Holding at bay versus kidnapping

Chuck

Chuck

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Here's a thought that's been tickling in the back of my mind.

Imagine your fun out on the town ends with 2+ BGs; both with drawn weapons when they confront you. Obviously in fear for my life I react, shooting one BG. While drawing and firing at the first, the second shits his paints and puts his hands in the air -- still holding onto his weapon. I hold fire.

Am I NOW guilty of brandishing because he is not an imminent threat (hands in the air) and I still have my pistol out -- pointed at center of mass?!.

Can I made a citizen's arrest at this point? Do I have the right to keep him there at gun point? He is after all guilty of at least manslaughter at this point (assuming I've hit my first target). I don't want some a-hole defensive attorney claiming I 'kidnapped' his poor downtrodden just-trying-to-make-a-better-life-for-himself client because I wouldn't allow him to leave the scene.

I don't want him walking away to come back undetected to seek revenge in the 10-15 minutes (at best) it will take for the cops to show up. I hope I'm explaining this right. After all, most of these pr*cks don't travel alone, but in packs.

-= chuck
 
Chuck said:
Here's a thought that's been tickling in the back of my mind.

Imagine your fun out on the town ends with 2+ BGs; both with drawn weapons when they confront you. Obviously in fear for my life I react, shooting one BG. While drawing and firing at the first, the second shits his paints and puts his hands in the air -- still holding onto his weapon. I hold fire.

Am I NOW guilty of brandishing because he is not an imminent threat (hands in the air) and I still have my pistol out -- pointed at center of mass?!.
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No.

Can I made a citizen's arrest at this point?
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Isn't that effectively what you are doing?

Do I have the right to keep him there at gun point?
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The question that comes up is what you are going to do if he doesn't comply? If he dropped his gun, and tries to run away, shooting a fleeing felon is legally risky. If he moves towards you, then I would expect he is trying to take your gun and the proper action would be justified.
He is after all guilty of at least manslaughter at this point (assuming I've hit my first target).
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He isn't guilty of anything. He hasn't been charged yet, let alone convicted.

I don't want some a-hole defensive attorney claiming I 'kidnapped' his poor downtrodden just-trying-to-make-a-better-life-for-himself client because I wouldn't allow him to leave the scene.
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That's not kidnapping.
 
I believe citizen's arrest is justified if your 100% certain that person has committed a crime, and you have proof. I'm sure his friends dead body along with his prints on his gun will provide more htan proof that they did indeed intend to cause you harm.
 
M1911 said:
He isn't guilty of anything. He hasn't been charged yet, let alone convicted.
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Correct. I should have said he is alleged to have committed, and I am a witness.

M1911 said:
That's not kidnapping.
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Not letting someone walk away either by force or threat of force is, I believe, a form of kidnapping. That I assume, for what that's worth, is trumped by a citizen's arrest.

-= chuck
 
Chuck said:
Here's a thought that's been tickling in the back of my mind.

Imagine your fun out on the town ends with 2+ BGs; both with drawn weapons when they confront you. Obviously in fear for my life I react, shooting one BG. While drawing and firing at the first, the second shits his paints and puts his hands in the air -- still holding onto his weapon. I hold fire.

Am I NOW guilty of brandishing because he is not an imminent threat (hands in the air) and I still have my pistol out -- pointed at center of mass?!.

Can I made a citizen's arrest at this point? Do I have the right to keep him there at gun point? He is after all guilty of at least manslaughter at this point (assuming I've hit my first target). I don't want some a-hole defensive attorney claiming I 'kidnapped' his poor downtrodden just-trying-to-make-a-better-life-for-himself client because I wouldn't allow him to leave the scene.

I don't want him walking away to come back undetected to seek revenge in the 10-15 minutes (at best) it will take for the cops to show up. I hope I'm explaining this right. After all, most of these pr*cks don't travel alone, but in packs.

-= chuck
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There is no such law as "brandishing" so you can not be guilty of it!!

What makes him guilty of manslaughter?
 
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I think a caveat here is that it has to have been a felony for you to make a citizen's arrest.

Fsorrent said:
I believe citizen's arrest is justified if your 100% certain that person has committed a crime, and you have proof. I'm sure his friends dead body along with his prints on his gun will provide more htan proof that they did indeed intend to cause you harm.
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CHAPTER 265. CRIMES AGAINST THE PERSON


Chapter 265: Section 26. Kidnapping; weapons; child under age 16; punishment


Section 26. Whoever, without lawful authority, forcibly or secretly confines or imprisons another person within this commonwealth against his will, or forcibly carries or sends such person out of this commonwealth, or forcibly seizes and confines or inveigles or kidnaps another person, with intent either to cause him to be secretly confined or imprisoned in this commonwealth against his will, or to cause him to be sent out of this commonwealth against his will or in any way held to service against his will, shall be punished by imprisonment in the state prison for not more than ten years or by a fine of not more than one thousand dollars and imprisonment in jail for not more than two years. Whoever commits any offence described in this section with the intent to extort money or other valuable thing thereby shall be punished by imprisonment in the state prison for life or for any term of years.

Whoever commits any offense described in this section while armed with a firearm, rifle, shotgun, machine gun or assault weapon shall be punished by imprisonment in the state prison for not less than ten years or in the house of correction for not more than two and one-half years. The provisions of the preceding sentence shall not apply to the parent of a child under 18 years of age who takes custody of such child. Whoever commits such offense described in this section while being armed with a firearm, rifle, shotgun, machine gun or assault weapon with the intent to extort money or other valuable thing thereby shall be punished by imprisonment in the state prison for life or for any term of years but not less than 20 years.

