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seamusTX

KBCraig wrote:He might have even been fumbling around trying to get his gun ready, because he's being chased by some stranger.

Heh.

Then he needs it cocked and locked in a holster, not floating under the seat.

- Jim

seamusTX

doublepush wrote:Maybe I'm missing something, but I think that blocking in the drunk guy's car in and calling the cops is way better than pulling a gun on him. I'd get out of my car and stand back maybe 20 yards in condition red.

You don't know for a fact that he's drunk until you confront him at close range, smelling alcohol and so forth. He might have just been fooling with his cell phone.

- Jim

seamusTX

I've read the Atwater decision and also Texas v. Johnson. Unfortunately, they are written as if everyone understood that "breach of the peace" mean, without explaining it.

- Jim

seamusTX

BrassMonkey wrote:So if you are at a loudparty, is it possible to have peace to breach? Hrmmm....

I think if a party is so loud it disturbs the neighbors, it would be a breach of the peace. There must be case law on this.

- Jim

seamusTX

Lucky45 wrote:Do you think that their intent was offenses that breach the peace which are considered felonies??

I spent some time searching for the phrase "breach of the peace." It is a common-law concept going back centuries, but I can't find a strict definition.

I hope someone who knows better than I will chip in.

- Jim

seamusTX

I dunno. It seems odd that a non-LEO can arrest for disorderly conduct and not other misdemeanors like public intoxication.

- Jim

seamusTX

I agree with both your points. I just want to point out that the last quotation with the text in red is not the law. It is an example I made up of what the law would need to say to allow a non-LEO citizen to arrest a drunk driver.

- Jim

seamusTX

BrassMonkey wrote:Again, this stuff goes back to the wild west.

Yes and no. Some of our laws, like using deadly force to prevent criminal mischief in the night time, go back to the days when the sheriff rode a horse. But the entire Texas statutes have to be renewed every 25 years, so subsequent legislatures have continued to think the power of citizen arrest is worthwhile.

BTW, I have an online friend who has practiced law in Texas and several other states. He told me Texas is the only state where the use of deadly force to prevent pure property crimes (with no threat of injury) is legal. I'm to lazy to do the research and make sure he's correct.

BrassMonkey wrote:And good call Seamus

Thanks.

- Jim

seamusTX

This law contains a bunch of ands and ors.

Clearly the use of deadly force is justified in making an arrest for a felony or breach of the peace committed in plain view.

The part bauerdj shaded red could be read to justify the use of deadly force to prevent escape if the offender committed a felony or breach of the peace in plain view, and his escape could lead to death or injury.

Otherwise a non-LEO citizen could arrest any unruly drunk, although DWI and public intoxication are generally misdemeanors.

I think if the legislature intended that, the part about causing death or serious bodily injury would have been inserted into the clause (a).

(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, or 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.

My brain hurts.

- Jim

seamusTX

Lucky45 wrote:Since drunk driving is not a felony, is it an offense against the public peace??

I don't know the legal definition of "breach of the peace." Anybody?

- Jim

seamusTX

mcub wrote:Good intentions aside, I still say either be a cop, or donâ€™t be a cop, playing cop is dangerous and you will almost always end up on the wrong side of the DA's desk.

I agree that playing cop is dangerous, both physically and legally.

Most people would not hesitate to interfere if they saw a kidnapping or a woman being assaulted. Others draw the line elsewhere. We've had some pretty heated discussions about this.

- Jim

seamusTX

RPBrown wrote:First of all, why did he follow him? He is not LEO. Second, if he did pull a gun, he deserves to be arrested based on the info given. Now, what is the other side of the story?

Every citizen has the power to arrest for a felony or breach of the peace committed in plain view (Code of Criminal Procedure Art. 14.01).

Drunk drivers are dangerous. They're one of the most dangerous things we encounter in everyday life. Maybe Mr. Polasek has personal experience with a drunk driver, a loved one killed or injured.

Now, if he was trying to play Dirty Harry, maybe he deserves to be charged. But what if the drunk driver threatened him? It was one citizen against three drunks.

- Jim

seamusTX

http://news.galvestondailynews.com/stor ... e215f34d95

LEAGUE CITY â€” A motorist whoâ€™d called police about a person he thought was driving drunk wound up charged with a weapons violation. He was accused of following the car until it stopped and pulling a gun, police said.

Roy Wayne Polasek, 44, of Houston, was charged with aggravated assault with a firearm. He was released from the Galveston County Jail on a $40,000 bond.

Polasek was driving south Sunday on Interstate 45 when he called 911 to report a vehicle weaving in traffic, League City police Lt. James Spencer said.

Polasek followed the vehicle through part of Houston and Webster and got off the interstate on FM 518, Spencer said.

When the driver pulled into a convenience store at 1818 W. Main St., Polasek pulled him out of the car and told him to stop driving, witnesses told police.

Some witnesses told police Polasek pulled a gun on the man, but others said they didnâ€™t see that, Spencer said.

Police reports said Polasek had a permit for a concealed gun and had the firearm in his pocket, Spencer said.

The 26-year-old driver was charged with public intoxication. Two other passengers in the vehicle, one 19, the other 21, were also charged with public intoxication.

- Jim

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Citizen's arrest backfires