While best intentions might spur an armed citizen into action, the potential legal ramifications of trying to stop a crime in progress should give the good Samaritan pause.
On January 30 of this year, 45-year-old Nya Reyes was arrested for aggravated assault when (according to news reports) she allegedly shot at a fleeing shoplifter, missing the shoplifter and hitting an innocent bystander. This occurred outside an Ace Hardware store, in Phoenix, Arizona. Fortunately, the bystander, an Ace Hardware employee who was chasing the shoplifter at the time, wasn’t seriously wounded, so instead of being arrested for murder or manslaughter, she was only arrested for aggravated assault.
As the outcome of the case is still pending and we don’t know all the facts, an examination of her specific actions wouldn’t be prudent, but we should look at the legal ramifications of trying to stop a crime in progress.
Know Your Rights:
- Carry Law: What Is A Righteous Shooting?
- Concealed Carry and the Right to Remain Silent
- Tips For Communicating With Police After Shootings
- Concealed Carry: After the Shooting
- Q&A: Massad Ayoob On Self-Defense In 2020 America
Deadly Force And A Crime In Progress
Generally speaking, the use of deadly force (shooting at another) is only justified to protect innocent life. A person must possess sufficient facts that would lead a reasonable person to believe that absent the action by the shooter, an innocent life would be endangered. When I say “innocent life,” that means anyone the shooter might be protecting couldn’t have started the altercation, or otherwise participated in a criminal act.
While there’s sympathy for the person who loses a valuable object to a thief, American courts universally don’t condone stopping that theft with deadly force. The anomalous exception is the State of Texas, which allows the use of deadly force to stop property crimes under a very narrow set of circumstances. The Texas reader should get with an attorney to go through this facet of Texas law.
Otherwise, just because someone cannot use deadly force to stop an escaping thief, it doesn’t mean they have to simply say sayonara to their property.
Again, depending on the jurisdiction but much more likely justified, is the right to make a “citizens’ arrest.” And the law gives that person the ability to use “reasonable force” when making the arrest, which in practical terms means holding the person for the police. When a person confronts a burglar in their home, they can hold the suspect at gunpoint awaiting the police. In public, the person might (check your local laws) be able to draw their gun to request compliance (as cops do in many circumstances) but if the person flees, they cannot shoot.
What they could do is use non-deadly force to stop the escape, but only the amount of force a jury would conclude was reasonable? Confused yet? I know, it’s complicated.
This is why most police recommend simply allowing the individual to leave and becoming the best witness for the police.
Personal Perspective On Intervention
Which brings me to an incident that happened to me a few years ago, and which was remarkably similar to the incident in question. I was leaving a large hardware/lumber store in my city, when I heard a screech of tires behind me. I turned and saw a person run from the store with a hand tool in a case, throw the tool in the back of the pickup, climb in the truck and speed off.
I assumed the store would be contacting the police concerning the crime, so I jumped in my truck to follow and track the thieves, calling into the police. As the guys quickly left me in the dust (I wasn’t going to break the law to follow), I then decided to just head to the police department and give them a good description of the truck. Upon making the report to police, I found the store didn’t even bother to report the theft! This raises the question, is it worth getting involved in a third-party theft?
One place where you might want to get involved in attempting to stop an escaping criminal, even to the possibility of using deadly force, is if that criminal killed someone in front of your eyes and, without your intervention, he would likely escape. Of course, if he were close enough for you to shoot him, you would likely be able to reasonably claim that your life was also in danger, as would be the case inside a store during an armed robbery and then witnessing the murder of the clerk.
Another scenario would be if you came upon an active shooter incident, where you see the individual killing innocents. While the shooting might be difficult for someone of basic skill using one of the small compact concealed carry guns, a person with advanced skill and a full-sized handgun would have a reasonably likely chance of stopping the escape of the mass killer and/or stopping the killing rampage.
A last incident where intervening with deadly force to protect a third party would be if you happened to come across a uniformed police officer struggling with more people assaulting that police officer. The history of police being assaulted is rife with examples of the officer being disarmed and killed with their own weapon.
When I pass a law enforcement officer on a roadside traffic stop, I routinely slow way down to get my eyes on the cop, making sure he or she is OK. Of course, if you do the same and the cop is in a life-threatening encounter, be sure to ask the police officer if he or she needs assistance before you draw your gun. Otherwise, you might just be mistaken for another armed criminal at the very moment the cop wins the fight with the first one. You can imagine what could happen.
Touchy stuff. The more skill you have with your firearm and the more training you have in the legalities of use of force, the easier these decisions would be. But in all cases, the use of deadly force to stop a shoplifting in progress wouldn’t be a wise move.
Editor's Note: This article originally appeared in the April 2021 issue of Gun Digest the Magazine.
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