Citizen’s Arrest, Citizen’s Arrest!

Have you ever made a citizen’s arrest or know someone who has?

Here are some examples from the internet of people who have: 

I was walking up the road on my way home, and a little bit up ahead I saw a guy step out and grab a womans handbag and start to run away. I started chasing after him, as well as two other guys that saw it. We were all pretty much running from different directions. The guy took off down the road with us in pursuit, and we managed to catch him, and took the bag off him. Suddenly he twisted free and ran away down the road again. So we chased him again. We ended up chasing him for 5 blocks, down the middle of a 4 lane major road, during rushhour, and finally caught him again and made sure he couldnt get free. Luckily an off-duty policeman had witnessed the chase and turned around to help us.

And from the merchant perspective: 

I do it all the time. I work in Loss Prevention. The only reason stores are allowed to have LP departments is because just about every city and state has laws that allow people to make a “citizen’s arrest” of someone who has stolen from them. Where I live, if someone steals from you, whether you are a store or a private citizen, you have a legal right to detain them until police can arrive. It is the same in most of the U.S. And don’t believe that BS about store LP not being allowed to touch you. Many companies have policies that try to avoid physical detainment of shoplifters, but most laws actually authorize reasonable physical force when detaining a thief.

But… Why can you do it? When can you do it? Where can you do it?

I. The Common Law

At common law, a private person can:
  • arrest
  • without warrant
  • for a felony or
  • breach of the peace 
  • committed in his or her presence.

A. “In presence” requirement

“In presence” means that the  arrestor actually saw acts that made it pretty clear cut that a crime was either about to happen, was happening, or was just ending. Under some statutes, if the felony is actually committed in the presence of a private person, they can arrest any person they have reasonable ground to believe guilty.

B. Reasonable Belief

Actual knowledge of the commission of the felony is not required to authorize a valid citizen’s arrest, as all that is required is reasonable grounds to believe that: (1) a felony had been committed, and (2) that the person arrested was the responsible agent.

C. Misdemeanor Citizen’s Arrests

In some jurisdictions, a private person may arrest for any misdemeanor committed in his or her presence. But, under the common-law rule, which is codified in some states, such arrests can be made only for a misdemeanor constituting a breach of the peace. A private person’s right to arrest for an affray or breach of the peace exists only while it is continuing, or immediately after it has been committed, or while there is a continuing danger of its renewal, and does not include the right to pursue and arrest for the purpose of insuring the apprehension or future trial of the offender. A private citizen cannot arrest without a warrant for a misdemeanor previously committed, unless pursuit for the purpose of arrest is begun immediately.
Arkansas does not provide for misdemeanor citizen arrests, with a couple of exceptions.

II. Current Arkansas Statutory Law

Arkansas has codified the common law: 

Arkansas Rule of Criminal Procedure 4.1(b) provides in pertinent part: A private person may make an arrest where he has reasonable grounds for believing that the person arrested has committed a felony.

Additionally, Arkansas recognizes motel keepers rights: “There was common-law right for motel manager, although private citizen, to detain traveler suspected of theft.” Partin v. Meyer, 1982, 277 Ark. 54, 639 S.W.2d 342

III. What if Someone Puts You Under a Citizen’s Arrest Unlawfully? 

The English common-law right to resist an unlawful arrest became established at least by 1710, and during the nineteenth and early twentieth centuries, it became the established rule in the United States as well. In Bad Elk v United States (1900) 177 US 529, 44 L Ed 874, 20 S Ct 729, for example, the United States Supreme Court held that the defendant, whose murder conviction was reversed, had the right to use such force as was absolutely necessary to resist an attempted illegal arrest.
In the modern American decisions on the question, a number of courts from a variety of jurisdictions have applied or recognized the traditional common-law rule that a person may resist an unlawful arrest by the use of reasonable force, while the courts in a few jurisdictions have modified that rule. Thus, although the statement in some cases that there is a trend toward limiting the right of resistance to illegal arrest is true in the sense that the common-law rule has recently been modified in some jurisdictions, it is not true that the common-law rule has been abandoned more often than upheld in the modern cases.
Assuming that the use of reasonable force to resist an illegal arrest is permissible, the question arises as to how much force is reasonable. The answer most frequently given in the modern cases is whatever force is necessary to avoid the arrest, short of homicide. Of those jurisdictions in which the common-law right to resist an unlawful arrest has been altered, most have adopted the view that a private citizen may not use force to resist a peaceful arrest by one he knows or has good reason to believe is an authorized peace officer performing his duties. This is the best description of current Arkansas law on this topic.
In other jurisdictions, the courts have made exceptions to the common-law rule where the basis for resistance is that the law allegedly violated is invalid, or that the arrest warrant is technically defective.

IV. Merchant Rule (Common Law)

The right of a merchant to detain a suspected shoplifter if they have reasonable grounds to believe the person is committing or attempting to commit theft or shoplifting derives from the common law right of citizen’s arrest

A. Statutory Right to Detain Suspected Shoplifters

Various state statutes giving a merchant a qualified privilege to detain suspected shoplifters usually provide that merchants or their employees or agents may detain, in good faith and upon probable cause or reasonable grounds, any person believed to be removing goods for sale from the store without paying for them, provided that the detention is for a reasonable time and in a reasonable manner. In Arkansas, a suspected shoplifter “may be detained in a reasonable manner and for a reasonable length of time by a law enforcement officer, merchant, or merchant’s employee in order that recovery of a good may be effected.” § 5-36-116.

