Legal question- detaining suspect - NY


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Colt Smith
June 28, 2009, 12:51 AM
I live in NY. If some creepy crawler breaks into your house or if you catch them on your property, can you detain them or restrain them with mechanical devices(cuffs, rope, extension cord, etc.)? I'm pretty sure you can hold them at gunpoint but maybe you have them at gunpoint and your phone is upstairs or something like that. Thankfully haven't needed to yet. Just curious.

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Frank Ettin
June 28, 2009, 02:11 AM
You probably should talk with a good lawyer in NY.

But in any case, are you really sure that you'd be able to cuff, tie up or otherwise restrain a BG, especially if he decides he's not interested in hanging around? Are you sure he'll even sit around with a gun pointed at him? What if he decides he has business elsewhere? Are you going to shoot him while he's taking a powder?

As I see it, if I find an intruder in my home, my first order of business is to protect my family and myself from harm. Holding the guy for the police is somewhere down on my list of priorities at that moment.

archigos
June 28, 2009, 02:41 AM
NY: The second you involve a gun, you're putting yourself at extreme legal risk. If you're going to use one, a) be sure that its absolutely the only way that you and/or your family is going to make it out alive and b) pull the trigger.
Regarding detaining, you certainly can detain criminals - its called citizens' arrest and there are different laws regarding it in every state. I'm not familiar with laws regarding the specific situation you're referring to, but you definitely are permitted to use handcuffs (I have done so a number of times, its definitely legal). Once again, I'd be careful - use the proper tools and don't mess with extension cords or anything not designed to restrain somebody. Make sure that you don't do anything out of the ordinary or that shows lack of concern for them. Double lock the handcuffs, etc.
I know a lot of this varies between counties, but you need to remember that pretty much anywhere in NY, especially if its going to involve anything with state jurisdiction, gg = bg. Do what you need to to preserve your life - nothing more, nothing less.

Rockwell1
June 28, 2009, 03:02 AM
Regardless of the legality are you prepared to get that close to a dangerous criminal? I'm not trained in proper handcuffing techniques. I'm not prepared to hwave a badguy jump me while both hands are full. I just don't see the up side.

As for the phone being upstairs you should have already called 911 anyway.

rrruuunnn
June 28, 2009, 03:29 AM
The book by Massad Ayoob "Armed Response" goes into this. The authour is an ex cop.

My memory might not be perfect:

Basically: tell the BG to drop to his knees, then lay down, then spread arms, then look away, then tell BG that if he moves you will assume that he is going to attack and you will shoot.

I'm assuming the author did not want citizens to get close to BG for fear of a wrestle with your gun. BG's practice in jail how to disarm a gunman.

Jeff White
June 28, 2009, 03:46 AM
If you aren't trained in the use of handcuffs or other restraints attempting to use them is foolish and stupid. I was in more fights that started when the steel hit the wrist then I care to recall.

I don't know about New York state but many states have laws against Unlawful Restraint. It's best to know the law where you are at and if you aren't trained and don't have backup to assist you when you're trying to cuff and stuff your catch of the day, then you shouldn't be trying it all.

stickhauler
June 28, 2009, 03:52 AM
Huh? Bad guys in prison practice how to take advantage of the weakest inmate, I seriously doubt they hold drills on how to disarm victims. Massad has a large following in the gun community I'm sure, and he's made loads of money off his advice to gun owners. But I have friends who have worked with him in the past, and their opinions of his expertise sure don't agree with his own opinion of his experience in self defense, or tactics.

I applaud him for his ability to earn a very comfortable living offering advice, but I can say I'm the best ever was, and that don't make it the truth. I'll judge the situation as I see it at the time, and react appropriately to the threat. I'll tell the bad guy he's lucky my wife isn't holding him at gunpoint, she'd probably kill the SOB for making her get the gun out.

rrruuunnn
June 28, 2009, 04:03 AM
In the two last burglaries at our restaurant. When the cops came to arrest, the burglars fought the police. And the police said that since most burglars are on drugs and don't want to go through withdrawal symtoms in jail. They will most often resist the police officer.

