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Shop Owner Could Lose All After Citizen's Arrest  
User currently offlineLHMARK From United States of America, joined Jan 2000, 7255 posts, RR: 47
Posted (6 years 8 months 6 days 16 hours ago) and read 2473 times:

http://www.rnews.com/Story_2004.cfm?ID=56607&rnews_story_type=18

This is screwed up. A business owner tried to defend his property and somehow crossed the line from victim to criminal, with no one even getting hurt! I guess it isn't surprising, in the days where procedure is so complicated, even trained police have trouble following it.


"Sympathy is something that shouldn't be bestowed on the Yankees. Apparently it angers them." - Bob Feller
37 replies: All unread, showing first 25:
 
User currently offlineKFLLCFII From United States of America, joined Sep 2004, 3301 posts, RR: 30
Reply 1, posted (6 years 8 months 6 days 15 hours ago) and read 2433 times:

So what were the felony charges?


"About the only way to look at it, just a pity you are not POTUS KFLLCFII, seems as if we would all be better off."
User currently offlineGreasespot From Canada, joined Apr 2004, 3079 posts, RR: 20
Reply 2, posted (6 years 8 months 6 days 13 hours ago) and read 2385 times:

To make a citizens arrest you need to catch them in the act. Driving around the area slowly may be suspicious but it is not criminal. What if it was someone who was just lost and he missed the tire and hit the drivers door killing them?

GS

[Edited 2007-12-20 00:04:00]


Sometimes all you can do is look them in the eye and ask " how much did your mom drink when she was pregnant with you?"
User currently offlineANCFlyer From , joined Dec 1969, posts, RR:
Reply 3, posted (6 years 8 months 6 days 12 hours ago) and read 2374 times:

O’Connor said that suspect fled but he then noticed a car that kept slowly passing by. The vehicle then stopped and O’Connor approached it while on the phone with the Ontario County Sheriff’s department.

Not a crime on the vehicle owners part.

I approached the vehicle and in effect to make a citizen’s arrest, I ordered the operator out of the vehicle. He declined, turned on his headlights, came at me with the vehicle, and I jumped aside and instinctively fired one round into his left front tire,” O’Connor said

Why fire a round? Why ask the driver to get out? Why a "Citizens Arrest"?

The only error on the vehicle operators part Ican see is "he came at me with the vehicle", even that is suspect given this is a one sided statement.

“I will have to fight this all the way,” O’Connor added. “I do not see myself as a criminal. I was trying to defend my property. These thieves knew what they were doing and tonight they premeditated their crime.”

Defend his property from what? No crime had been commited.


User currently offlineN1120A From United States of America, joined Dec 2003, 26414 posts, RR: 76
Reply 4, posted (6 years 8 months 6 days 12 hours ago) and read 2365 times:



Quoting ANCFlyer (Reply 3):

Why fire a round? Why ask the driver to get out? Why a "Citizens Arrest"?

I don't see a reason either.

The only way this guy is getting out of this is if he proves that the driver of the car was indeed driving his car at him. Then again, the driver may well have feared for his life because a guy was approaching him with gun drawn.



Mangeons les French fries, mais surtout pratiquons avec fierte le French kiss
User currently offlineJoeCanuck From Canada, joined Dec 2005, 5416 posts, RR: 30
Reply 5, posted (6 years 8 months 6 days 12 hours ago) and read 2362 times:

It's the classic Al Capp defense; "I thought he was going to hit me so I hit him back, first...".


What the...?
User currently offlineCaptoveur From , joined Dec 1969, posts, RR:
Reply 6, posted (6 years 8 months 6 days 11 hours ago) and read 2336 times:

The shop owner was stupid.

He is screwed


User currently offlineDL021 From United States of America, joined May 2004, 11447 posts, RR: 75
Reply 7, posted (6 years 8 months 6 days 7 hours ago) and read 2291 times:
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Hate it for the guy but he made the mistake of being pro-active in a situation that called for waiting it out. If he thought he was being cased he should have taken the license number of the car and gotten as good a description as he could.

Shooting out a tire when the occupants of the vehicle had done nothing to him (if they were trying to run him over it's a different story, but if he jumped out in front of me with a pistol while I'm looking for an address number on the side of a building I might run him over too) was stupid. In this situation he could have simply avoided confrontation by not approaching them.



Is my Pan Am ticket to the moon still good?
User currently offlineAirfoilsguy From , joined Dec 1969, posts, RR:
Reply 8, posted (6 years 8 months 6 days 7 hours ago) and read 2266 times:



Quoting N1120A (Reply 4):
Then again, the driver may well have feared for his life because a guy was approaching him with gun drawn.

