Citizen's arrest backfires

[Lucky45]

I think we have alot of confused people that is probably how this guy got into this mess.

First,

seamus wrote:
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).

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.

Therefore, I had to check the penal code and here it is.

Penal Code § 49.04. DRIVING WHILE INTOXICATED. (a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.
(b) Except as provided by Subsection (c) and Section 49.09,
an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.

Since drunk driving is not a felony, is it an offense against the public peace?? Would other offenses fall into this category and start having people believe that they have arrest powers??

Then some witnesses are saying that he pulled the driver out and brandished a gun.

PC §9.51. ARREST AND SEARCH
(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

Obviously, he was not in compliance with this section.

[BrassMonkey]

Where can you get a CHL badge?

[seamusTX]

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

[bauerdj]

Quote:
PC §9.51. ARREST AND SEARCH
(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

If he was driving drunk one could make an argument that the requiremnet in para 2 was met.

Dave B.

[BrassMonkey]

The core requirememtn was not met here. There was no peace officer present and no peace officer to give him direction. 1 and 2 as quoted below are additional requirements to the core requirement of a cop being present and directing a civilian to do something.

Quote:
PC §9.51. ARREST AND SEARCH
(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

If he was driving drunk one could make an argument that the requiremnet in para 2 was met.

Dave B.

[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

[BrassMonkey]

As I read it, the guy was stopped at a convinience store How would he have caused death or serious bodily injury? He told him to stop driving, he wasn't driving at that point. This is why citizen's arrest is the worst idea there is, AND why there is no such thing in most states. Again, this stuff goes back to the wild west.

And good call Seamus but I still don't think the part bauerdj shaded red applies here since he was nto acting at the direction of a peace officer.

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]

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.

And good call Seamus

Thanks.

- Jim

[Lucky45]

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.

I don't think so, try reading it again. The law says :

PC §9.51. ARREST AND SEARCH
(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:

So what we have here is not kosher on the grounds that it was not done at in the presence and at the direction of a peace officer and therefore in my opinion was not a lawful arrest. So he could not been preventing an escape because he had NO RIGHT to detain the driver. Some people like to preach about being a good witness; BE A GOOD WITNESS!!!!

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

I think this clause is what help that HPD officer recently get no-billed for shooting that guy on video running through some apartments a few months ago. He had already committed aggravated robbery, officer was trying to make an arrest (PC 9.51 Sec 2(b)) and he pulled a gun out of his waist band. He was justified in using deadly force at that point, because he was trying to escape a lawful arrest and committed several felonies in/out of the officer's view and running through the apartment with a gun COULD have been fatal for anyone that stepped in front of the BG's way. So a good shoot by the officer.

The difference is that in officer's case, all the parts fell into to place to be justified. In this citizens case, I don't think all of his parts are lining up correctly.

[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

[Lucky45]

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

I think I found it for you.

PENAL CODE
TITLE 9. OFFENSES AGAINST PUBLIC ORDER AND DECENCY
CHAPTER 42. DISORDERLY CONDUCT AND RELATED OFFENSES
§ 42.01. DISORDERLY CONDUCT. - An offense under this section is a Class C misdemeanor unless committed under Subsection (a)(7) or (a)(8), in which event it is a Class B misdemeanor.

§ 42.02. RIOT. Except as provided in Subsection (f), an offense under
this section is a Class B misdemeanor.

§ 42.03. OBSTRUCTING HIGHWAY OR OTHER PASSAGEWAY. An offense under this section is a Class B misdemeanor.

§ 42.04. DEFENSE WHEN CONDUCT CONSISTS OF SPEECH OR OTHER
EXPRESSION. (a) If conduct that would otherwise violate Section 42.01(a)(5) (Unreasonable Noise), 42.03 (Obstructing Passageway), or 42.055 (Funeral Service Disruptions) consists of speech or other communication, of gathering with others to hear or observe such speech or communication, or of gathering with others to picket or otherwise express in a nonviolent manner a position on social, economic, political, or religious questions, the actor must be ordered to move, disperse, or otherwise remedy the violation prior to his arrest if he has not yet intentionally harmed the interests of others which those sections seek to protect. (b) The order required by this section may be given by a
peace[0] officer, a fireman, a person with authority to control the use of the premises, or any person directly affected by the violation. (c) It is a defense to prosecution under Section 42.01(a)(5), 42.03, or 42.055: (1) that in circumstances in which this section requires an order no order was given;(2) that an order, if given, was manifestly
unreasonable in scope; or (3) that an order, if given, was promptly obeyed.

§ 42.05. DISRUPTING MEETING OR PROCESSION. An offense under this section is a Class B misdemeanor.

§ 42.055. FUNERAL SERVICE DISRUPTIONS. An offense under this section is a Class B misdemeanor.

§ 42.06. FALSE ALARM OR REPORT. An offense under this section is a Class A misdemeanor unless the false report is of an emergency involving a public primary or secondary school, public communications, public transportation, public water, gas, or power supply or other public service, in which event the offense is a state jail felony.

§ 42.061. SILENT OR ABUSIVE CALLS TO 9-1-1 SERVICE. An offense under this section is a Class B misdemeanor.

§ 42.062. INTERFERENCE WITH EMERGENCY TELEPHONE CALL. An offense under this section is a Class A misdemeanor, except that the offense is a state jail felony if the actor has previously been convicted under this section.

§ 42.07. HARASSMENT. An offense under this section is a Class B misdemeanor, except that the offense is a Class A misdemeanor if the actor has previously been convicted under this section.

§ 42.072. STALKING. An offense under this section is a felony of the third
degree, except that the offense is a felony of the second degree if the actor has previously been convicted under this section.

§ 42.08. ABUSE OF CORPSE. An offense under this section is a Class A misdemeanor.

§ 42.09. CRUELTY TO ANIMALS. An offense under Subsection (a)(2), (3), (4), (9), or (10) is a Class A misdemeanor, except that the offense is a state jail felony if the person has previously been convicted two times
under this section.

§ 42.091. ATTACK ON ASSISTANCE ANIMAL. An offense under this section is a: (1) Class A misdemeanor if the actor or an animal owned
by or otherwise in the custody of the actor attacks an assistance animal; (2) state jail felony if the actor or an animal owned by or otherwise in the custody of the actor injures an assistance animal; or(3) felony of the third degree if the actor or an animal owned by or otherwise in the custody of the actor kills an assistance animal.

§ 42.10. DOG FIGHTING. An offense under Subdivision (1) or (5) of Subsection (a) is a Class A misdemeanor. An offense under Subdivision (2), (3), or (4) of Subsection (a) is a state jail felony. An offense under Subdivision (6) of Subsection (a) is a Class C misdemeanor.

§ 42.11. DESTRUCTION OF FLAG. An offense under this section is a Class A misdemeanor.

§ 42.12. DISCHARGE OF FIREARM IN CERTAIN MUNICIPALITIES. An offense under this section is a Class A misdemeanor.

§ 42.13. USE OF LASER POINTERS. An offense under this section is a Class C misdemeanor.

[seamusTX]

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

- Jim

[Lucky45]

Do you think that their intent was offenses that breach the peace which are considered felonies?? eg. like stalking, cruelty to animals and dog fighting. I could be persuaded to understand why a citizen should detain a suspect until LEO arrives in these instances.

[seamusTX]

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