Colt Smith
June 28, 2009, 09:57 AM
All good points. I don't want to deal with physical contact with a BG. I'm not a small guy but who needs that? I was just thinking that if I'm chillin' on the couch downstairs watching Oprah(kidding) with my gun on the couch beside me, life is good. Then a BG breaks the door down and invites himself in. Good thing I have the gun at hand but can't call for help because I don't have a land line. I only have a cell phone and it's upstairs in the office where I left it like a dumba$$. Of course, bad guy or not I don't want to shoot anybody if I don't have to. In the case where the BG does not appear to be on drugs and has a tiny bit of sense I might be able to stop him with the show of force and commands. With no access to my phone I suppose the best thing would be to order him out of my house. If he flees I go for the phone and let the cops deal with it. If he advances I drop the hammer and let the coroner deal with it.

danbrew
June 28, 2009, 11:01 AM
Just shoot him and be done with it.

Seriously.

kingpin008
June 28, 2009, 11:49 AM
Just shoot him and be done with it.

Seriously.

Depending on the local laws in regards to when an individual is justified in shooting an intruder, that's some poor advice.

Seriously.

LibShooter
June 28, 2009, 11:58 AM
Why would you want to restrain him? I say let the bad guy run away.

TexasRifleman
June 28, 2009, 12:05 PM
These legal threads are always so much fun. Everyone gives their opinion but rarely actually talk about the law.

Not much on the actual procedure, but at least some guidance on when and where.


Any person may arrest another person (a) for a felony when the latter has in fact committed such felony, and (b) for any offense when the latter has in fact committed such offense in his presence. (N.Y.C.L. 140.30).

In New York, A person may arrest another person for an offenseat any hour of any day or night. 2. Such person must inform the person whom he is arresting of the reason for such arrest unless he encounters physical resistance, flight or other factors rendering such procedure impractical. 3. In order to effect such an arrest, such person may use such physical force as is justifiable pursuant to subdivision four of section 35.30 of the penal law. (N.Y.C.L. 140.35).


New york Consolidated Laws, Criminal Procedure (CPL)

140.30 Arrest without a warrant; by any person; when and where
authorized.
1. Subject to the provisions of subdivision two, any person may
arrest another person (a) for a felony when the latter has in fact
committed such felony, and (b) for any offense when the latter has in
fact committed such offense in his presence.
2. Such an arrest, if for a felony, may be made anywhere in the
state. If the arrest is for an offense other than a felony, it may be
made only in the county in which such offense was committed.

140.35 Arrest without a warrant; by person acting other than as a
police officer or a peace officer; when and how made.
1. A person may arrest another person for an offense pursuant to
section 140.30 at any hour of any day or night.
2. Such person must inform the person whom he is arresting of the
reason for such arrest unless he encounters physical resistance, flight
or other factors rendering such procedure impractical.
3. In order to effect such an arrest, such person may use such
physical force as is justifiable pursuant to subdivision four of section
35.30 of the penal law.