B. Presumptions of Shoplifting 

A statute may state a presumption that a person concealing unpurchased goods is taking the goods with the intention of depriving the owner of them, thus warranting a reasonable detention by a merchant. This is the current presumption in Arkansas under  § 5-36-102(c)
In Arkansas, a presumption of shoplifting also arises if an antishoplifting or inventory control devices goes off as someone is exiting the store. Sufficient notice must be posted to advise patrons that the device is in use and that activation of the device constitutes reasonable cause for detention. 

C. Procedure After Detention

Arkansas law provides a pretty straightforward for what comes next. First, the merchant calls the police, who may arrest the person without a warrant, if they believe that there is probably cause that a shoplifting has occurred. Then, the police officer and the merchant or merchant’s employee (whoever witnessed the incident) must provide a written statement, explaining the circumstances that led to the arrest. Then, the suspect must immediately be brought before a magistrate and given the chance to make a bond or recognizance. 

D. Immunity

The detention by a law enforcement officer, merchant, or merchant’s employee does not render the law enforcement officer, merchant, or merchant’s employee criminally or civilly liable for false arrest, false imprisonment, or unlawful detention.

E. What’s Reasonable? Murray v. Wal-Mart

Murray, a black female, was shopping at an Arkansas Wal–Mart on June 14, 1986, with her daughter and grandchildren. During her visit to the store, she put one hundred dollars’ worth of merchandise on layaway, purchased fifteen dollars’ worth of other items, and left the store with $207 in her possession. While shopping, Murray had been observed by Dana Elliot, a Wal–Mart loss prevention employee. Elliot testified at trial that she had seen Murray take a bottle of cologne, valued at $5.87, out of its box and place the bottle inside her halter top. As Murray was leaving the store, Elliot, store manager, Harris, and an assistant store manager detained Murray and inquired about the cologne. Murray denied the accusation of shoplifting and pulled her halter top down to show that she was not concealing any merchandise. Harris directed Murray to accompany him back into the store. Profane and racially derogatory comments were made by Harris at this time.
Murray was escorted to the second floor of the store. Harris or Elliot emptied the contents of Murray’s purse onto the floor. More derogatory statements were made to Murray while this episode unfolded. The Wal–Mart employees then telephoned the local police and, based upon the advice of a local prosecutor, requested prosecution of Murray for shoplifting. Murray was taken into custody and was searched by a female officer at the station. The search revealed no concealed items. Murray was denied access to her heart medication when she requested it for pain. Following her release, she sought medical attention because of her nervous condition.
Wal–Mart has an established shoplifting policy which provides that (1) Wal–Mart employees should treat a suspected shoplifter with courtesy, (2) employees should let suspected shoplifters go when in doubt or when unable to find items on the person, and (3) store managers should check with the regional supervisor before prosecuting doubtful cases. Despite this established policy, and notwithstanding the fact that a thorough search of Murray revealed no concealed merchandise, Wal–Mart continued to pursue Murray’s prosecution. Subsequently, Murray was charged with shoplifting but, after trial, was acquitted.
Addressing the merits, the district court found that Wal–Mart had pursued prosecution without probable cause, that the intentional and outrageous conduct of the Wal–Mart employees caused Murray to suffer severe emotional distress, and that the conduct was willful, wanton, and malicious. Furthermore, Harris physically pushed Murray back into the store, even after she warned him of her heart condition. Also, the fact that Wal–Mart continued to detain, search, and prosecute Murray without probable cause and in violation of its own policy smacks of exactly the type of “intentional infliction” to which this cause of action refers. The evidence of the Wal–Mart employees’ outrageous behavior toward Murray sufficiently supports the district court’s finding of intentional infliction of emotional distress.
Consequently, the court awarded Murray $15,000 in actual damages, $10,000 in punitive damages, and $7850 in attorney fees.

VI. Not Available in Some States

Citizen’s arrest is prohibited in North Carolina, Oklahoma, Pennsylvania, and Washington State under any circumstances.
And no state actually requires that you yell, “Citizen’s arrest, citizen’s arrest!” but you obviously try to, if you get the chance.
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Who Ya Gonna Call?

GB_Logo_New_MB_WIP-2

Today is the 30th anniversary of the film that defined my generation, a generation too smart to settle for the mediocrity of earlier attempts at capturing specters on film: GHOSTBUSTERS! If you landed on this page and you are thinking something like, “I never saw that movie,” then just leave. We aren’t gonna call you.

smackv-2

In honor of this occasion (and because I’m an enormous fan of Bill Murray) we are celebrating with a roundup of tales real life ghost hunters in appellate decisions and the news, and haunted tales from Arkansas.

Aside: I spent my 30th birthday in NYC and a friend took my husband and I to see the firestation in the movie. Here’s my husband’s picture of it:

Ghostbusters Headquarters!
Ghostbusters Headquarters!

Real Life Ghost Hunters:

Ghost Hunting Leads to Death of a Teen

State v. Davis
Slip Copy, 2014 WL 117409

On August 22, 2006, five teenage girls decided to go ghost hunting. The girls had heard that a residence located at 141 Sharon Springs Drive in Worthington, Ohio, was a haunted house. Tessa Acker drove her friends to the address and stopped the vehicle on the street in front of the residence. It was around 10:00 p.m. and it was dark.

