LHMark
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Shop Owner Could Lose All After Citizen's Arrest

Thu Dec 20, 2007 4:58 am

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.
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KFLLCFII
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RE: Shop Owner Could Lose All After Citizen's Arrest

Thu Dec 20, 2007 6:03 am

So what were the felony charges?
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greasespot
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RE: Shop Owner Could Lose All After Citizen's Arrest

Thu Dec 20, 2007 7:59 am

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]
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ANCFlyer
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RE: Shop Owner Could Lose All After Citizen's Arrest

Thu Dec 20, 2007 8:18 am

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.
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N1120A
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RE: Shop Owner Could Lose All After Citizen's Arrest

Thu Dec 20, 2007 8:36 am



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.
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JoeCanuck
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RE: Shop Owner Could Lose All After Citizen's Arrest

Thu Dec 20, 2007 8:41 am

It's the classic Al Capp defense; "I thought he was going to hit me so I hit him back, first...".
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CaptOveur
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RE: Shop Owner Could Lose All After Citizen's Arrest

Thu Dec 20, 2007 9:46 am

The shop owner was stupid.

He is screwed
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dl021
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RE: Shop Owner Could Lose All After Citizen's Arrest

Thu Dec 20, 2007 1:28 pm

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.
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airfoilsguy
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RE: Shop Owner Could Lose All After Citizen's Arrest

Thu Dec 20, 2007 2:08 pm



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.
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Queso
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RE: Shop Owner Could Lose All After Citizen's Arrest

Thu Dec 20, 2007 2:25 pm



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.
 
MDorBust
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RE: Shop Owner Could Lose All After Citizen's Arrest

Thu Dec 20, 2007 4:33 pm

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.
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KaiGywer
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RE: Shop Owner Could Lose All After Citizen's Arrest

Fri Dec 21, 2007 5:07 pm

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.
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greasespot
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RE: Shop Owner Could Lose All After Citizen's Arrest

Fri Dec 21, 2007 6:42 pm



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
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Pope
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RE: Shop Owner Could Lose All After Citizen's Arrest

Fri Dec 21, 2007 6:54 pm



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.
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MDorBust
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RE: Shop Owner Could Lose All After Citizen's Arrest

Fri Dec 21, 2007 7:03 pm



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.
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N1120A
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RE: Shop Owner Could Lose All After Citizen's Arrest

Fri Dec 21, 2007 7:27 pm



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
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ANCFlyer
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RE: Shop Owner Could Lose All After Citizen's Arrest

Fri Dec 21, 2007 7:50 pm



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.
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MDorBust
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RE: Shop Owner Could Lose All After Citizen's Arrest

Fri Dec 21, 2007 7:55 pm



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
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N1120A
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RE: Shop Owner Could Lose All After Citizen's Arrest

Fri Dec 21, 2007 8:05 pm



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.
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airfoilsguy
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RE: Shop Owner Could Lose All After Citizen's Arrest

Fri Dec 21, 2007 8:09 pm

Ohio law

2903.13 Assault.
(A) No person shall knowingly cause or attempt to cause physical harm to another or to another’s unborn.
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N1120A
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RE: Shop Owner Could Lose All After Citizen's Arrest

Fri Dec 21, 2007 8:17 pm



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.
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MDorBust
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RE: Shop Owner Could Lose All After Citizen's Arrest

Fri Dec 21, 2007 8:59 pm



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.
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N1120A
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RE: Shop Owner Could Lose All After Citizen's Arrest

Fri Dec 21, 2007 9:56 pm



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.
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MDorBust
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RE: Shop Owner Could Lose All After Citizen's Arrest

Fri Dec 21, 2007 10:08 pm

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.
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N1120A
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RE: Shop Owner Could Lose All After Citizen's Arrest

Fri Dec 21, 2007 10:17 pm



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.
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MDorBust
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RE: Shop Owner Could Lose All After Citizen's Arrest

Fri Dec 21, 2007 10:20 pm



Quoting N1120A (Reply 24):
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.

You are right, the complaintant in sec. 42.01(a)(1) must be a person other than the officer.

I should have initially said:

Quote:
You could call someone 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.

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N1120A
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RE: Shop Owner Could Lose All After Citizen's Arrest

Fri Dec 21, 2007 10:22 pm



Quoting MDorBust (Reply 25):

You are right, the complaintant in sec. 42.01(a)(1) must be a person other than the officer.