140.40 Arrest without a warrant; by person acting other than as a
police officer or a peace officer; procedure after arrest.
1. A person making an arrest pursuant to section 140.30 must without
unnecessary delay deliver or attempt to deliver the person arrested to
the custody of an appropriate police officer, as defined in subdivision
five. For such purpose, he may solicit the aid of any police officer
and the latter, if he is not himself an appropriate police officer, must
assist in delivering the arrested person to an appropriate officer. If
the arrest is for a felony, the appropriate police officer must, upon
receiving custody of the arrested person, perform all recording,
fingerprinting and other preliminary police duties required in the
particular case. In any case, the appropriate police officer, upon
receiving custody of the arrested person, except as otherwise provided
in subdivisions two and three, must bring him, on behalf of the
arresting person, before an appropriate local criminal court, as defined
in subdivision five, and the arresting person must without unnecessary
delay file an appropriate accusatory instrument with such court.
2. If (a) the arrest is for an offense other than a class A, B, C or D
felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19
or 215.56 of the penal law and (b) owing to unavailability of a local
criminal court the appropriate police officer having custody of the
arrested person is unable to bring him before such a court with
reasonable promptness, the arrested person must be dealt with in the
manner prescribed in subdivision three of section 140.20, as if he had
been arrested by a police officer.
3. If the arrest is for an offense other than a class A, B, C or D
felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19
or 215.56 of the penal law, the arrested person need not be brought
before a local criminal court, as provided in subdivision one, and the
procedure may instead be as follows:
(a) An appropriate police officer may issue and serve an appearance
ticket upon the arrested person and release him from custody, as
prescribed in subdivision two of section 150.20; or
(b) The desk officer in charge at the appropriate police officer's
station, county jail or police headquarters, or any of his superior
officers, may, in such place, fix pre-arraignment bail and, upon deposit
thereof, issue and serve an appearance ticket upon the arrested person
and release him from custody, as prescribed in section 150.30.
4. Notwithstanding any other provision of this section, a police
officer is not required to take an arrested person into custody or to
take any other action prescribed in this section on behalf of the
arresting person if he has reasonable cause to believe that the arrested
person did not commit the alleged offense or that the arrest was
otherwise unauthorized.
5. If a police officer takes an arrested juvenile offender into
custody, the police officer shall immediately notify the parent or other
person legally responsible for his care or the person with whom he is
domiciled, that the juvenile offender has been arrested, and the
location of the facility where he is being detained.
6. As used in this section:
(a) An "appropriate police officer" means one who would himself be
authorized to make the arrest in question as a police officer pursuant
to section 140.10;
(b) An "appropriate local criminal court" means one with which an
accusatory instrument charging the offense in question may properly be
filed pursuant to the provisions of section 100.55.

Frank Ettin
June 28, 2009, 12:43 PM
...Everyone gives their opinion but rarely actually talk about the law...Those are very nice statutes, and there are probably any number of other statues that may be material and court decisions interpreting and applying them. So any discussion of the law on the subject is incomplete without those statues and court decisions. For example, exactly what is, "...such physical force as is justifiable pursuant to subdivision four of section 35.30 of the penal law. (N.Y.C.L. 140.35)....."? No doubt NY has had it share of "excessive force" cases.

In any case, the threshold question still is whether it's a particularly good idea to get close enough to the BG to try to cuff or tie him up. I still vote "no."

scottgun
June 28, 2009, 12:51 PM
Just shoot him and be done with it.

Seriously.

In NYS you will lose your CCW permit if you ever shoot someone, even if you are completely justified and not charged.

So I would say that should be the absolute last resort.

For the original questions, its not really worth the risk to try to detain someone.

TexasRifleman
June 28, 2009, 12:54 PM
In any case, the threshold question still is whether it's a particularly good idea to get close enough to the BG to try to cuff or tie him up. I still vote "no."

I agree, it's a horrible idea. But, the OP asked for the legal side.

Terrible idea but legal in many cases.

Colt Smith
June 28, 2009, 01:01 PM
Thanks TexasRifleman.

scottgun,

So what is the point of having the license if you will be punished for using it even under perfectly justifiable conditions? I just can't ever seem to wrap my head around the bass-ackwards thinking of our legislative and judicial systems.

TexasRifleman
June 28, 2009, 01:02 PM
In NYS you will lose your CCW permit if you ever shoot someone, even if you are completely justified and not charged.

Where do you get that information from?

scottgun
June 28, 2009, 01:19 PM
Where do you get that information from?

One of those friend of a relative stories, which I don't doubt it actually happened, but I have no evidence to back it up.
The short story is a guy was checking on some people on his property possibly stealing stuff. The people/person attacked him, were beating him to the ground. While he was on the ground he pulled a revolver and shot the attacker. The DA didn't press any charges and the sherrif pulled his permit. I can't wrap my mind around it either. I guess thats one of the reasons I got out of NYS.

hso
June 28, 2009, 01:48 PM
Two points to consider here.