Rachel Barezinsky and two of the other girls exited the vehicle and walked toward the home. One of the girls noticed an open first-floor window. As they approached the home a car horn sounded, and one of the girls believed she heard a bat. The girls became frightened and ran back to the car. As they drove away from the home, they heard several popping sounds.

Believing they had heard firecrackers, the girls circled the block and returned to the residence. Some of the girls yelled out in the direction of the home, and then several more pops were heard. The girls again became frightened and drove away. They had traveled only a short distance away from the residence when Rachel slumped over onto the driver. It was at that point that the girls stopped the vehicle and discovered that Rachel had been shot.

Police recovered a .22 caliber rifle from appellant’s home. Appellant admitted that he had fired a number of “warning shots” at a vehicle. According to appellant, two men had harassed him the previous week by pounding their fists on his bedroom window as he slept, and he believed that the same men had returned on the evening in question. Appellant stated that he fired the shots to scare the men away and to protect his family. Appellant did not believe he had done anything wrong.

On August 31, 2006, a Franklin County Grand Jury indicted appellant on five counts of felonious assault, each with a firearm specification. Appellant initially entered a not guilty plea to the charges.

State is Not Responsible for 17 Year Old’s Injuries from Ghost Hunting

Burton v. State
80 A.3d 856

On the evening of November 27, 2005, Burton gathered with four of his friends (ages fifteen to eighteen): T.D., C.A., H.C., and L.V., at T.D.’s home, drank “[m]aybe two” beers, and set off in C.A.’s truck to explore a local haunt—the former Ladd Center in the Town of Exeter. The Ladd property has been closed since 1994; and, in the years since, it has acquired a reputation in certain quarters as a home for ghosts and things that go bump in the night.

There is no perimeter fence around the property, but there are a number of “No Trespassing” signs posted, and the building that was the focus of the group’s exploration was secured by plywood boards over the windows on the first and second floors, chains on the doors, and metal grates welded shut. The plaintiff had visited the property on two prior occasions, and there was testimony that members of the group were aware that they should not “get caught” on the premises. The plaintiff testified that he had not sought permission to enter the Ladd Center property. Undaunted by the numerous obstacles to access, the group shimmied up a pipe to access a third-story window. Once inside, the group began to explore the abandoned hospital building. Although they failed to discover any ghosts, they did encounter the detritus of “medical-like tools,  bed frames, broken stuff” left behind when the Center closed.

Eventually, the group made an intriguing discovery—a cache of four clear glass bottles housed in a Styrofoam container inside a locker. The bottles appeared to be gallon-sized and contained a clear liquid; the labels on the bottles were decrepit and illegible. L.V. testified that he poured a small amount of liquid from one of the bottles onto a table, to see what it was. It was apparent to the group that the liquid had a syrup-like consistency and that it was not water. The plaintiff testified that he believed the bottle contained a hazardous material. Despite not knowing what substance was contained in the vessels, the group spirited away three of the bottles. The group later made its way to the first floor of the building and searched for an exit, finally kicking out part of the plywood that covered an exterior door and slipping, one by one, through the opening created between the plywood and the door frame. The plaintiff exited just ahead of H.C., who was carrying two of the gallon bottles. H.C. dropped a bottle which broke, spattering both plaintiff and H.C. with the unknown liquid.

A few seconds later, plaintiff felt a burning sensation on his legs. He rubbed his hand on them and his hand started burning. Realizing the liquid was “some kind of chemical,” plaintiff stripped off his clothes, leaving his wallet and cell phone behind, and ran screaming for C.A.’s truck. The caustic liquid was later determined to be sulfuric acid. On November 9, 2006, plaintiff filed suit in Superior Court against the State of Rhode Island, Phoenix Houses of New England, and several John Does alleging that defendants “negligently failed to inspect, repair and/or maintain its premises free from defect and/or dangerous condition.”On January 18, 2012, a bench trial was conducted, at which time plaintiff testified and presented two additional witnesses: L.V. and former State Buildings and Grounds Coordinator Carl Abbruzzese. At the conclusion of plaintiff’s case, defendant moved for judgment as a matter of law. The court reserved decision on the motion, and the state declined to call any witnesses.

The trial justice issued a written decision in favor of defendant, finding that plaintiff was a trespasser and that defendant did not owe him a duty of care. Further, the trial justice held that the attractive-nuisance doctrine did not apply to the facts of this case. Final judgment entered on February 27, 2012, and plaintiff filed a timely notice of appeal. Further facts will be provided as may be necessary to discuss the issues raised on appeal. For the reasons stated herein, we affirm the judgment of the Superior Court.

Local Police Captain Believes Family’s Tale of Haunting

(This is a repost from Gawker by Ken Layne)

A police captain in Gary, Indiana, says he believes a family’s claims of supernatural terror in a rental house they’ve since fled. Levitating children, swarms of flies in wintertime, mysterious footprints, invisible friends, another child “walking backward up a wall in the presence of a family case manager and hospital nurse”—this movie-ready tale even features screaming Catholic priests performing exorcisms.

