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.
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.”
What Is Aggravated Assault With A Deadly Weapon?
Crime scene do not cross tape and blurred law enforcement and forensic background
Aggravated Assault with a Deadly Weapon is when you either cause harm or threaten to cause harm with a weapon. In this case the gun. The charges against my student were founded in the idea that he told his attacker not to move or to go anywhere.
The district attorney in this case, decided that constituted a threat against the attacker by my student with his gun.
Luckily for him, his attorney was able to get the charges dropped on the condition that he retake my class.
Imminent Threat is a Keyword
In all 50 states, justifiable use of force law requires that you face an imminent threat to justify your actions as “self-defense.”
When the victim retrieved his gun and pointed it at his attacker those actions were justified. Then the attack stopped. The attacker ceased to be a threat and at that point our victim issued a command which ultimately was interpreted by the DA as a threat against someone who was no longer posing any sort of threat.
Now for me, if I were the DA or on your jury this would be a non-issue. For me someone who has been hurting you and is likely in the very next second to continue that attack still posing an imminent threat. Now if they run away that would be a different matter.
Submitting to Custody or Preventing Escape
You might be thinking right now about the idea of a citizen's arrest. Citizens arrest laws do vary from state to state but generally in most states you do have the legal right to prevent the escape of a criminal when you have witnessed them commit a felony. Some states may go so far as to allow you to arrest someone for lesser crimes or for crimes for which you have a reasonable belief have been committed even if you are not a witness to the event.
One of the significant differences between armed citizens and law enforcement, however, is our inability to submit people to custody or prevent their escape with the use or threat of deadly force. I don't know any state whose citizen arrest laws allow the use or threat of deadly force in order to effect the arrest.
In the situation with my student, the DA felt he had crossed a legal line when he told his attacker “not to go anywhere.” This is where the officer, DA, and ultimately 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.
Frankly, I think the whole thing is a little dumb. Like splitting hairs and ignoring the real spirit of the law. That said, we've seen innocent people prosecuted for less.
Another Argument For Holding Your Tongue
This is another instance that reminds us to be careful what we say to Law Enforcement. My student who told this story couldn't even for sure remember what he did or didn't say to the attacker. Unfortunately, as he was telling the story to the responding officers he offered that detail which led to his ultimate arrest.
Read our article here about talking to officers after a self-defense incident.
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!
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.
Agree , the laws need to be changed.
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.
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.
I agree Gene. Better to hold someone at bay than to shoot them.
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
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
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.
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
He did have a permit but as you pointed out would have been much better off if he actually carried on his person.
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.
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.
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.
Should have just shot him.
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.
BC – I think the same applies in my state of NC! If the assailant stops his aggressive actions and attempts to flee, then he is free to leave. The best you can do is to have a very accurate description of the assailant and report it to the police. In general, unless I am “in fear for my life” or I am defending another who is in the same position, I don’t draw my weapon. When I do draw my weapon, it will only result in a very one sided argument!
What is the right course of action?Shoot the person assaulting you or hold him for the police to come and arrest you or just let him go.The next person he assaults might not be so lucky.Im a license gun owner and to think that I’m goiing to get arrested for holding someone who is beating me with a tire iron.My opinion would be to shoot my attacker because my firearm is always at my side.
I think this is a screwy case to hold as a standard. There was some other motivation involved, either a pissed off cop or over zealous prosecutor or the concealed carrier said or did something other than hold the guy at gun point. Something’s missing. IMO.
I have to ask way it took 40 min for the police to respond to this call are did I read that wrong. If I didn’t read that wrong so it also took 40 plus min for the victim to receive medical treatment. This is way self defense experts say be your own first responder
You read right. This took place in a very remote part of Utah where there is no city police. The county sheriff deputies are the first responders and they took 40 minutes to get there.
You carry a gun so your hard to kill….know the law so your hard to convict! Thank you Mr Branca!
Is the problem because he stated stay right there? Would he have been fine if all he did was hold the gun on him and call without telling the attacker to stay right there?
Scott yes that was the major issue. Effectively he issued a threat which was a submission to custody with the threat of deadly force.
I know this is an old Post, but would he have been better off had he started “don’t leave, you are under citizens arest!”? Seems like making a destination that he was in fact only holding him till police could intervene would make a difference.
Josiah, no in fact that would have been arguably worse. The main point here is that in most states, and certainly in Utah where this took place, it is illegal to make a citizens arrest with the use or threat of the use of deadly force. It is the fact that he was making a citizens arrest that caused him the legal trouble to begin with. If he had put the gun down, removing the threat of deadly force then certainly a legal citizens arrest could have been made. But so long as the gun was in hand he could not make any statement or action that prevented the person’s escape or subjected him to custody.