TexasCHLforum.com

EEllis wrote: If I end up cuffing then, or otherwise restraining them I would be crazy not to remove weapons that I know about. All those things are basic common law rights. That is all we are discussing.

We're going to have to agree to disagree on that.

I doubt there is a lot of case law about CHLs and shoplifting. Generally speaking absent violence there should never be any cuffing. Technically the merchant doesn't have to wait for police to investigate but I have trouble seeing any circumstance where they would rather fight and disarm someone rather they just call the cops when someone is willing to stay there till the cops come.

OK thats helpful.

EEllis wrote:

Cedar Park Dad wrote:

patterson wrote:Still don't see what the big deal is,if detained and your innocent it will soon come to light

The initial issue is specifically can they attempt to search you and take your weapon if you are a CHL.

Like there is some exemption because you are a CHL? Now as soon as they take your gun they assume a huge liability but under the right circumstances....

No no no.
This is a CHL board. The question arose as to the issue related to having a CC and an event occurs. I wanted to know what the right method of handling this would be. Frannkly other than you indeed making it sound like the local stop and rob has the power of Spetznatz you've not been helpful (other than making me want to go into a brick and mortar place even less than I do now).

So far I've only gotten what I came with - aka : demand an LEO be called.

So again, whats the best plan of action here?

If I caught you shoplifting. You tried to flee than fought. If I won you would end up cuffed. Your gun would be removed. You would be arrested for theft and assault charges. You may face extra charges for doing so armed. And in Texas assault on a uniformed Security Officer, if the is who stops you, gets bumped up one degree from a class A misdemeanor to a felony charge. Oh and I did post some backing for the search thing my last post.

And what if they don't flee or fight, but demand an actual LEO be called? Again I'm approaching this from the point of view of your average old fart who has done nothing wrong, but is concerned about the firearm issue, and being searched in general by a non-LEO.

EEllis wrote:when a store employee has probable cause to arrest a person for shoplifting, the employee may do so and make a “contemporaneous search” of the person and the objects within that person's control.   See Raiford v. The May Dep't Stores Co., 2 S.W.3d 527, 531 (Tex.App.-Houston [14th Dist.] 1999, no pet.).

I stand corrected that appears pretty on point.

patterson wrote:Still don't see what the big deal is,if detained and your innocent it will soon come to light

The initial issue is specifically can they attempt to search you and take your weapon if you are a CHL.

EEllis wrote:

Cedar Park Dad wrote:

EEllis wrote:

ralewis wrote:
Yes. I think a pat down crosses the line. I would strenuously object to a pat down or search and demand law enforcement be called. Seems that unless you see a badge, the approach ought to be to treat any physical contact as a possible assault and evaluate your options accordingly.

You would be sitting in cuffs and you think objecting to a pat down matters? The seizure of your person is much bigger that any issue with a search. They can lawfully do one and you think somehow the other would be off limits?

Yes again please show the criminal statute where a non LEO can search you.

What cause of action do you think you will have against them if they do search you? They are allowed to search for stolen items, that's the investigation part, but a weapons check would be different. Honestly tho all references I've made to searching were the equivalent to a Terry Search, which is a quick check for weapons only, after someone has been forcibly detained and cuffed. You're not arguing with the handcuffing part of it but a quick pat of your pockets after they cuffed you is crossing the line? What logic is that? What cause of action do you think you could purse if they did? Is there any court anywhere going to say ok to cuffing but must leave suspects gun in his holster? Reality check here!

Please show the statute that says they are allowed to search. You have not. Remember the law is not permissive, its restrictive. Absent an affirmative grant under the law the default is battery (or whatever the Texas version of that is called) plus other nifty charges like unlawful detention for any physical touching, threat of touching, search, and confiscation depending on the fact pattern.
Please show the statute that says they can handcuff you. So far you have not.
Please show the statute that says they are allowed the equivalent of a Terry search. So far you have not.


The "reality check" is if you try to cuff a CHL and then illegally search them and then illegally take their weapon, civilly its not going to go well for you. Criminally it may not go well for you either.

