Laws of Arrest - too much for some people to understand ?

[NRM_Oz]

http://youtube.com/watch?v=TvHCjA6shUM

I had a customer who's disabled brother stole ice-cream. We could not arrest him as he was unable to be accountable for his actions.

Unless the laws have changed globally - I would have assumed the USA laws would be similar. Hence why minors under the age of 10 cannot be arrested or held accountable for their actions.

[Contact]

Here in the states, the age is 6 years old. If they are less than 6, they can not form criminal intent. Period.

Between 6 and 10 is another standard where intent can be formed, but it is a very heavy burden on the government to prove.

[jmaccauley]

Being arrested and being held accountable are two separate issues. The caretakers of the suspect can often, and should, be held accountable. It does a disservice to your customers, the company and to the suspect to simply ignore the incident.

[Nauticus]

Well, regardless the age, I will always stop the person and at least recover store product. Often, I'd also take the person someplace and at least run background checks or whatnot, and get their information. I arrest everyone. Whether or not I press charges is a different story.

[Curtis Baillie]

Well, regardless the age, I will always stop the person and at least recover store product. Often, I'd also take the person someplace and at least run background checks or whatnot, and get their information. I arrest everyone. Whether or not I press charges is a different story.
I'm sure this just a play on words but, please explain.

[NRM_Oz]

Thanks Curtis - I was going to ask the same thing.

Here I can arrest you and wait for the police to attend (sometimes hours) and we will discuss the matter with the police. Often a fine and or court attendance notice is issued (now our state laws have changed to say a just a fine). Depending on the amount and nature of the theft and the SL's attitude, I have rung the police, completed a background check for warrants and may often issue a Trespass Notice. When the police attend it is THEIR decision not to take it further.

[HotelSecurity]

In Canada once you have arrest or detained or whatever you want to call it (Prevented the person from leaving or giving him the feeling that he was prevented from leaving) you have made an arrest. When a citizen makes an arrest you MUST turn them over to the police. It is up to the police to charge them or not. If you let them go before the police arrive you have committed a false arrest.

[Maelstrom]

http://youtube.com/watch?v=TvHCjA6shUM

I had a customer who's disabled brother stole ice-cream. We could not arrest him as he was unable to be accountable for his actions.

Unless the laws have changed globally - I would have assumed the USA laws would be similar. Hence why minors under the age of 10 cannot be arrested or held accountable for their actions.


Hmmm... interesting, Citizen's Arrest Legislation here (Crimes Act of Victoria 1958 s458) defines the circumstances for an arrest as any person at any time for any offence (additionally by ANY member of the public and/or Police) ;)

We don't have the lee-way to determine an individual's capacity of reasoning, this is conducted by the attending Police & Judicial system ;)

More about Section 458 @ Victorian Consolidated Legislation (http://www.austlii.edu.au/au/legis/vic/consol_act/ca195882/s458.html)

[Nauticus]

In Canada once you have arrest or detained or whatever you want to call it (Prevented the person from leaving or giving him the feeling that he was prevented from leaving) you have made an arrest. When a citizen makes an arrest you MUST turn them over to the police. It is up to the police to charge them or not. If you let them go before the police arrive you have committed a false arrest.

Not completely true.

At my place of work, when we arrest someone, yes. It's an arrest.

From that point, we have three options:
a) Press charges and receive a police presence.
b) Press charges and forward the information to the police without their presence.
c) Do not press charges, run a background check, and ban from the store.

This is how our entire company - which runs through half the country (Canada) - does things.

[Nauticus]

I'm sure this just a play on words but, please explain.

My company does not always press charges on the arrested person. Based on being a first time, price of the stolen item, and other circumstances, we don't press charges on all theft.

[HotelSecurity]

Not completely true.

At my place of work, when we arrest someone, yes. It's an arrest.

From that point, we have three options:
a) Press charges and receive a police presence.
b) Press charges and forward the information to the police without their presence.
c) Do not press charges, run a background check, and ban from the store.

This is how our entire company - which runs through half the country (Canada) - does things.

Really???

494. (1) Any one may arrest without warrant

(a) a person whom he finds committing an indictable offence; or

(b) a person who, on reasonable grounds, he believes

(i) has committed a criminal offence, and

(ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person.

Arrest by owner, etc., of property
(2) Any one who is

(a) the owner or a person in lawful possession of property, or

(b) a person authorized by the owner or by a person in lawful possession of property,

may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property.

Delivery to peace officer
(3) Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer.

R.S., c. C-34, s. 449; R.S., c. 2(2nd Supp.), s. 5.


How do you get around article 494 (3) of the Canadian Criminal Code????

[NRM_Oz]

Same here Nauticus ............ I am in Sydney Australia and our systems are very similar. Mind you when you DO arrest someone, you then have a duty of care to ensure they are provided with any medical assistance (call an ambulance if need be) and to ensure they are safe from any harm (no phone book questioning).

We do have the same 3 criteria and sometimes a juvenille (10 - 13) MAY be cautioned by a manager (often done like an angry dad) and given a TP notice as well to serve a lesson.

[Curtis Baillie]

My company does not always press charges on the arrested person. Based on being a first time, price of the stolen item, and other circumstances, we don't press charges on all theft.Even in Canada, as in the U.S., a retailer has the right to stop and detain a "shoplifting suspect' to ask questions to acertain if they did steal. This is not an arrest. They may even be taken to an office or private space to determine this. If it is determined that they did not shoplift, they are immediately released. The arrest comes when they are told so by an agent of the retailer or police.

[HotelSecurity]

Even in Canada, as in the U.S., a retailer has the right to stop and detain a "shoplifting suspect' to ask questions to acertain if they did steal. This is not an arrest. They may even be taken to an office or private space to determine this. If it is determined that they did not shoplift, they are immediately released. The arrest comes when they are told so by an agent of the retailer or police.

I've always been told that in Canada if you feel that you are not free to leave, you have in fact been arrested.

[Curtis Baillie]

I've always been told that in Canada if you feel that you are not free to leave, you have in fact been arrested.Then how would you explain the ability of the police to stop and question someone? The person is not under arrest. Believe me that is a big misconception on both sides of the border.

[LPCap]

My company does not always press charges on the arrested person. Based on being a first time, price of the stolen item, and other circumstances, we don't press charges on all theft.


If nobody presses charges because the person has never been charged before, the person will never get charged.

Some shoplifters NEED to be charged and with others, it is a waste of time.

[bigdog]

Even in Canada, as in the U.S., a retailer has the right to stop and detain a "shoplifting suspect' to ask questions to acertain if they did steal. This is not an arrest. They may even be taken to an office or private space to determine this. If it is determined that they did not shoplift, they are immediately released. The arrest comes when they are told so by an agent of the retailer or police.

In the state of Florida if a retailer detains a shoplifter they have to call a law enforcement immediately its part of the statute.

[bigdog]

I've always been told that in Canada if you feel that you are not free to leave, you have in fact been arrested.

Heres in Florida and most other states there are four criteria the situation has to meet for it to be considered an arrest.

(1) intent to make an arrest "under real or pretended authority;" (2) "an actual or constructive seizure or detention of the person to be arrested by a person having present power to control the person arrested;" (3) communication of the intent to arrest; (4) understanding by the suspect that the officer intends to arrest and detain him or her

[NRM_Oz]

There is a huge legal point to argue here - by using the term ARREST, DETAIN or placing my hand on their shoulder (long arm of the law) they are assumed to be under arrest. I was always trained to use the word please often enough as it shows you are being `nice` so there are no arguments there. In Australia we cannot detain anyone under the guise of suspicion unless you are a sworn officer of the law. Too many LP idiots have 75% of the criteria for an arrest and forget the important stuff.

[Nauticus]

Very interesting.

In Canada, stopping someone from "going about their regular duties" is considered arrest (so if they are leaving and you stop them, this is arrest). Peace officers can detain, then release, because they are allowed to investigate and charge people later, so they are allowed to detain someone "on basis of a pending investigation". A private citizen does not have these investigation rights, as they cannot arrest for something they did not witness being committed.

I haven't given thought to how I can, legally, just let people know. But I definitely want to pursue this with my employer.

[N. A. Corbier]

Wisconsin Statute also requires a shopkeeper to immediately summon a public law enforcement officer to the scene of any detention. Basically, if you say "no" to "Am I free to go," then you need to call a police officer.

[Lynch Mob]

Then how would you explain the ability of the police to stop and question someone? The person is not under arrest. Believe me that is a big misconception on both sides of the border.

Are you saying that if you caught a shoplifter, held them in the office for 4 hours, handcuffed to a chair, and them let them go without calling the police this person was never under arrest?

That would mean you could not be sued for false arrest then too, right?

[HotelSecurity]

Are you saying that if you caught a shoplifter, held them in the office for 4 hours, handcuffed to a chair, and them let them go without calling the police this person was never under arrest?

That would mean you could not be sued for false arrest then too, right?

And possibly kidnapping!

[NRM_Oz]

Wrongful Imprisonment ............ and deprivation of watching LOST and PRISON BREAK.

[Nauticus]

If nobody presses charges because the person has never been charged before, the person will never get charged.

Some shoplifters NEED to be charged and with others, it is a waste of time.

