Legal Example: Holding Assailant At Gunpoint

[techres]

This is an interesting case:

‘Good Samaritan’ arrested with gun

Guy had good intent, but took it beyond his legal protections it would seem.

1. He sees an assault.
2. He stops to help but assailant flees.
3. Victim of assault is ok.

This is the good part. Good job done, pat on the back. But he goes on to flub:

4. Jumps in car.
5. Chases down attacker.
6. Pulls firearm to hold attacker for police.

Results:

7. Police arrive to find young man pointing gun at older man.
8. Attacker walks from scene and faces mistomeaner.
9. Gun owner arrested and facing felony charges.

Things to ponder:

What would you have done?
When do you go towards a good, but perhaps leave legal behind?

Good reading,
Techres

P.S. Yes the article is slanted, the gun owner likely unfairly treated, etc. This thread is about what is, not what should be. The law falls under the "is" category. If your comments go to "what should be" then they will miss the point.

 

[OWGEM]

Personally I am not going to chase a fleeing criminal. Not going to happen. That said, much of this story's issues would not apply here in IN if the GG has a LTCH.

 

[lrahm]

This is an interesting case:

‘Good Samaritan’ arrested with gun

Guy had good intent, but took it beyond his legal protections it would seem.

1. He sees an assault.
2. He stops to help but assailant flees.
3. Victim of assault is ok.

This is the good part. Good job done, pat on the back. But he goes on to flub:

4. Jumps in car.
5. Chases down attacker.
6. Pulls firearm to hold attacker for police.

Results:

7. Police arrive to find young man pointing gun at older man.
8. Attacker walks from scene and faces mistomeaner.
9. Gun owner arrested and facing felony charges.

Things to ponder:

What would you have done?
When do you go towards a good, but perhaps leave legal behind?

Good reading,
Techres

P.S. Yes the article is slanted, the gun owner likely unfairly treated, etc. This thread is about what is, not what should be. The law falls under the "is" category. If your comments go to "what should be" then they will miss the point.

Need more info. Is this a misdemeaner battery or felony?

 

[Fargo]

I don't believe this is strictly illegal in Indiana. Depending on priors/injury/status of the victim it could be a forcible felony and even if not, it is certainly a misdemeanor involving a breach of the peace.

Indiana allows a citizens arrest for felonies or misdemeanors involving a breach of the peace under many circumstances:

IC 35-33-1-4
Any person
Sec. 4. (a) Any person may arrest any other person if:
(1) the other person committed a felony in his presence;
(2) a felony has been committed and he has probable cause to believe that the other person has committed that felony; or
(3) a misdemeanor involving a breach of peace is being committed in his presence and the arrest is necessary to prevent the continuance of the breach of peace.
(b) A person making an arrest under this section shall, as soon as practical, notify a law enforcement officer and deliver custody of the person arrested to a law enforcement officer.
(c) The law enforcement officer may process the arrested person as if the officer had arrested him. The officer who receives or processes a person arrested by another under this section is not liable for false arrest or false imprisonment.
As added by Acts 1981, P.L.298, SEC.2. Amended by Acts 1982, P.L.204, SEC.7.

Certainly not advisable, but not clearly illegal in Indiana without more facts.

Best,

Joe

 

[PatriotPride]

Not something I would do.

 

[lrahm]

Fargo, I don't think he stated a domestic battery. I am also ashamed to admit that our county prosecutor would not really associate "complaint of pain" as a precurson for a felony charge. We have a new prosecutor now so it will be interesting how that develops. It could be just a misdemeanor battery charge. In that case, be a good witness.

 

[lovemachine]

When the BG fled, it should have ended there. He should NOT have given chase. What should HAVE happened is he stayed behind with the victim, made sure he was ok, called the police, and remained there just in case the BG returned.

 

[Fargo]

Fargo, I don't think he stated a domestic battery. I am also ashamed to admit that our county prosecutor would not really associate "complaint of pain" as a precurson for a felony charge. We have a new prosecutor now so it will be interesting how that develops. It could be just a misdemeanor battery charge. In that case, be a good witness.

I was short one element on the felony, for some reason I was thinking domestic with pain was a felony but it isn't until 2nd offense. My post has been updated to fix that.

Best,

Joe

 

[Sgood]

I was told by a greenwood leo once that pointing a weapon at anyone is a crime. As in I once was in an agrument with a guy that then proceded to come at me with an axe handle over his shoulder. i pulled my weapon to my side. When the police arrived the guy told the officer that I pointed it at him and I was handcuffed.
After I talked to the officer and told him that thae man came at me with a axe handle and i just had my pistol at my side. he began to tell me that was good and that I needed to state that in my report because while you are okay to shoot someone that is threatning you with a club, it is not okay to draw on the man to stop his progression towards you.

 

[Que]

When the BG fled, it should have ended there. He should NOT have given chase. What should HAVE happened is he stayed behind with the victim, made sure he was ok, called the police, and remained there just in case the BG returned.

This is probably the best option IMO.

 

[ryknoll3]

I don't believe this is strictly illegal in Indiana. Depending on priors/injury/status of the victim it could be a forcible felony and even if not, it is certainly a misdemeanor involving a breach of the peace.

Indiana allows a citizens arrest for felonies or misdemeanors involving a breach of the peace under many circumstances:

Certainly not advisable, but not clearly illegal in Indiana without more facts.

