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When Does Citizens Arrest Become Aggravated Assault

*Podcast Alert: Episode 1 of the Concealed Carry Podcast Goes Into More Depth on This Topic. Click here to listen.

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In 2009 I received an unusual call from a student of mine. He told me over the phone that he had been ordered by a judge to re-take my class. That raised a red flag and when he came to the class I asked for the story. I'll paraphrase but in short this is what he told me:

“I was working late one night at my auto body shop. An angry customer came in and we got into an argument. The customer was drunk and he proceeded to grab a crowbar and start to beat me. He bruised me bad and drew blood from a few wounds on my head. During the attack I broke free and ran to my truck where my handgun was. When I retrieved the handgun and turned it on my attacker he stopped cold in his tracks. Even drunk and angry he had enough wits about him to know the gun was on him. He stopped and I told him not to go anywhere while I called the cops. When the police arrived 40 minutes later they arrested us both and I was charged with Aggravated Assault With a Deadly Weapon.”

Luckily for him his attorney was able to get the charges dropped on the condition that he retake my class.

The little things that we do often get us into trouble. While the laws do vary from state to state, and clearly I'm generalizing here, the primary difference between armed citizens and law enforcement is our inability to submit people to custody or prevent their escape with the use or threat of deadly force. In most states citizens can arrest or submit somebody to custody for a crime committed in their presence but they can not exercise the use or threat of deadly force in order to do so.

In the situation with my student he crossed the line when he told his attacker “not to go anywhere.” This is where the officer and the judge felt that he had essentially submitted the attacker into custody by making a threat that implied the attacker could not escape without fear of deadly force.

Check with your local attorney or instructor and get clear on the laws in regards to citizens arrest. If you have any notion about holding people, pursuing someone, or submitting someone to custody with your gun you could be in for a nasty surprise.

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14 Responses to When Does Citizens Arrest Become Aggravated Assault

  1. Russ Andrews December 16, 2014 at 11:35 am #

    Then the laws need to be changed. Isn’t that what ‘government by the people’ means? There’s no way you should have to suffer a beating, defend yourself and then get arrested. Maybe the NRA should start helping change the laws to protect those being attacked rather than sending out millions of solicitations every day. I respect your organization – hell, I even have your NRA hat and wear it proudly. But, the scenario described in this article sets my hair on end!

    • Admin December 16, 2014 at 11:40 am #

      Russ, very valid point. There are a lot of laws that need to change. As members of the NRA we are all responsible to not only let the NRA know what we feel the priorities are but also to go straight to our local representatives with those thoughts.

  2. Jim Galpin December 12, 2015 at 12:30 pm #

    You are right we should not have to be beaten and then use our weapon to stop the aggressor (who could have been legally shot because he was attacking with great bodily harm or possibly death) and the vectom was able to stop the attack without anyone being harmed or killed. The vectom should not have to indure this injustice.

  3. gene January 11, 2016 at 8:02 am #

    Thank you so much for this useful information. Interesting that this man could have shot the assailant for assaulting him with a deadly weapon but could not hold the drunk at bay with the same gun until law enforcement could arrive to arrest this man on numerous criminal charges. Common sense is out the window on this one. I am glad to know the details of the law in this case. You have probably saved several people from jail time for trying to do the right thing by calling the very people we depend on to serve and protect ( that statement is not meant to denigrate law enforcement as they have rules to go by ). Thanks again for some very valuable information.

  4. kenneth j February 1, 2016 at 12:01 pm #

    after reading the initial attack; I believe the gun presentation stopped a severe problem [s]. the drunk was rong… but he was drunk period.. the gun owner was in his right; from my
    standpointof view, but the LAW was rong also. lets hear from others in this case, and be specific as I just did. one more thing, did the gun owner have a license to carry??????
    yes or no. thank you Kenny b

  5. Gerard April 18, 2016 at 12:25 pm #

    My understanding of the law, in most states is that since the introduction of the gun resulted in retreat on the part of the attacker the victim no longer has a right to shoot the attacker. Is this correct?

    And my second question is does the victim have a legal right to call police and physically hold the the attacker down (after putting gun in pocket) until police arrive?

    Thank you
    Coach G

    • Jacob Paulsen April 18, 2016 at 12:30 pm #

      Coach G, on your first question I would say that in most states your statement would be accurate but the burden of proof in the courtroom to show at what point the attacker began to retreat or ceased to retreat or began to advance is all very difficult. To your second question, I would say in most states the answer would be yes if by “physically hold” you mean to hold in hands or otherwise submit to custody by physical force. However if you mean to use a gun or the threat of a gun to hold the attacker than I would say in most states that is likely illegal.

  6. eric platek March 24, 2017 at 5:11 pm #

    The guy that had his ass beaten should’ve a conceal carry liscense and then he wouldn’t have to go to his truck or better yet have one behind the counter, then he could have avoided the whole thing

    • Jacob Paulsen March 24, 2017 at 5:14 pm #

      He did have a permit but as you pointed out would have been much better off if he actually carried on his person.

  7. gerbwa April 9, 2017 at 10:44 am #

    I’m not surprised. You got to think, deadly force or the threat of deadly force is only for threats of death or bodily harm. Period. The victim here knew his attacker, why hold him?
    I say this from the comfort of my home but I know it’s hard to sort this stuff out in the heat of the moment. That’s why I try and keep it simple. If you pull your gun, it’s only because you have to shoot someone to stay alive. Nothing else.

  8. sw smith May 1, 2017 at 7:12 pm #

    This story could have had a different ending if the attacker continued to approach in a menacing manner after the victim had acquired his weapon.

    With the previous grevious injuries inflicted, had the attacker continued to advance , the victim already fear of his life, the discharge of the weapon would have been ruled justifiable.

  9. Eric May 1, 2017 at 10:02 pm #

    If detaining the person is a crime, than the only other recourse is to use force to make the attack stop. If it were me, the only warning the person would have received is the first round in the chamber going off. This is why i always say, whether carrying open or concealed, the only reason to present your gun on an attacker is to use it. If you are not prepared to use it in this kind of situation, put it in a safe and do not even carry it. It defeats the purpose of carrying to point it at someone and not pull the trigger.

  10. Mike June 19, 2017 at 8:34 pm #

    Should have just shot him.

  11. BC June 19, 2017 at 8:35 pm #

    According to the scenario presented, in NM, once the attacker ceased the attack he no longer presented a clear threat (lethal or otherwise) and therefore has every right to flee. Forcing the assailant to remain under threat from a lethal weapon constituted Aggravated Assault with a Deadly Weapon. If when the assailant became aware of the gun’s presence, and he decided to continue the assault with a deadly weapon, the victim would have been within his right to use lethal force in self-defense. Even if a bad guy decides to flee the scene of a felony, a citizen does not have the right to shoot a fleeing suspect. The bad guy has not yet been convicted in court for a crime. Until then, he remains only a “suspect.” In this case, once the victim drew a gun causing the attacker to cease his attack, the attacker should have been allowed to flee. Once the Police arrived, the victim should then be the best witness he could be allowing the Police to pursue the fleeing suspect and charge him with Assault with a Deadly Weapon. Self-defense scenarios can be extremely tricky and can cause the naive to unknowingly step into a big legal bear trap. This is the danger of conceal carrying with little or no knowledge of the law and how to handle any given situation. This is why Police Officers go through so much training. If one is going to carry a gun, one must constantly be thinking of all the legalities involved. If yaw’ll are going to conceal carry, do your homework.

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