Can detain someone in the act of committing a crime?

[sschrick]

So the instructor did not really answer this clearly in my HCP class. If you witness someone committing a crime on your property (breaking into or vandalizing a car, shed, other) is it legal to use your handgun (drawn and pointed at the subject) to try to detain them while waiting for the police?

Obviously, if they run, I cannot shoot them in the back and if they charge me I can shoot them, but what about my case?

[Fallguy]

Opinions on here vary about this. Also it depends.

IMO if you saw them doing something to your car, going into your shed or something like that where you or no one else was, technically No. You can use reasonable force to hold someone, but not deadly force...and from everything I've read "threating" and using deadly force is the same in TN law.

Now if they broke into your house while you were there...then possibly so, since you could probably would have been justified in using deadly force.

I have read cases in both situations though where it was done and nothing was done to the property owner. Of course there is always a first time....

[robbiev]

So the instructor did not really answer this clearly in my HCP class. If you witness someone committing a crime on your property (breaking into or vandalizing a car, shed, other) is it legal to use your handgun (drawn and pointed at the subject) to try to detain them while waiting for the police?

Obviously, if they run, I cannot shoot them in the back and if they charge me I can shoot them, but what about my case?

Pointing a gun at someone is deadly force, under any definition that I am aware of. You cannot legally use deadly force to stop a property crime. You can only use deadly force against deadly force, at least in TN. According to state law (will have to find the exact TCA reference and post it) you can use "force, but not deadly force" to protect against property crimes.

Having said this, it does not mean you will be charged, it just means you can be. That is up to the local DA based on the police reports.

[Guest JeremyD901]

Think this anti gun country we live in that it would be safer to not point the gun. Just remember in this twisted country we live in the suspect has more rights then the victim it seems.

[sschrick]

Thanks, that clears it up. . .somewhat. So pointing the gun at the person is considered "deadly force", but what about just brandishing it/showing it in holster, drawing it and not pointing it at the subject.

Getting really into the "grey" area now, I guess?

[Fallguy]

There is no "brandishing" law in TN. Basically if you do something to make another person reasonably fear for their life that is assault, if you do it using a weapon, that is aggravated assault.

So if you pull up your shirt and show someone your concealed handgun....if they reasonably feared for their life, you'd be in trouble.

AFAIK AZ is the only state that has a specific law that allows for the showing of a weapon in an attempt to diffuse a situation.

[Guest BungieCord]

Unless I'm mistaken, and I think this goes to the heart of the OP's question, possession of an HCP changes the circumstances under which you legally can carry a gun but it doesn't give you any enhanced privilege to use it. If you shoot somebody who didn't merit shooting, you're still going to the pokey.

And any citizen, not just an HCP, is entitled to arrest anyone they witness committing a crime:

Title 40 Criminal Procedure

Chapter 7 Arrest

Part 1 General Provisions

Tenn. Code Ann. § 40-7-109 (2011)

40-7-109. Arrest by private person -- Grounds.

(a) A private person may arrest another:

(1) For a public offense committed in the arresting person's presence;

(2) When the person arrested has committed a felony, although not in the arresting person's presence; or

(3) When a felony has been committed, and the arresting person has reasonable cause to believe that the person arrested committed the felony.

So in Tennessee, Gomer would have been in the right to arrest Barney for making that U-turn.

[sschrick]

Got it. That helps ALOT!

[Fallguy]

Yes 40-7-109 is on point about making the arrest.

But 39-11-621 addresses the use of force.

39-11-621. Use of deadly force by private citizen.

A private citizen, in making an arrest authorized by law, may use force reasonably necessary to accomplish the arrest of an individual who flees or resists the arrest; provided, that a private citizen cannot use or threaten to use deadly force except to the extent authorized under self-defense or defense of third person statutes, §§ 39-11-611 and 39-11-612.

http://www.lexisnexis.com/hottopics/tncode/

[bigwakes]

It's not a very hot topic on here, but you could use an ASP or Expandable Baton to detain an unarmed perpetrator. No blows to the head, throat, neck or sternum as those would constitute deadly force.

[MphsTiger1981]

The best advice I've ever received was, if you see someone commit a crime, call the police and be a good witness. If while you are a busy being a good witness things escalate and your life, or that of another person becomes in peril, the situation has now changed and the light is now green for self defense. Better to be a poor witness than a good defendant. My HCP did not come with a badge or any blue lights for my car.

[TMF]

911 works too.

By no means am I pro-crime, but unless the crime being committed is a violent offense and someone's life is in danger it isn't worth getting involved. Everyone has cell phones now. I know this is a hypothetical here, but wargaming "what can I do" evolves right into "what will I do", ya know? Just because the law states that you can detain someone who is hotwiring a car, should you? Is it worth putting you in a situation where you may now have to use physical force and then have to explain your actions in court (criminal or civil)? Police are trained and paid to handle those matters. A HCP doesn't make us supermen or put us in a category of responsibility to interdict crime anymore than a citizen without a HCP. IMO, if the situation doesn't warrant me pulling my pistol, then I'm not getting involved; I'm dialing 911.

[Makiaveli]

TMF 18B has it right in my opinion. Even if it's your property you are protecting, is it worth the bad guy's partner sneaking up behind you.....

Now this isn't to say I haven't been an idiot and jumped into a situation like that, but I've never been accused of being wise...

[DaveTN]

If someone is breaking into my car, shed, or whatever, they are committing a forcible felony…. I’m not making an arrest (that’s up to the cops when they arrive). I’m taking them a gun point.