Whoever commits any offense described in this section while armed with a dangerous weapon and inflicts serious bodily injury thereby upon another person or who sexually assaults such person shall be punished by imprisonment in the state prison for not less than 25 years. For purposes of this paragraph the term “serious bodily injury” shall mean bodily injury which results in a permanent disfigurement, protracted loss or impairment of a bodily function, limb or organ or substantial risk of death. For purposes of this paragraph, the term “sexual assault” shall mean the commission of any act set forth in sections 13B, 13F, 13H, 22, 22A, 23, 24 or 24B.

Whoever, without lawful authority, forcibly or secretly confines or imprisons a child under the age of 16 within the commonwealth against his will or forcibly carries or sends such person out of the commonwealth or forcibly seizes and confines or inveigles or kidnaps a child under the age of 16 with the intent either to cause him to be secretly confined or imprisoned in the commonwealth against his will or to cause him to be sent out of the commonwealth against his will or in any way held to service against his will, shall be punished by imprisonment in the state prison for not more than 15 years. The provisions of the preceding sentence shall not apply to the parent of a child under 16 years of age who takes custody of such child.
 
He's a co-conspirator in the act of committing a felony...am I missing something here?
you make the citz arrest by detaining him, the law shows up and arrests him. Courts take it from there.
 
Palladin said:
He's a co-conspirator in the act of committing a felony...am I missing something here?
you make the citz arrest by detaining him, the law shows up and arrests him. Courts take it from there.
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I will ask you as a test... what do you think the felony is that they committed?
 
Half Cocked said:
Where in the OP does it say that?
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Are you kidding me? Two bad guys with drawn weapons. You're either getting mugged, raped, murdered, or all three. [thinking]

I'll say again the felony has been commited. Empty mag, reload, assess, and call for fire. over...
 
And for the record as you should already know half cocked, once the bad guy draws the weapon its a "weapons free" target rich environment. [wink]
 
derek said:
Are you kidding me? Two bad guys with drawn weapons. You're either getting mugged, raped, murdered, or all three. [thinking]

I'll say again the felony has been commited. Empty mag, reload, assess, and call for fire. over...
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Or maybe undercover police officers? No where does it say in the OP that the guns were pointed at him. No words were exchanged. No challenges made?

I would like the question by the OP to be more specific before I give a better answer.
 
Half Cocked said:
Or maybe undercover police officers? No where does it say in the OP that the guns were pointed at him. No words were exchanged. No challenges made?

I would like the question by the OP to be more specific before I give a better answer.
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Under cover PoPo doing this?

Imagine your fun out on the town ends with 2+ BGs; both with drawn weapons when they confront you
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I'm sorry. If I'm out carrying and two bad guys or under cover cops pull a knives or guns on me and I'm in fear of my life, I'm pulling my sidearm out instead of my wallet and going down in a blaze of gun fire.
 
jdubois said:
Assault or assault with intent to murder/main, and use of a firearm while committing a felony? Perhaps others, depending on other information not given in the hypothetical example's description.
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FWIW, assault is a misdemeanor. There can be no assault with the intent to murder as there was no evidence given in the OP that the "BG's" INTENDED to murder as opposed to rob. There was no evidence of robbery either BTW.

I am just playing devils advocate for the sake of argument as I feel that the OP did not word the scenario as I believe he intended.
 
Assault with a deadly weapon is a misdemeanor? Remeber the OP did say "Weapon" I'm sure it wasn't a whip, pencil, or belt.
 
If he is still holding a weapon, the threat is still there.
That threat must be neutralized! How you chose to neutralize said threat is up to you.
He may comply and drop the weapon after you order him to, or, you may have to use fore again.

Frankly, if he is still standing after drawing a weapon on you, you need more training! (Shameless plug!) [wink]
 
Ok, since Half Cocked is apparently "half cocked" [wink] I'll re-write the OP.

You are going to your car in a dark secluded parking lot. As you are about to open the door you notice two thugs with knives pulled out and pointing at you saying "Give me your money jive turkey". You act like you are slowly reaching for your wallet and you pull your HK USP .45 loaded with jacketed hollow points and waste BG#1 with two quick point aimed shots.

BG#2 realizes that a knife is a pretty shitty idea at this point and throws his hands in the air...

What do you do?
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Is that better HC? [grin]
 
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derek said:
Under cover PoPo doing this?



I'm sorry. If I'm out carrying and two bad guys or under cover cops pull a knives or guns on me and I'm in fear of my life, I'm pulling my sidearm out instead of my wallet and going down in a blaze of gun fire.
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Derek...I am on the same page as you..in general terms...but reread the OP. With the information in the OP I would think that you would have issues.
 
jdubois said:
Well, I'll show my ignorance here, what's the difference between felony and misdemeanor? I thought felony was a crime punishable by more than a year in jail, but I'm happy to be schooled in the matter.
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Misdemeanors are punishable by up to 2 1/2 years in the house of correction.

This is another issue why I advise against citizens arrests. Most people do not know the difference between a misdemeanor and a felony. (nor should they have to)

Possession of Cocaine.....misdemeanor
Motor Vehicle Homicide.....misdemeanor
 

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