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 Court held that:

"Our own citizens must tolerate insulting, and even outrageous, speech in order to provide 'adequate breathing room' to the freedoms protected by the First Amendment."
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MDorBust
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RE: Shop Owner Could Lose All After Citizen's Arrest

Fri Dec 21, 2007 10:43 pm



Quoting N1120A (Reply 26):
In Boos v Barry, 485 US 312; 108 S Ct 1157; 99 L Ed 2d 333 (1988) the US Supreme Court held that:

That line in the majority opinion for that case is actually referencing the Hustler Magazine, Inc. v. Falwell case, in which they reference Chaplinsky v. New Hampshire.. which includes the following, "A State could lawfully punish an individual for the use of insulting "'fighting' words -- those which by their very utterance inflict injury or tend to incite an immediate breach of the peace" You'll find that these exact words by the SCOTUS are in the Texas law, "the language by its very utterance tends to incite an immediate breach of the peace."

I'd say the Texas law complies perfectly with the opinion of the SCOTUS.
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KaiGywer
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RE: Shop Owner Could Lose All After Citizen's Arrest

Fri Dec 21, 2007 11:53 pm



Quoting Greasespot (Reply 12):
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...

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, totally different possible outcome
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RE: Shop Owner Could Lose All After Citizen's Arrest

Thu Dec 27, 2007 9:19 pm



Quoting Greasespot (Reply 2):
To make a citizens arrest you need to catch them in the act.

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 subsequently prosecuted and sued by the burglar.
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N1120A
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RE: Shop Owner Could Lose All After Citizen's Arrest

Thu Dec 27, 2007 9:37 pm



Quoting MDorBust (Reply 27):
You'll find that these exact words by the SCOTUS are in the Texas law, "the language by its very utterance tends to incite an immediate breach of the peace."

Except that swearing does not rise to that level.
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MDorBust
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RE: Shop Owner Could Lose All After Citizen's Arrest

Thu Dec 27, 2007 9:46 pm



Quoting N1120A (Reply 30):
Except that swearing does not rise to that level.

Yes, it can. Courts have long agreed on this.

Saying "F*$%" does not count. Going on a tirade of "%&*#% #$*#@ @#@$*% #43&*@ @#&% *&^%" does.

You are trying to strip the case down to the use of a single word, which most clearly would not normally rise to the level neccessary. However, we aren't talking about a single word are we? No, we are talking about a diatribe.

Of course that doesn't matter. Even with the SCOTUS decision right in front of you, you still insist that it's not so.

Have fun failing as a lawyer.
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airfoilsguy
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RE: Shop Owner Could Lose All After Citizen's Arrest

Thu Dec 27, 2007 9:58 pm



Quoting WildcatYXU (Reply 29):
There are too many stories about home owners apprehending the burglar and being subsequently prosecuted and sued by the burglar.

Really, site please.  Smile
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WildcatYXU
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RE: Shop Owner Could Lose All After Citizen's Arrest

Thu Dec 27, 2007 10:22 pm



Quoting Airfoilsguy (Reply 32):
Really, site please.

There is no site. But there is lot of stories floating around among people. Don't forget, we're talking about Canada.
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RE: Shop Owner Could Lose All After Citizen's Arrest

Fri Jan 04, 2008 7:46 pm

So what ended up happening to this guy??

Chris
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greasespot
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RE: Shop Owner Could Lose All After Citizen's Arrest

Fri Jan 04, 2008 9:21 pm



Quoting WildcatYXU (Reply 29):
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 subsequently prosecuted and sued by the burglar.

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 burglar and they never faced any charges....In one the homeowner broke the guys arm when he was resisting...

Usually when the home owner is charged there is a lot more to it than the media report.....

gs

GS
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AirCop
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RE: Shop Owner Could Lose All After Citizen's Arrest

Fri Jan 04, 2008 9:45 pm



Quoting Greasespot (Reply 12):
.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...

Right on! No where in this article does the actions of anyone rise to the level of using deadly force.

Quoting Airlinelover (Reply 34):
So what ended up happening to this guy??

The county attorney or district attorney have x number of days to file a compliant, or take it to a grand jury and let them determine if charges should be filed or not.
 
zippyjet
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RE: Shop Owner Could Lose All After Citizen's Arrest

Sun Jan 06, 2008 6:21 am

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 Baltimore MTA bus last month.

http://www.freerepublic.com/focus/f-news/1936115/posts
http://www.libertypost.org/cgi-bin/readart.cgi?ArtNum=209423
http://www.wbaltv.com/news/14796208/detail.html

Three accounts of that story
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