginia)
3) Ability to actually or constructively detain the arrestee, and
4) The arrestee understands and acknowledges detention.

It would appear that in order to arrest under common-law the arrestee must consent to the validity or imminence of detention. Having your own personal defense weapon trained on his head may provide conviction enough... and if he raises up to defer or abrogate your authority, you drop him like a sack of grain.

[allingeneral]

if he raises up to defer or abrogate your authority, you drop him like a sack of grain.

Not sure I agree with this point. You can't citizens' arrest someone for DUI, hold a gun to their head, then drop them if they decide to run away or otherwise resist your "authority" to place them under arrest.

[wylde007]

I didn't say if he ran away. I said if he RAISES UP.

That means he makes a motion or effort towards physical altercation or in a manner to subdue you, the arresting authority. If he charges me, I will accept that as an immediate threat to my safety and of the possibility that he may try to disarm me and use my weapon against me. In which case, I'm shooting him.

I would never shoot a man in the back, that's folly. Surely you have taken my statement out of context?

Which begs the question - if you enact a citizens arrest and the criminal runs, has that person also committed the crime of "resisting arrest"?

[allingeneral]

Hmm. I think maybe I put my own words out of context. I didn't mean shooting someone in the back if they ran - of course one would never do that. (although, read through to the second quote below and you will see that Kentucky does allow this!)

I think we're getting a little off topic here, but for the sake of discussion, I'll go ahead with it...

Here's are a couple of cites that may help explain citizen's arrests

WILLIAM C. HUDSON v. COMMONWEALTH OF VIRGINIA
Record No. 022703 SEPTEMBER 12, 2003
OPINION BY v. JUSTICE G. STEVEN AGEE
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY

At common law, a private citizen may arrest another for a breach of the peace committed in his presence. See Gustke, 516 S.E.2d at 291-92; see also Carroll v. United States, 267 U.S. 132, 156-57 (1925) (" 'In cases of misdemeanor, a peace officer like a private person has at common law no power of arresting without a warrant except when a breach of the peace has been committed in his presence . . . .' " (quoting 9 Halsbury's Laws of England 612)); accord W. Page Keeton, ed., Prosser and Keeton on the Law of Torts 26 (5th ed. 1984) ("Broadly speaking, either an officer or a private citizen may arrest without a warrant to prevent a felony or a breach of the peace which is being committed . . . in his presence.") (footnotes omitted). Despite argument on brief that he could only be the subject of a citizen's arrest for a felony, Hudson conceded at trial that "any normal citizen can pull somebody over for breach of the peace."

And here is some more detail from http://www.constitution.org/grossack/arrest.htm

Copyright ©1994 Constitutional Business
Post Office Box 90
Hull, Massachusetts 02045
Tel. 617-925-5253
Fax 617-925-3906
All Rights Reserved

Limited License:

The right to publish this article off-line in print, or via CD-ROM, floppy diskette, tape, laser disk, or any other media, electronic or otherwise, can only be granted by the author and must be in writing. Online usage is unrestricted as long as this article, including the byline, copyright notice, publisher's address, and limited license, is published in its entirety.
CONSTITUTIONAL BUSINESS

Published By Citizens' Justice Programs

Post Office Box 90, Hull, Massachusetts 02045
Citizens' Arrest
By David C. Grossack, Constitutional Attorney

Common Law Copyright © 1994
All Rights Reserved

Not long ago the politically correct Boston Globe noticed a "shocking" new trend. It seems as if some citizens of Massachusetts were so fed up with crime that they have begun to intervene in petty street crime afflicting the streets of our cities. Thieves and pickpockets in Massachusetts should exercise caution in where and how they ply their craft as the chances that vigilantes pummel them and drag them to the nearest cop are definitely on an upswing. While the Globe is shocked at this healthy trend, students of the law should note that both a statutory and common law basis for a certain degree of "vigilante behavior" is well founded. Indeed, in an era of lawlessness it is important that readers be advised as to their lawful right to protect their communities, loved ones and themselves by making lawful citizens' arrests. The purpose of this essay is to simply explain the law and the historical context of the citizen's arrest.