The photograph shown here was distributed by the police department, according to theIndianapolis Starwhich notes that “officials say the home was unoccupied at the time the photo was taken.”Why is that noted? Because there’s a “figure” visible inside the enclosed porch. And there are 800 pages of official, local government reports on the strange happenings here. The alleged hauntings came to an end once the family of four moved to another home.

Local psychics showed up with their own very specific diagnosis: The small house on Carolina Street was crowded with more than 200 demons. And with that, the newly counted demons went to work possessing the three children, according to mom Latoya Ammons and their live-in grandmother, Rosa Campbell.”The family said demons possessed Ammons and her children, then ages 7, 9 and 12,” the paper reports. “The kids’ eyes bulged, evil smiles crossed their faces, and their voices deepened every time it happened.”

While most children behave this way most of the time, Ammons was convinced the Devil was involved.

Family services caseworkers, priests and a police captain are among those who say they believe the little house was filled with supernatural evil. And the Indianapolis Star dedicated more than 6,000 words to the ghost story. Even the local patrol officers can’t seem to get enough of it, leading the house’s owner to ask the cops to please stop driving by the house at all hours and spooking his new tenants.But when the family’s doctor visited the house during the alleged haunting, he noted their behavior was “delusional.” An unnamed witness told caseworkers the kids were “performing” for Ammons, and that she likewise encouraged the weird behavior. The house was kept clean and there was plenty of food for the kids, but investigators noted Ammons had constructed religious shrines everywhere.

The children were taken away by child services, but things have since settled down and the family is together again, apparently free of demons and ghosts.

[Photo via Hammond Police Department/Indianapolis Star.]

In Arkansas

All from Encyclopedia of Arkansas

 The Allen House

A famous Arkansas haunted house is the Allen House in Monticello (Drew County). It was built in 1905 by Joe Lee Allen, who lived there with his wife, Caddye, and his children, Ladelle, Lonnie Lee, and Louis. Pictures of them still hang in the front hall. Joe Lee Allen died in 1917. Sometime later, Ladelle committed suicide in the South bedroom by drinking potassium cyanide. Caddye Allen had the room sealed off until 1986, when new owners opened it up and found the bottle of cyanide still sitting on a shelf in a closet. The house is said to be haunted by Ladelle and her son, Allen Bonner. Since the 1950s, tenants of the Allen House have heard footsteps and moans and have reported other supernatural incidents. One couple, seeing a closet door ajar, tried to close it but felt someone pushing back on the other side. When they opened the door, they saw that nobody was there.

Lorance Creek

Several places in the natural world are the sites of their own ghost legends, usually connected to murders. Lorance Creek inSaline County is said to be haunted by a girl, her name unknown, who was apparently murdered by being pushed into the creek; she was buried at Cockman Cemetery near the creek a few days later on December 24, 1863. By the 1920s, her wooden grave marker was entirely weathered away. The first reported sightings of her ghost were in 1920, when workers started drilling for oil near the creek and graveyard. Some workers said they heard a woman’s scream, and one worker reported seeing her on Halloween. She was crying and was heard cry out, “Why?” She then walked to the creek and disappeared. She was seen several times later that year, reportedly appearing in the white dress she was buried in. After the workers left, her ghost was seldom seen.

Crossett/Gurdon Lights

Outside of Crossett (Ashley County), where the old railroad tracks once lay, an unexplained light has become a local legend. It has reportedly been seen consistently since the early 1900s by multitudes of people. The light is typically seen floating two to three feet above the ground but also is said to move into the treetops and sometimes side to side. The light reportedly disappears as one walks toward it and then reappears the same distance away, so that one can never get a close look at it. The Crossett Light’s color reportedly ranges from yellow or orange to blue or green.

The Crossett Light is one of many similar phenomena commonly known as “spooklights” in the South. There are other notable “spooklights”—around Joplin, Missouri; Senath, Missouri; and Gurdon (Clark County), to name a few. Like other such “spooklights,” including the Gurdon Light, the Crossett Light is, according to legend, the ghostly lantern of a railroad worker who lost his head in an accident in the early 1900s and who walks the tracks to find it. There seem to be many similar stories explaining this phenomenon, but this seems to be the most common. There are also stories, not widely credited, that the light is related to extraterrestrials.

A commonly expressed scientific theory holds that the Crossett Light could be swamp gas, a natural phenomenon. Some authorities also posit that the light could be an illusion caused by car lights and an incline in the land. This theory is more widely accepted than the swamp gas theory; however, the major drawback for the car light theory lies in the fact that the light was first reported in the early 1900s, before cars were common in the area. The first reports of the light started as the railroads were put in, which may have started the famous railroad worker story. No one knows for sure what the Crossett Light is, but it has entertained many residents and visitors throughout the years who drive down that old road to watch for it.

An Ozark Story: Things that go bump in Eureka Springs

Crescent_Hotel,_Eureka_Springs,_Arkansas_-_circa_1886

Baxter Bulletin (Mountain Home, AR)
Copyright 2011 Gannett, October 29, 2011

jdooley@baxterbulletin.com

EUREKA SPRINGS — Known as a quaint, quirky weekend getaway spot and wedding destination, Eureka Springs is now known as a destination for something a little spookier.

Two hotel owners with shady business dealings and a bank robber shot as he fled the heist are the genesis for the most well-known spook stories told around the Ozarks town.