Oh, we're aware of that. That is why that it's simply one criteria we go over prior to deciding whether or not to charge someone.

[souperdave]

IMHO, discretionary prosecution is almost always a slippery slope.

[Curtis Baillie]

Are you saying that if you caught a shoplifter, held them in the office for 4 hours, handcuffed to a chair, and them let them go without calling the police this person was never under arrest?

That would mean you could not be sued for false arrest then too, right?Of course not - and you know better. Nowhere did you get that from my post.

[Lynch Mob]

Of course not - and you know better. Nowhere did you get that from my post.

Yes, I do know better. At what point does a detention become an arrest? You had said it becomes an arrest at the point the person is advised they are under arrest. That is not completely accurate. In the example I cited, the person was never advised they were under arrest, but they clearly were placed under arrest.

So, at what point does a detention become an arrest?

[Curtis Baillie]

Yes, I do know better. At what point does a detention become an arrest? You had said it becomes an arrest at the point the person is advised they are under arrest. That is not completely accurate. In the example I cited, the person was never advised they were under arrest, but they clearly were placed under arrest.

So, at what point does a detention become an arrest?Here's my post - Originally Posted by Curtis Baillie

Then how would you explain the ability of the police to stop and question someone? The person is not under arrest. Believe me that is a big misconception on both sides of the border.

How did you get an example of illegal shoplifter detention out of that? Once again you can be trusted to twist and turn the facts. ;)

[Lynch Mob]

Here's my post - Originally Posted by Curtis Baillie

Then how would you explain the ability of the police to stop and question someone? The person is not under arrest. Believe me that is a big misconception on both sides of the border.

How did you get an example of illegal shoplifter detention out of that? Once again you can be trusted to twist and turn the facts. ;)

And then you followed up with this:

"Even in Canada, as in the U.S., a retailer has the right to stop and detain a "shoplifting suspect' to ask questions to acertain if they did steal. This is not an arrest. They may even be taken to an office or private space to determine this. If it is determined that they did not shoplift, they are immediately released. The arrest comes when they are told so by an agent of the retailer or police."

Your words were that "the arrest comes when they are told so by an agent of the retailer or police."

I did not twist anything. You made, what I believe to be, an erroneous statement. I provided an example that demostrated the error in the statement. I just asked for clarification from you, giving you a chance to correct your statement. Instead, you choose to fight and insult me.

I will give you another opportunity to correct your statement. At what point does a detention become an arrest?

[Curtis Baillie]

And then you followed up with this:

"Even in Canada, as in the U.S., a retailer has the right to stop and detain a "shoplifting suspect' to ask questions to acertain if they did steal. This is not an arrest. They may even be taken to an office or private space to determine this. If it is determined that they did not shoplift, they are immediately released. The arrest comes when they are told so by an agent of the retailer or police."

Your words were that "the arrest comes when they are told so by an agent of the retailer or police."

I did not twist anything. You made, what I believe to be, an erroneous statement. I provided an example that demostrated the error in the statement. I just asked for clarification from you, giving you a chance to correct your statement. Instead, you choose to fight and insult me.

I will give you another opportunity to correct your statement. At what point does a detention become an arrest? When the detention is deemed to be outside the merchant statutes, this is decided by the courts -or- when the shoplift agent or the police tell the suspect they are under arrest.

You can continue this discussion all you want - I think my statement was quite clear.

[Lynch Mob]

When the detention is deemed to be outside the merchant statutes, this is decided by the courts -or- when the shoplift agent or the police tell the suspect they are under arrest.

You can continue this discussion all you want - I think my statement was quite clear.

Why be like that Curtis? I asked a very reasonable question, and your statement originally was not clear as you have now added more to it for clarification.

So, you have added in a detention outside of merchant statute laws. That would imply that if you made a dentition within the guidelines of merchant statute laws, and you never told the person they were under arrest, then legally an arrest has not been made. Am I understanding you correctly?

Ok, so what about this scenario?

A customer comes up to a store manager and tells him that there is a customer who is shoplifting. The manager goes over and sees a customer pull price tags off a shirt and put the shirt in a bag from a different store. The customer selects another item and starts pulling off the tags. The manager runs over to a cash wrap nearby and calls LP to tell them what is going on. The customer happens to notice the manager and gets spooked. The customer dumps all the merchandise under a rack and leaves the store.

The manager and LP screw up and still stop the customer. The LP agent, outside the store, grabs the arm of the customer and tells him he needs for him to come back in the store so they can talk about the merchandise. The customer pulls away and tries to run. The LP agent jumps on him, handcuffs him, and brings him back in the store. In the office they find that the merchandise is gone. The customer admits that he dumped the merchandise under a rack. The manager goes out and finds the merchandise. They let the customer go without calling the police. The customer was in the office for only 5-10 minutes.

Clearly, this is a bad stop based upon most retailers standards of a bad stop. But, I think this would still fall within the laws of most merchant protection statutes, as there was reasonable cause to believe merchandise was being stolen. However, nobody ever told the customer he was under arrest.

Did the actions of the LP agent constitute a legal arrest? And, if so, at what point was the suspect legally placed under arrest?

[HotelSecurity]

Curtis
Peace Officers can detain for investigation purposes, not civilians.
As someone else wrote, in Canada if the person asks "am I free to leave?" And you say, "please come with me", they have been arrested. We can ASK the suspect tp come with us but if they feel they had no choice & could not leave, you have arrested them. If you then do not turn them over to a peace officers you have broken the law.

[bigdog]

Curtis
Peace Officers can detain for investigation purposes, not civilians.
As someone else wrote, in Canada if the person asks "am I free to leave?" And you say, "please come with me", they have been arrested. We can ASK the suspect tp come with us but if they feel they had no choice & could not leave, you have arrested them. If you then do not turn them over to a peace officers you have broken the law.

Here is the merchant detention statute and a few other detention stautes from FL law.

812.015 Retail and farm theft; transit fare evasion; mandatory fine; alternative punishment; detention and arrest; exemption from liability for false arrest; resisting arrest; penalties.--


(1) As used in this section:
(a) "Merchandise" means any personal property, capable of manual delivery, displayed, held, or offered for retail sale by a merchant.
(b) "Merchant" means an owner or operator, or the agent, consignee, employee, lessee, or officer of an owner or operator, of any premises or apparatus used for retail purchase or sale of any merchandise.
(c) "Value of merchandise" means the sale price of the merchandise at the time it was stolen or otherwise removed, depriving the owner of her or his lawful right to ownership and sale of said item.
(d) "Retail theft" means the taking possession of or carrying away of merchandise, property, money, or negotiable documents; altering or removing a label, universal product code, or price tag; transferring merchandise from one container to another; or removing a shopping cart, with intent to deprive the merchant of possession, use, benefit, or full retail value.



(3)(a) A law enforcement officer, a merchant, a farmer, or a transit agency's employee or agent, who has probable cause to believe that a retail theft, farm theft, a transit fare evasion, or trespass, or unlawful use or attempted use of any antishoplifting or inventory control device countermeasure, has been committed by a person and, in the case of retail or farm theft, that the property can be recovered by taking the offender into custody may, for the purpose of attempting to effect such recovery or for prosecution, take the offender into custody and detain the offender in a reasonable manner for a reasonable length of time. In the case of a farmer, taking into custody shall be effectuated only on property owned or leased by the farmer. In the event the merchant, merchant's employee, farmer, or a transit agency's employee or agent takes the person into custody, a law enforcement officer shall be called to the scene immediately after the person has been taken into custody.
(b) The activation of an antishoplifting or inventory control device as a result of a person exiting an establishment or a protected area within an establishment shall constitute reasonable cause for the detention of the person so exiting by the owner or operator of the establishment or by an agent or employee of the owner or operator, provided sufficient notice has been posted to advise the patrons that such a device is being utilized. Each such detention shall be made only in a reasonable manner and only for a reasonable period of time sufficient for any inquiry into the circumstances surrounding the activation of the device.
(c) The taking into custody and detention by a law enforcement officer, merchant, merchant's employee, farmer, or a transit agency's employee or agent, if done in compliance with all the requirements of this subsection, shall not render such law enforcement officer, merchant, merchant's employee, farmer, or a transit agency's employee or agent, criminally or civilly liable for false arrest, false imprisonment, or unlawful detention.
(4) Any law enforcement officer may arrest, either on or off the premises and without warrant, any person the officer has probable cause to believe unlawfully possesses, or is unlawfully using or attempting to use or has used or attempted to use, any antishoplifting or inventory control device countermeasure or has committed theft in a retail or wholesale establishment or on commercial or private farm lands of a farmer or transit fare evasion or trespass.
(5)(a) A merchant, merchant's employee, farmer, or a transit agency's employee or agent who takes a person into custody, as provided in subsection (3), or who causes an arrest, as provided in subsection (4), of a person for retail theft, farm theft, transit fare evasion, or trespass shall not be criminally or civilly liable for false arrest or false imprisonment when the merchant, merchant's employee, farmer, or a transit agency's employee or agent has probable cause to believe that the person committed retail theft, farm theft, transit fare evasion, or trespass.
(b) If a merchant or merchant's employee takes a person into custody as provided in this section, or acts as a witness with respect to any person taken into custody as provided in this section, the merchant or merchant's employee may provide his or her business address rather than home address to any investigating law enforcement officer.
(6) An individual who, while committing or after committing theft of property, transit fare evasion, or trespass, resists the reasonable effort of a law enforcement officer, merchant, merchant's employee, farmer, or a transit agency's employee or agent to recover the property or cause the individual to pay the proper transit fare or vacate the transit facility which the law enforcement officer, merchant, merchant's employee, farmer, or a transit agency's employee or agent had probable cause to believe the individual had concealed or removed from its place of display or elsewhere or perpetrated a transit fare evasion or trespass commits a misdemeanor of the first degree, punishable as provided in s. 775.082 (http://flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0775/Sec082.HTM) or s. 775.083 (http://flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0775/Sec083.HTM), unless the individual did not know, or did not have reason to know, that the person seeking to recover the property was a law enforcement officer, merchant, merchant's employee, farmer, or a transit agency's employee or agent. For purposes of this section the charge of theft and the charge of resisting may be tried concurrently.

