Citizens Arrest and the Detention of a Suspect by a Private citizen

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Kleanbore

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From time to time, the subject of the detention of a suspect by a private citizen at gunpoint has come up in discussion here. That, and the related subject of citizen's arrest, should be well understood and very carefully and thoroughly thought out before anyone attempts to undertake such an action.

The act of attempting to "hold" a suspect is fraught with risks of several kinds, and the "rewards", if any, may not turn out to be at all what the actor had envisaged.

First, it is important to understand the legal aspects of the subject.

In all states except one, there is some provision in the statutes or at common law that provides for the arrest of a suspect by a citizen. The circumstances under which such an arrest would be lawfully permitted vary among jurisdictions. Also, there are differences among jurisdictions concerning when and whether the threat of force, or the threat or use of deadly force, may be used. It is extremely important that citizens understand the laws in their states, and in the states in which they may visit. We cannot address those in detail here.

Failure to act strictly within the law can lead to criminal prosecution and can expose the actor to serious civil liability.

That's just one consideration. It is important to understand that civil liability can also exist even if the actor does everything properly and in accordance with the law. A state website in Illinois explains that, while citizen's arrest is lawful within that state under certain circumstances, it is not recommended. The reason given is the actor could be held personally liable for any injuries or other medical consequences to the suspect that may come about during the time that the suspect is being held. That is not peculiar to Illinois.

One must also understand that a citizen may not lawfully arrest or otherwise detain a person simply for being a "bad guy", even if he has committed a crime. In Texas, for example, the common law provides for citizen's arrests for certain crimes, but only if the citizen actually and personally witnessed the commission of the crime. His word on that subject may not suffice. Absent sufficient evidence that the arrest had been lawful, a citizen may well be charged with the crime of unlawful restraint.

It is important that anyone considering holding someone by force or threat of force understand not only which crimes may constitute justification, but how those crimes are actually defined in local law.

It is worth pointing out that simple trespass is usually not on the list of offenses for which detention would be proper. In most cases, arriving first responders would just tell the offender to leave. Also, people have been charged and convicted for pointing guns at trespassers--in "gun friendly" jurisdictions. Put simply, you want them gone.

The idea of "holding" someone at gunpoint brings up the subject of whether the threat, or the use, of deadly force would be lawful to prevent the departure of the suspect. In most cases, the answer to that is an emphatic "NO!". There a few exceptions, but in most cases, should the detainee elect to disobey the commands of the citizen and flee, there is little that can lawfully be done to prevent him from doing so.

That leads to an issue that is even more serious. When one is pointing a gun in the direction of another person, there is always the possibility that one will fire it, perhaps because of an improper reaction to a movement made by the suspect. That is particularly true under conditions of stress. It should not be necessary to go into the potential consequences, should something like that happen.

The citizen detaining someone else faces another very serious risk. While he may have both of the suspects about whom he is knowledgeable right there on the ground where he can see them, there may be a third--the driver, or another accomplice. Should that person come in when the citizen has his attention focused on the persons he is trying to hold, the citizen could easily be shot.

As if that were not enough, we should also consider the fact that, if we have a desperate violent criminal actor in our presence, he may pose a serious danger even if he has a gun pointed at him. Some years back, two FBI agents arrested two suspects and had them on the floor while waiting for backup. Somehow, one of them had kept a gun that had not been discovered. When the opportunity presented itself, he was able to shoot and kill both agents.

In the MAG-20 Classroom course, Massad Ayoob discusses how best to go about safely detaining a violent criminal actor should it become necessary, and how one should not try to go about it. I will say that what Mas teaches is a lot different from what we see in screen fiction, and more importantly, from what people are likely to do themselves without the benefit of proper training. Mas explains his reasoning quite thoroughly.

Given all of that, most prudent people would almost always be best served to let the suspect depart, and to let law enforcement personnel equipped with cell phone images of the suspect hunt him down.

There is, of course, the very remote possibility that a circumstance may arise in which a suspect could reasonably be believed to pose a very serious and immediate threat to others if he is not held for police.

As a practical matter, however, the physical and legal risks, along with the reality that detaining someone is unlikely to help much on the enforcement front, would almost always mitigate against such a course of action. It is best to leave the matter to sworn officers who are trained and duty bound to enforce the law.

