If someone breaks in, can I legally hold them at gunpoint until police arrive?

[ZJPierce]

I searched and found this: http://www.northeastshooters.com/vb...meone-breaks-in?highlight=Holding+at+gunpoint but it is more related to a hero situation chasing someone outside of the house.

My question is if the burglar who breaks in is confronted by the homeowner inside their dwelling, and the burglar immediately get's down in the "I give up position - not trying to attack" at gunpoint, are you legally able to keep in that position at gunpoint until police arrive?

The thread I linked to references a Citizens Arrest needing to be a felony, and not all cases of burglary are felonies, but does this change if you are inside your house?

Do you hold them at gun point, or say get the *** out of here I am calling the cops?

 

[icyclefar]

Buckle up, and welcome to the forum.

 

[Chet0729]

Make him dig his own grave

 

[ZJPierce]

Buckle up, and welcome to the forum.

I know I know.. I have been exposed to the "Don't ask scenario based questions", and "The only side of the story that will be there is mine", "Anyone breaks into my house they are dead"...

But there are some good threads that get generated by these type of questions, at least in the sense people quote out certain laws that I have overlooked and reference case law I haven't seen.

Thanks for the welcome, nice to see a fellow South Shorean do the welcome.

 

[atilla]

if you shoot the dude on your porch be sure to violate the corpse.

 

[jibbr71]

if you shoot the dude on your porch be sure to violate the corpse.

For the win.

 

[icyclefar]

if you shoot the dude on your porch be sure to violate the corpse.

There's a lot of information packed into that one line of advice.

I'm not sure however he's giving it to you in the proper order.

 

[atilla]

There's a lot of information packed into that one line of advice.

I'm not sure however he's giving it to you in the proper order.

I

ANAL.

 

[PATRON]

If he is in the house,and your holding him at gun point call the cops,but if he starts to leave and is not going to cause you or anyone else harm. You have to let him go.

 

[drgrant]

 

[JCV]

If he is in the house,and your holding him at gun point call the cops,but if he starts to leave and is not going to cause you or anyone else harm. You have to let him go.

let him go?
why is he conscious?

 

[swatgig]

let him go?
why is he conscious?

You: Hello,police? There's a dead guy on my living room floor.

Operator: Are you sure he's dead?

You: Let me check.

bang...bang...bang

You: Yeah, he's dead.

On a serious note, all you need to do to commit assault with a deadly weapon is do something (anything) with a deadly weapon that puts the other guy in fear or serious alarm. If they decide to file charges, you'll end up defending yourself. You may have a valid defense, (citizen's arrest, defense of property, self defense, defense of others), but it's still a defense, and you will end up paying me (or some other sleazy lawyer) to defend you.

 

[bigblue]

You can hold him by citizen's arrest but ain't nothin that allows you to actually stop him from leavin.

He had a knife and lunged at you when you shot him ded right sir?

 

[sbi]

If he is in the house,and your holding him at gun point call the cops,but if he starts to leave and is not going to cause you or anyone else harm. You have to let him go.

Really? Why?! I kind'a laughed at the OP's question at first but seems like it's a real question. Why do I have​ to let him go and cannot hold him at gun point until the police arrives?

 

[chris_1001]

I

ANAL.

HA!

 

[saltydude]

Police come. See YOU with the gun. Bang.

/thread.

 

[mibro]

Really? Why?! I kind'a laughed at the OP's question at first but seems like it's a real question. Why do I have​ to let him go and cannot hold him at gun point until the police arrives?

Seems to me that in Massachusetts there's a chance you might be charged with aggravated kidnapping. That is the risk if you hold him at gunpoint. But IANAL so who knows.

 

[M1911]

I searched and found this: http://www.northeastshooters.com/vb...meone-breaks-in?highlight=Holding+at+gunpoint but it is more related to a hero situation chasing someone outside of the house.

My question is if the burglar who breaks in is confronted by the homeowner inside their dwelling, and the burglar immediately get's down in the "I give up position - not trying to attack" at gunpoint, are you legally able to keep in that position at gunpoint until police arrive?

The thread I linked to references a Citizens Arrest needing to be a felony, and not all cases of burglary are felonies, but does this change if you are inside your house?

Do you hold them at gun point, or say get the *** out of here I am calling the cops?

What do you mean "hold them at gun point"? If they does not have a visible weapon and is running for the door, are you going to shoot him in the back?

You might want to review Tennessee v. Garner: http://en.wikipedia.org/wiki/Tennessee_v._Garner

 

[LKE21]

See Commonwealth v. Klein, Model Penal Code 3.07, and Commonwealth v. Harris to start.