509.143 Disorderly conduct on the premises of an establishment; detention; arrest; immunity from liability.--

(1) An operator may take a person into custody and detain that person in a reasonable manner and for a reasonable time if the operator has probable cause to believe that the person was engaging in disorderly conduct in violation of s. 877.03 (http://flsenate.gov/statutes/index.cfm?App_mode=Display_Statute&Search_String=509.143&URL=Ch0877/Sec03.HTM) on the premises of the licensed establishment and that such conduct was creating a threat to the life or safety of the person or others. The operator shall call a law enforcement officer to the scene immediately after detaining a person under this subsection.
(2) A law enforcement officer may arrest, either on or off the premises of the licensed establishment and without a warrant, any person the officer has probable cause to believe violated s. 877.03 (http://flsenate.gov/statutes/index.cfm?App_mode=Display_Statute&Search_String=509.143&URL=Ch0877/Sec03.HTM) on the premises of a licensed establishment and, in the course of such violation, created a threat to the life or safety of the person or others.
(3) An operator or a law enforcement officer who detains a person under subsection (1) or makes an arrest under subsection (2) is not civilly or criminally liable for false arrest, false imprisonment, or unlawful detention on the basis of any action taken in compliance with subsection (1) or subsection (2).
(4) A person who resists the reasonable efforts of an operator or a law enforcement officer to detain or arrest that person in accordance with this section is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 (http://flsenate.gov/statutes/index.cfm?App_mode=Display_Statute&Search_String=509.143&URL=Ch0775/Sec082.HTM) or s. 775.083 (http://flsenate.gov/statutes/index.cfm?App_mode=Display_Statute&Search_String=509.143&URL=Ch0775/Sec083.HTM), unless the person did not know or did not have reason to know that the person seeking to make such detention or arrest was the operator of the establishment or a law enforcement officer.

[Lynch Mob]

I guess some folks just believe they can make any erroneous statement and everyone should just accept it as fact?

Here is how I learned when an arrest is made. There is a clear "moment" when a detention becomes an arrest. It is at the point that the individual believes they are not free to leave. From that point, from a technical legal standpoint, an arrest has been made. They do not need to be told they are under arrest, and physical restraint is not necessary either.

Now, in the case of a private person arrest that line can be a little more unclear than when a police officer makes an arrest, but that is where the line will ultimately be drawn. This is how courts have ruled for years. A person does not need to be advised they are under arrest to officially be arrested. If you put handcuffs on a person you can guarantee you just made an arrest.

So, I can see how someone could say they arrest everyone but may not press charges against them. This is not just a "misconception" about what an arrest is. It is following the most literal term of arrest.

[NRM_Oz]

Lynch I would follow the same teachings .......... aka an "implied arrest" - hence why EVERY arrest I have made, I am going to want to get a confession or admission of guilt immediately off the SL or offender. As such I have never had any bad stops in my career. Have I been lucky over all these years ? No I was mentored by some of the best in the industry who had been there and done that over their careers. Hence why if I am the 1 making the arrest of the duty manager present, I will ensure I get an admission of guilt from the SL which will be noted in the Incident report.

I don't know the laws of other countries as well as my own and I do know of the Shopkeeper laws in the USA but unless you process the SL with no police attendance for: minor $$$, 1st offence, minor 1st time, or a decision to issue a caution only with volutary admission of guilt, then you have to inform the police. I will argue to the cows come home that if you remove a person from the general area of a store and move them to a private area such as an office, there is an implied arrest. A smart person would ask "am I now under arrest ?".

[Maelstrom]

NRM, are NSW security operatives allowed to question people they've detained? south of the border that's taboo ;)

[Nauticus]

NRM, are NSW security operatives allowed to question people they've detained? south of the border that's taboo ;)

Security officials are allowed to question suspects and take statements, as long as they read the individual sections 10(a) and (b) and the official warning of the Criminal Code of Canada upon arrest. Any confessions or admissions prior to this being read aren't allowed in court. That is, if the individual elects not to contact a lawyer.

[NRM_Oz]

NRM, are NSW security operatives allowed to question people they've detained? south of the border that's taboo ;)

You may ask them questions in relation to the incident but they DO NOT have reply but they we had this argument on another site and every company I have worked for has made it a standard SOP that you must caution them and this has been going on zillions of years. I guess it has more to do with the Liabilities and the law states that all records of conversations must be recorded in 1 form or another.

I have had people refuse to show me valid ID and I have advised them police of this as they are under NO obligation to do so. 1 bloke gave me 2 different names (Aussie and Muslim) which seems ok - then inside this wallet the Police found another 5 full sets of ID in 5 different aussie names. All this for a $240 bust on aftershave.

[NRM_Oz]

Nauticus it is the same here under the Crimes Act - but most LP staff unless they get a confession first up (not always possible), screw up the arrests because when the police attend they fail to follow SOP's and the protocols. I have audited hundreds of reports of bad LP moves which have come unstuck in court because the LP staff believed they were cops and had an offender under duress make an admission and were then dumb enough to admit this openly in a statement to the police.

[Mr. Security]

Evidently, based on the difference in posts defining arrest, etc., arrest laws are clearly not easy to understand. While I am not an attorney, I tend to side w/ Curtis on understanding this issue for the USA. Some of the confusion with detention = arrest may stem from the difference in criminal v. civil law. What I mean is this: While you may or may not be criminally charged for an improper detention, the civil end of it is a whole different ballgame and lawsuits have been won because a person believed they were not free to leave when detained by security. (Not LP)

As a result, most WBS companies strongly discourage detainment unless absolutely necessary. "Any doubts - DON'T DO IT!" is the safe and wise course of action unless you have been specifically trained in understanding the finer points of law regarding detainment and arrest in your jurisdiction.

[Lynch Mob]

Evidently, based on the difference in posts defining arrest, etc., arrest laws are clearly not easy to understand. While I am not an attorney, I tend to side w/ Curtis on understanding this issue for the USA. Some of the confusion with detention = arrest may stem from the difference in criminal v. civil law. What I mean is this: While you may or may not be criminally charged for an improper detention, the civil end of it is a whole different ballgame and lawsuits have been won because a person believed they were not free to leave when detained by security. (Not LP)

As a result, most WBS companies strongly discourage detainment unless absolutely necessary. "Any doubts - DON'T DO IT!" is the safe and wise course of action unless you have been specifically trained in understanding the finer points of law regarding detainment and arrest in your jurisdiction.

I agree that arrest laws are not easy to understand. However, there becomes a point where a detention becomes an arrest. The law must examine this and define what this is. In your opinion, at what point does a detention become an arrest?

One thing I completely disagree on is the difference between civil and criminal law, as you stated. A legal arrest is a legal arrest. You cannot be successfully sued for false arrest if you did not arrest someone. If you never arrested someone, that is the defense. You simply say I did not engage in a false arrest because I never arrested the person. If you cannot use that as a defense, then you did arrest someone. From a civil standpoint, an arrest is still an arrest. The definition and criteria are no different.

In the examples I cited, I don't think you could ever get away with claiming you did not make an arrest. In both examples I cited, I am absolutely certain that if your defense was you did not make an arrest, so you cannot be guilty of making a false arrest, you would lose that case. I have no doubt about that.

So, it goes back to the question I asked Curt that he doesn't want to answer. At what point does a detention become an arrest?

[Mr. Security]

I understand what you are saying, but I still believe there is a significant difference in criminal v. civil law. Criminal law requires a conviction when a crime can be proven beyond a doubt whereas a civil law verdict in favor of the plaintiff is based on a preponderance of the evidence - a standard far below the one required for a guilty verdict in a criminal case.

In CT, USA, where I reside, I am not able to define when a detention becomes an arrest according to state law. (However, detention here for shoplifting is practiced by LPO's, but LE is dispatched to decide whether an arrest is justified, at which point an arrest and case number are issued.)

Since I am not LP and work unarmed, I have no reason to detain because I am not going to make a citizen's arrest unless I am able to safely stop a class A/B felony - which is highly unlikely.

What I can do though, is ask the suspect if they would be willing to help me resolve some questions regarding a situation. (Sounds silly, but it's just a way to stall until the police arrive) This protects me in the event I am mistaken, since their stay is voluntary - they agreed to it.