If someone came at my car with a gun drawn I would either shoot him or run him over as well.


User currently offlineQueso From , joined Dec 1969, posts, RR:
Reply 9, posted (6 years 8 months 6 days 6 hours ago) and read 2257 times:



Quoting ANCFlyer (Reply 3):
The only error on the vehicle operators part Ican see is "he came at me with the vehicle", even that is suspect given this is a one sided statement.

Yeah, I doubt that would ever hold up in front of a jury.

Quoting ANCFlyer (Reply 3):
I approached the vehicle

That's the one single determining factor here. The guy was out in a public street and apparently had not been threatened. I hate to say he should have "retreated", but that's exactly what should have happened. At the moment this happened there was apparently no threat to him.

Quoting Captoveur (Reply 6):
The shop owner was stupid.

He is screwed

Agreed. He didn't understand how it works.

Quoting Airfoilsguy (Reply 8):
If someone came at my car with a gun drawn I would either shoot him or run him over as well.

I would too, depending on the circumstances. In this case it seems as though the driver of the car had justification to defend himself by the means he had available to him at the time.


User currently offlineMDorBust From , joined Dec 1969, posts, RR:
Reply 10, posted (6 years 8 months 6 days 4 hours ago) and read 2201 times:

Unless he actually witnessed the guys fleeing his property and get in that car, I'd say he's up the creek. Heck, if he wanted to lurk on his property and wait for the knuckleheads to come back, then shot them, it would be a different story. But, shooting at a car driving slowly down the street... Yeah, not a good idea there buddy.

User currently offlineKaiGywer From United States of America, joined Oct 2003, 12241 posts, RR: 35
Reply 11, posted (6 years 8 months 5 days 4 hours ago) and read 2114 times:
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FORUM MODERATOR

Dumb idea. They were (allegedly) stealing property, not even from his house. Had he been at home, they had broke into his house, it would have been a different story.


911, where is your emergency?
User currently offlineGreasespot From Canada, joined Apr 2004, 3079 posts, RR: 20
Reply 12, posted (6 years 8 months 5 days 2 hours ago) and read 2069 times:



Quoting KaiGywer (Reply 11):
Had he been at home, they had broke into his house, it would have been a different story.

Actually he would not....he did not know it was them. He did not see them take anything. or even attempt to take anything...Because your house gets broken into or business you have no right to try and stop or shoot at a random vehicle....which is what he did.....this time he got lucky and they were involved. What if next time they were just lost and driving slowly...

GS



Sometimes all you can do is look them in the eye and ask " how much did your mom drink when she was pregnant with you?"
User currently offlinePope From , joined Dec 1969, posts, RR:
Reply 13, posted (6 years 8 months 5 days 2 hours ago) and read 2059 times:



Quoting MDorBust (Reply 10):
Unless he actually witnessed the guys fleeing his property and get in that car, I'd say he's up the creek.

Even then the use of deadly force to stop a fleeing suspect who poses no immediate risk of harm to the actor or others isn't privileged. It's my understanding that in many jurisdictions even the police can't use deadly force to stop fleeing non-violent property criminals.

Quoting LHMARK (Thread starter):
with no one even getting hurt!

Assault doesn't require contact. The crime is completed as soon as someone is placed in fear of contact.


User currently offlineMDorBust From , joined Dec 1969, posts, RR:
Reply 14, posted (6 years 8 months 5 days 2 hours ago) and read 2054 times:



Quoting Pope (Reply 13):
Even then the use of deadly force to stop a fleeing suspect who poses no immediate risk of harm to the actor or others isn't privileged.

There are locations where it is legal (such as down here in TX) for certain property crimes (burglary is one of them) There are also stipulations. You can't just shoot a fleeing burglar. It has to be a fleeing burglar with property, and you have to have a reasonable belief that the property is unrecoverable.. so you can't shoot a fleeing burglar with your property when the police are ten feet away.


I don't know the particular law for the location in which this occured, so I'm not going to delve to deep into this aspect unless someone does know the particular law for that location. I'm just going to leave it at, even in locations where it is legal, it's really not the best idea since an aggressive DA can turn a perfectly legal act into a very questionable and often prosecutable act.


User currently offlineN1120A From United States of America, joined Dec 2003, 26414 posts, RR: 76
Reply 15, posted (6 years 8 months 5 days 1 hour ago) and read 2038 times:



Quoting Pope (Reply 13):

Assault doesn't require contact. The crime is completed as soon as someone is placed in fear of contact.