First, what is an arrest?

We can thank Black's Law Dictionary for a good definition: "The apprehending or detaining of a person in order to be forthcoming to answer an alleged or suspected crime." See Ex parte Sherwood, (29 Tex. App. 334, 15 S.W. 812).

Historically, in Anglo Saxon law in medieval England citizen's arrests were an important part of community law enforcement. Sheriffs encouraged and relied upon active participation by able bodied persons in the towns and villages of their jurisdiction. From this legacy originated the concept of the posse comitatus which is a part of the United States legal tradition as well as the English. In medieval England, the right of private persons to make arrests was virtually identical to the right of a sheriff and constable to do so. (See Inbau and Thompson, Criminal Procedure, The Foundation Press, Mineola, NY 1974.

A strong argument can be made that the right to make a citizen's arrest is a constitutionally protected right under the Ninth Amendment as its impact includes the individual's natural right to self preservation and the defense of the others. Indeed, the laws of citizens arrest appear to be predicated upon the effectiveness of the Second Amendment. Simply put, without firepower, people are less likely going to be able to make a citizen's arrest. A random sampling of the various states as well as the District of Columbia indicates that a citizen's arrest is valid when a public offense was committed in the presence of the arresting private citizen or when the arresting private citizen has a reasonable belief that the suspect has committed a felony, whether or not in the presence of the arresting citizen.

In the most crime ridden spot in the country, our nation's capitol, District of Columbia Law 23- 582(b) reads as follows:

(b) A private person may arrest another -

(1) who he has probable cause to believe is committing in his presence -

(A) a felony, or

(B) an offense enumerated in section 23-581 (a)(2); or

(2) in aid of a law enforcement officer or special policeman, or other person authorized by law to make an arrest.

(c) Any person making an arrest pursuant to this section shall deliver the person arrested to a law enforcement officer without unreasonable delay. (July 29, 1970, 84 Stat. 630, Pub. L. 91-358, Title II, § 210(a); 1973 Ed., § 23-582; Apr. 30, 1988, D.C. Law 7-104, § 7(e), 35 DCR 147.)

In Tennessee, it has been held that a private citizen has the right to arrest when a felony has been committed and he has reasonable cause to believe that the person arrested committed it. Reasonable grounds will justify the arrest, whether the facts turn out to be sufficient or not. (See Wilson v. State, 79 Tenn. 310 (1833).

Contrast this to Massachusetts law, which while permitting a private person to arrest for a felony, permits those acquitted of the felony charge to sue the arresting person for false arrest or false imprisonment. (See Commonwealth v. Harris, 11 Mass. App. 165 (1981))

Kentucky law holds that a person witnessing a felony must take affirmative steps to prevent it, if possible. (See Gill v. Commonwealth, 235 KY 351 (1930.)

Indeed, Kentucky citizens are permitted to kill fleeing felons while making a citizen's arrest (Kentucky Criminal Code § 37; S 43, §44.)

Utah law permits citizen's arrest, but explicitly prohibits deadly force. (See Chapter 76-2-403.)

Making citizen's arrest maliciously or without reasonable basis in belief could lead to civil or criminal penalties. It would obviously be a violation of a suspect's civil rights to use excessive force, to torture, to hold in unsafe or cruel conditions or to invent a reason to arrest for the ulterior motive of settling a private score.

Civil lawsuits against department stores, police departments, and even cult deprogrammers for false imprisonment are legend. Anybody who makes a citizens arrest should not use more force than is necessary, should not delay in turning the suspect over to the proper authorities, and should never mete out any punishment ... unless willing to face the consequences.

As the ability of the powers that be to hold society together and preserve law and order diminishes, citizen's arrests will undoubtedly be more common as a way to help communities cope with the wrongdoers in out midst.

[wylde007]

That Hudson case is one I noted when I was scanning case-history.