[NRM_Oz]

Mr Security - that is how I was trained 20 years ago - ASK NICELY and you would be surprised what happens when you are nice to an SL / offender. I have had 1 bloke pull a commando knife on another person and knicked him with the blade tip in an argument. He agreed to come with me into the office and handed me the knife which was placed in an enveloped and sealed. I asked him to wait as the police would be hear soon to hear both sides of the story and he was willing to hand over his ID and other information without fuss. By asking you are not demanding or forcing the person under duress to comply with your demands.

[bigdog]

Lynchmob, here is a legal article discussing what detaining is VS arresting.
http://www.csudh.edu/dearhabermas/detent.htm

[N. A. Corbier]

Hey, folks? Anyone notice that in the commonwealth states and proviences, the private citizen is required to give "warning?" We call this the Miranda Warning here, and what are many of us taught?

NEVER GIVE MIRANDA, YOU ARE NOT A COP.

Anyone (In the US) been required to actually give the Miranda Warning before questioning a suspect, as a private citizen (security, not a law enforcement officer.)

[IrishGuard]

The problem with this topic is that those who are contributing are subject to the laws of the State or Country in which they work and in relation to the definition of Arrest it could be different and as the old saying goes, "You could all be marching to the sound of a different drum.

I have never heard of a distinction between Detain and Arrest, in my book if a person cannot leave of their own free will then they are under arrest.

If a police officer requests a suspect to accompany him to the police station to assist him in his inquiries, if the suspect has not been arrested then he can refuse to accompany the police officer.

The laws on arrest and detention are regarded by the courts as fundamental to the rights of any individual. All people must be free from having their liberty restrained for unlawful purposes or by improper procedures. The right to personal liberty is regarded by the courts as the most elementary and important of all common law rights.

What is an arrest?

An arrest consists of the seizure or the touching of a person's body with a view to his or her restraint. Words may amount to an arrest if they are calculated to bring to the person’s notice and do bring to the person’s notice that he or she is under a compulsion to accompany the police officer and he or she submits to the arrest.

Effect of an arrest

The major effect of an arrest, beside the restraint of the person's liberty, is that it starts the legal process that puts the person before a justice to be dealt with according to the law. This means that the person charged will appear before a court to answer the charge that the police have laid against him.

In my book there is no arrest powers in civil law ie matters of litigation.

It would appear that Australian and Canadian Legislation is similar in regard to Powers of Arrest being that they are based on British Law and I reckon I could safely say that in both countries where you are using citizen arrest powers, you must find the person committing the offence.

[NRM_Oz]

Irish - you are correct 100% - must be seen to commit the act and not based on suspicion or speculation.

I have been employed for a few days many moons ago as a Consulate Constable and had special policing powers just inside the consultate and that meant I could detain and arrest on suspicion. N.A. - I only found out a few months back that the US does not mirandarise people in the security industry. Another forum on another site I had a `tin-pot hero` argue with me over this SOP (he works the same state as me and jumps from job to job) and I explained that in my 20 years and with access to current SOP's from 5 national retailers - we are still required to advise the SL that any information is voluntary. Some people will tell you everything as I am happy for them to BS away and tell me they are on parole, out of jail, have a need for a fix or have been arrested and waiting to go to court next week.

I just help the police when they arrive in their assessment and in my 20+ year career I have never been told my a police officer - no you are doing it wrong and your information is crapola. Trust me if I had to change anything I did, I would be the first to change. I work with 20 and 30 year police veterans who have ridden shotgun on hundreds of SL arrests and never have they once told me - you are doing it wrong or should do it this way.

Believe me I can't afford to screw up and in my position and wrote the SOP's for our company and with 20 ex police personnel with some 500 combined years of experience - feds and state - no1 has ever said my SOP's are incorrect. Even our legal team has gone through them with a fine tooth comb and agreed they are cautious but they are black and white.

[Mr. Security]

Mr Security - that is how I was trained 20 years ago - ASK NICELY and you would be surprised what happens when you are nice to an SL / offender.....

Exactly. In fact, some criminals have even been known to sit down and wait for the cops to arrive after they commit the crime. While this surely isn't the rule, it isn't going to hurt to ask if you have reason to believe the person might comply.

[NRM_Oz]

We have all had incidents of dealing with people of questionable backgrounds (after we find this out when the police visit) and I am not going to put my safety or that of others in jeopardy because of the need to make an arrest or to be a big shot. I want to go home at the end of the shift - alive.

If you still believe in "You catch more flies with honey than you do with vinegar" then you will know from experience that there is always a time to be nice and there is a time to be the drill instructor.

[Maelstrom]

I have had people refuse to show me valid ID and I have advised them police of this as they are under NO obligation to do so. 1 bloke gave me 2 different names (Aussie and Muslim) which seems ok - then inside this wallet the Police found another 5 full sets of ID in 5 different aussie names. All this for a $240 bust on aftershave.

Well he's lucky we're not governed by lsamic laws then... there's every likelyhood he'd have lost a hand ;)

It's interesting to note the differences in arrest SOP from country to country, let alone from state to state (of the same nation), down here NRM IF we question the party arrested... the case goes to hell in a hand basket! that's all there is to it, but if they decide to blabber on anyway well we simply right all that down and pass it on :D

Miranda? cautions? we keep it simple... you're under arrest for... [what ever offence] and that's it, and as far as citizen's arrest powers those aren't specifically limited to 'finds committing' here, reasonable suspicion of a crime (ie. offender with hammer in hand before a busted window) or escape from lawful custody (or suspicion of) is also sufficient grounds to effect an arrest... though in today's litigation riddled society it's only recommend SOs/citizens act on 'finds committing' :D

[Nauticus]

Evidently, based on the difference in posts defining arrest, etc., arrest laws are clearly not easy to understand. While I am not an attorney, I tend to side w/ Curtis on understanding this issue for the USA. Some of the confusion with detention = arrest may stem from the difference in criminal v. civil law. What I mean is this: While you may or may not be criminally charged for an improper detention, the civil end of it is a whole different ballgame and lawsuits have been won because a person believed they were not free to leave when detained by security. (Not LP)

As a result, most WBS companies strongly discourage detainment unless absolutely necessary. "Any doubts - DON'T DO IT!" is the safe and wise course of action unless you have been specifically trained in understanding the finer points of law regarding detainment and arrest in your jurisdiction.

In Canada, detention by a private citizen is not defined in the Criminal Code. Peace officers are allowed to detain people as they relate to incidents under investigation. Instead, citizens' arrest is defined as "stopping a person from continuing his or her regular activities" (or something to that extent). Therefore, the arrest begins immediately upon stopping a person.

[Nauticus]

Well he's lucky we're not governed by lsamic laws then... there's every likelyhood he'd have lost a hand ;)

It's interesting to note the differences in arrest SOP from country to country, let alone from state to state (of the same nation), down here NRM IF we question the party arrested... the case goes to hell in a hand basket! that's all there is to it, but if they decide to blabber on anyway well we simply right all that down and pass it on :D

Miranda? cautions? we keep it simple... you're under arrest for... [what ever offence] and that's it, and as far as citizen's arrest powers those aren't specifically limited to 'finds committing' here, reasonable suspicion of a crime (ie. offender with hammer in hand before a busted window) or escape from lawful custody (or suspicion of) is also sufficient grounds to effect an arrest... though in today's litigation riddled society it's only recommend SOs/citizens act on 'finds committing' :D

Really?

In Canada, you have to personally witness an indictable offense in order to arrest correctly. Otherwise, it's false arrest. A citizen cannot arrest 'in suspicion of' anything. It has to be 100% absolutely positive that the person did something, and you witnessed it.

My company also does read section 10 (a) and (b) and the official warning (their rights to remain silent, contact a lawyer, etc). But then, we try and get confessions, and they're aren't allowed unless the rights have been read to the arrested individual.

If I were you, I'd double check on what basis you can arrest. I know Canada and Australia have very similar criminal codes, and I'm positive Canada is run that way (I've got a degree in Criminology, and I've done half a dozen diploma certification courses on the Criminal Justice System). Better safe than sorry ;)

[HotelSecurity]

Really?

In Canada, you have to personally witness an indictable offense in order to arrest correctly. Otherwise, it's false arrest. A citizen cannot arrest 'in suspicion of' anything. It has to be 100% absolutely positive that the person did something, and you witnessed it.

My company also does read section 10 (a) and (b) and the official warning (their rights to remain silent, contact a lawyer, etc). But then, we try and get confessions, and they're aren't allowed unless the rights have been read to the arrested individual.

If I were you, I'd double check on what basis you can arrest. I know Canada and Australia have very similar criminal codes, and I'm positive Canada is run that way (I've got a degree in Criminology, and I've done half a dozen diploma certification courses on the Criminal Justice System). Better safe than sorry ;)

Not exactly right. The owner of property or his agent can arrest for Summary Conviction offences also. (For my US friends: A citizen can arrest only when he witnesses a Felony - the owner of property or his agent can arrest for ANY criminal code offence he witnesses it does not have to be a felony).