Best,

Joe

The citizen's arrest would have been legal to detain the perpetrator of a forcible felony, but the pointing of the firearm would NOT have been legal unless the pointer was justified under the use of deadly force statutes. He can use deadly force to STOP a forcible felony, but not to facilitate a citizen's arrest AFTER a forcible felony has been committed. Now, if he was in the process of a citizen's arrest AFTER a forcible felony, and the perp gave him reason to fear serious bodily injury, he WOULD be justfied in using deadly force.

 

[lrahm]

Like "lovemachine" said best be a good witness. If it is a felony stand by until the police arrive and give a good description. If the bad guy fled on foot, a K-9 might be deployed and you wouldn't want to mess up his track.

 

[beararms1776]

Stopping the attack was a good thing but to play Batman, uhh, not a good idea.

 

[ATM]

I was told by a greenwood leo once that pointing a weapon at anyone is a crime. ...
...
while you are okay to shoot someone that is threatning you with a club, it is not okay to draw on the man to stop his progression towards you.

That officer is mistaken. At least in Indiana, at the point you are legally justified to point and shoot, you are equally justified to point and not shoot.

The use of deadly force (pointing and/or shooting) is either justified or not.
Whether it actually turns deadly in hindsight is not relevant to the prior justification.

 

[GuyRelford]

You can only use force to effect a citizen's arrest or prevent escape in Indiana if a felony has been committed and there is probable cause to believe that the person you're arresting has commmitted the felony. See Ind. Code 35-41-3-3(a). (You can also perform a citizen's arrest after a misdemeanor involving a breach of the peace - you just can't use force to do it.)

And the crime of "pointing a firearm" has two exceptions - the justifiable use of reasonable force in self defense under Ind. Code 35-41-3-2, or "citizen's arrest or preventing escape" under 35-41-3-3. See 35-47-4-3.

As we've discussed in other contexts, however, folks should be aware of Nantz v. State - which held that pointing a firearm is equivalent to the use of "deadly force" and is unreasonable under the self defense statute unless deadly force is justified. However, the court in Nantz stated specifically that there was no evidence that the defendant was attempting to perform a "citizen's arrest," so I think that statutory exception to "pointing a firearm" is still alive and well.

Just my opinion.

Guy

 

[beararms1776]

because while you are okay to shoot someone that is threatning you with a club, it is not okay to draw on the man to stop his progression towards you.

This makes no sense. How do you shoot someone without drawing a gun from the holster?

 

[GunSlinger]

I would have also stopped after the first encounter. I'm not law enforcement. My responsibility ends when the BG fled.

Having said that I would definetely hang around until the LEO's arrived and would gladly serve as a witness.

 

[GuyRelford]

The citizen's arrest would have been legal to detain the perpetrator of a forcible felony, but the pointing of the firearm would NOT have been legal unless the pointer was justified under the use of deadly force statutes. He can use deadly force to STOP a forcible felony, but not to facilitate a citizen's arrest AFTER a forcible felony has been committed. Now, if he was in the process of a citizen's arrest AFTER a forcible felony, and the perp gave him reason to fear serious bodily injury, he WOULD be justfied in using deadly force.

This may not be quite correct, although Indiana law is murky in this area. The "pointing a firearm" statute states:

"IC 35-47-4-3
Pointing firearm at another person
Sec. 3. (a) This section does not apply to a law enforcement officer who is acting within the scope of the law enforcement officer's official duties or to a person who is justified in using reasonable force against another person under:
(1) IC 35-41-3-2; or
(2) IC 35-41-3-3.
(b) A person who knowingly or intentionally points a firearm at another person commits a Class D felony. However, the offense is a Class A misdemeanor if the firearm was not loaded."

IC 35-41-3-3 is the "use of force in performing citizen's arrest or preventing escape" statute, so there is an exception to the crime of "pointing a firearm" so long as a the use of force was authorized by that statute. In that regard, the person using force to perform a citizen's arrest must have probable cause to believe that a felony has been committed and that the person he's arresting committed it. Here's the "use of force/citizen's arrest" statute:

"IC 35-41-3-3
Use of force relating to arrest or escape
Sec. 3. (a) A person other than a law enforcement officer is justified in using reasonable force against another person to effect an arrest or prevent the other person's escape if:
(1) a felony has been committed; and
(2) there is probable cause to believe the other person committed that felony.

However, such a person is not justified in using deadly force unless that force is justified under section 2 of this chapter."

So the question becomes whether "pointing a firearm" in making a citizen's arrest is always the equivalent of using "deadly force."

In this regard, and as I stated earlier, we need to be concerned about Nantz v. State, which equated "pointing a firearm" with the use of deadly force - which has to be justified under IC 35-41-3-2. However, Nantz was not a "citizen's arrest" case.

And if pointing a firearm was always the equivalent of using deadly force (that has to be justified under IC 35-41-3-2), why did the legislature include IC 35-41-3-3 (citizen's arrest) as an exception to the crime of "pointing a firearm" - in addition to the self-defense statute?

Guy

 

[Sgood]

This makes no sense. How do you shoot someone without drawing a gun from the holster?

That is exactly what I told the officer and further explained to him that if he had come closer without me raising my gun. He would have been close enough to hit me before I would have been able to draw.

But you know how it is the law is always open for discussion, depending on the officer!

 

[Sigblaster]

Viola was driving his car on Third Avenue and witnessed a 57-year-old San Mateo woman being assaulted near San Mateo Drive

What would you have done?

Kept on driving.