The above reflects input from Frank Ettin and Spats McGee; from valuable classroom training presented by Massad Ayoob; and from comments posted over the years by numerous qualified forum members, whose opinions are much appreciated.
 
I think that is very good information. I had posted a thread recently where a trespasser entered my backyard gate, and opened a door to a detached garage. This triggered an aubible chime in my house which woke me up . I grabbed my gun and looked at my security camera monitors, and could see him standing on a sidewalk between the detached garage and my house. I felt no need to go outside and try to run him off or hold him until police arrived. There was nothing out there worth risking being charged with a crime, shooting someone, or a civil lawsuit. It seemed like the best course of action was to remain put, keep an eye on the suspect, call police, and prepare to defend myself in the event he attempted to enter my house.

I think I did the right thing, but it has caused me to think through scenarios a little more carefully. I do not like having to make up a plan as a situation develops. It is better to have this stuff thought out in advance.
 
On the subject of Massad's classes, there appears to be a MAG-20 classroom class, and a different MAG-20 with live fire. Has anyone been to the live fire MAG-20 class? What does the shooting part entail? I am kind of past the point that I want to do a lot of running around, tactical somersaults, and ninja style acrobatics. Is it just shooting or is it more? I am ok with finding cover, crouching, learning more about draw, presentation and quick reloads, but I don't think I see Navy SEAL training in my future. I am not sure if I ever had that in me, but if I did, those days are long since gone.
 
... a trespasser entered my backyard gate ... and could see him standing on a sidewalk between the detached garage and my house. I felt no need to go outside and try to run him off or hold him until police arrived.
Going out would not have been prudent, under the circumstances that you have described. Detaining a trespasser is rarely lawful, and when it is, it is almost never a good idea.

It seemed like the best course of action was to remain put, keep an eye on the suspect, call police, and prepare to defend myself in the event he attempted to enter my house.
Absolutely!

I do not like having to make up a plan as a situation develops. It is better to have this stuff thought out in advance.
Yes!
 
Kleanbore is SPOT ON.

Having actually taken a few into arrest alone ,I can attest to the EXTREME danger of that.

And I was a defensive tactics instructor and had HUNDREDS OF HOURS of practice doing just that.

Until you actually try a custodial arrest of a non compliant,you will not have a clue.
 
Detaining a trespasser is rarely lawful, and when it is, it is almost never a good idea.

Dunno. At least here in Texas I know of quite a few people who have detained trespassers at gunpoint (including myself) and it was lawful and there were no repercussions.

But then this is Texas!

Deaf
 
At least here in Texas I know of quite a few people who have detained trespassers at gunpoint (including myself) and it was lawful and there were no repercussions.
There may have been no repercussions, but it is not lawful to detain a trespasser at gunpoint in Texas.

It is lawful in Texas to use physical, non-deadly force to terminate trespass (that means to get the trespasser to leave), if necessary.

It is also lawful to display a weapon, if necessary, to create the apprehension that the actor would use deadly force should things change.

This came up during the deliberations that led to the enactment of Code Section 9.42.
 
Kleanbore wrote:
In Texas, for example, the common law provides for citizen's arrests for certain crimes, but only if the citizen actually and personally witnessed the commission of the crime. His word on that subject may not suffice. Absent sufficient evidence that the arrest had been lawful, a citizen may well be charged with the crime of unlawful restraint.

Some years ago, some private security guards detained and handcuffed two people who "trespassed" on the grounds of the "North Dallas Jetport". The property had no gates or signage indicating it was private rather than public property. When the police arrived, they cautioned the two "trespassers" that the derelict airport was private, not public property and sent them on the their way. The security guards were arrested and charged with "unlawful restraint". So, it does happen.
 
My family farm is located in Arkansas. The county has a sheriff and two deputies to patrol 82 square miles. The sheriff has assured my father (and, later, me) that if we acted reasonably under the circumstances there would be no repercussions in how trespassers were handled. And so far, the various holders of the sheriff's office have been true to their word.