EEllis wrote:

ralewis wrote:
Yes. I think a pat down crosses the line. I would strenuously object to a pat down or search and demand law enforcement be called. Seems that unless you see a badge, the approach ought to be to treat any physical contact as a possible assault and evaluate your options accordingly.

You would be sitting in cuffs and you think objecting to a pat down matters? The seizure of your person is much bigger that any issue with a search. They can lawfully do one and you think somehow the other would be off limits?

Yes again please show the criminal statute where a non LEO can search you.

E.Marquez wrote:Show me a single case where an innocent person (like one of us would be, you know the demographic group we have been talking about ) was mistakenly suspected of shop lifting, stopped by LP becuase there were "reasonably" sure that bulge under a short was store property, tackled, disarmed, searched against his will by LP, and the courts supported that under "Shop Keepers Privilege"

Indeed. I can see the legality of a stop, but nothing else. Police are specifically permitted to search and/or disarm under limited circumstances. This has not yet been shown to be the case under law for nonLEOs.

EEllis wrote:

Cedar Park Dad wrote: So now you're claiming an LP can effect a search and attempt to disarm you. Ok no thats clearly battery on a person.

Do we really have to keep going over the same thing? No they can't just stop random people but they can stop you if they do so to prevent theft and their actions are "reasonable". There are some examples in the thread of what courts have found reasonable. One was a guy going into HEB with a bag unseen by security. He then left with the bag he came in with and set off the inventory control alarm. He was stopped and held while the store investigated. They found that he didn't have anything of the stores and let him go. He sued and had his case dismissed because his detention was found to be legal. You see that they stopped, held, and searched him right? Yep legal, at least in the correct circumstances.

Stopping is not searching. You do realize that right?

EEllis wrote:

treadlightly wrote:This kind of situation rattles me. I do not shoplift, as I'm sure can be said of virtually anyone interested in or currently holding a CHL (mine's in the works).

Bad things can happen with a little momentary lapse, though. Once I got to my car and realized the 24 pack of water on the bottom shelf of the grocery cart hadn't been scanned at the cash register. Of course, I skedaddled back in, explained my oversight, and paid for what I got.

What if I were carrying, and what if a loss guy had decided to make an example of me?

If he bumped into me he might find a perfectly concealed handgun. I would not want to hand a loaded gun to someone I didn't know. I'll comply with whatever a police officer requests, but even then there's a risk. Guns don't generally get into trouble when they stay in the leather.

For the loss prevention folks, I think the best is be polite and calm. If the situation doesn't resolve itself with a chuckle, call 911. If I'm being manhandled and can't use my own cell phone, I'd scream bloody murder for someone to call 911, and I'd try to protect my gun from potentially untrained hands without drawing it.

In matters of mere embarrassment and not fear of my life I would never suggest the use or threat of force. But what if I have a case of water I stupidly forgot to pay for, and some guy is coming after me with a baseball bat?

A terrible conundrum I hope never to face.

If they come at you with a bat before even talking to you it's obviously going to an unreasonable action and as such wouldn't have the protection of shopkeepers privilege. Heck to be reasonable they would almost have to ask you first, in my opinion anyway, to stop before they could use force. But to address your initial statement, legally speaking your concern has no legal bearing on what a merchant can legally do. Trying to MAKE someone comply when you are in a custodial situation is, in my opinion, a bad idea. Mind you putting cuffs on a person who stops and indicates that he will wait for the cops would be risky for an LP, security, merchant, what have you. I would be shocked if it happened without something else being involved. If it did happen and they cuffed you can you think of any way that it would be a good idea for whoever cuffed you to leave you sitting there with a gun? I mean if they did it illegally they should be screwed no matter what so lets just assume it was legal and they had good cause to restrain you. How could they do anything but disarm someone at that point in time? Not to do so would be negligent in my opinion.

So now you're claiming an LP can effect a search and attempt to disarm you. Ok no thats clearly battery on a person.

EEllis wrote:

Ruark wrote:

cb1000rider wrote: They're justified to detain you by reasonable means, which might include grabbing you or grabbing a purse that has a weapon in it.

