Defense of Property Question

[Erik]

Early Tuesday morning one of my neighbors caught a drunk starting to break into my car.

My neighbor yelled at him, called the police on his cell phone, and the guy ran off after trying to have a drunk, stupid conversation with said neighbor.

We have a parking garage under two floors of apartments. The garage is communal. There are gates on both ends and it is impossible to accidentally wander in. This is the second time in just a few months that someone has broken into or started to break into my car there.

My questions:

1) If my neighbor or I observe these bastards, what are we allowed to do legally?

Does the obligation to retreat include a downstairs parking garage (I know that once in the house or apartment there is legally nowhere to withdraw)?

Are we allowed to take the guy down and tie him up, or would we be assaulting them?

What about using non-lethal weapons such as nylon rope, spraypaint, pepperspray, etc?

2) There is one nice little stepping place that makes it far too easy to jump into our area. I was considering embedding some nails, razors, or some broken glass on that surface (1 meter long and about 5" wide, well above head level) to deny casual access.

Any thoughts on this?

(I'm going to have a chat with the landlords this weekend. They have 20 units paying $1,300/month minimum so they should have some friggin' resources!)

[TonyU]

Your best bet is to check with you local police. Every state is different.
As I don't deal with property damage I can't really answer your question, but I do believe you'll have a problem if you set up a booby trap.

[Fletch1]

Citizens' Arrest

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.

[KIT]

This example should not be taken as advice, but I was surprised to read this in a newspaper in ultra-liberal Washington State this week:

Tacoma

Homicide ruled justified during attempted theft

Pierce County Prosecutor Gerry Horne said Monday he will not press charges against two men who caught another man trying to take a 1967 Camaro and retrained him to keep him from escaping. The man died after a chokehold was applied.
"The homicide of Edward Zanassi was justifiable and/or excusable as a matter of law," Horne wrote in a statement announcing his decision.
Zanassi, 27, of Graham, was choked to death May 11. The car's 24-year-old owner woke up when he heard someone trying to start it, and he and his roommate confronted the man.
During the struggle, Zanassi bit the car owner's finger, and the roommate put Zanassi in a choke hold to make him release the bite. The roommate apparently did not intend to kill Zanassi, Horne said.
Washington law states that a homicide is justifiable when committed in resistance of a felony and when force applied by the killer is "reasonably prudent," Horne said.

[DragonMind]

Eric, since you live in Crazyfornia, Tony gave you the best advice: check with local law enforcement AND an attorney who specializes in assault prosecutions. Or call Ahnold...

[Erik]

That's what I'll do.

Hey - we're not crazy - the rest of the world is!