The Crescent Hotel

The infamous Dr. Norman Baker bought the Crescent Hotel in 1937 for $50,000 and turned it into a cancer hospital. The high school dropout from Muscatine, Iowa, had tried his hand at a number of jobs, including machinist, magician, radio station owner and inventor.nHe also bought a radio station and began a campaign to discredit medical doctors while simultaneously promoting his own “natural” cure he bought from a snake oil salesman. The “cure” consisted of corn silk, watermelon seeds, alcohol and carbolic acid. Authorities soon shut down his radio station and Baker shut down his hospital, took his 144 patients — and his cure — and moved to Eureka Springs.

In addition to treating patients, Baker sold his cure through the mail. Most patients left the hospital only after dying and being autopsied in the basement of the building. Baker eventually was arrested and tried for mail fraud, spent four years in Leavenworth prison and was fined $4,000. Authorities estimated Baker made $4 million from “treating” cancer patients.Rumors of evil things Baker was doing in the basement morgue include organ and limb transplants and cutting live patients. To this day, rumors still make the rounds, particularly on the Internet.

Keith Scales, ghost tour manager for the hotel, says rumors were born from the contents of mason jars housed in the morgue.”People believed the mason jars contained organs,” Scales said. “It’s more likely they contained tumors Baker cut from patients after their deaths.”Baker sold the hotel a few years after getting out of prison, moved to Florida where he retired and later died.

The Ghosts

» Michael, Room 218

The history of Crescent Hotel ghosts actually begins with its construction. According to legend, one craftsman was an Irish stonemason named Michael.”Michael was a handsome 17-year-old, and well known as a ladies’ man,” said ghost tour guide Kathy Gilmore as she briefed two dozen people prior to a tour. “He always had a smile for the good-looking ladies.”

Michael was high up on a beam one day when he saw a pretty woman far down below, Gilmore claims. On his second attempt to get the woman’s attention, Michael allegedly fell to his death. Death has not deterred his interest in women, and he continues to flirt with pretty women to this day, she says. “Michael does like to flirt with the ladies,” Gilmore said. “He’ll touch them, turn lights and water on and off. He doesn’t like men. He’ll try to shove them out of bed.” Those wishing to interact with Michael should book room number 218, Michael’s favorite haunt, as it were, according to hotel legend.

» Theadora, Room 419

Guests who like help with their bags would do well to stay in room 419 where, according to Gilmore, they might receive help from Theadora, a cancer patient with a penchant for neatness. “Theadora is a particularly active ghost — people see her, hear her, she moves things,” said Gilmore to her tour group. “She is solid-looking, small, in old-fashioned clothes, and can often be seen standing in front of the door to 419 looking for her keys in her purse.” If Theadora thinks a guest is too sloppy, they may find Theadora has packed up their belongings and placed their suitcases by the door, in an apparent other-worldly invitation to take their slovenly habits and vacate the premises, according to Gilmore.

» Nurses and corpses, Third Floor

The third floor of the hotel was home to what Baker calls the asylum during the hotel’s time as a hospital. It was on this floor the patients in the most pain were housed. “He may have called it an asylum to paint the people as insane to explain the screaming,” Gilmore said. Nurses were constantly wheeling patients around the floor in wheelchairs, and less often on gurneys after patients died, according to Gilmore. “They still do it today,” Gilmore told her tour group. “People report seeing nurses pushing wheelchairs, pushing dead bodies on gurneys. People say they hear the squeaking of the wheels.”

» A sad, dead little boy, Room 228

Down the hall and around a corner from Michael’s room on the second floor is room 228, where a little boy named Breckie died of peritonitis, Gilmore says. Breckie was weak and was not allowed outside to play like other children. For entertainment, he bounced a ball in the hallway. Guests report he can still be heard bouncing his ball. And, he can be heard to proclaim his fate as unjust. “Guests say they’ve heard him say ‘It’s not fair,’ because he didn’t get to go out to play,” Gilmore said.

» We have a jumper

At one point in its history, the Crescent served as a girl’s college during the off-season. It was during this time, the seed of another ghost story was planted. While the college was strict, girls were known to sneak away from chaperones while in town and meet boys, and boys were rumored to be sneaked in, Gilmore says. Legend says one of the girls jumped — or was pushed — to her death from a balcony high above the hotel grounds. To this day, people, including a Eureka Springs police officer, report seeing a woman fall from a hotel balcony. When hotel personnel check, they find no one, Gilmore says.

» The Basement

Access to the spa is through a door in the basement of the hotel. To the left, lies another door, one much more interesting for ghost hunters. It is through this unremarkable wooden door one must step to reach the hotel’s maintenance workshop. During Baker’s time, the space was used as an autopsy room and a morgue.It was in a room stuffed with spare parts where employees of a televised ghost-huntingshow say they spotted the image of a person while using a thermal-imaging camera. The airing of that and subsequent television shows featuring the hotel and its ghostly goings-on catapulted the Crescent into the national consciousness.

On a recent October night during Gilmore’s tour, no one reported hearing or seeing anything unusual. What they chose to keep to themselves, only they know.

Remember These?

 

Where Does Arkansas Stand (its Ground)?

Stand Your Ground v. Castle Doctrine-Where Does Arkansas Fall on the Spectrum? 

Preliminary note 1: I’ve chosen to use male pronouns throughout. That’s not because women don’t use these doctrines, because they definitely do; however, the  majority of cases involve men.