I'm curious just how much force a store employee (i.e. "loss prevention") CAN use in trying to detain you, beyond grabbing your arm. Can they wrestle you to the floor? Put you in a hold? Spray you with pepper spray? How much can you "resist" without being charged with something? I, for one, have NO intention of EVER stealing anything from a store, and if some wannabe cop suddenly started roughing me up, I would have a very difficult time just standing there helplessly. What could be the consequences if I broke his nose?

They can use just about any amount of force but it's usually judged against the actions of the person being stopped. If they tackle granny then they are screwed but if you push past one guy then they dog pile you it would be fine. The force is judged within the context of the incident. That why people making blanket statements get so worked up. Yes they can do X Y or Z but not all or every time, just when it's reasonable due to the actions of the person they are detaining.

Sure they can.

ScottDLS wrote:

EEllis wrote: ...
I don't mind citing chapter and verse of the PC. I believe that when someone is to be charged with a crime it is incumbent upon the State to specify the exact crime that has been alleged, and then prove it beyond a reasonable doubt. The shopkeeper's (civil) privilege to detain me, does not seem to rise to the level of justification for use of (criminal) force.

To bad the courts and several hundred years of common laws disagree.

You have yet to cite the law, court cases, or common law which excuse the forcible (criminal) detention by the shopkeeper. That's why I originally asked for the Texas PC cite... to which you raised the civil shopkeepers privilege. You then discuss other factors other than a receipt check which may justify a (civil) detention, but not an arrest. Still believe I have a 9.31/9.32 justification to resist a forcible detention with equal or appropriate force. My guess is it would end like for Dragonfighter... or more likely with me walking away.

LPO's don't have the LEO authority for a "Terry" stop/search, and the merchant privilege in Texas law appears civil, vice criminal, so I don't agree that it excludes the 9.31/9.32 defenses to resist a criminal assault. Also typically common law cannot contradict "black letter" law (i.e. written law) and court cases are only relevant to the extent that they are appellate interpretations of current applicable written or common law. This would seem to exclude the authority of "several hundred years...." of such, since Texas has only existed for 168 years or so.

Then again, a sitting Governor can get indicted for vetoing a bill... and a ham sandwich can get indicted by a criminal grand jury...for being a sandwich I guess. I'm also scared to death about the proverbial "ride" so I will in the future fall to my knees and meekly offer my receipt when questioned by Sam's LP [/quote]

I know a property owner is allowed to use force, even in some cases deadly force, to protect property. But am I allowed to resist (assuming I didn't steal anything). Non-LEO's ought to make darn sure they KNOW you're stealing before they escalate... I just don't see the little old lady at Wally World/Sam's drilling me in the back with a .45 'cause I didn't show the receipt for my 4 gallon jug of peanut butter. On the other hand, if I did a snatch and grab of an AR at the local gun store, I would reasonably expect to have a few extra openings before I made it out the door.

Careful about those little old ladies. My mom was one for awhile. She was a redhead from New Orleans. Even dad knew not to mess with her...

hillfighter wrote:

Cedar Park Dad wrote:Sorry if this has been discussed but my search fu is weak. This scenario came up.

If you're at the mall (or major box retailer). You're leaving (or even just walking) when store/mall security approach you. They are not LEO's.
They make accusations and want to hold you. Can they physically detain you (aka touch your person).

I advised if you are stopped, don't go anywhere but demand a police officer be called (or better yet call one yourself). But what exactly are their rights, especially as you are carrying a firearm and I would not voluntarily give up a firearm to anyone but the wife or police for obvious reasons.

Again sorry if this has been discussed to death.

Almost 200 posts later and nobody has shown they're allowed to assault you if you're not stealing. Nobody has shown that anybody except a LEO has the authority to disarm you. Nobody has shown you lose the right to Stand Your Ground if you're assaulted and the attacker goes for your gun.

I'm not a lawyer so you have to draw your own conclusions.

Well I think we've proven they have no right to search you. I think we've proven its prudent to call the police if they try to hold you. Better to let real LEOs handle the situation.