Legally it appears you may be permitted to detain/restrain under the authority of making a legal arrest.

The other is that once you have someone under your temporary control only a fool approaches them closely enough to permit an attack. Consider that a detained criminal has more motivation for getting away than just about anyone else. If you approach them and get within arms reach needed to restrain them you put yourself at greater risk of attack. Remember that distance is your friend.

As to bloodthirsty comments like "Just shoot him and be done with it.", they're improper. Doing this will probably put you in jail for murder, are unethical (see the murder reference) and counter to the very principals of The High Road. Once someone is no longer a threat shooting them is never acceptable. If nothing else, think about the fact that while CSI is just a television show with a world of fantasy forensics Coroners and investigators have been using bullet paths to show where shots came from for a long time. Shooting a detained criminal is pretty easy to prove. Easy enough to put you in jail like you deserve.

TexasRifleman
June 28, 2009, 03:17 PM
In addition you have the very real problem of civil suits.

Even in states with immunity for self defense shootings you open yourself up to lawsuits if you "arrest" someone.

You are from that moment forward (until you hand him off to LE) responsible for his safety and security.

If he hurts himself trying to escape guess what.... it's your fault.

It's a no win situation to me.

Hold the gun on him, tell him not to move. If he runs, about the best move is to simply watch and be a good witness for the police when they arrive.

danbrew
June 28, 2009, 06:55 PM
Just shoot him and be done with it.

Seriously.

I stand chastised. Better to just handcuff him instead of shooting him. Or maybe hold him at gunpoint. But now that there is a gun in play, well, don't let him get the gun. Maybe it would be better to just call the police.

Colt Smith
June 28, 2009, 08:24 PM
Ok, well like I said earlier, I'm not interested in getting that close to a BG. I was just wondering about the legality of detaining the person. And the point again was that the situation was that I wasn't in reach of a phone. Naturally, if time and distance permitted the first step would be to call the police then get to a defensible position. But if I was caught someplace away from a phone and there was no time or path to get to a defensible position I would need to defend myself where I was, which may well be very close to the BG's point of entry. And...IF I got the BG to comply with commands, I was curious if at that point the BG could legally be detained. Sounds like the best thing to do is make some mental notes about the guys description then tell him to get the frick out of my house. Then call the police and let them do their job.

Colt Smith
June 28, 2009, 08:26 PM
By the way, I would never even consider shooting the guy after he was detained regardless of whether or not I could get away with it.

JoeShmoe
June 28, 2009, 10:09 PM
One of those friend of a relative stories, which I don't doubt it actually happened, but I have no evidence to back it up.
The short story is a guy was checking on some people on his property possibly stealing stuff. The people/person attacked him, were beating him to the ground. While he was on the ground he pulled a revolver and shot the attacker. The DA didn't press any charges and the sherrif pulled his permit. I can't wrap my mind around it either. I guess thats one of the reasons I got out of NYS.

Just because some sheriff pulled some guys permit, does not make it so, for the entire state. Where I live a local judge issues carry permits. It is certainly not a statewide practice.

mgkdrgn
June 29, 2009, 06:16 PM
Just shoot him and be done with it.

Seriously.

That does have the advantage to limiting the number of "stories" of the encounter to one.

Jeff White
June 29, 2009, 06:36 PM
That does have the advantage to limiting the number of "stories" of the encounter to one.

Anyone who is worried that they need to keep the bad guy from telling his side of the story, should re-evaluate their decision to defend themselves with deadly force as they obviously are too immature to handle such an encounter.

Making such a suggestion even flippantly isn't what this forum is about. :banghead:

PumpAction
June 29, 2009, 10:20 PM
scottgun,

In NYS you will lose your CCW permit if you ever shoot someone, even if you are completely justified and not charged.

So CCW in NYS is only good for one self-defense encounter??

fong47
June 29, 2009, 11:47 PM
I think that if someone attack you in your property, you cannot just shoot him. You can only use your weapon if you or your family member is in danger. If someone stole your Plasma TV and runs away and you saw him in your property, you cannot shoots him because your life is not in danger. Just my 2 cents..

