Spokane Church & Action Training Group: Use of Force to Detain

On June 5, 2017, several members of the Action Training Group, Inc. met at Genesis Church in Spokane to discuss church security, use of force to detain and citizen’s arrest laws for church safety teams in Washington state. Rustin Rathbun, presented the information for the Genesis Safety Team and the ATG. A good discussion of Washington law followed. We had some very informative discussion as to when Church Safety teams are permitted by law to detain individuals who commit crimes on church premises.

The following points are from my notes and include several conclusions reached by my own independent research and conclusions. The conclusions herein are my own and should not be construed as legal advice. The facts of each specific situation dictate a very wide range of different legal outcomes.

The starting point for church safety teams is that even though a team of volunteers is not licensed to perform professional security operations, the church itself comes under the laws that pertain to shopkeepers.

Church Team Defense Against Civil Actions. Washington law does not specifically provide for citizens arrest but has statutes specifically granting civil and criminal immunity from liability to owners and authorized employees of mercantile establishments in actions arising from the reasonable detention of suspected shoplifters. See RCW 4.24.220:

Action for being detained on mercantile establishment premises for investigation—”Reasonable grounds” as defense.

In any civil action brought by reason of any person having been detained on or in the immediate vicinity of the premises of a mercantile establishment for the purpose of investigation or questioning as to the ownership of any merchandise, it shall be a defense of such action that the person was detained in a reasonable manner and for not more than a reasonable time to permit such investigation or questioning by a peace officer or by the owner of the mercantile establishment, his or her authorized employee or agent, and that such peace officer, owner, employee, or agent had reasonable grounds to believe that the person so detained was committing or attempting to commit larceny or shoplifting on such premises of such merchandise. As used in this section, “reasonable grounds” shall include, but not be limited to, knowledge that a person has concealed possession of unpurchased merchandise of a mercantile establishment, and a “reasonable time” shall mean the time necessary to permit the person detained to make a statement or to refuse to make a statement, and the time necessary to examine employees and records of the mercantile establishment relative to the ownership of the merchandise.

Church Team Defense Against Criminal Actions. RCW 9A.16.080 pertains to a shopkeeper’s defense against criminal actions for detaining a suspected shoplifter:

Action for being detained on mercantile establishment premises for investigation—”Reasonable grounds” as defense.

In any criminal action brought by reason of any person having been detained on or in the immediate vicinity of the premises of a mercantile establishment for the purpose of investigation or questioning as to the ownership of any merchandise, it shall be a defense of such action that the person was detained in a reasonable manner and for not more than a reasonable time to permit such investigation or questioning by a peace officer, by the owner of the mercantile establishment, or by the owner’s authorized employee or agent, and that such peace officer, owner, employee, or agent had reasonable grounds to believe that the person so detained was committing or attempting to commit theft or shoplifting on such premises of such merchandise. As used in this section, “reasonable grounds” shall include, but not be limited to, knowledge that a person has concealed possession of unpurchased merchandise of a mercantile establishment, and a “reasonable time” shall mean the time necessary to permit the person detained to make a statement or to refuse to make a statement, and the time necessary to examine employees and records of the mercantile establishment relative to the ownership of the merchandise.

In the case of State v. Gonzales, a shoplifter displayed a knife. He was later arrested by police and charged with assault while armed and possessing stolen goods. Robert Walter Gonzales appealed his convictions for assault in the second degree while armed with a deadly weapon and possession of stolen property in the third degree. The court affirmed his convictions. State v. Gonzales, 24 Wn. App. 437, 439, 604 P.2d 168 (1979).

Law Enforcement Arrest Powers. Police officers are limited in their power to make arrests without a warrant. RCW 10.31.100 provides in part:

Arrest without warrant.