Also we can arrest with reasonable & probable grounds if the suspect is being chased by someone who legally can arrest them. If have arrested in this situation where a mugging victim has yelled "stop him, he just attacked me".

[Nauticus]

We can assist in an arrest where someone is being chased by a peace officer, but we do not arrest under these circumstances. If someone is chasing someone else, yelling "he just attacked me", you have no reasonable cause to make any arrest. Again, in Canada, you can't lawfully arrest somebody unless you witness the offense, or you're a peace officer.

This is how I learnt it in all of my programs, and this is what all the companies I've ever worked for see it, so this is the way I tend to believe it's true.

[NRM_Oz]

I am curious about Maelstrom's post as he is in another state below mine (I know we feel sorry for the Mexicans being south of the border) but I had a Victorian State Licence so will be curious to find out more about this. I don't understand how anyone can arrest on suspicion except for a peace officer, law enforcement officer and special constable (pretend cop). Forget the liabilities to a company but most police will just laugh at your arrest unless you get a confession and if it goes to court it will probably be tossed out by a judge.

Maelstrom - I mean no offence just curious as to where I should look to read more about your arrest conditions.

[Lynch Mob]

I understand what you are saying, but I still believe there is a significant difference in criminal v. civil law. Criminal law requires a conviction when a crime can be proven beyond a doubt whereas a civil law verdict in favor of the plaintiff is based on a preponderance of the evidence - a standard far below the one required for a guilty verdict in a criminal case.

In CT, USA, where I reside, I am not able to define when a detention becomes an arrest according to state law. (However, detention here for shoplifting is practiced by LPO's, but LE is dispatched to decide whether an arrest is justified, at which point an arrest and case number are issued.)

Since I am not LP and work unarmed, I have no reason to detain because I am not going to make a citizen's arrest unless I am able to safely stop a class A/B felony - which is highly unlikely.

What I can do though, is ask the suspect if they would be willing to help me resolve some questions regarding a situation. (Sounds silly, but it's just a way to stall until the police arrive) This protects me in the event I am mistaken, since their stay is voluntary - they agreed to it.

I understand the difference in levels of proof when convicting of a crime or when filing a lawsuit. However, that is not what we were talking about. We were talking about the legal definition of an arrest. That definition is the same in criminal and civil courts. There is no difference at those two levels.

Now, if we are talking about the act of false arrest, and the required proof for some legal action against the person making the false arrest, you should be even more concerned about the definition of a legal arrest. The reason is because the defendant would be you (or any LP agent). If you don't understand what constitutes an arrest, how could you reasonably defend yourself against someone pressing criminal charges, or filing a civil suit?

Your state may not have a Citizen's Arrest laws, but that does not mean you have not passed the point of detention and made a legal arrest by taking someone into custody. It is important that people realize the distinction.

[HotelSecurity]

We can assist in an arrest where someone is being chased by a peace officer, but we do not arrest under these circumstances. If someone is chasing someone else, yelling "he just attacked me", you have no reasonable cause to make any arrest. Again, in Canada, you can't lawfully arrest somebody unless you witness the offense, or you're a peace officer.

This is how I learnt it in all of my programs, and this is what all the companies I've ever worked for see it, so this is the way I tend to believe it's true.

494. (1) Any one may arrest without warrant

(a) a person whom he finds committing an indictable offence; or

(b) a person who, on reasonable grounds, he believes

(i) has committed a criminal offence, and

(ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person
Here's the law. Look at 494 (b)(i)(ii)

[Maelstrom]

Maelstrom - I mean no offence just curious as to where I should look to read more about your arrest conditions.

No offence taken :D

Crimes Act 1958 - SECT 462

Definition of finds committing

462. Definition of finds committing



"In this Act the expression finds committing and any derivative thereof extends
to the case of a person found doing any act or so behaving or conducting
himself or in such circumstances that the person finding him believes on
reasonable grounds that the person so found is guilty of an offence."





But due to the term "reasonable grounds" ever becoming a intensely slippery slope, this definition of "finds committing" isn't recommended to be acted upon ;)

Additional reference @ Victorian Dept. Of Justice (http://www.justice.vic.gov.au/wps/wcm/connect/DOJ+Internet/Home/The+Justice+System/Justice+Legislation/JUSTICE+-+Crimes+Act+1958+(Legislation)) & HERE (http://www.austlii.edu.au/au/legis/vic/consol_act/ca195882/s462.html) :D

Further sections of the Victorian Crimes Act of 1958 worth noting...

Section 458 - Powers of arrest (http://www.austlii.edu.au/au/legis/vic/consol_act/ca195882/s458.html)
Section 462A - Use of force (http://www.austlii.edu.au/au/legis/vic/consol_act/ca195882/s462a.html)
Section 463A - Arrest of offenders on board aircraft (http://www.austlii.edu.au/au/legis/vic/consol_act/ca195882/s463a.html)
Section 463B - Use of force to prevent commission of suicide (http://www.austlii.edu.au/au/legis/vic/consol_act/ca195882/s463b.html)

[NRM_Oz]

Yep the bloke is right 101% ................. because we are 1 state apart and this would cause uproar like a beer strike at Xmas time. The book says it so I guess it has to be the law - cannot recall Sec. 462 when I was previously licenced in this state about 10 years back.

[Nauticus]

494. (1) Any one may arrest without warrant

(a) a person whom he finds committing an indictable offence; or

(b) a person who, on reasonable grounds, he believes

(i) has committed a criminal offence, and

(ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person
Here's the law. Look at 494 (b)(i)(ii)

But look up false stop/arrest and you'll find that it's a crime to stop someone who hasn't committed an offense.

[HotelSecurity]

But look up false stop/arrest and you'll find that it's a crime to stop someone who hasn't committed an offense.

"on reasonable grounds, he believes" What article do you want me to look at?

[Mr. Security]

I understand the difference in levels of proof when convicting of a crime or when filing a lawsuit. However, that is not what we were talking about. We were talking about the legal definition of an arrest. That definition is the same in criminal and civil courts. There is no difference at those two levels....



Is it? What source are you referring to?

[Lynch Mob]

Is it? What source are you referring to?

The Supreme Court.

You will not find a case anywhere where there is a different standard for the definition of an arrest between civil and criminal courts.

As a reference:

http://law.jrank.org/pages/1687/Police-Private-Police-Industrial-Security-Legal-authority.html

A quote from this site:

"Under common law every citizen, like the law enforcement officer, has a right to make an arrest. A private citizen can make an arrest for a criminal offense without a warrant if the arrested person has committed a felony in his/her presence or if the arrested person has committed a felony offense outside the presence of the citizen but the arresting person has reasonable cause to believe that a felony has been committed. The scope of a citizen's arrest power is similar to that of a law enforcement officer. However, a citizen's arrest is always made at the arrestor's own risk. That is, if the arrest proves to be unlawful, the arrestor is exposed to the risk of criminal or civil liability. A private police officer is subject to these limitations and must balance the need to protect the interests of his employer with the need to avoid making false arrests."


You are mistaking the burden of proof for conviction or judgement compared to the legality of a police action and definition of that action. These are different matters. Just as a burglary is the same in criminal or civil court, theft is the same in civil or criminal court, an arrest is the same in civil or criminal court.

Whether one can be found guilty of false arrest is different. You are right that the burden of proof in criminal court is beyond a reasonable doubt and in civil court it is a prepoderance of the evidence. But, in both cases, making the determination as to whether an actual arrest was even made would be the same.

[Mr. Security]

The Supreme Court.

You will not find a case anywhere where there is a different standard for the definition of an arrest between civil and criminal courts.

As a reference:

http://law.jrank.org/pages/1687/Police-Private-Police-Industrial-Security-Legal-authority.html

A quote from this site:

"Under common law every citizen, like the law enforcement officer, has a right to make an arrest. A private citizen can make an arrest for a criminal offense without a warrant if the arrested person has committed a felony in his/her presence or if the arrested person has committed a felony offense outside the presence of the citizen but the arresting person has reasonable cause to believe that a felony has been committed. The scope of a citizen's arrest power is similar to that of a law enforcement officer. However, a citizen's arrest is always made at the arrestor's own risk. That is, if the arrest proves to be unlawful, the arrestor is exposed to the risk of criminal or civil liability. A private police officer is subject to these limitations and must balance the need to protect the interests of his employer with the need to avoid making false arrests."


You are mistaking the burden of proof for conviction or judgement compared to the legality of a police action and definition of that action. These are different matters. Just as a burglary is the same in criminal or civil court, theft is the same in civil or criminal court, an arrest is the same in civil or criminal court.

Whether one can be found guilty of false arrest is different. You are right that the burden of proof in criminal court is beyond a reasonable doubt and in civil court it is a prepoderance of the evidence. But, in both cases, making the determination as to whether an actual arrest was even made would be the same.

So, if I tell you as a citizen that you are under arrest and I detain you, call the police, the police arrive and say “That’s an unlawful arrest," that you can't sue me in civil court for unlawful arrest? Of course you can because my arrest, although not legally a criminal one was a civil one as far as the lawsuit is concerned.