Only if that fear is deemed reasonable



Mangeons les French fries, mais surtout pratiquons avec fierte le French kiss
User currently offlineANCFlyer From , joined Dec 1969, posts, RR:
Reply 16, posted (6 years 8 months 5 days 1 hour ago) and read 2026 times:



Quoting N1120A (Reply 15):
Quoting Pope (Reply 13):

Assault doesn't require contact. The crime is completed as soon as someone is placed in fear of contact.

Only if that fear is deemed reasonable

Alaska law defines Assault . . . . even verbal harrasment - calling someone a dirty name - is considered Assault.

So, no you do NOT have to feel physically threatened for there to be an assault charge.

Would I charge someone with assault for questioning my heritage or some such? Nope. That would be a loser's way out.


User currently offlineMDorBust From , joined Dec 1969, posts, RR:
Reply 17, posted (6 years 8 months 5 days 1 hour ago) and read 2023 times:



Quoting ANCFlyer (Reply 16):
So, no you do NOT have to feel physically threatened for there to be an assault charge.

You do down here Pep. You could call me dirty and nasty things all day long as long as you don't put a believable threat in there somewhere. Of course, I might still get you for disorderly conduct.  Wink


User currently offlineN1120A From United States of America, joined Dec 2003, 26414 posts, RR: 76
Reply 18, posted (6 years 8 months 5 days 1 hour ago) and read 2019 times:



Quoting ANCFlyer (Reply 16):

Alaska law defines Assault . . . . even verbal harrasment - calling someone a dirty name - is considered Assault.

And that would never hold up if someone took a writ on it. Now, some fighting words can be construed as enough of an assault for the person being called the name to hit first before being swung on.

Quoting MDorBust (Reply 17):
Of course, I might still get you for disorderly conduct.

And you might end up getting fired and your department sued for a 1983 violation.



Mangeons les French fries, mais surtout pratiquons avec fierte le French kiss
User currently offlineAirfoilsguy From , joined Dec 1969, posts, RR:
Reply 19, posted (6 years 8 months 5 days 1 hour ago) and read 2014 times:

Ohio law

2903.13 Assault.
(A) No person shall knowingly cause or attempt to cause physical harm to another or to another’s unborn.


User currently offlineN1120A From United States of America, joined Dec 2003, 26414 posts, RR: 76
Reply 20, posted (6 years 8 months 5 days 1 hour ago) and read 2005 times:



Quoting Airfoilsguy (Reply 19):

2903.13 Assault.
(A) No person shall knowingly cause or attempt to cause physical harm to another or to another’s unborn.

The issue there would be as to the meaning of attempt.



Mangeons les French fries, mais surtout pratiquons avec fierte le French kiss
User currently offlineMDorBust From , joined Dec 1969, posts, RR:
Reply 21, posted (6 years 8 months 5 days ago) and read 1989 times:



Quoting N1120A (Reply 18):
And you might end up getting fired and your department sued for a 1983 violation.

A who what?

Seriously

Quote:

Texas Penal Code

Sec. 42.01. DISORDERLY CONDUCT. (a) A person commits an offense if he intentionally or knowingly:
(1) uses abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace;
(2) makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace;
(3) creates, by chemical means, a noxious and unreasonable odor in a public place;
(4) abuses or threatens a person in a public place in an obviously offensive manner;
(5) makes unreasonable noise in a public place other than a sport shooting range, as defined by Section 250.001, Local Government Code, or in or near a private residence that he has no right to occupy;
(6) fights with another in a public place;
(7) enters on the property of another and for a lewd or unlawful purpose looks into a dwelling on the property through any window or other opening in the dwelling;
(8) while on the premises of a hotel or comparable establishment, for a lewd or unlawful purpose looks into a guest room not his own through a window or other opening in the room;
(9) discharges a firearm in a public place other than a public road or a sport shooting range, as defined by Section 250.001, Local Government Code;
(10) displays a firearm or other deadly weapon in a public place in a manner calculated to alarm;
(11) discharges a firearm on or across a public road; or
(12) exposes his anus or genitals in a public place and is reckless about whether another may be present who will be offended or alarmed by his act.
(b) It is a defense to prosecution under Subsection (a)(4) that the actor had significant provocation for his abusive or threatening conduct.
(c) [amended 9/1/95] For purposes of this section:
(1) an act is deemed to occur in a public place or near a private residence if it produces its offensive or proscribed consequences in the public place or near a private residence; and
(2) a noise is presumed to be unreasonable if the noise exceeds a decibel level of 85 after the person making the noise receives notice from a magistrate or peace officer that the noise is a public nuisance.
(d) An offense under this section is a Class C misdemeanor unless committed under Subsection (a)(9) or (a)(10), in which event it is a Class B misdemeanor.
Before 9/1/95 (c) provided:
(c) For purposes of this section, an act is deemed to occur in a public place or near a private residence if it produces its offensive or proscribed consequences in the public place or near a private residence.

