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BrassMonkey wrote:Case law mostly.

No.

BrassMonkey wrote:An example of "Breach of Peace" is a repo man entering a closed garage or home to reposses your vehicle. This applies whether there is a right to reposses or not.

This is simply one example of Breach of Peace as an example was requested. There are 4 or 5 others just for repossesions as well. I think yelilng fire in a movie theatre counts too. Not sure on that one.

No, that is not breach of peace. It is Burglary. And the law to which we are referring states that any person may make an arrest for an OFFENSE committed in his presence or view. That means it must be a specific penal code violation that is an OFFENSE AGAINST THE PUBLIC PEACE. There must be a specific penal code violation.

And yelling "fire" in a movie house is TPC 42.06, "False alarm or Report" and that WOULD be an offense against the public peace.

seamusTX wrote:

txinvestigator wrote:This is so fraught with potential problems for you I hesitate to answer.

Ditto that.

The legal conseqences and cost of trying to arrest someone or using force to prevent criminal mischief in the nighttime (though legally justified) is probably more than a windshield.

A point of clarification. According to the Penal code, force is justified when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property. Force may be used to prevent criminal mischief ANYTIME. Deadly Force is only justified during the nighttime.

Thane wrote:This brings up an interesting situation we've had lately. Neighborhood punks have been partying in the vacant house next door. We've chased them off four or five times now, and have resorted to calling the police, and having them escort the teenagers home (and I'm assuming, ticketing the parents). The landowner is also not happy about these kids trashing the place, as he's trying to sell it, and (I think), has started pressing criminal trespass charges.

Needless to say, the punks are less than thrilled.

Last Monday, I came outside to find my windshield smashed. I've no idea which punk did it, as they took off and I didn't see the actual incident. However, this brings me to my question:

If I see someone committing such an act of vandalism against my property, am I justified in detaining them by force? To further complicate the question, here's two more details:
I park in the street, as the driveway already has a car, and
The punks in question are most probably minors.

Thanks in advance!

Thane.

This is so fraught with potential problems for you I hesitate to answer.

I am going to say you should probably go ahead and consult an attorney, both to establish any justification you may have and the restrictions, and to prepare for after-the-fact.

gregthehand wrote:Bottom line here, if you want to give up your day job to become a cop so you can arrest people do so.

Or a Security Guard.............

I can think of but a few instances where I would try to arrest as a Non-LEO. If I caught someone trying to commit a crime against me or my property, I might, depending on the circumstances.

Or like last week, when a neighborhood 18 year old grabbed a butcher knife from her house and chased another teen with it in the street over an argument they had on the school bus. The neighbor who saw it happen had a handgun available, but told me later he was not sure of his legal status to intervene with his gun, so he called 911 and watched events unfold from his window.

I have no doubt as to what I would have done.

IF you witness a crime and you don't have the legal "authority" to pull your weapon, you shouldn't be trying to do anything else but to be a good witness. Even at the law enforcement agency I worked at they didn't want us making arrests off duty unless someone's life, personal safety, or great financial loss was at stake. He reason for this is that when your out their on your own without a radio, and immediate back-up then your simple arrest can turn bad quick. Also if you don't know how to make an you can really screw it up. Street criminals TRAIN in prison how to resist arrest, and take guns away from cops and kill them with their own duty weapon. IF your not trained how to properly make an arrest, proserve evidence, and carry a pair of cuffs you don't need to try it. Bottom line, be a good witness. Now if someone trys to arrest you and they aren't a cop, and you know you haven't done anything wrong, then I would resist. There are too many wanna be fake cops running around. Remember resiting arrest charges only applies to cops, and citizens acting under the authority of a peace officer.

Exellent points.

llwatson wrote:

txinvestigator wrote: Most people have no idea what felonies are, or what constitutes a breach of the peace.

OK, so what constitutes a breach of the peace?

This is a lesson in and of itself Linda. I am hesitant to get into it here just from a time and my poor typing skills perspective.

For example, one of the breaches of peace is disorderly conduct. Here is ONE section of DO;


§42.01. Disorderly conduct.

(a) A person commits an offense if he intentionally or
knowingly:

(1) uses abusive, indecent, profane, or vulgar language in a
public place, and the language by its very utterance tends to incite
an immediate breach of the peace;

Notice it requires the language occur in a "public place". Where is that? Also the language, "BY ITS VERY UTTERANCE, must tend to incite an Immediate Breach of the peace".