A police officer having probable cause to believe that a person has committed or is committing a felony shall have the authority to arrest the person without a warrant. A police officer may arrest a person without a warrant for committing a misdemeanor or gross misdemeanor only when the offense is committed in the presence of an officer, except as provided in subsections (1) through (12) of this section.
(1) Any police officer having probable cause to believe that a person has committed or is committing a misdemeanor or gross misdemeanor, involving physical harm or threats of harm to any person or property or the unlawful taking of property or involving the use or possession of cannabis, or involving the acquisition, possession, or consumption of alcohol by a person under the age of twenty-one years under RCW 66.44.270, or involving criminal trespass under RCW 9A.52.070 or 9A.52.080, shall have the authority to arrest the person.

Dual Standard- Use of Deadly Force. Law enforcement officers are limited in their ability to detain and in their use of force. It should be noted that the use of deadly force can be more limited for LEOs than for non-law enforcement personnel. According to the legislative recognition provided under Washington’s use of deadly force by public officers statute:

“The legislature recognizes that RCW 9A.16.040 establishes a dual standard with respect to the use of deadly force by peace officers and private citizens, and further recognizes that private citizens’ permissible use of deadly force under the authority of RCW 9.01.200, 9A.16.020, or 9A.16.050 is not restricted and remains broader than the limitations imposed on peace officers.” [ 1986 c 209 § 3.]

Use of force—When lawful. Any use of force by a citizen is governed by RCW 9A.16.020. The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases:

(1) Whenever necessarily used by a public officer in the performance of a legal duty, or a person assisting the officer and acting under the officer’s direction;
(2) Whenever necessarily used by a person arresting one who has committed a felony and delivering him or her to a public officer competent to receive him or her into custody;
(3) Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary;
(4) Whenever reasonably used by a person to detain someone who enters or remains unlawfully in a building or on real property lawfully in the possession of such person, so long as such detention is reasonable in duration and manner to investigate the reason for the detained person’s presence on the premises, and so long as the premises in question did not reasonably appear to be intended to be open to members of the public;
(5) Whenever used by a carrier of passengers or the carrier’s authorized agent or servant, or other person assisting them at their request in expelling from a carriage, railway car, vessel, or other vehicle, a passenger who refuses to obey a lawful and reasonable regulation prescribed for the conduct of passengers, if such vehicle has first been stopped and the force used is not more than is necessary to expel the offender with reasonable regard to the offender’s personal safety;
(6) Whenever used by any person to prevent a mentally ill, mentally incompetent, or mentally disabled person from committing an act dangerous to any person, or in enforcing necessary restraint for the protection or restoration to health of the person, during such period only as is necessary to obtain legal authority for the restraint or custody of the person.

Common Law Applicable. RCW 9A.04.060 provides that the common law is applicable where not repugnant to the provisions of the state constitution or statutes:

Common law to supplement statute.
The provisions of the common law relating to the commission of crime and the punishment thereof, insofar as not inconsistent with the Constitution and statutes of this state, shall supplement all penal statutes of this state and all persons offending against the same shall be tried in the courts of this state having jurisdiction of the offense.

Thus, while no statute grants church personnel the authority to arrest those who commit felonies or other crimes on church premises, criminal and civil statutes provide a defense for store owners who reasonably detain a person to investigate shoplifting where they have probable cause. RCW 9 A. 16.080;[1] RCW 4.24.220.

In addition, RCW 9 A. 04.060 provides that the common law is applicable where not repugnant to the state constitution or statutes. The affirmative right to detain shoplifters derives from the common law right of citizen arrest. State v. Gonzales, 24 Wn. App. 437, 604 P.2d 168 (1979), review denied, 93 Wn.2d 1028 (1980).

Church Safety Personnel- Use of Force. A church safety team may detain a suspect without force even absent a breach of the peace, consistent with the grant of civil and criminal immunity from liability to owners and authorized employees of mercantile establishments. RCW 9 A. 16.080 and RCW 4.24.220.