When three men were hunting deer by night (a crime) and threatened to shoot me and my father if we objected to them trespassing on our land, they were held at gunpoint until the deputy arrived. They were hauled off in handcuffs because the deputy determined we were within our rights to defend the property against trespassers engaged in an unlawful act.

Two years later when a couple of teenagers got lost while hunting racoon at night (a lawful activity) and blundered onto our land, my father fired a warning shot into the air and they immediately responded by declaring that they were lost. We shone a light and told them to come towards it. They did, When the deputy arrived, we were sitting around sharing a Coke and talking about how to recognize the property lines in the dark. The deputy offered to drive them back to their pickup and everything was cool.

Don't know that would still apply today, but that was how the county worked well into the 2000's.
 
Click Click D'oh wrote:
Lol, the inevitable course of all THR legal threads.

Love your screen-name by the way.

Also, you have to keep in mind that Texas used to be an independent nation, the Republic of Texas, before it joined the Union. Under the treaty by which it joined the Union, it still retains some vestiges of sovereignty, so the state laws here are just a little bit different than they are elsewhere.
 
As a Texas peace officer, I agree with Kleanbore and hdwhit, regarding private citizens dealing with trespassers. Yes, private citizens do tend to "hold" trespassers at gunpoint, and usually, the criminal justice system has mercy on the armed citizen, as Deaf Smith indicated. I have disapponted plenty of citizens and security guards, armed or not, by releasing the trespassers after providing a trespass warning. Often, I have phoned the on-call Assistant D.A., to confirm I was taking the correct course of action.

A property owner, or his representative, in Texas, does, indeed, have the right to remove others from the premises, using reasonable force. The force must be reasonable. Night club bouncers, for example, do it all the time. The security guards, mentioned by hdwhit, did have the right to escort/eject those actors from the premises of the airport, using reasonable force, if the actors had failed to depart after receiving notice to do so.

Obviously, a trespasser who has forced entry, or ignored signs or other reasonable indications that entry is forbidden, needs attention from the criminal justice system. The obvious example is a trespasser inside a home, at night, who can reasonably be presumed to be committing burglary, until the investigation finds otherwise. A homeowner in this circumstance is almost certainly reasonably justified in pointing a firearm at the actor, and "holding" the actor, pending the arrival of police. (Whether it is tactically wise for a homeowner to "hold" this actor, is a different matter.) I, as the responding officer, am likely to present a firearm, in this circumstance, until the situation is brought under control. (I will, of course, be alert for accomplices, a detail that most homeowners seem to forget.)
 
There may have been no repercussions, but it is not lawful to detain a trespasser at gunpoint in Texas.

It is lawful in Texas to use physical, non-deadly force to terminate trespass (that means to get the trespasser to leave), if necessary.

It is also lawful to display a weapon, if necessary, to create the apprehension that the actor would use deadly force should things change.

This came up during the deliberations that led to the enactment of Code Section 9.42.

Wrong... you can use force to detain the trespasser, and hence display a weapon, if necessary, to create the apprehension ...

CHAPTER 14. ARREST WITHOUT WARRANT

Art. 14.01. OFFENSE WITHIN VIEW. (a) A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.


Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1967, 60th Leg., p. 1735, ch. 659, Sec. 8, eff. Aug. 28, 1967

Also:

Art. 18.16. Preventing consequences of theft.

Any person has a right to prevent the consequences of theft by
seizing any personal property that has been stolen and bringing it,
with the person suspected of committing the theft, if that person can
be taken, before a magistrate for examination, or delivering the
property and the person suspected of committing the theft to a peace
officer for that purpose. To justify a seizure under this article,
there must be reasonable ground to believe the property is stolen, and
the seizure must be openly made and the proceedings had without delay.


Texas Civil Practices Act
§124.001. Detention.

A person who reasonably believes that another has stolen or is
attempting to steal property is privileged to detain that person in a
reasonable manner and for a reasonable time to investigate ownership
of the property.





Texas Penal Code
§9.51. Arrest and search.

(b) A person other than a peace officer (or one acting 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 a lawful arrest, or to prevent or assist in
preventing escape after lawful arrest if, before using force, the actor
manifests his purpose to and the reason for the arrest or reasonably
believes his purpose and the reason are already known by or cannot
reasonably be made known to the person to be arrested.