Preliminary note 2: If you know me personally, you are probably expecting me to come down harshly against SYG. That’s not necessarily the case, as we will discuss at the end. Trust me, that’s painful to say, but for me, it really comes down to application, as the problems associated with the law itself are inherent in every type self-defense law. 

Preliminary note 3: While I support some gun regulations, I don’t have a beef with responsible gun ownership (shocking, I know!). I’m actually a pretty good shot.

Ok, enough, enough. 

So-called “Stand Your Ground” laws (hereinafter “SYG”) and “Castle doctrine” laws have made lots of news lately (as usual, thanks to Florida!).

Bugs Bunny saws off Florida

One of our upcoming Attorney General candidates has even made introducing a Stand Your Ground law in his first legislative package a campaign priority.  With all the recent hullabaloo, I thought it might be helpful to discuss where Arkansas actually falls on this issue. We’ll use Arkansas statutes and case law to examine the current state of law.  

What’s the Difference? 

The real legal questions here are: 1)When, 2) where, and, 3) if someone has a duty to retreat before using deadly force in self-defense. It’s important to know that just because a state has SYG or a “Castle doctrine,” that doesn’t necessarily mean its the same from state to state. It’s better to think of this as a bag of options, with states picking and choosing which options to apply.

Some states have explicit statutes, some states use case law, most use both. 

That being said, there are typical definitions for each. 

Here’s what the spectrum looks like: 

Duty to Retreat if at all possible, no matter the location. 

Duty to Retreat, if at all possible, but only if the initial aggressor shares the dwelling where the attack is happening.

No duty to retreat, if altercation is happening in the defendant’s home (his “castle” and sometimes this  includes defendant’s vehicle).  46 states currently have at least this definition. 

No duty to retreat, if altercation is happening in the defendant’s home or the area around his home (called the “curtilage”). This is Arkansas, currently and a significant minority rule. The retreat rule has always been the minority rule in the U.S.

This is an example of how media confuses SYG with Castle doctrine:

Notice they are in the curtilage of this couple’s home. 

No duty to retreat, if defendant is any place he is lawfully entitled to be (this is the typical definition of SYG). This is the majority rule and it has been the majority since even before the recent newsworthy trials came up.

In every definition, the use of deadly force in self-defense must be justifiable, which generally means that the defendant reasonably believed either his life was in danger or that he was in danger of great bodily harm (self-defense usually provides that you meet “force with force,” i.e., you can’t use deadly force when someone is flicking rubberbands at you). Some states also allow the use of deadly force to prevent the sexual assault of yourself or someone else.

Justification: Immunity or Defense?

Using force in self-defense is known as “justification.” But some states define justification as an “immunity” and some define it as a “defense.” 

Immunity bars suit, charges, detention and arrest. A defense allows the state to bring criminal charges or a private person to bring a civil complaint, but the defendant may present mitigating circumstances that ultimately relieve him of responsibility or culpability.

In Arkansas, force used in self-defense falls under the category of “defense.” ACA 5-6-202. 

The State has the burden of negating defense of justification in prosecution for homicide. 

Arkansas Statutory Law

Who are we talking about?

First, we are talking overall about ordinary citizens. There are other standards that apply to police officers, etc.  That’s a whole different body of law (as I’ve been learning on a case I’ve been working on for the past couple of years). 

As discussed above, we are generally discussing defending your own person, but sometimes you can also be justified in defending someone else and sometimes you can even be justified in defending property, not just a person. 

Non-deadly force:

Defense of a person.

 ACA 5-2-606 covers the use of regular (non-deadly) physical force in defense of a person.

In Arkansas, a person is justified in using physical force upon another person to defend himself or herself or a third person from what the person reasonably believes to be the use or imminent use of unlawful physical force by that other person, and the person may use a degree of force that he or she reasonably believes to be necessary.

But note: You aren’t justified to use physical force to defend yourself if

1) you provoke the other person into using unlawful physical force and your purpose is to cause them physical injury or death; or

2) you are the initial aggressor, unless

a) you withdraw from the encounter and that withdrawal is effectively communicated,

b) the other person continues or threatens to continue the use of unlawful physical force; or

c) the physical force involved is the product of a combat by agreement not authorized by law. (I really hope this is about dueling!)

What about a premises?

A person in lawful possession or control of premises or a vehicle is justified in using nondeadly physical force upon another person when and to the extent that the person reasonably believes the use of nondeadly physical force is necessary to prevent or terminate the commission or attempted commission of a criminal trespass by the other person in or upon the premises or vehicle. ACA 5-2-608.

Deadly force: 

Defense of a person.

ACA 5-2-607 covers the use of deadly physical force in defense of a person.

In Arkansas, you can use deadly force if you reasonably believe that the other person is:

1) Committing or about to commit a felony involving force or violence;
2) Using or about to use unlawful deadly physical force; or
3) Imminently endangering the person’s life or imminently about to victimize the person as described in § 9-15-103 from the continuation of a pattern of domestic abuse.

When do you have a duty to retreat? 

You cannot use deadly force if you know that by retreating (i.e., leaving, fleeing, etc.) you can avoid the necessity of using deadly physical force with complete safety.