[NRM_Oz]

........ regardless of the country you make a false arrest, detain, handcuff or imprison someone for a length of time deemed unsuitable ............. you can then be charged by the police. I know the USA has the shop keepers laws about detaining and requesting police attendance up to 4 hours, but I do know of a case in the 1980's where someone was detained in a toilet (yes the cubicle itself) by a McDonalds (could have been Burger King) manager after stealing a customers handbag. The manager was charged with false imprisonment (no sure of the US jargon) but had the charges dropped.

[Lynch Mob]

So, if I tell you as a citizen that you are under arrest and I detain you, call the police, the police arrive and say “That’s an unlawful arrest," that you can't sue me in civil court for unlawful arrest? Of course you can because my arrest, although not legally a criminal one was a civil one as far as the lawsuit is concerned.

When did I say that? Or anything remotely close to that?

I think you need to go back and read what I said again. In this case, you could potentially be held criminally liable to a false arrest just as you could be held civilly liable. The arrest is the same. The burden of proof to prove criminal intent is heavier than to prove civil liability, but the standards of what constitutes an arrest are the same.

Example:
I leave a store without ever stealing anything. You stop me, handcuff me, and take me back into the store. You call the police. They find I have not stolen anything and they pull you aside and say, "you just made a false arrest". I now decide that I want to make a citizen's arrest on you for false arrest and false imprisonment. I tell the cop I want to make the arrest. The cop could turn you around, put you in handcuffs, and take you down to the police station to charge you with false arrest and false imprisonment. I could also file a civil suit for the same actions.

The standards of what constitutes an arrest are the same.

[Mr. Security]

When did I say that? Or anything remotely close to that?

I think you need to go back and read what I said again. In this case, you could potentially be held criminally liable to a false arrest just as you could be held civilly liable. The arrest is the same. The burden of proof to prove criminal intent is heavier than to prove civil liability, but the standards of what constitutes an arrest are the same.

Example:
I leave a store without ever stealing anything. You stop me, handcuff me, and take me back into the store. You call the police. They find I have not stolen anything and they pull you aside and say, "you just made a false arrest". I now decide that I want to make a citizen's arrest on you for false arrest and false imprisonment. I tell the cop I want to make the arrest. The cop could turn you around, put you in handcuffs, and take you down to the police station to charge you with false arrest and false imprisonment. I could also file a civil suit for the same actions.

The standards of what constitutes an arrest are the same.

Look Lynch Mob, for whatever reason we appear to be going round and round with this and getting no where. I understand what I need to know about arrest and can always consult with an attorney if I have further questions.

[NRM_Oz]

FYI - new security licence categories in NSW (Australia) for Loss Prevention. Basically is says an LPO cannot conduct their duties with the use of handcuffs, batons or OC spray under this licencing system.

So I guess that ensures we will never go back to the olden days of cuffs in the early 90's.

[ericb]

You guy's probably already know how Florida works. As a Security Officer the only F.S.S. that allows one to detain a person is Retail Theft/Shoplifting under F.S.S. 812.015. Everything else is an interview and that person is free to go at anytime. If I was to tell someone they could not leave, I could be charged criminally and most likely civilly. The tricky one is if you were to use cuffs as a level of force, I have now become responsible for that persons well being, so if he goes running, you better hope he is not fast, and I cannot detain him to boot! Basically as a Security Officer in Florida you need to assure the person they are doing the right thing by waiting for a LEO to arrive. Now some government SO's have been deputize or commissioned to use the power of arrest.
Also there is no such thing as citizens arrest in the state of Florida.
I'm sure you guy's were already familiar with Florida laws I just thought I would add it to this thread.
Eric B.

[N. A. Corbier]

You guy's probably already know how Florida works. As a Security Officer the only F.S.S. that allows one to detain a person is Retail Theft/Shoplifting under F.S.S. 812.015. Everything else is an interview and that person is free to go at anytime. If I was to tell someone they could not leave, I could be charged criminally and most likely civilly. The tricky one is if you were to use cuffs as a level of force, I have now become responsible for that persons well being, so if he goes running, you better hope he is not fast, and I cannot detain him to boot! Basically as a Security Officer in Florida you need to assure the person they are doing the right thing by waiting for a LEO to arrive. Now some government SO's have been deputize or commissioned to use the power of arrest.
Also there is no such thing as citizens arrest in the state of Florida.
I'm sure you guy's were already familiar with Florida laws I just thought I would add it to this thread.
Eric B.

Actually, you're wrong. Florida uses Common Law. There is a common law authority for citizens to make arrests (not detentions) for a felony in all fifty states. Florida further has a common law authority for any person to quell a breach of the peace by arrest.

The problem, here, is that police officers are only taught that they can make "arrests out of jurisdiction." Ask any cop about a DUI arrest out of their jurisdiction, and they'll say that they can make it. (If they've been keeping up with their training.)

Now, ask them how they can make such an arrest for DUI out of their jurisdiction since they lose their state powers of arrest once they leave their jurisdiction. They basically become a private citizen with a Class G license, since a law enforcement officer may carry anywhere in the state (Much like a Class G licensee can.)

This is how most law enforcement officers are taught powers of citizen's arrest: As something only a law enforcement officer can do. This is, of course, completely incorrect.

I would refer you to Chapter 493.6118, though, for statutory prohibitions on using force for all licensees of Chapter 493. Basically, FSS 493.6118(j) makes it an offense to use force except in protection of person. So... If you use force (touch someone, remember the elements of battery) to escort someone from the property, you are committing a crime.

[Lynch Mob]

Look Lynch Mob, for whatever reason we appear to be going round and round with this and getting no where. I understand what I need to know about arrest and can always consult with an attorney if I have further questions.
By the time you need to consult with an attorney it may be too late.

To be honest, I am not sure what we are disagreeing on, but you seem dead set in saying I am wrong and that an arrest is viewed different in criminal and civil court. I have tried to be clear, but perhaps I am not being clear. I agree that when you are charged with false arrest the burden of proof is different in civil and criminal court. I am just saying that how that arrest is perceived and analyzed is exactly the same. I have said over and over the definition is the same. The standards of what constitutes an arrest are the same.

Perhaps this is more clear. If you did not actually enact an arrest on a person, you will never lose a case of false arrest. The defense is that you never placed the person under arrest. The court will be able to define whether they individual was actually placed under arrest. The issue in a false arrest case (either criminally or civilly) is generally not whether an arrest was made. For that case to proceed forward, there must be agreement that an arrest was made. The issue becomes whether the arrest was legal or not (thus a false arrest or not).

So, the arrest is viewed the same. The criteria for it being legal or not is the same. The burden of proof is different.

Does that make sense?

[Mr. Security]

By the time you need to consult with an attorney it may be too late.

To be honest, I am not sure what we are disagreeing on, but you seem dead set in saying I am wrong and that an arrest is viewed different in criminal and civil court. I have tried to be clear, but perhaps I am not being clear. I agree that when you are charged with false arrest the burden of proof is different in civil and criminal court. I am just saying that how that arrest is perceived and analyzed is exactly the same. I have said over and over the definition is the same. The standards of what constitutes an arrest are the same.

Perhaps this is more clear. If you did not actually enact an arrest on a person, you will never lose a case of false arrest. The defense is that you never placed the person under arrest. The court will be able to define whether they individual was actually placed under arrest. The issue in a false arrest case (either criminally or civilly) is generally not whether an arrest was made. For that case to proceed forward, there must be agreement that an arrest was made. The issue becomes whether the arrest was legal or not (thus a false arrest or not).

So, the arrest is viewed the same. The criteria for it being legal or not is the same. The burden of proof is different.

Does that make sense?

I agree w/ the burden part. :)

Here is the situation where I think you might have a problem. Subject A calls the police and complains that you falsely arrested him/her. The police arrive and tell subject A that no, he/she is mistaken, you did not make a false arrest, in fact legally you didn’t make an arrest at all. Subject A, not happy with the police decision, sues you in a civil court for false arrest, even w/o foundation. You have to pay out of your pocket (as with most security companies) for your defense. Maybe the jury sympathizes with subject A and finds in his/her favor, even if they do not apply the law correctly, i.e. jury nullification. You lose.

Even if they find in your favor, you still lose because you paid for the defense. That's why you have to be very careful w/ citizen's arrest.

[Lynch Mob]

I agree w/ the burden part. :)

Here is the situation where I think you might have a problem. Subject A calls the police and complains that you falsely arrested him/her. The police arrive and tell subject A that no, he/she is mistaken, you did not make a false arrest, in fact legally you didn’t make an arrest at all. Subject A, not happy with the police decision, sues you in a civil court for false arrest, even w/o foundation. You have to pay out of your pocket (as with most security companies) for your defense. Maybe the jury sympathizes with subject A and finds in his/her favor, even if they do not apply the law correctly, i.e. jury nullification. You lose.

Even if they find in your favor, you still lose because you paid for the defense. That's why you have to be very careful w/ citizen's arrest.

I agree with you 100%. This is why I have been talking about this. Some on here gave improper advice that some situations may not constitute an arrest, when in fact, they do. I am telling people to be aware of the laws so they are aware of how their actions can be viewed.

If you do not understand the laws of arrest and you follow advice on an internet message board, you could wind up in deep trouble. For example, if you think you can handcuff someone, take them in the office and be protected because you never told the person they were under arrest, you would be seriously mistaken and it could cost you dearly. Bad advice needs to be corrected, at least so people know they need to do some more research of the subject.