And thus the 'apprehension' of using deadly force (pointing a gun) is lawful.

Done many times in Texas. The guy I held at gunpoint had broken into my parents house.

Deaf
 
Does the Texas Penal Code define trespass as theft? I think you are talking about two different crimes here.

Done many times in Texas. The guy I held at gunpoint had broken into my parents house.

Depending on how the Texas Penal Code defines things, breaking into a home isn't simple trespass. We're talking burglary, attempted burglary or breaking and entry, again very different crime then simple trespass.

Art. 14.01. OFFENSE WITHIN VIEW. (a) A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.

It seems the keyword here is felony. Is it a felony in Texas to be on someone's property without permission? I'm not talking about in a building on that property, I'm talking about on the property.
 
Wrong... you can use force to detain the trespasser,...
NO!

and hence display a weapon, if necessary, to create the apprehension ...
If force is justified, and force would only be justified to terminate the trespass Code Section 9.41).

And thus the 'apprehension' of using deadly force (pointing a gun) is lawful.
If and when the use of force is justified.

Trespass and the evidence needed to support an allegation that force is necessary to prevent someone from stealing property are two entirely different things.

The guy I held at gunpoint had broken into my parents house.
Not at all the same as trespass.

Forcible entry into a house is a felony.

If you had actually witnessed the crime, you should have been lawfully justified in detaining the suspect. Otherwise, you could have been charged with unlawful restraint. See Post #13.

Of course, the fact that something may be lawfully justifiable does not make it a good idea.
 
Wrong... you can use force to detain the trespasser, and hence display a weapon, if necessary, to create the apprehension .

CHAPTER 14. ARREST WITHOUT WARRANT

Art. 14.01. OFFENSE WITHIN VIEW. (a) A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.....
Since when is trespass a felony or an offense against the public peace? If you contend that in Texas trespass is a felony or offense against the public peace, cite legal authority supporting that contention.

...Texas Penal Code
§9.51. Arrest and search.

(b) A person other than a peace officer (or one acting 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 a lawful arrest, or to prevent or assist in
preventing escape after lawful arrest if, before using force, the actor
manifests his purpose to and the reason for the arrest or reasonably
believes his purpose and the reason are already known by or cannot
reasonably be made known to the person to be arrested.


And thus the 'apprehension' of using deadly force (pointing a gun) is lawful.
....

Statute cited says "force" not "deadly force." If you contend that the reference to force in that statute necessarily and invariably, under all circumstances, includes deadly force, cite legal authority supporting that contention. If you can not, note that then the statute can not be read as authorizing apprehension using deadly force. It allows apprehension using force, but leaves open the question of what degree of force might be justified.

.....Done many times in Texas.....
Evidence?

...The guy I held at gunpoint had broken into my parents house....
Which is not ordinary trespass. Breaking and entering a dwelling is considered a violent felony.
 
Deaf, I hate to say this, but post 17 is a great example of why people shouldn't delve into things like citizens arrest. Last I knew a peace officer had to have 40 hours of criminal law and pass a test to be certified. And that's just the beginning.

The Texas law you cited states that a private person can use force to detain someone who they witness committing a felony. So the private person needs to know what the felonies in his state are. And there are a lot of misdemeanors that when certain elements are added become felonies. It's a lot to keep up with.

So what happens if as Rexter posted in post 16, that you are holding the person you caught wandering around the yard, the police arrive and release him with a warning not to come back, decline to arrest you, but the guy you held hires an attorney and sued you for the limit of what your homeowners liability will pay because you placed him in unreasonable fear of losing his life by holding him at gunpoint for something he wasn't even arrested for?
 
Deaf, I hate to say this, but post 17 is a great example of why people shouldn't delve into things like citizens arrest. Last I knew a peace officer had to have 40 hours of criminal law and pass a test to be certified. And that's just the beginning.

The Texas law you cited states that a private person can use force to detain someone who they witness committing a felony. So the private person needs to know what the felonies in his state are. And there are a lot of misdemeanors that when certain elements are added become felonies. It's a lot to keep up with.