What does that mean? When I ask in class I usually get several people who answer "if the language offends someone"....That is incorrect. The statute lists nothing about a person being offended. it requires a MUCH higher level than being offended. There has been case law on this, and it basically means that the language would cause a man of normal temperament to rise to violence.

That is much different than being offended.

There are 8 or 9 more just in DO alone, plus 4 or 5 other violations that are breaches of the peace.

Public Intoxication is NOT a breach of the peace.

Retail stores......... If the security buzzer goes off that IS reasonable cause for them to inspect your bag against your receipt. I've had it happen to me when the tag didn't get demagnetized.

Places that want to inspect EVERY receipt do not, IMO, meet the "reasonable belief" requirement.

There is no penalty for not stopping and submitting to arrest by a non-LEO. However, as I already wrote, if you resist with force you could be additionally charged with assault.

I would not put too much worry over the issue, it is not at all common.

I teach this in my Guard classes, as guards arrest with the same authority as any other person.

Here is the law;


Texas Code of Criminal Procedure
Art. 14.01. Offense within view.†
(a) A peace officer or any other person, may, without a
warrant, arrest an offender when the offense is committed in his
presence or within his view, if the offense is one classed as a felony
or as an offense against the public peace.




Art. 18.16. Preventing consequences of theft.

Any person has a right to prevent the consequences of theft by
seizing any personal property that has been stolen and bringing it,
with the person suspected of committing the theft, if that person can
be taken, before a magistrate for examination, or delivering the
property and the person suspected of committing the theft to a peace
officer for that purpose. To justify a seizure under this article,
there must be reasonable ground to believe the property is stolen, and
the seizure must be openly made and the proceedings had without delay.


Texas Civil Practices Act
§124.001. Detention.

A person who reasonably believes that another has stolen or is
attempting to steal property is privileged to detain that person in a
reasonable manner and for a reasonable time to investigate ownership
of the property.




Texas Penal Code
§9.51. Arrest and search.

(b) A person other than a peace officer (or one acting at his
direction) is justified in using force against another when and to the
degree the actor reasonably believes the force is immediately necessary to
make or assist in making a lawful arrest, or to prevent or assist in
preventing escape after lawful arrest if, before using force, the actor
manifests his purpose to and the reason for the arrest or reasonably
believes his purpose and the reason are already known by or cannot
reasonably be made known to the person to be arrested.


(d) A person other than a peace officer acting in a peace
officer's presence and at his direction is justified in using deadly
force against another when and to the degree the person reasonably
believes the deadly force is immediately necessary to make a lawful
arrest, or to prevent escape after a lawful arrest, if the use of
force would have been justified under Subsection (b) and:

(1) the actor reasonably believes the felony or offense
against the public peace for which arrest is authorized included the
use or attempted use of deadly force; or

(2) the actor reasonably believes there is a substantial risk
that the person to be arrested will cause death or serious bodily
injury to another if the arrest is delayed.

(e) There is no duty to retreat before using deadly force
justified by Subsection (c) or (d).

(f) Nothing in this section relating to the actor's manifestation
of purpose or identity shall be construed as conflicting with any other law
relating to the issuance, service, and execution of an arrest or search
warrant either under the laws of this state or the United States.

(g) Deadly force may only be used under the circumstances
enumerated in Subsections (c) and (d).


So any person may arrest IF the offense is committed in his presence or view, and IF it is a Felony or a Breach of the Peace. Also a person may arrest to prevent the consequences of theft.

As you can see, force can be used to effect that arrest.

One must be very careful, as mishandling an arrest can result in criminal charges against you. If you arrest a person you have restrained them.


Texas Penal Code 20.01
(1) "Restrain" means to restrict a person's movements without
consent, so as to interfere substantially with the person's liberty,
by moving the person from one place to another or by confining the
person. Restraint is "without consent" if it is accomplished by:

(A) force, intimidation, or deception;

If you arrested for a non-felony, non- breach of the peace or had no reasonable grounds to believe the person committed a theft, then you have committed unlawful restraint; a class A Misdemeanor or Felony, depending on circumstances.

If you use or threaten deadly force to make the arrest that is not an arrestable offense, it is Kidnapping, a felony.

There are no provisions in the law to make it illegal to resist a person who is a non-Peace Officer. (unless the person making the arrest is acting at the direction of a peace officer).

The problem in resisting is that if the person was justified in restraining you, you could be charged with assault for resisting.

Most people have no idea what felonies are, or what constitutes a breach of the peace.

Hope this helps some.