TexasRifleman
June 29, 2009, 11:51 PM
If someone stole your Plasma TV and runs away and you saw him in your property, you cannot shoots him because your life is not in danger. Just my 2 cents..

Actually that's not true, but you better be in Texas when you do it. And it's probably a good idea to have a good lawyer's phone number close.

But, technically legal in some instances.

Colt Smith
June 30, 2009, 01:12 AM
Once again, the question was about detaining the BG for proper authorities while he is still breathing and without any extra holes. There is no justifiable reason to kill someone if you or another innocent person are not in immediate danger of grievous bodily harm or death.

edSky
June 30, 2009, 07:37 AM
Ok, you were on the couch, the burglar comes in, you have your gun. Let's say you do issue commands and get him to get down and ...

By the way, I would never even consider shooting the guy after he was detained regardless of whether or not I could get away with it.

Whether or not you get to the phone, which is your intent, he gets up quickly. He grabs a small table or a lamp or whatever he way eying and lunges at you.

You don't want to shoot him. But you might want to consider it. Even if I was a bad guy, I would feel like I was being held prisoner (and rightly so) and I would want to escape. To be honest, that's all I would be thinking of.

Is it best to back to the door before that situation unfolds, keeping him in your sights, and tell him your letting him run the heck out of there? That thought never came to me until now, but ... no harm, no foul? He certainly wouldn't want to cheat death twice, at least not in your house.

Colt Smith
June 30, 2009, 07:07 PM
Of course I meant I would never consider shooting the BG... IF ...he was complying with commands. And like I mentioned earlier I guess the best thing is to make good mental notes about his description then set him free before calling the police. But....if the BG has a change of mind and advances I will put him to sleep.

edSky
July 1, 2009, 09:26 AM
Colt Smith, well stated.

DeepSouth
July 1, 2009, 09:43 AM
The book by Massad Ayoob "Armed Response" goes into this. The authour is an ex cop.

I just finished his book In the Gravest Extreme where he also addresses this subject, I highly recommend the book to anyone with the "What if..." type of legal questions.

gmark340
July 1, 2009, 06:53 PM
Mas Ayoob's book is good but his LF1 course is better. From a legal perspective, I have not seen anyone provide a better context for armed self defense and highly recommend it. He is an engaging speaker, thoroughly conversant with the course material and quite modest. There was nothing in his course that was contradicted by my law enforcement training, including the fact that inmates practice disarmament techniques, which I have heard from numerous police and corrections officers. For more of a sense of the foe, "In the Belly of the Beast" provides some insight into the mindset of the violent criminal. There may be people who disagree with a particular range technique Ayoob teaches but he is the first to tell people to use what works best for them. At the same time, there aren't many who wouldn't want him in the witness box on their behalf, which he does gratis for anyone who passed his course and was later involved in a self-defense shooting.

Bottom line, if you haven't been trained to handcuff someone, you don't want to be attempting to learn how to do it some adrenaline-charged night when you least expect it. While you may have the legal right to restrain someone breaking and entering, you've gotten a lot of sound advice from other posters that you may choose not to. This is very dependent on other facts and circumstances but, if your phone is not within reach, you may just want to direct him to the door, lock it behind him and then call police.

Jim K
July 1, 2009, 07:07 PM
The problem with having a gun is that the civilian rarely has anything else. Police have an array of weapons and can use the one most appropriate short of deadly force (e.g., a Taser).

The "right" to make a citizen's arrest is a sham, since you have no means of effecting it.
Also, you must comply with all the rules of arrest, including reading the suspect his rights. Do you know the exact wording? If not the arrest is void and is unlawful detention.

Plus, since you have only a gun, what do you do when the suspect says, "Excuse me, kind sir, I am pleased to have met you, but I have an urgent appointment elsewhere and must leave." Shoot him and you are in trouble. Try to wrestle him and you risk not only loss of the gun, but broken bones as well.

Jim

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