So what happens if as Rexter posted in post 16, that you are holding the person you caught wandering around the yard, the police arrive and release him with a warning not to come back, decline to arrest you, but the guy you held hires an attorney and sued you for the limit of what your homeowners liability will pay because you placed him in unreasonable fear of losing his life by holding him at gunpoint for something he wasn't even arrested for?

Very good post, and spot on on all points.

And there's one other little something to consider: What happens when the police arrive and see you holding a gun on someone, assume that you are a felon, and shoot you?
 
I will repeat...

Texas Civil Practices Act
§124.001. Detention.

A person who reasonably believes that another has stolen or is attempting to steal property is privileged to detain that person in a
reasonable manner and for a reasonable time to investigate ownership of the property.

Note.. OR IS ATTEMPTING TO STEAL.

First if you believe one is attempting to steal (as when they are trespassing on your property one can reasonably feel they are their for that purpose) and..

Texas Penal Code
§9.51. Arrest and search.

(b) A person other than a peace officer (or one acting 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 a lawful arrest, or to prevent or assist in preventing escape after lawful arrest if, before using force, the actor manifests his purpose to and the reason for the arrest or reasonably believes his purpose and the reason are already known by or cannot reasonably be made known to the person to be arrested.

And again..

Sec. 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.


Just make sure you can articulate WHY you used deadly force (holding them at gunpoint) when found trespassing. That is you believed they were attempting to steal and you held them at gunpoint for that purpose.

Examples:

"In the video, you can see a man walk up and ring the doorbell, then a few seconds later he starts banging on the garage door and eventually makes his way over to the mailbox where he appears to go through the mail.

He definitely got the attention of the homeowner. Who ran to his front yard wearing only his underwear and holding a gun."

--> Notice he did not actually STEAL ANYTHING.

http://www.click2houston.com/news/man-in-underwear-holds-trespasser-at-gunpoint-until-police-arrive

"TEXAS CITY — Police arrested a man Tuesday afternoon on misdemeanor charges after a homeowner held him at gunpoint until officers arrived, authorities said.

Bond had not been set as of early Tuesday night on the 29-year-old man charged with criminal mischief and trespassing, stemming from a 3:07 p.m. call to a residence in the 2100 block of Fifth Avenue North, Texas City Police Chief Robert Burby said."

--> Notice criminal mischief and trespassing are not felonies.

http://www.galvnews.com/news/police/article_8b6a9046-5ca6-11e3-a0fb-0019bb30f31a.html

"27-year-old John Williams and 47-year-old Frank Pyle were issued criminal trespass citations and released."

--> Notice AGAIN criminal trespassing is not a felony.

http://www.kltv.com/story/34957777/east-texas-woman-holds-two-would-be-thieves-at-gunpoint

Google will find many more articles like these.

Deaf
 
I will repeat...

And everything you repeated is explicitly subject to a reasonableness standard. Reasonableness will be decided by others, after the fact, based on a reasonable person standard and exactly what happened and how it happened.

....Examples:...

The examples don't tell us anything about follow-up and therefore don't really tell us anything about how the laws were applied.
 
First if you believe one is attempting to steal (as when they are trespassing on your property one can reasonably feel they are their for that purpose)...
No.

Just what would lead one to "feel" that a trespasser was attempting to steal, absent some evidence to that effect?

And as Frank has explained, what you "feel" is just part of the eguation.

Just make sure you can articulate WHY you used deadly force (holding them at gunpoint) when found trespassing. That is you believed they were attempting to steal and you held them at gunpoint for that purpose.
That would not be sufficient. The question would hinge upon whether other persons, under the same or similar circumstances, knowing what you knew at the time, would believe that, because someone was trespassing, that person was attempting to steal something.

...AND whether there was a basis for believing that it was necessary for you to hold them at gunpoint to prevent them escaping with property,

Not likely!

Do not confuse trespass with theft.

Again, note Post #13:

Some years ago, some private security guards detained... two people who "trespassed" on the grounds of the "North Dallas Jetport". .... When the police arrived, they cautioned the two "trespassers" that the derelict airport was private, not public property and sent them on the their way. The security guards were arrested and charged with "unlawful restraint".
 
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