A private citizen cannot usually use deadly force to make a "citizen's arrest" inside or outside of their home unless the person effecting the arrest is: 1. Authorized to act as a peace officer OR 2. Is assisting a person whom he believes to be authorized to act as a peace officer. Bottom line: if you're not a peace officer yourself or helping a peace officer in making an arrest, you cannot lawfully make a "citizen's arrest" at gunpoint.

See here: http://www.mass.gov/courts/case-legal-res/law-lib/laws-by-subj/about/criminal.html for an explanation of the "in fact committed standard" and how it applies to the scenario. A "citizen's arrest" (detaining someone against their will while waiting for police ***without using a firearm***) will rarely hold up in court anyway due to the fact that the intruder would need to be CONVICTED of a felony (not just charged with one) BEFORE the "citizen's arrest" could possibly be validated as lawful (plea deals are easily made, felonies become misdemeanors).

MGL 278 8A in no way provides immunity from criminal prosecution; rather, it merely injects objective reasonableness into the equation. It does affirm that an individual as no duty to retreat within their own home.

If a private citizen (lawfully within their own residence or dwelling) holds an intruder at gunpoint, I expect prosecutorial discretion would come into play and the "good guy" would not be charged with ADW/Agg kidnapping. If the "good guy" were in fact charged with either (firearm involved), a half decent attorney wouldn't even entertain the "citizen's arrest" defense.

 

[icyclefar]

You got off easy. Only had to endure 17 posts to get to the one above.


Sent from my iPhone using Tapatalk

 

[ZJPierce]

What do you mean "hold them at gun point"? If they does not have a visible weapon and is running for the door, are you going to shoot him in the back?

You might want to review Tennessee v. Garner: http://en.wikipedia.org/wiki/Tennessee_v._Garner

Not trying to be rude... but..
No, I clearly explained in what you quoted... "and the burglar immediately get's down in the "I give up position - not trying to attack" at gunpoint, are you legally able to keep in that position at gunpoint until police arrive?"

I made no mention of shooting someone in the back or mention of said person running for the door. I stated the person immediately gets down in the "I give up position", non aggressive, after seeing me holding my gun. The question then continues with are you legally able to keep said person in that position at gunpoint until police arrives. If they get up and head for the door so be it... but most people will keep their gun drawn until the threat is eliminated or gone. If the person decides to be submissive to the fact someone is holding a gun to them, I don't think anyone here is going to holster there weapon when the person gets on the ground. My question is regarding what is the best course of action once the person is on the ground, and you still have your weapon drawn on them.

- - - Updated - - -

See Commonwealth v. Klein, Model Penal Code 3.07, and Commonwealth v. Harris to start.

A private citizen cannot usually use deadly force to make a "citizen's arrest" inside or outside of their home unless the person effecting the arrest is: 1. Authorized to act as a peace officer OR 2. Is assisting a person whom he believes to be authorized to act as a peace officer. Bottom line: if you're not a peace officer yourself or helping a peace officer in making an arrest, you cannot lawfully make a "citizen's arrest" at gunpoint.

See here: http://www.mass.gov/courts/case-legal-res/law-lib/laws-by-subj/about/criminal.html for an explanation of the "in fact committed standard" and how it applies to the scenario. A "citizen's arrest" (detaining someone against their will while waiting for police ***without using a firearm***) will rarely hold up in court anyway due to the fact that the intruder would need to be CONVICTED of a felony (not just charged with one) BEFORE the "citizen's arrest" could possibly be validated as lawful (plea deals are easily made, felonies become misdemeanors).

MGL 278 8A in no way provides immunity from criminal prosecution; rather, it merely injects objective reasonableness into the equation. It does affirm that an individual as no duty to retreat within their own home.

If a private citizen (lawfully within their own residence or dwelling) holds an intruder at gunpoint, I expect prosecutorial discretion would come into play and the "good guy" would not be charged with ADW/Agg kidnapping. If the "good guy" were in fact charged with either (firearm involved), a half decent attorney wouldn't even entertain the "citizen's arrest" defense.

Thanks for these references, this is some of the stuff I was looking for. I appreciate it.

Edit: While holding them at gunpoint and on the phone with police, "I am not holding you against your will, you are free to go at any point" while still having your gun drawn... then we probably fall into assault.

 

[white feather]

I

ANAL.

 

[M1911]

Not trying to be rude... but.. No, I clearly explained in what you quoted... "and the burglar immediately get's down in the "I give up position - not trying to attack" at gunpoint, are you legally able to keep in that position at gunpoint until police arrive?"

You again talk about keeping them in that position. The only way to keep them in that position is by threatening the use of deadly force, which is only justified if you, or another innocent, are in the immediate danger of death or grave bodily injury. To out it another way, unless said perp was threatening you beyond merely being in your house uninvited, you may well have legal issues here in MA pointing a gun at him.

And, not to be rude, but if you are pointing a gun at someone and telling them not to move, you are implicitly threatening to shoot them if they do choose to move. So, when you claim no one was talking about shooting them in the back, well, I would disagree with that.

 

[fencer]

Not trying to be rude... but..
No, I clearly explained in what you quoted... "and the burglar immediately get's down in the "I give up position - not trying to attack" at gunpoint, are you legally able to keep in that position at gunpoint until police arrive?"

Welcome to NES. I always like seeing new members join in the discussion and your question is a valid one that all of us have asked either out loud or to ourselves.

What most people would probably do in the situation you describe, not me mind you, but many others, is beat the ever living snot out of the guy and if the intruder regained consciousness he would have great difficulty evading the police with his broken leg and left eyeball out of it's socket and laying on his cheek. I would never do this as I am but a gentle and compassionate man.

I would strongly advise that if you ever have to call 911, you holster and cover your firearm when the police arrive.

 

[vickers]

IANAL but this suggests that you can make a citizens arrest in Mass if a felony was committed.

Commonwealth v. Harris , 11 Mass. App. Ct. 165 (1981). Citizen's Arrest.
"In Massachusetts a private person may lawfully arrest someone who has in fact committed a felony... The stricter requirement for a citizen's arrest -- that the person arrested be shown in fact to have committed a felony -- is designed to discourage such arrests and to prevent "the dangers of uncontrolled vigilantism and anarchistic actions." ...Generally, the person arrested must be convicted of a felony before the "in fact committed" element is satisfied and the arrest validated. If the citizen is in error in making the arrest, he may be liable in tort for false arrest or false imprisonment."

cited from this page:
http://www.mass.gov/courts/case-legal-res/law-lib/laws-by-subj/about/criminal.html

 

[ZJPierce]

You again talk about keeping them in that position. The only way to keep them in that position is by threatening the use of deadly force, which is only justified if you, or another innocent, are in the immediate danger of death or grave bodily injury. To out it another way, unless said perp was threatening you beyond merely being in your house uninvited, you may well have legal issues here in MA pointing a gun at him.

And, not to be rude, but if you are pointing a gun at someone and telling them not to move, you are implicitly threatening to shoot them if they do choose to move. So, when you claim no one was talking about shooting them in the back, well, I would disagree with that.

First, thanks for engaging in the conversation, I know you have many years experience in this. So it's truly appeciated.

Back to the point though. If said person immediately gets on the ground in a submissive position after seeing you with your weapon, my question is what would You do. I know some people would call the police and some would "beat the snot out of the guy" but my question falls back to this:

If you pulled your weapon in the first place due to the known break in to your home, are you going to holster your weapon when said "person" is on the ground? Are you going to tell them to get out of your house. I understand your point of view, it sounds like you personally wouldnt hold them there at gunpoint. So what would YOU do. Are you going to shoot the guy who's already laying on your ground? Are you going to put you gun away and watch him in hopes he doesn't get off the ground and now you are unarmed? I am just trying to get an idea on how other people would handle this situation, that is why I asked the first thing that came to my mind if it was legal, and it sounds as it is not or it's not a popular action anyways.

 

[PATRON]

You now know what the law is,but it all comes down to you,and your really not going to know until it happens.Just like if you get into a gun fight,you don't know what your going to do until it happens. Then,and only then you hope your training kicks in,and you react the right way. You just might run into the guy in the hallway shit yourself,and pump a round into him all at the same time.

 

[Picton]

You just might run into the guy in the hallway shit yourself,and pump a round into him all at the same time.

That's my plan.

Really, I'm thinking that if the guy is in a submissive position on the ground, he's down there because you've already (at some point during the encounter) pointed the gun at him. Even if you put it away at this point, if he really wants to get you charged, you've already committed the "offense."

If I were in the position the OP describes, I think I'd keep the gun in hand but pointed safely away while my wife, cellphone in hand from calling 911, gets as many pics of the guy as she can. If he decides to get up and leave, I'm not going to stop him... but I've got his picture when the cops arrive.

 

[fencer]

OP, the scenario you suggest is as unlikely as Rosie O'Donnell skipping dessert.

I don't think I have ever heard of an instance where a home invader just dropped down and went all prone at the mere sight of an armed occupant.

 

[falcon123]

On a serious note, all you need to do to commit assault with a deadly weapon is do something (anything) with a deadly weapon that puts the other guy in fear or serious alarm. If they decide to file charges, you'll end up defending yourself. You may have a valid defense, (citizen's arrest, defense of property, self defense, defense of others), but it's still a defense, and you will end up paying me (or some other sleazy lawyer) to defend you.

Thats at why you go on a late night fishing trip with the corpse and some bags of cement.