Here's an informative follow-up link:

http://www.virginia1774.org/Commonlaw.html

[vsp39o2]

I will admit at this point that I am bound by different rules than most of y'all here. I answered the hypothetical based upon my experience and training, however though i am a citizen, my arrest of the BG wouldn't be classified as a citizens's arrest. I also stand by what i said, the pointing of what is purported to be a firearm by said BG (the OP said this is plainly a robbery--skimask?) with the intent to cause death or grave bodily harm to the shopkeeper (why else WOULD anyone intentionally point a gun at someone? If the BG points something at the shopkeeper during the commission of a robbery, replete with advisements that it is in fact a firearm they're pointing) would lead a reasonable person to the belief that is IS a firearm. Hence, MY response of announcing, challenging, and commanding. The totality of the circumstances must be taken into consideration.

[vsp39o2]

I see your handle is VSP3902 are you a trooper?

No, sir.

[gfost1]

Howdy, All,

Is it too soon in this thread to wonder how the situation changes if I am now the clerk, and the finger in the pocket is pointing my direction?

[VBshooter]

Dive right in freind,, I think its great if we can look at this thing from all aspects,,, I feel if you are the clerk then even a perceived threat can be dealt with differently than a spectator,,, The no visisble weapon still seems to be a glitch in the mix though,,,This state needs to pass the castle doctrine badly,,,I think you should protect yourself to any degree it takes ,,up to and including deadly force ,,, Now if its just take the money and run ,,,Give em the money and let em go

[alby]

I agree. Without a weapon visible, your use of force would be considered excessive.
Now the police could get away with shooting the suspect after yelling for him to place
his hands in the air. If he didn't comply, boom. But being Citizen Joe, you are likely
not authorized to use deadly force unless there is a clear and present danger.



Wiki Blurb:

Liability is present where the licensee brandishes the weapon, threatens use, or exacerbates a volatile situation, or when the licensee is carrying while intoxicated. While state laws vary, generally use of deadly force must be a matter of last resort, when life or limb is endangered, when escape or retreat are foreclosed, and warnings are given but ignored.

However, increased passage of "Castle Doctrine" laws allow persons who own firearms and/or carry them concealed to also use them to protect property, and/or to use them without first attempting to retreat.

Even given these relaxed restrictions on use of force, using a handgun must still be a last resort in some jurisdictions; the user must reasonably believe that nothing short of deadly force will protect the life or property at stake in a situation. And even with Castle Doctrine laws in place, civil liabilities for errors that cause harm to another still exist, although civil immunity is provided in the Castle Doctrine laws of some states, e.g., Texas.

Some CCW holders in the United States have elected since 2006 to switch from carrying hollow-point bullets, and especially 10mm Auto caliber weapons, to instead favor carrying smaller caliber weapons. This occurred because of the conviction of retired school teacher Harold Fish in Arizona for second degree murder during a self-defense shooting. His conviction for killing a homeless man with a history of mental instability who attacked him while hiking on a remote trail was obtained through a jury trial by stressing Fish overreacted through choosing to use the increased stopping power of 10 mm hollow point bullets. State law in Arizona has subsequently been changed, such that the state now has the burden to prove that a self defense shooting was not in self defense, whereas the burden previously before the Fish incident was that the shooter on trial had to prove that the shooting was in fact done in self defense. Meanwhile, many CCW holders have elected to switch to carrying handguns loaded with full metal jacket (FMJ) bullets in calibers less powerful than 10 mm. A choice for selecting the correct stopping power advocated by defensive handgun instructor and columnist Massad Ayoob, and echoed by many CCW course instructors, is to select the exact same type of bullets (FMJ or hollow point), in the same caliber and possibly even brand that are used by the local police. By so doing, the CCW holder avoids being accused of such overreaction should they be involved in a shooting.

[Bob]

I've been reading this thread from the start and I know one thing for sure, you never know how you will react in a high pressure situation.

I've seen people react in some strange ways when the pressure is on.