Pointing a gun at someone if you are not justified is aggravated assault. However, I believe that I would be justified. I can’t believe a cop would show up and arrest you for pointing a gun at a burglar. They wouldn’t arrest you in Illinois, they would give you a good citizens award; Tennessee may be different….but I doubt it.

Everyone has to do what they are ready to take responsibility for.

[TMF]

If someone is breaking into my car, shed, or whatever, they are committing a forcible felony…. I’m not making an arrest (that’s up to the cops when they arrive). I’m taking them a gun point.

Pointing a gun at someone if you are not justified is aggravated assault. However, I believe that I would be justified. I can’t believe a cop would show up and arrest you for pointing a gun at a burglar. They wouldn’t arrest you in Illinois, they would give you a good citizens award; Tennessee may be different….but I doubt it.

Everyone has to do what they are ready to take responsibility for.

Sorry, I understood the post as referring to a crime being committed in public (not on my property), in which case I'm not getting involved other than calling the police. If it's on my property I'm pulling a gun. I have a wife and kids to protect. My castle starts at the property line, not at the front door.

[Fallguy]

I believe the OP was talking about crimes occuring on his property, not ones occuring to someone else in public.

I am NOT watching someone steal my stuff or damage it and not try to stop them. Maybe I've just had too much stuff stolen when I wasn't around....

Edited October 27, 2011 by Fallguy

[TMF]

I believe the OP was talking about crimes occuring on his property, not ones occuring to someone else in public.

I am NOT watching someone steal my stuff or damage and try to stop them. Maybe I've just had too much stuff stolen when I wasn't around....

Roger, I misunderstood his intent.

[jonlisha]

Alright so let me get this straight, some guy can break into my car, steal my stuff and my options are:

Stand and watch

Chase him down and wait for him to brandish a weapon at me risking my life

Or hold him at gun point until police arrive and risk legal action against me?

Thats bs, I mean I know people will say its just stuff its not worth someones life but thats MY stuff that I work hard for.

[Fallguy]

Roger, I misunderstood his intent.

Think we were posting about the same time...

[sschrick]

Exactly, I had this actually happen a few years ago (minus the gun part). I awoke at 4am to the sounds of someone rummaging through my car. My bedroom window was open and overlooking the driveway. I looked out and saw two teenage male subjects searching through my car. I awoke my wife and quickly ran downstairs and out into the driveway. They promptly headed toward their vehicle, but were not too scared of me or getting caught. Me and one of the subjects actually had about a 20 second "stand-off" where we weren't moving, just staring at each other. He then got in the car and sped away with lights out. He had blacked out his license plate number.

So, my main question was, if faced with this situation again, could I try to detain them using the handgun as "leverage"?

I guess, if the cops cames and they were detained, I could be charged with AGG ASSault, but the kids could also be charged with "whatever"

I don't want to violate the law, but I also don't want to be violated. What could I do?

[Fallguy]

Exactly, I had this actually happen a few years ago (minus the gun part). I awoke at 4am to the sounds of someone rummaging through my car. My bedroom window was open and overlooking the driveway. I looked out and saw two teenage male subjects searching through my car. I awoke my wife and quickly ran downstairs and out into the driveway. They promptly headed toward their vehicle, but were not too scared of me or getting caught. Me and one of the subjects actually had about a 20 second "stand-off" where we weren't moving, just staring at each other. He then got in the car and sped away with lights out. He had blacked out his license plate number.

So, my main question was, if faced with this situation again, could I try to detain them using the handgun as "leverage"?

I guess, if the cops cames and they were detained, I could be charged with AGG ASSault, but the kids could also be charged with "whatever"

I don't want to violate the law, but I also don't want to be violated. What could I do?

IMO you would not be justified in using a firearm in the situation you described.

You could tackle him and try to hold him there. If at some later point the situation changed and you would be justified under the self-defense laws, then you could use or threaten deadly force.

[peejman]

Better to draw your camera than your gun.

[Guest lostpass]

Exactly, I had this actually happen a few years ago (minus the gun part). I awoke at 4am to the sounds of someone rummaging through my car. My bedroom window was open and overlooking the driveway. I looked out and saw two teenage male subjects searching through my car. I awoke my wife and quickly ran downstairs and out into the driveway. They promptly headed toward their vehicle, but were not too scared of me or getting caught. Me and one of the subjects actually had about a 20 second "stand-off" where we weren't moving, just staring at each other. He then got in the car and sped away with lights out. He had blacked out his license plate number.

So, my main question was, if faced with this situation again, could I try to detain them using the handgun as "leverage"?

I guess, if the cops cames and they were detained, I could be charged with AGG ASSault, but the kids could also be charged with "whatever"

I don't want to violate the law, but I also don't want to be violated. What could I do?

Were you in fear of your life? Grievous bodily harm? If not then I would guess (just a guess) that if you pulled out a gun things might not go your way.

I think the general rule for police is not to pull out their sidearm unless they are ready to shoot and they aren't going to shoot you over tossing a car.

[Guest ArmaDeFuego]

You can always subdue them with pepper spray. That aint lethal.

[bigwakes]

I was in a Q&A session with the assistant DA in Williamson county. He said he has never prosecuted a citizen for using a firearm to stop or prevent a crime. I can't say all DAs have the same viewpoint, but it does seem logical. Now he did tell a story in another county where the good guy did some bad things to the crime scene and he was prosecuted.