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Legal question- detaining suspect - NY

Discussion in 'Legal' started by Colt Smith, Jun 28, 2009.

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  1. Colt Smith

    Colt Smith Member

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    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.
     
  2. Frank Ettin

    Frank Ettin Moderator

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    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.
     
  3. archigos

    archigos Member

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    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.
     
  4. Rockwell1

    Rockwell1 member

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    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.
     
  5. rrruuunnn

    rrruuunnn Member

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    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.
     
    Last edited: Jun 28, 2009
  6. Jeff White

    Jeff White Moderator Staff Member

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    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.
     
  7. stickhauler

    stickhauler Member

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    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.
     
  8. rrruuunnn

    rrruuunnn Member

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    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.
     
  9. Colt Smith

    Colt Smith Member

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    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.
     
  10. danbrew

    danbrew member

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    Just shoot him and be done with it.

    Seriously.
     
  11. kingpin008

    kingpin008 Member

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

    Seriously.
     
  12. LibShooter

    LibShooter Member

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    Why would you want to restrain him? I say let the bad guy run away.
     
  13. TexasRifleman

    TexasRifleman Moderator Emeritus

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    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.


    New york Consolidated Laws, Criminal Procedure (CPL)

     
    Last edited: Jun 28, 2009
  14. Frank Ettin

    Frank Ettin Moderator

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    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."
     
  15. scottgun

    scottgun Member

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    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.
     
  16. TexasRifleman

    TexasRifleman Moderator Emeritus

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

    Terrible idea but legal in many cases.
     
  17. Colt Smith

    Colt Smith Member

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    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.
     
  18. TexasRifleman

    TexasRifleman Moderator Emeritus

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    Where do you get that information from?
     
  19. scottgun

    scottgun Member

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    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.
     
  20. hso

    hso Moderator Staff Member

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    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.
     
  21. TexasRifleman

    TexasRifleman Moderator Emeritus

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    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.
     
    Last edited: Jun 28, 2009
  22. danbrew

    danbrew member

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    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.
     
  23. Colt Smith

    Colt Smith Member

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    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.
     
  24. Colt Smith

    Colt Smith Member

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    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.
     
  25. JoeShmoe

    JoeShmoe Member

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    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.
     
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