The duty to retreat DOES NOT APPLY if you are in your own dwelling or on the curtilage surrounding your dwelling and you were not the original aggressor. That includes when the dwelling is also shared by the victim. See Thomas v. State266 Ark. 162, 583 S.W.2d 32 Ark., 1979.

What about personal property? 

You cannot use deadly force to protect only property when the other person is claiming it is rightfully theirs (even if they are incorrect). If their is force, burglary, etc. to go along with the attempt on personal property, those situations are already covered. 

What about real property? 

You can use deadly physical force to protect real property if 

1) Use of deadly physical force is authorized by the stuff I already talked about; or

2) You reasonably believe the use of deadly physical force is necessary to prevent the commission of arson or burglary by a trespasser. ACA 5-2-608.

Presumption of justification in your own dwelling:

5-2-620 also outlines a presumption that any force or means used in your own dwelling was exercised in a lawful and necessary manner, unless the presumption is overcome by clear and convincing evidence to the contrary. That’s not just a presumption, that’s a strong presumption, but in criminal cases it doesn’t have any effect, because the State already has the burden to prove its case beyond a reasonable doubt

Other Statutes: 

There are additional statutes which cover the use of physical force in specific situations (protecting unborn child, etc.) that I haven’t covered. Those are all in the same chapter and 

Use of Deadly Force Application in Arkansas Case Law

Here a two example cases demonstrating fact patterns where deadly force was not found to be reasonable, even when the offenses occurred on the defendants’ properties.

Sipe v. State

Our most recent reported case dealing with the duty to retreat is Sipe v. State of Arkansas, 2012 Ark. App. 261 (CA CR 11-677, April 18, 2012). Robert Sipe said that he awoke to the sound of his four-wheeler ATV being started and the engine revving. Sipe said that he looked out of his window and saw a man on his ATV. Sipe then got dressed, grabbed his handgun, removed the barricade from his front door, and went out on his porch to investigate. Sipe testified that he saw a man riding his ATV and when the man started coming toward him, Sipe fired a warning shot. When the man kept coming, Sipe shot him. Sipe also testified that the man pointed something at him, but that he did not know what the man was pointing. After shooting him, Sipe went to the victim and discovered that it was Brian Lumen, a childhood friend. Sipe placed two blankets on top of Lumen’s body and waited for police to arrive. 

According to Sipe, he and Lumen had been estranged for the last five years due to Lumen’s “destructive behavior.” Appellant claimed that when he had tried to rekindle his friendship with Lumen in 2009, he had to ask Lumen to leave his property because Lumen was “on drugs.” Appellant testified that after that incident, things “began happening” at his house, including his dog’s inexplicable death, his door being kicked in with items stolen (including the ATV key), tractor tires being slashed, etc.
Sipe testified that he began barricading his front door and argued that he was justified in shooting the victim because he feared for his life.

The Arkansas State Medical Examiner  testified that the victim was shot in the back—“left flank.”

Defendant Sipe was convicted of manslaughter in Garland County for shooting Brian Luman and given 20 years imprisonment. 

Given the site of the injury, it was reasonable to assume the victim was fleeing and was not endangering the life of Sipe, but Sipe claimed he was justified in defending his property as well. Even assuming that the appellate court addressed that issue, which it didn’t because it wasn’t properly raised below, Sipe would not have been justified in defending his ATV with deadly force because none of the elements of 5-2-607 were met. 

What if Arkansas had SYG? Most SYG statutes do not apply to protecting property when there is no reasonable belief of danger to the person, so the outcome would be the same.

Anderson v. State
353 Ark. 384, 108 S.W.3d 592
Ark.,2003.

On June 1, 2000, Pete’s estranged wife, Lauren , her brother, Ricky Jasay, and two other friends, gathered at Anderson’s house to drink and shoot pool. Lauren passed out early in the evening so Anderson put her to bed in his bedroom. Their relationship, however, was not romantic. Later that evening, Pete started spinning his pickup truck around in the field next to Anderson’s house. It was then that Anderson went inside the house and brought out a shotgun. One witness heard him say, “[w]e got three options. I’ve got this gun and I got this knife or we can compromise.”

Pete drove away, heading toward his father’s house; but, later he was seen running down the road because he had run out of gas. Anderson offered to give him some gas, so the two men went to Anderson’s shed and returned with a plastic jug. At that point, Pete started asking Ricky if his estranged wife, Lauren, was inside appellant’s trailer. When Ricky would not respond, Anderson intervened and told Pete that Ricky did not have to tell him anything. According to one witness, Pete jumped up, shook his finger in appellant’s face and shouted: “Look, Randy, this ain’t concerning you. It’s between me and Rick. I just want to know if Lauren is inside. I want to talk to her.”

Anderson testified as follows: Pete’s argument with Ricky resumed after he told Anderson to stay out of his business. Pete threatened to kill “every MF in here if I have to,” and he tried to get into the house to see Lauren. Anderson barred him from getting into the house because he did not know what Pete would do to Lauren if he found her passed out on appellant’s bed. Pete then called Anderson out to the yard to fight. Anderson picked up his shotgun and followed Pete out to the driveway. When Pete turned suddenly and rushed him, Anderson  pulled the trigger. He could not remember firing the second shot, but he did remember moving the body because he was afraid Pete’s father would see the body and kill him.

Barbara Snow testified that she and her boyfriend, Dale Adams, were in bed on the evening of the shooting incident when she received a call from Anderson. Barbara rode with Dale to Anderson’s trailer. When they pulled up, she saw a large puddle of blood near the driveway. She recounted several statements that Anderson made that night: “He said that he shot him in the, I mean, in the chest one time. And he said he was moaning and he said, ‘I finished him off. I shot him in the head.’ ” Barbara also testified to hearing the following conversation between Anderson and her boyfriend, Dale: “Anderson asked Dale, he said, ‘What to you think I’ll get for this?’ Dale said, ‘Man, twenty years or better.’ He said, ‘I can do twenty.’ … [H]e picked up a knife and he said, ‘I can say he was coming after me and he, you know, it was self-defense.’ ”

According to the medical examiner, Pete would have lived three or four minutes had he not been shot the second time.

The jury did not find Anderson’s testimony credible and convicted him of capital murder. 

Result under SYG?: Same, because the use of deadly force was not reasonable. 

Is Stand Your Ground Bad Law? 

Well, obviously not. That’s not the case under SYG either. This is a really a disagreement with a jury’s finding of reasonable apprehension of bodily harm. 

I Don’t Think it’s Inherently Bad

Hang with me, liberals. 

Justice Oliver Wendall Holmes, Jr. said in Brown v. US (256 U.S. 335, 1921) that “detached reflection cannot be demanded in the presence of an uplifted knife.” Realistically speaking, if someone is actually threatening your life and you are able to fight back, you aren’t going to run through an analysis of whether or not you can flee with complete safety. You definitely aren’t going to run through a legal analysis of your options. 

Complete safety is a pretty high hurdle to meet. I have a hard time seeing a jury convicting someone, if deadly force was threatened, because they didn’t retreat. It’s much more likely someone would be convicted because deadly force wasn’t appropriate to begin with (as we saw in the two cases above). 

Some examples cited by media claiming the results would be different under the different self-defense retreat rules are just false. 

Example 1: The garbage dispute

The shooting victim claims he knocked on the shooter’s door because the shooter had reported his illegal conduct to the authorities. An angry confrontation ensued and the shooter closed the door. Apparently the victim continued pounding on the door so the shooter opened it and shot him.

If true, the shooting was equally illegal under the retreat rule or Stand Your Ground laws. Under all of them if someone breaks down your door you may shoot. Under none of them can you open the door and shoot someone who angrily pounds on your beyond which you a safe.

Note that there is also complete agreement under each rule if we assume the shooter’s story is correct. If you open the door to talk to someone who then tries to force his way in you may shoot unless it is clear that he cannot get in (e.g., a 110 pound woman tries to force her way into the home of a man who is 6′ tall and weighs 185 lbs.)

Example 2: The prostitute

Her story is that her elderly client pulled a gun declaring that he was going to kill her and then himself. She wrests the gun away from him and then shoots him rather than fleeing. Even under the retreat rule one is only required to retreat if ths is clearly possible. Under these circumstances she was privileged to shoot rather than run away taking the chance that this homicidally desperate man can jump on her and get the gun.

See also People v. Riddle, a case from a retreat rule state [47 Mich. 116, 649 N.W.2d 30, 2002]:

[this case upholds the retreat rule in theory but severely limits it. Facts showed that defendant was not attacked at all and court upholds conviction.]

Example 3: The cabbie

His story is that after he got his passenger out of the car, the passenger pulled a knife. Obviously the cabbie was not required to partially turn away and try to get in his cab exposing his side and back to a stab wound. Nor need he have done that even if the passenger had not had a knife. Retreat is required only if it can be accomplished in complete safety.

Arguments Against Stand Your Ground Don’t Always Hold Up, Although There Are Some Concerns in its Application

1) SYG is backwards law and only hick states use it

As we discussed above, the duty to retreat in public spaces has always been the minority. SYG is not limited to “hick” states and it’s not new. The media has trouble discerning between states where SYG is codified and those where it is common law, so graphical representations are often distorted. 

2) SYG leads to a disproportionate amount of injury to minorities. 

Economist at Georgia State found a significant increase in homicide and injury to more white males than minority males in states with SYG laws. But, there does appear to be a higher prosecution rate against minorities (no surprise there)  in cases where self-defense operates as an immunity. This applies to all types of rules, but obviously SYG provides more opportunities for prosecution to arise.

3) SYG has a disproportionate racial impact

When Caucasians use the SYG against black attackers, they are more successful than when black attackers use the defense against white attackers, 17% to 1% respectively (also, no surprise there). 

This is where the problem lies. I really don’t think it’s the law itself that’s an issue (although you may disagree); for me the problem lies in its application. But, that is true of a lot of laws and it doesn’t mean that we strike them down. It’s an issue that needs to be addressed throughout the entire criminal justice system. 

Here is an ad put out by a conservative group, playing on fears of racial minorities, in order to make fun of liberal opponents of SYG laws: 

3) SYG leads to higher rates of murder/crime. 

Maybe yes, maybe no…studies on this actually show crime decreasing in some states with SYG (for instance, Florida), but other studies show an increase in murder rates. 

4) SYG leads to “shooting first”

This is true of all kinds of self-defense. 

Again, this is true of every type of self-defense law. 

5) If the other witness is dead, how do we know it was self-defense?

Again, this is always true in self-defense. 

Other Reading: 

For historical review of self-defense cases in federal courts, this article is a good perspective.