Citizens arrest question

[Hector]

I have a union representative coming on my jobsite (5th floor of hi-rise, entire floor) trying to cause trouble. We are non-union. It's not a "card-call" or them trying to organize my labor, but he's just causing trouble because another union job is going on in the building and our job is 3x as big as the union project.

I have No Trespassing, No Soliciting, Private Property and "authorized personnel only" signs posted all over and video logged them.

He typically follows one of the subcontractors in a locked door and then starts asking a lot of questions (how much are you making, when is this project going to be complete, what are the sub's company names etc). I've kicked him out 3 times because he's creating a disturbance. The building manager and tenant liaison (also in the building) have been witness and assisted me in convincing him to leave the premises. He's quite feisty (6' 230 or so) and looks like a thug.

He always comes with another guy (backup? witness?) and has been trespassing 3x that I'm aware of now. Each time it has ended in a standoff/confrontation with him eventually leaving (threatened to call the police...police have been called...etc.). I won't lay a hand on him, of course.

He has called last night and said he'll be coming again and that I better "watch my back". This is why I filed the report.

I've filed a police report last night with the local PD (threats and trespass) and they say I need to make a citizen's arrest and call them when he comes in again. I have the incident report printed out if this happens.

Can I restrain him? or should I just photo him in the space and let the police follow up?


Note: Obviously, if he makes his move (physically towards me), I'll take defensive action only. I do have pepper spray, but there are no guns on my jobsite (that I'm aware of).

[The Director]

Oh, you can make a citizens arrest all day long, as long as it's a good arrest, and you know and can effectively communicate to him what he is being arrested for. Then, there's the ugly part - you might have to restrain him and use the appropriate force necessary to effect an arrest.

If the guy is baiting you, do you really think he's going to just stand by and let you arrest him?

You are opening yourself up to all kinds of civil liability personally without the immunity that a police officer has.

My advice to you is to hire a uniformed security guard to keep the riff raff out. BTW, I am not a cop, but I have taken PC832 and to be honest, even though I know the basic procedures, how to arrest and how to cuff and make it a good arrest, I would not touch your situation with a ten foot pole.

[Hector]

I'm with you on the liability. I don't plan to detain him at all. If he leaves, he leaves. If he stays, he gets the PD contact.

I'm just going to take his pic in the space and call the PD for another report. He'll probably run off like a little girl anyway.


It would be so much easier if he'd just take a swing at me. Oh well.

[Cpl. Haas]

837 - A private person may arrest another:

1. For a public offense committed or attempted in his presence.

2. When the person arrested has committed a felony, although not in his presence.

3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.

839 - Any person making an arrest may orally summon as many persons as he deems necessary to aid him therein.

841 - The person making the arrest must inform the person to be arrested of the intention to arrest him, of the cause of the arrest, and the authority to make it, except when the person making the arrest has reasonable cause to believe that the person to be arrested is actually engaged in the commission of or an attempt to commit an offense, or the person to be arrested is pursued immediately after its commission, or after an escape.

The person making the arrest must, on request of the person he is arresting, inform the latter of the offense for which he is being arrested.

846 - Any person making an arrest may take from the person arrested all offensive weapons which he may have about his person, and must deliver them to the magistrate before whom he is taken.

The above provides all the details for making a private person's arrest in California...

[CSDGuy]

While the above provides for all the details about making a private person's arrest in California, it also does NOT provide any civil suit immunity from making such an arrest. People that normally do a lot of private persons arrests... like security guards/loss prevention usually are indemnified by their employer, so the employee won't have to bear the costs of defending themselves in civil court.

[RickD427]

Hector,

I'm not an attorney, so consider all of the appropriate disclaimers, and comments about having stayed at a Holiday Inn having been made. I am responding to your question as 30+ year LEO.

My best advice is not to attempt a citizen's arrest. There are too many ways for it to turn out badly. Here's just a couple:

1) You're liable. False arrest is a common tort. So too, are assault and battery. If you lose the suit, it can be big bucks. Even if you successfully defend the suit, its still big bucks - you have to pay your attorney.

2) The previous poster gave a good summary of the law concerning private person's arrest. Please note the absence of a legal requirement for the arrested person to submit to the arrest and the lack of a statutory right to use force to effect the arrest (yes, the law does say that you can remove weapons - but it doesn't say how).

3) Many persons attempting a citizen's arrest have gone to jail for battery on the person they tried to arrest. This usually happens when there was physical contact, and there is some legal deficiency with the arrest. This often happens with the crime of "trespassing". Simply being somewhere that a property owner doesn't want you to be is not always a "trespass."

4) Where (3) is the case, a private person does have the right to defend himself against a battery.

I doubt that the situation you described is a trespass. Remember that California law does give labor representatives a great amount of access to private commercial and agricultural work sites, even to the extent that would be a "trespass" if done by other persons. Please check out Penal Code sections 601(c), 602(o) and 602.1(c)(1).

If the threat made against you is viable, you may wish to consider a restraining order. That would allow an enforcement avenue without the above issues.

You should also expect that a labor rep is going to be well-versed in the law, especially the special legal privileges that he enjoys as a labor rep. I would not be the least bit surprised if he does use that knowledge to bait you into taking ill-advised action that he can later exploit against you.

[Hector]

Hector,

I'm not an attorney, so consider all of the appropriate disclaimers, and comments about having stayed at a Holiday Inn having been made. I am responding to your question as 30+ year LEO.

My best advice is not to attempt a citizen's arrest. There are too many ways for it to turn out badly. Here's just a couple:

1) You're liable. False arrest is a common tort. So too, are assault and battery. If you lose the suit, it can be big bucks. Even if you successfully defend the suit, its still big bucks - you have to pay your attorney.