See, it's perfectly fine for me to nail a person for excessively vulgar language.


PS. We've already had it out in our courts down here. Flipping someone the bird in traffic doesn't rise to the level required.


User currently offlineN1120A From United States of America, joined Dec 2003, 26414 posts, RR: 76
Reply 22, posted (6 years 8 months 4 days 23 hours ago) and read 1966 times:



Quoting MDorBust (Reply 21):
(1) uses abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace;



Quoting MDorBust (Reply 21):
Flipping someone the bird in traffic doesn't rise to the level required.

No it doesn't, and neither does using foul language. That has been decided at the federal, constitutional level. That includes the US Supreme Court in Houston v. Hill. The general doctrine applied tends to be the fighting word doctrine, which sets the bar for disorderly conduct to raise to the level that would incite someone to fight. Police are held to a significantly higher standard in that case because of their position.



Mangeons les French fries, mais surtout pratiquons avec fierte le French kiss
User currently offlineMDorBust From , joined Dec 1969, posts, RR:
Reply 23, posted (6 years 8 months 4 days 23 hours ago) and read 1957 times:

N1120A, you are working too hard here. I'm allowing for the level of language to rise to the level of the fighting words doctorine. That's why I said "might" not "will". That's also why I included the court case about flipping the bird... to demonstrate before hand that I know there is an elevated level that needs to be achieved and simple vulgarity won't do. Pep having spent a few days in the Army can probably come up with a few choice naughty sayings that would qualify under the fighting words doctorine, but not rise to the level of threat required for an assault charge.

User currently offlineN1120A From United States of America, joined Dec 2003, 26414 posts, RR: 76
Reply 24, posted (6 years 8 months 4 days 22 hours ago) and read 1951 times:



Quoting MDorBust (Reply 23):
'm allowing for the level of language to rise to the level of the fighting words doctorine.



Quoting MDorBust (Reply 23):
That's why I said "might" not "will". That's also why I included the court case about flipping the bird... to demonstrate before hand that I know there is an elevated level that needs to be achieved and simple vulgarity won't do.

The fighting words doctrine is not available, for all intents and purposes, when it comes to words said to, even screamed at repeatedly to Police.



Mangeons les French fries, mais surtout pratiquons avec fierte le French kiss
25 MDorBust : You are right, the complaintant in sec. 42.01(a)(1) must be a person other than the officer. I should have initially said:
26 N1120A : And even then, the bar is set far higher than that law is written. In Boos v Barry, 485 US 312; 108 S Ct 1157; 99 L Ed 2d 333 (1988) the US Supreme C
27 MDorBust : That line in the majority opinion for that case is actually referencing the Hustler Magazine, Inc. v. Falwell case, in which they reference Chaplinsk
28 KaiGywer : You missed my point. What I meant was if he was at home, and they broke into his house with him inside. Totally different circumstances, and thus, to
29 WildcatYXU : GS, are you talking about the US or is it the law in Canada too? There are too many stories about home owners apprehending the burglar and being subs
30 N1120A : Except that swearing does not rise to that level.
31 MDorBust : Yes, it can. Courts have long agreed on this. Saying "F*$%" does not count. Going on a tirade of "%&*#% #$*#@ @#@$*% #43&*@ @#&% *&^%" does. You are
32 Post contains images Airfoilsguy : Really, site please.
33 WildcatYXU : There is no site. But there is lot of stories floating around among people. Don't forget, we're talking about Canada.
34 Airlinelover : So what ended up happening to this guy?? Chris
35 Greasespot : Mostly wives tails.....Not saying it doesn ot happen but show me some evidence....I have been to quite a few calls where the homeowner collerd the bu
36 AirCop : Right on! No where in this article does the actions of anyone rise to the level of using deadly force. The county attorney or district attorney have
37 Post contains links Zippyjet : Re Goddamned Ridiculous! It's another case of attack of the lawyers and CSDD (Common Sense Defecit Disorder! Almost as ludacris as the incident on the
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