I definitely support the idea of being careful in making arrests.

[ericb]

Actually, you're wrong. Florida uses Common Law. There is a common law authority for citizens to make arrests (not detentions) for a felony in all fifty states. Florida further has a common law authority for any person to quell a breach of the peace by arrest.

The problem, here, is that police officers are only taught that they can make "arrests out of jurisdiction." Ask any cop about a DUI arrest out of their jurisdiction, and they'll say that they can make it. (If they've been keeping up with their training.)

Now, ask them how they can make such an arrest for DUI out of their jurisdiction since they lose their state powers of arrest once they leave their jurisdiction. They basically become a private citizen with a Class G license, since a law enforcement officer may carry anywhere in the state (Much like a Class G licensee can.)

This is how most law enforcement officers are taught powers of citizen's arrest: As something only a law enforcement officer can do. This is, of course, completely incorrect.

I would refer you to Chapter 493.6118, though, for statutory prohibitions on using force for all licensees of Chapter 493. Basically, FSS 493.6118(j) makes it an offense to use force except in protection of person. So... If you use force (touch someone, remember the elements of battery) to escort someone from the property, you are committing a crime.

Sorry if I posted misinformation, I was taught this by my class instructor. After reading more about the citizens arrest laws in Florida I still would not attempt one. If I was witnessing a felony act to a person I would most likely exercise my rights to use necessary force to stop the crime. Instead of using the citizens arrest law, do you think it would be better to use OC (as long as the resistance level were to that point, of course being certified) and then care for them while LEO's arrive? Just seems like less chances for me to do something that infringes on the rights of others. I also read somewhere that only 49 states permit citizens arrest, that N Carolina does not.

Eric B.

Here is one thing I found that worries me about citizens arrest. Mind you this is an off duty FHP, so I'm sure his experience with arresting a person came into play.

There are several formal cites the State of Florida uses when discussing "citizens arrest."

One case involves an off-duty FHP officer outside of his official patrol jurisdiction. The Court of Appeals found in favor of the off-duty trooper stating that his powers of arrest were no different than that of a citizen. (See Phoneix v. State)

We can thank Black's Law Dictionary for a good definition: "The apprehending or detaining of a person in order to be forthcoming to answer an alleged or suspected crime." (See Ex parte Sherwood, 29 Tex. App. 334, 15 S.W. 812).

Ordinarily, private citizens in Florida do not have the "powers of arrest," however, under limited circumstances a private party may make an arrest where an actual commission of a FELONY offense has been commited in their presence.

A strong argument can be made that the right to make a citizen's arrest is a constitutionally protected right under the Ninth Amendment as its impact includes the individual's natural right to self preservation and the defense of the others.

Because of the legalities and liabilities involved you should exercise EXTREME caution prior to making a citizens arrest

[bigdog]

Actually, you're wrong. Florida uses Common Law. There is a common law authority for citizens to make arrests (not detentions) for a felony in all fifty states. Florida further has a common law authority for any person to quell a breach of the peace by arrest.

The problem, here, is that police officers are only taught that they can make "arrests out of jurisdiction." Ask any cop about a DUI arrest out of their jurisdiction, and they'll say that they can make it. (If they've been keeping up with their training.)

Now, ask them how they can make such an arrest for DUI out of their jurisdiction since they lose their state powers of arrest once they leave their jurisdiction. They basically become a private citizen with a Class G license, since a law enforcement officer may carry anywhere in the state (Much like a Class G licensee can.)

This is how most law enforcement officers are taught powers of citizen's arrest: As something only a law enforcement officer can do. This is, of course, completely incorrect.

I would refer you to Chapter 493.6118, though, for statutory prohibitions on using force for all licensees of Chapter 493. Basically, FSS 493.6118(j) makes it an offense to use force except in protection of person. So... If you use force (touch someone, remember the elements of battery) to escort someone from the property, you are committing a crime.
But since the only time a security officer would arrest for a breach of peace would be if it involved violence, it wouldn't be a violation of chapter 493. Also if the person you are removing from you property is trying to start fights with people or other acts which endanger the safety of the people on the property or themselves you also wouldn't be in violation of 493 because your protecting them from physical harm. We can't make such broad statements like if you touch someone to escort them off your property its a violation of 493, it depends on the circumstances of the situation.

[bigdog]

Sorry if I posted misinformation, I was taught this by my class instructor. After reading more about the citizens arrest laws in Florida I still would not attempt one. If I was witnessing a felony act to a person I would most likely exercise my rights to use necessary force to stop the crime. Instead of using the citizens arrest law, do you think it would be better to use OC (as long as the resistance level were to that point, of course being certified) and then care for them while LEO's arrive?Just seems like less chances for me to do something that infringes on the rights of others. I also read somewhere that only 49 states permit citizens arrest, that N Carolina does not.

Eric B.

Here is one thing I found that worries me about citizens arrest. Mind you this is an off duty FHP, so I'm sure his experience with arresting a person came into play.

There are several formal cites the State of Florida uses when discussing "citizens arrest."

One case involves an off-duty FHP officer outside of his official patrol jurisdiction. The Court of Appeals found in favor of the off-duty trooper stating that his powers of arrest were no different than that of a citizen. (See Phoneix v. State)

We can thank Black's Law Dictionary for a good definition: "The apprehending or detaining of a person in order to be forthcoming to answer an alleged or suspected crime." (See Ex parte Sherwood, 29 Tex. App. 334, 15 S.W. 812).

Ordinarily, private citizens in Florida do not have the "powers of arrest," however, under limited circumstances a private party may make an arrest where an actual commission of a FELONY offense has been commited in their presence.

A strong argument can be made that the right to make a citizen's arrest is a constitutionally protected right under the Ninth Amendment as its impact includes the individual's natural right to self preservation and the defense of the others.

Because of the legalities and liabilities involved you should exercise EXTREME caution prior to making a citizens arrest

The funny thing about that paragraph is you see it on every lawyers website. While a felony is one instance in which a citizen can arrest. Ive made breach of peace citizens arrest in the past for everything from a battery to domestic battery. (notice the crimes involve violence that one element needed for a breach of peace citizens arrest ) Every citizens arrest ive made has been accepted by the State attorney.

Heres an article about a citizen making a DUI citizens arrest this year in Key west.
August 14, 2007

A DUI citizen's arrest in Key West

A man was seen driving erratically from Ramrod Key to Key West. Police were called and when they arrived they found a concerned citizen holding the driver down on the pavement. He told police he pulled the erratic driver from his car at a stop sign because of his concern for the safety of others. When police asked the DUI suspect if he understood his Miranda rights he told them the only health problem he had was bunions on his feet, the Key West Citizen (http://www.keysnews.com/crimereport.bsp.htm) reports.

[HotelSecurity]

In Canada most people do not realize that Security Officers as agents of the owner, have more power of arrest than a regular citizen as long as he witness the event & it occurs on or in relation to the property his is being paid to protect. I have been told that this applies as far as to allow a Security person working for a bank to make an arrest anywhere someone is using a credit card to commit a crime since it is clear on the back of the card that "it is the property of abc Bank".

[ericb]

The funny thing about that paragraph is you see it on every lawyers website. While a felony is one instance in which a citizen can arrest. Ive made breach of peace citizens arrest in the past for everything from a battery to domestic battery. (notice the crimes involve violence that one element needed for a breach of peace citizens arrest ) Every citizens arrest ive made has been accepted by the State attorney.

Heres an article about a citizen making a DUI citizens arrest this year in Key west.
August 14, 2007

A DUI citizen's arrest in Key West

A man was seen driving erratically from Ramrod Key to Key West. Police were called and when they arrived they found a concerned citizen holding the driver down on the pavement. He told police he pulled the erratic driver from his car at a stop sign because of his concern for the safety of others. When police asked the DUI suspect if he understood his Miranda rights he told them the only health problem he had was bunions on his feet, the Key West Citizen (http://www.keysnews.com/crimereport.bsp.htm) reports.

So is a citizens arrest more like a law base on the Judge's discretion? This one you have quoted is a misdemeanor, unless it was this persons third, correct. This is off the Florida DMV
DUI Felony Conviction: (Repeat Offenders or Accidents Involving Serious Bodily Injury)-s. 316.193 (2),(3) F.S.
Any person convicted of a third DUI within 10 years or a fourth or subsequent DUI commits a Third Degree Felony (not more than $5,000 fine and/or 5 years imprisonment).
Any person who causes serious bodily injury while driving under the influence is guilty of a Third Degree Felony (not more than $5,000 fine and/or 5 years imprisonment) or if habitual/violent felony offender as provided in s. 775.084, F.S.

How was that person to know how many DUI's this person had, or if he injured someone. So in this case it would seem the drunk would have a solid case on this person that held him there(maybe they were pals of some sort, not alot of roads in the Key's haha.). But I would hope everyone would do this if they saw a DUI happening. Am I wrong? Maybe this would follow along a Good Samaritan act more than a citizens arrest?

Eric B.