2) The previous poster gave a good summary of the law concerning private person's arrest. Please note the absence of a legal requirement for the arrested person to submit to the arrest and the lack of a statutory right to use force to effect the arrest (yes, the law does say that you can remove weapons - but it doesn't say how).

3) Many persons attempting a citizen's arrest have gone to jail for battery on the person they tried to arrest. This usually happens when there was physical contact, and there is some legal deficiency with the arrest. This often happens with the crime of "trespassing". Simply being somewhere that a property owner doesn't want you to be is not always a "trespass."

4) Where (3) is the case, a private person does have the right to defend himself against a battery.

I doubt that the situation you described is a trespass. Remember that California law does give labor representatives a great amount of access to private commercial and agricultural work sites, even to the extent that would be a "trespass" if done by other persons. Please check out Penal Code sections 601(c), 602(o) and 602.1(c)(1).

If the threat made against you is viable, you may wish to consider a restraining order. That would allow an enforcement avenue without the above issues.

You should also expect that a labor rep is going to be well-versed in the law, especially the special legal privileges that he enjoys as a labor rep. I would not be the least bit surprised if he does use that knowledge to bait you into taking ill-advised action that he can later exploit against you.

I agree completely with the above.

I also think he may be baiting me to do something stupid (seems that way)

I'm just going to call the cops if he comes. If he's still there when they arrive, they can kick him out. It's not worth the hassle.

20 years ago, I would have man-handled his arse out the door, but these days, it's just not worth it.

I can assure you he's not allowed in the space, though. It's an "occupied" private federal government suite and it's also restricted access (Marshall's clearance required for ID to get in). They're playing with fire with the IRS...but I sure feel like a chump for having to deal with them as a lowly civilian.

Sucks to follow the rules.

[Matt C]

http://www.upf.edu/iuslabor/012008/EEUUBarry.pdf

[yzErnie]

Many depts have a division (Labor Relations) that will help you with scenarios just like this one.

[eltee]

An effective tactic is to hire a private security officer / private investigator who is a retired PO (trust me). Have the company know what you are dealing with, what you are doing. The private security / PI company should have full insurance, so you are largely off the legal hook. Have someone with a video cam. When you approach the trespasser, have him filmed as you ask him politely to leave the property that you own/are in charge of. If he refuses, ask politely again and advise him that if he refuses to leave you will have him arrested for trespassing. If he attempts to continue his movement on-to / in-to your property, the guard/PI can do this trick we do by blocking his path. If the trespasser pushes through the guard/PI, you now have battery and trespassing...a much stronger case. The police should have been called by now, but the guard/PI/ex-cop will be able to conduct a physical arrest (as a private person) under the license and insurance of the private security company. A phone call to the DA by a former LEO turned private security officer/PI (there are lots of them) pulls alot more weight than from Joe Average...same applies in court.

Alternative, find out what union the interloper works for. Send a copy of the film of him being respectfully told that he is trespassing and should leave the property to the head of the union, not the local but the head office (often referred to as the "International."). Accompany the DVD disk, etc. of the encounter with a well written letter from you or your company lawyer advising the union HQ (International) that the "local" is violating the law with its attempts to trespass in their organizing efforts. A lawyer will probably cite alot of legal mumbo jumbo re. ULP (unfair labor practices), labor law violations, etc.

The other advice given in this thread should be considered. Working with the local PD labor relations unit, etc. is all good information. GOOD LUCK.

FYI, cop for 25 + years and a labor rep for about 15.

[Burbur]

http://www.upf.edu/iuslabor/012008/EEUUBarry.pdf

How does the National Labor Relations Act protect union reps, who don't rep any employees, and who illegitimately access a secure facility not open to the public?

I would hope it doesn't.

Re citizens arrest, not worth it. As a former bouncer/guard, you are better off kicking their butt in the alley than placing them under citizens arrest (not that I would recommend either)

[Munk]

If he shows again... Get the camera rolling, and have someone secretly call the cops on him, saying that someone has committed a B&E, criminal trespass, whatever the truth is, and is still currently on the property after having been repeatedly asked to leave.

There's always the restraining order, especially with your police report backup as documentation for continued harrassment.

Be sure to have him AND his buddy tagged.

[Hector]

Ive got an incident report now. If he shows up, I'll call the PD and hope he sticks around long enough to get arrested. Video camera is ready to roll...

Citizens arrest sounds like an invitation to get sued....


Thanks all

[The Director]

Citizens arrest sounds like an invitation to get sued....


Thanks all

Not necessarily. If you have a clear cut case of a misdemeanor or especially a felony committed in your presence, and you know the law and how to effect an arrest, it's quite a handy tool for us to have. Remember, we as citizens have greater powers of arrest than police officers. We can arrest in cases they simply cannot.

We lack the umbrella of immunity they get, and yes, you can be open to personal liability, but that should not stop you from trying to effect a citizens arrest if the crime committed is in your presence and obvious.

You're basically only holding them until the police arrive anyways.

Also note that the law used to be such that the investigating officer would have to take them no matter what, even if the arrest was iffy. Now, they have the power to "unarrest" the person right there on the spot and let him go free.

Again, your case is complicated, but if I witnessed a grand theft, rape, battery, etc....something more tangible, and it was within my power to do so, and relatively safe, I'd citizens arrest. All else, leave to cops.

Bottom line: Make sure you have your poop together before you attempt this.

[AJAX22]

I agree with the suggestion to hire private security (preferably off duty LEO's) and to make sure they are insured.

Don't get involved with unions, they are typically run by shady criminals and they know the system better than you do.

I would also look into contacting a lawyer ASAP and trying to get a TRO against him, his union and any of his workers to keep them off your job site.