Use of Force Permitted- Felonies & Some Misdemeanors. No statutory authority to use force at the initial detention is granted unless a felony has been committed. See RCW 9 A. 16.020(2). Nevertheless, under common law such authority is found. “Since relatively few arrests are with the consent of the criminal, the authority to make the arrest, whether it be with or without a warrant, must necessarily carry with it the privilege of using all reasonable force to effect it. Whether the force used is reasonable is a question of fact, to be determined in the light of the circumstances of each particular case.” See State v. Miller, 103 Wn.2d 792, 795, 698 P.2d 554 (1985); See also W. Prosser, Torts § 26, at 137 (3d ed. 1964). Accord, R. Perkins & R. Boyce, Criminal Law 1156 (3d ed. 1982); W. LaFave & A. Scott, Criminal Law 399-400 (1972).

According to the Washington State Department of Licensing Summary of Citizen Arrest dated October 11, 2005, a private person can make a Citizen’s Arrest in Washington State under Washington law. A private person can conduct a citizen’s arrest for a misdemeanor if the misdemeanor:

(1) was committed in the citizen’s presence and (2) constituted a breach of the peace. State v. Gonzales, 24 Wn. App. 437, 439, 604 P.2d 168 (1979); Guijosa v. Wal-Mart Stores, 101 Wn. App. 777, 791, 6 P.3d 583 (2000).

ARREST – FOR MISDEMEANOR – BY CITIZEN, OFFICER. In connection with the general question, the Washington Attorney General’s office, in an opinion dated December 27, 1927, to the director of health (1927-28 AGO 427), stated that:

“. . . If a crime is actually being committed in one’s presence, a person, whether he be a peace officer or not, has the power to arrest without warrant. . . .”
Later, in an opinion dated July 31, 1928, to the chief of the highway patrol (1927-28 AGO 867), it was said that:
“. . . every citizen has the right to arrest any person [[Orig. Op. Page 4]] whom he actually observes in the act of committing a misdemeanor. . . .”
In 4 Am.Jur., Arrest, § 35, it is said that:
“While the authority of a private person to arrest is more limited than that of an officer, in general it may be said that a private person may arrest an offender against criminal laws where the offense is committed in his presence; . . .”
4 Am.Jur. § 38 states as follows:
“. . . a private person may arrest for an affray or breach of the peace committed in his presence, and while it is continuing, but not for a misdemeanor on suspicion, regardless of how well it is grounded. . . .”
The same authority exists for a private person to make an arrest as an officer for misdemeanor committed in his presence, under the common law. In this state, it has been held that the right of an officer to make an arrest without a warrant exists even though the misdemeanor committed in his presence be not a breach of the peace. (State v. Deitz, 136 Wash. 228.) Also, cf. State v. Olsen, 43 Wn. (2d) 726. A private person, if the arrest by him be lawful, is accorded the same right and privileges as officers in accomplishing the purpose. Smith v. Drew, 175 Wash. 11. see AGO Opinion 1957 No. 35 – dated Mar 19 1957.

Display of a Weapon Permitted- Place of Abode or Fixed Place of Business. RCW 9.41.270 (c) provides an absolute defense for displaying a weapon while in your home or fixed place of business. Thus, a church safety team armed with the permission of the church board will normally be immune to the criminal charge of Displaying a Weapon if a member of the team draws a firearm and holds a person at low-ready without pointing it- even if it turns out the person in question did not present a threat of unlawful force. The cases dictate that such an absolute immunity only exists within the walls of the fixed place of business. Thus, the defense disappears at an outdoor church event or even in the church parking lot.

Pointing the weapon constitutes an assault and requires a threat of death or grave bodily harm. RCW 9.41.270, the Display With Intent statute, states as follows:

Weapons apparently capable of producing bodily harm—Unlawful carrying or handling—Penalty—Exceptions.
(1) It shall be unlawful for any person to carry, exhibit, display, or draw any firearm, dagger, sword, knife or other cutting or stabbing instrument, club, or any other weapon apparently capable of producing bodily harm, in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons.
(2) Any person violating the provisions of subsection (1) above shall be guilty of a gross misdemeanor. If any person is convicted of a violation of subsection (1) of this section, the person shall lose his or her concealed pistol license, if any. The court shall send notice of the revocation to the department of licensing, and the city, town, or county which issued the license.
(3) Subsection (1) of this section shall not apply to or affect the following:
(a) Any act committed by a person while in his or her place of abode or fixed place of business;
(b) Any person who by virtue of his or her office or public employment is vested by law with a duty to preserve public safety, maintain public order, or to make arrests for offenses, while in the performance of such duty;
(c) Any person acting for the purpose of protecting himself or herself against the use of presently threatened unlawful force by another, or for the purpose of protecting another against the use of such unlawful force by a third person;
(d) Any person making or assisting in making a lawful arrest for the commission of a felony; or
(e) Any person engaged in military activities sponsored by the federal or state governments.

Exception for Fixed Place of Business. Case law precedent unequivocally provides an exemption for Washington business owners and those granted permission by the owner who display a weapon while inside business premises but not in the parking lot or other areas outside the fixed place of business. Outside the walls of your home or church, the law requires a threat of unlawful force. The level of force to be protected against does not need to be deadly force, however. Nevertheless, no church wants a Safety Team member brandishing weapons unless there is a very good reason for a weapon to be drawn and displayed. Civil liability can result from inappropriately intimidating anyone with a weapon regardless of the location.

Low-Ready Position. It is important when training team members to identify ambiguous situations that could be defused more safely with a weapon displayed by holding in the low-ready position for rapid deployment. The point here is to emphasis that going to low ready while inside the church building exposes a team and your church to much less liability than pointing a weapon at a person who is threatening to use force.

Unless you actually intend to discharge the weapon and shoot a person that presents deadly force, the general rule is that firearms should remain holstered. On the other hand, Paragraph (c) above provides a qualified immunity from brandishing charges for any person when acting for the purpose of protecting himself or herself against the use of presently threatened unlawful force by another, or for the purpose of protecting another against the use of such unlawful force by a third person.”

Fleeing Felon. The common law provides that certain inherently violent crimes justify shooting a fleeing felon. Shooting a fleeing suspect is normally not advisable. However, in circumstances where the police will not be able to easily apprehend the perpetrator and where you have actually witnessed the egregious felony, failure to stop the fleeing felon may lead to further threats of violence. Such circumstances could involve terrorism, rioting or civil unrest or a burglary with an evident intent to commit a violent crime within (think suicide vest in this context). Mayhem, deadly assault, arson of an occupied building, armed robbery & kidnappings by those who are not family members in a custody dispute are also egregious felonies.

Under federal case law for law enforcement officers, SCOTUS ruled that stopping a fleeing felon is limited to non-lethal force in most cases. Tennessee v. Garner, 471 U.S. 1 (1985). Dangerous felons, however, are subject to being shot in the back. The fact that precedent exists allowing for use of deadly force against a fleeing felon does not justify a church safety team taking the shot except in very unusual circumstances. The U.S. Supreme Court held in Tennessee v. Garner that LEOs may not use deadly force “unless necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious bodily harm to the officer or others.” Thus, many deadly assaults in which use of deadly force is justified do not justify shooting the fleeing perpetrator even when the assault occurs in the presence of the officer. Despite the above referenced dual standard that states that officers are more limited in their use of force than armed citizens, it is unlikely that a church safety team will be treated with greater latitude by the courts.

Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.
— Justice Byron White, Tennessee v. Garner

Conclusions.Detaining an individual for a reasonable amount of time is a serious matter in which church safety teams need professional training. The amount of time reasonable for detaining a suspect depends on many factors. Any display of a weapon should normally be limited to situations in which deadly force is anticipated. Efforts to defuse violent situations should be undertaken before the potential for violence develops. Presenting a firearm in the low-ready position involves less potential liability once there is a threat of unlawful force.

In most cases, a suspected felon who runs away should be left for law enforcement. The exception is where egregiously violent felonies are committed or attempted and imminent danger to the public will continue if the perpetrator remains at large.