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EEllis wrote:

ScottDLS wrote: However, I don't see the examples of the level of force that may be applied by the shopkeeper to "detain" me, particularly if I am not committing the as crime. There is even a justification in 9.31 for using force to resist an "arrest" by a Peace Officer, if more force than necessary was used.

The shopkeeper's privilege to is not lawful authority to arrest someone, so I don't see where I lose any of my justifications for forcible resistance if they assault me in effecting the detention. And they are going to have to assault me in order to prevent me from just walking to my car...in the Sam's example. Seems they ought to just call the police and (falsely) report my theft and let the real cops sort it out.

If their actions are legal you have no justification for the use of force. If your actions just end up being suspicious enough then they can detain you and your innocence does not allow you protection for any assaults you commit. The merchant does have legal protection for use of force as long as their actions are "reasonable". I don't get how that is complicated. I do understand you don't like the idea but that is the law. Nothing we are talking about here will change that. And again you committing the crime has no effect on the "shop keepers privilege". The merchant just needs their actions and beliefs to be "reasonable" to detain you. They get to use "reasonable" force. What is reasonable? Well it's what a court says it is and it can be different in almost any court. I will say that there is even a Texas case where a guy died as a result of being grabbed and held by a merchant and the actions were ruled as reasonable under Texas law so ......

If you fight LP or store employees when they attempt to detain you, then you are betting that their actions will be found as unreasonable. Otherwise you can be held, charged, found guilty, of assault even if you never took anything. Now if the cops, a court, etc, don't think it's reasonable then your fine.

Really? Where does it say in law that a LPO can assault me to effect a "detention" and I lose my justification for resistance up to and including "force". Shopkeepers civil privilege.....?? Law says I can even resist an arrest (by a real LEO) if more force is require used than necessary. Reasonable....? I think its not reasonable when I didn't steal anything.

Anyway, how many angels can dance on a pin (point)? Perhaps His Holiness Francis can tell us.

EEllis wrote:

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

You're mixing issues up. The 124 civil directly relates to the criminality of a stop. I even discussed this exact point. If a merchant were to detain per 124.001 then they are acting "with authority of the law" and as such their actions are not criminal. Since their actions are not criminal you can't use then as a justification for use of force to resist them. I have posted cases, others have done so also. You don't believe then fine but you have been given the info. The Terry search, not stop, come after being detained and honestly how anyone can complain about that small weapons check for safety when the person would of been "seized" at that point is a bit confusing. As far as Dragon goes it appears that the LP wasn't operating under 124 so his stopping DF was illegal. If it were a legal stop then DF would have criminally assaulted the LP agent.

I'm not advocating, I'm not stating a preference, I'm basically just passing along what I think the law is in Texas on this issue. It's pretty clear cut to be honest.

You are missing my point. The 124.001 detention is "lawful" in the sense that I can't claim (use of force justification) against kidnapping or the (unlawful) detention as the crime.

However, I don't see the examples of the level of force that may be applied by the shopkeeper to "detain" me, particularly if I am not committing the as crime. There is even a justification in 9.31 for using force to resist an "arrest" by a Peace Officer, if more force than necessary was used.

The shopkeeper's privilege to is not lawful authority to arrest someone, so I don't see where I lose any of my justifications for forcible resistance if they assault me in effecting the detention. And they are going to have to assault me in order to prevent me from just walking to my car...in the Sam's example. Seems they ought to just call the police and (falsely) report my theft and let the real cops sort it out.

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.[/quote]


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

EEllis wrote:

ScottDLS wrote: Do we have a legal cite? Of the amount of force that may be used to detain/arrest by a non-LEO and when it crosses into assault. And likewise when my resistance to such becomes a crime? Chapter & section please?

First off you can believe what you want but the demands that people cite chapter and verse to support a point come off a bit abrupt to me. I'm not trying to single you out ScottDSL as many people do so and personally I would take a "I would like/love/enjoy/hope/what have you/ to know the cite" better than a demand to produce which is so common.

The issue isn't is there some set amount of force where if you use more than a certain amount it crosses into assault. It crosses into assault when it becomes unreasonable and that is something that gets judged by a court. If a court believes that a store stopped someone "with authority of the law", in this case the shopkeeper's privilege, then there is zero justification for any use of force that can be considered criminal. There is no "resisting shopkeeper's privilege" or anything crazy like that but simply speaking there is no justification for any use of force against someone who's actions are legal. If a merchant uses to much force then they are no longer considered to be acting under "authority of law" because the texas code (Tex. Civ. Prac. & Rem. Code Ann. § 124.001) requires them to be reasonable and excessive force is unreasonable. So there is no hard and fast "line". If the merchant can convince a judge that stopping you was reasonable than any force you use can be considered criminal.

Well as you have said I don't see where it is a crime to resist "detention" under (Tex. Civ. Prac. & Rem. Code Ann. § 124.001). It only allows the shopkeeper to be "privileged" to detain me. If I am not, in fact, committing a felony, then they have no grounds to "arrest" me. Therefore, I see no obligation for me to assent to being detained. If I resist being detained, by walking away or breaking the grasp of a LPO, or refusing to put my hands together to be cuffed, I am hard pressed to see how that rises to assault.

If he uses a club or firearm to attempt to effect the detention, I will argue in court that it is "unreasonable" (i.e. deadly), hence unlawful force, and would react with same. For this I would rely on PC 9.31/9.32 as my justification. But alas, none of this shall ever occur because I have yet to hear of someone being forcibly detained for refusing a receipt check...

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.

EEllis wrote:

ScottDLS wrote:All of this discussion also seems to beg the question of whether you are legally obligated to submit to a shopkeeper detainment or citizens' arrest. If I refused to submit to a LEO arrest I could be charged with resisting arrest, not mention potentially get killed by the LEO. Same true for citizen or shopkeeper?

Seems to me the issue would be how the LP or shopkeeper was going to physically detain me. Are they authorized by law to use force (how much?), or deadly force? May I resist with equal force...? I will! I guess a commissioned security guard could try to club or shoot me...in which I case I would likely use deadly force to prevent such action.

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.

You are not required to comply but you are not justified in using force to resist unless their arrest is without legal justification. That doesn't mean they must be right in the belief someone stole property but just that they comply with the law in that their belief was reasonable. Now this is criminal, civil is totally separate.

Do we have a legal cite? Of the amount of force that may be used to detain/arrest by a non-LEO and when it crosses into assault. And likewise when my resistance to such becomes a crime? Chapter & section please?

All of this discussion also seems to beg the question of whether you are legally obligated to submit to a shopkeeper detainment or citizens' arrest. If I refused to submit to a LEO arrest I could be charged with resisting arrest, not mention potentially get killed by the LEO. Same true for citizen or shopkeeper?

Seems to me the issue would be how the LP or shopkeeper was going to physically detain me. Are they authorized by law to use force (how much?), or deadly force? May I resist with equal force...? I will! I guess a commissioned security guard could try to club or shoot me...in which I case I would likely use deadly force to prevent such action.

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.