[N. A. Corbier]

So is a citizens arrest more like a law base on the Judge's discretion? This one you have quoted is a misdemeanor, unless it was this persons third, correct. This is off the Florida DMV
DUI Felony Conviction: (Repeat Offenders or Accidents Involving Serious Bodily Injury)-s. 316.193 (2),(3) F.S.
Any person convicted of a third DUI within 10 years or a fourth or subsequent DUI commits a Third Degree Felony (not more than $5,000 fine and/or 5 years imprisonment).
Any person who causes serious bodily injury while driving under the influence is guilty of a Third Degree Felony (not more than $5,000 fine and/or 5 years imprisonment) or if habitual/violent felony offender as provided in s. 775.084, F.S.

How was that person to know how many DUI's this person had, or if he injured someone. So in this case it would seem the drunk would have a solid case on this person that held him there(maybe they were pals of some sort, not alot of roads in the Key's haha.). But I would hope everyone would do this if they saw a DUI happening. Am I wrong? Maybe this would follow along a Good Samaritan act more than a citizens arrest?

Eric B.

DUI is a breach of the peace offense, in which any citizen may make a private arrest under common law. It does not matter if it was a felony, and you do not have probable cause at the time to determine in good faith that it was a felony. Seeing someone who was DUI and making a good faith arrest on suspicious of DUI is all that is needed for the (misdemeanor) BOP arrest.

As far as the Good Samaritan Act, it has never and will never cover the use of offense force against someone to deprive them of their freedom.

[ericb]

DUI is a breach of the peace offense, in which any citizen may make a private arrest under common law. It does not matter if it was a felony, and you do not have probable cause at the time to determine in good faith that it was a felony. Seeing someone who was DUI and making a good faith arrest on suspicious of DUI is all that is needed for the (misdemeanor) BOP arrest.

As far as the Good Samaritan Act, it has never and will never cover the use of offense force against someone to deprive them of their freedom.

Funny thing about laws they always keep me guessing. Under The Good Samaritan act I find this.
Implied consent
Consent may be implied if the patient is unconscious, delusional, intoxicated, deemed mentally unfit to make decisions regarding their safety, or if the responder had a reasonable belief that this was as such; courts tend to be very forgiving in adjudicating this, under the legal fiction that "peril invites rescue."

To some people a intoxicated person may appear ill and if they are big enough to feel safe helping a intoxicated person, then how would that fall out of The Good Samaritan Act?

Eric B.

[Mr. Security]

I agree with you 100%. This is why I have been talking about this. Some on here gave improper advice that some situations may not constitute an arrest, when in fact, they do. I am telling people to be aware of the laws so they are aware of how their actions can be viewed.

If you do not understand the laws of arrest and you follow advice on an internet message board, you could wind up in deep trouble. For example, if you think you can handcuff someone, take them in the office and be protected because you never told the person they were under arrest, you would be seriously mistaken and it could cost you dearly. Bad advice needs to be corrected, at least so people know they need to do some more research of the subject.

I definitely support the idea of being careful in making arrests.

Exactly right. :)

[bigdog]

Funny thing about laws they always keep me guessing. Under The Good Samaritan act I find this.
Implied consent
Consent may be implied if the patient is unconscious, delusional, intoxicated, deemed mentally unfit to make decisions regarding their safety, or if the responder had a reasonable belief that this was as such; courts tend to be very forgiving in adjudicating this, under the legal fiction that "peril invites rescue."

To some people a intoxicated person may appear ill and if they are big enough to feel safe helping a intoxicated person, then how would that fall out of The Good Samaritan Act?

Eric B.
The good Samaritan act is for people providing CPR and First aid type stuff not citizens arrest.

florida's good samaritain act

768.13 Good Samaritan Act; immunity from civil liability.--
(1) This act shall be known and cited as the "Good Samaritan Act."

(2)(a) Any person, including those licensed to practice medicine, who gratuitously and in good faith renders emergency care or treatment either in direct response to emergency situations related to and arising out of a public health emergency declared pursuant to s. 381.00315, a state of emergency which has been declared pursuant to s. 252.36 or at the scene of an emergency outside of a hospital, doctor's office, or other place having proper medical equipment, without objection of the injured victim or victims thereof, shall not be held liable for any civil damages as a result of such care or treatment or as a result of any act or failure to act in providing or arranging further medical treatment where the person acts as an ordinary reasonably prudent person would have acted under the same or similar circumstances.

(b)1. Any health care provider, including a hospital licensed under chapter 395, providing emergency services pursuant to obligations imposed by 42 U.S.C. s. 1395dd, s. 395.1041, s. 395.401, or s. 401.45 shall not be held liable for any civil damages as a result of such medical care or treatment unless such damages result from providing, or failing to provide, medical care or treatment under circumstances demonstrating a reckless disregard for the consequences so as to affect the life or health of another.

2. The immunity provided by this paragraph applies to damages as a result of any act or omission of providing medical care or treatment, including diagnosis:

a. Which occurs prior to the time the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient, unless surgery is required as a result of the emergency within a reasonable time after the patient is stabilized, in which case the immunity provided by this paragraph applies to any act or omission of providing medical care or treatment which occurs prior to the stabilization of the patient following the surgery.

b. Which is related to the original medical emergency.

3. For purposes of this paragraph, "reckless disregard" as it applies to a given health care provider rendering emergency medical services shall be such conduct that a health care provider knew or should have known, at the time such services were rendered, created an unreasonable risk of injury so as to affect the life or health of another, and such risk was substantially greater than that which is necessary to make the conduct negligent.

4. Every emergency care facility granted immunity under this paragraph shall accept and treat all emergency care patients within the operational capacity of such facility without regard to ability to pay, including patients transferred from another emergency care facility or other health care provider pursuant to Pub. L. No. 99-272, s. 9121. The failure of an emergency care facility to comply with this subparagraph constitutes grounds for the department to initiate disciplinary action against the facility pursuant to chapter 395.

(c)1. Any health care practitioner as defined in s. 456.001(4) who is in a hospital attending to a patient of his or her practice or for business or personal reasons unrelated to direct patient care, and who voluntarily responds to provide care or treatment to a patient with whom at that time the practitioner does not have a then-existing health care patient-practitioner relationship, and when such care or treatment is necessitated by a sudden or unexpected situation or by an occurrence that demands immediate medical attention, shall not be held liable for any civil damages as a result of any act or omission relative to that care or treatment, unless that care or treatment is proven to amount to conduct that is willful and wanton and would likely result in injury so as to affect the life or health of another.

2. The immunity provided by this paragraph does not apply to damages as a result of any act or omission of providing medical care or treatment unrelated to the original situation that demanded immediate medical attention.

3. For purposes of this paragraph, the Legislature's intent is to encourage health care practitioners to provide necessary emergency care to all persons without fear of litigation as described in this paragraph.

(d) Any person whose acts or omissions are not otherwise covered by this section and who participates in emergency response activities under the direction of or in connection with a community emergency response team, local emergency management agencies, the Division of Emergency Management of the Department of Community Affairs, or the Federal Emergency Management Agency is not liable for any civil damages as a result of care, treatment, or services provided gratuitously in such capacity and resulting from any act or failure to act in such capacity in providing or arranging further care, treatment, or services, if such person acts as a reasonably prudent person would have acted under the same or similar circumstances.

(3) Any person, including those licensed to practice veterinary medicine, who gratuitously and in good faith renders emergency care or treatment to an injured animal at the scene of an emergency on or adjacent to a roadway shall not be held liable for any civil damages as a result of such care or treatment or as a result of any act or failure to act in providing or arranging further medical treatment where the person acts as an ordinary reasonably prudent person would have acted under the same or similar circumstances.

[NRM_Oz]

I now have to ask someone who is unconcious if I may render 1st aid to them (true just in case they wake up and say NO) and we are trained to now Identify ourselves as first aiders and to ask permission to render first aid to any friends or relatives around the victim. Same thing but without the legal acts ....... yet.

[R.boyle2003]

I am only on page 6 of this thread but I wanted to let you guys know that this is a very informative thread and I am enjoying the read and learning alot from it. I know that this is not regarding the topic I just wanted to chime in.

[Bill Warnock]

I am only on page 6 of this thread but I wanted to let you guys know that this is a very informative thread and I am enjoying the read and learning alot from it. I know that this is not regarding the topic I just wanted to chime in.
Mr. Boyle that is what this forum is all about, the sharing of information and ideas. Folks in this forum have years of experience and it shows. I have 50+ years in this business and astounded by what I've learned from some incredible people. The day you think you know it all is the day you should have completed your last will and testament because that is the day your going to get yourself seriously hurt or killed. Worse than that you might take innocents with you.
Read the threads and join in because we all want to learn.
Enjoy the day,
Bill

[LPAjh9558]

I now have to ask someone who is unconcious if I may render 1st aid to them (true just in case they wake up and say NO) and we are trained to now Identify ourselves as first aiders and to ask permission to render first aid to any friends or relatives around the victim. Same thing but without the legal acts ....... yet.

Same thing with us. We were told to identify ourselves as Loss Prevention and ask if they needed any first aid? On top of that, we'd carry some paper (to get info on) and a huge first aid bag:rolleyes: To this day I thnk we had to identify ourselves just incase the accident victim woke up and thought we were gonna attack him with the bad:eek: