Re: A2 Trade/Swap ... site ...

[Roy and/or Janet Miller <millers@inetnebr.com>]

Use-Author-Address-Header@[127.1] wrote:

> In message <396CBE20.D9A1897F@inetnebr.com>
> Roy and/or Janet Miller <millers@inetnebr.com> writes:
>
> >Shop lifting in the Commonwealth of Pennsylvania is a misdemeanor, ...

I was partly in error here. First offense shop lifting in PA is a "summary
offense." Second offense, or the theft of items exceeding a certain value are a
misdemeanor.

>
>
> Fascinating. However, who was talking about shoplifting? The discussion
> was comparing copyright infringement with jaywalking.  Please don't
> criticize others for using "Ruby-logic" and then employ it yourself. ;o)

If you follow the thread back far enough, I had made mention of shoplifting (or
was that a different thread?)

>
>
> >> If less than a misdemeanor infraction is observed you have
> >> no right to detain anyone. i.e. If you detain a jaywalker YOU
> >> have committed a serious crime.
> >
> >Now I'm a bit fuzzy on this, but what kind of crime is less than a
> >misdemeanor? ...
>
> Roy,  I won't bother defining it but
> I'll give a close paraphrase: A felony is a crime punishable
> by at least a year of incarceration. A misdemeanor is a crime
> with a punishment that can include up to a year of
> incarceration.

That, might, of course, vary from state to state. Felony, however, usually also
involves losing your citizenship: right to vote, right to a passport, right to
own and bear arms, etc.

> All other infractions are civil and do not involve
> incarceration (with the exception of contempt of court or congress).

Civil usually is used in the sense of suits, as opposed to, say, traffic
violations. Some states, for example, have traffic courts, as well as civil
courts. In Pennsylvania, less than a misdemeanor is called a summary, and a
citation is issued for it, in California, what PA calls summary is called a
misdemeanor.

>
> >> Additionally, if you "wrestle the person to the ground" or
> >> especially if you "run a footrace, and then tackle the person"
> >> and that person is injured in ANY manner because of it
> >> you become liable for that persons injuries and can be
> >> sued by the person you assaulted.
> >
> >Not if the person was resisting arrest, and if the arrest was not a false
> >arrest.
>
> Once again this is incorrect and this is what I responded to
> in the first place. Citizens arrest (or arrest by a peace officer
> for that matter) does NOT give you the right to injure the
> perpetrator. You can be sued if you injure him.

You are confusing, however, criminal and civil. I do have the "right" to
restrain. That does not however, protect me from civil suit brought by the
criminal. Not long ago a burglar was seriously cut while forcing entry. He
successfully sued the store owner for his injuries received while trying to
commit a crime! In PA, off duty police are urged not to make arrests, why?
Because the departments don't want to have to defend the officers in civil
suits, so they are urged just to be witnesses. A cop on duty, who performs his
duty properly, can, and many have, been sued, and some successfully. By your
logic then, THEY can't make arrests.

> You may not
> like that but it is true. If you use force that is beyond reasonable
> (and for shoplifting, at least in Michigan, the courts have found
> that ANY physical force MAY be found to be unreasonable,
> depending upon the circumstance).

Well, that is true most anywhere. And is why that guard is in trouble. Killing
someone to restrain them is not usually considered reasonable force. The rules
I operated under 25 years ago were to not touch the suspect, and not even
accuse them, if you could avoid it. We would identify ourselves and show our
badges, and ask where the merchandise was. Some would say that they placed it
back on the shelf, and we would ask them to show us. I was never wrong on
stopping people - because "When in doubt, don't" was my motto. Most would
meekly accompany me back to the security office where, if the person was
female, I had a witness in the room with me (I would imagine that this has
changed.) If the item was under $3 (25 years ago, and I didn't make the rule)
they signed a confession and were told never to come to the store again. If
minors, parents were called. If the item was over $3, or if we had to touch the
person (or more) the police were always called, and a non traffic citation was
issued. That protected us from false arrest allegations, and we almost always
had witnesses during the confrontation to help in case of suit.

> Not only can you be
> sued by the person you are arresting, you CAN be found
> criminally liable. But let's look just a little deeper. In the
> USA the concept of "citizens arrest" was CODIFIED

There are fifty states and fifty different codes here. What is true in Michigan
is not necessarily true anywhere else in the country.

> because
> more than 100 years ago the courts found that a peace
> officer outside of his jurisdiction has no more right to arrest
> someone than any citizen. The intent of citizens arrest law was
> to allow a peace officer to make an arrest even if he
> crosses a jurisdictional boundry. In the meantime, bounty
> hunters took advantage of the law, and ordinary citizens
> became allowed to make arrests, but they are subject to every
> detail that an on-duty peace officer is including Miranda
> et al.

I don't know that you are right on this, I'll check, but even so, it probably
only is true on a state by state basis.

> If you do not follow the laws of arrest as outlined in your
> state's penal code to the letter you can get yourself into a
> heap o' trouble.

And even if you do!

>
> >> Witnessing a felony assault does not give a citizen a right
> >> to accost the perpetrator.
> >
> >If you do nothing, you are an accessory to the crime. You have the right
> >to use force, up to and including deadly force (depending on the
> >situation) to stop a felony assault.
> >
>
> More "Ruby-logic". You can be sued and arrested yourself.

Again, you have lumped civil and criminal together. You most certainly WILL be
arrested, but that doesn't mean that you will be *charged* with a crime. The
criminal might file suit (or their surviving family members might), but that
happens to uniformed on duty cops who have sailed through all criminal
investigations.

> Don't
> fool yourself by law programs on TV.

I wasn't following TV (I have far too little time to watch TV much, other than
Star Trek :-)

> Good Samaritan laws, to the
> best of my knowledge, are always stricken down as unconstitutional.
> You cannot, in this country, legislate people to intercede.

This is a recent change from Common Law. And they usually still apply to
medical professionals.

> Deadly
> force is allowed in so few circumstances that it will almost always
> get you into a heap o' trouble. Killing in self-defence is not
> automatically (though juries from state to state may have differing
> opinions on the matter) granted as a valid defense, regardless
> of what you see on TV.

Again with the TV? :-)   You are correct here though. Killing in self-defense
is valid, but you might have to prove that your thought your life was in danger
(and shooting someone in the back while they are running away usually won't
fly.) The fact is, that in some recent cases women have killed abusive husbands
while they slept and got off on self defense. The only thing TV about it was
that such cases have been reported on TV news shows. Killing some one who you
believe is killing someone else is also justifiable, though you will again have
to prove that you were acting to defend another human life. If you make a
mistake, you will pay a big price for it. After all, taking a life is serious
business.

>
> >> If you detain him, you better not
> >> touch him. Licensed security guards are only private
> >> citizens in the USA and only have the same
> >> "citizen's arrest" rights as you or I.
> >>
> >
> >Agreed on the last part. However, depending on the local laws, the guard
> >does have that right to not merely touch, but to physically restrain, just
> >as you do when someone enters your home.
>
> No, you are incorrect. The guard can still be sued or found
> criminally liable.

No, I am not incorrect. And again, you have lumped criminal and civil together.
Not only my own experiences 25 years ago - when the police were informed that I
had to physically pull a person back into the store and to my office - but just
a few weeks ago, a young man I know was arrested for shop lifting here in
Nebraska (five packs of cigarettes, about $15 in value) He was tackled, and
knocked to the ground, his arm pushed up his back and physically dragged back
into the store. The police were informed about this, by the store officials and
the thief. No criminal charges were lodged, except against the shoplifter. Why?
Because he refused to stop when verbally ordered to do so. I think the tackling
was a bit over the top (I never did it), but again, no criminal charges. Not
even a warning to the store officials. I know, I had to pick the young man up
and take him to his home. I talked to the cop, and the store people.

> The guard can observe and report the crime. A citizens
> arrest statute does not protect you from being sued or found liable.
>
> But all this is beside the point. For an infraction less than a
> misdemeanor even an on duty police officer cannot make an arrest.
> If a cop arrested you for jaywalking (you prove  that jaywalking
> is a misdemeanor anywhere, I don't give a ratzass ;o) that constitutes
> a false arrest. Cops can only issue citations for civil infractions.

Three errors: 1) that depends on the state. In PA *local* cops can't make
arrests for less than a misdemeanor. The state police can. And in California,
the lowest offense is a misdemeanor. So what can a cop there do? 2) It is only
false arrest if you are innocent of a violation (which, again, is why, 25 years
ago, I always gave the person I stopped a chance to tell me where they put the
merchandise that I saw them put in their purse/pants/pocket/blouse/etc. 3)
There aren't "civil infractions" in any of the states that I've lived in. There
are traffic and non traffic offenses. There are summary offenses. But I've
never heard of a civil infraction. Perhaps that's a Michigan term?

The point however, that we have traveled far from, is that it is a citizen's
duty to uphold the law. While it is true that recent Supreme Court decisions
have cut down some laws that demanded such, they did not remove the historical
fact that that is a moral obligation, and used to be a legal obligation. Nor
does it change the fact that our society is crumbling, in large part because no
one wants to be involved (they don't care, or they are afraid of being sued).
Since law enforcement can't be every where at all times, an apathetic citizenry
leads to a collapse of civilization. And that has historically lead to an
anarchy that usually lead to a dictator of some sort. Not that software piracy
will destroy our civilization, all by itself, but the lack of respect for the
rights of others (including the creators of that software) is part of that
slide.

Roy