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Attempted Abduction in Fairfax - Question on Use of Force

Jim Thorpe

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Not sure if you guys saw the attempted abduction today in Fairfax. In the incident, an unknown man attempted to pull a child from a vehicle at a 7-Eleven in Fairfax. The mother in the vehicle had her child by one arm, while the unknown man had the child by the other arm. It was clear, in this case, that the man did not know the child. The mother screamed, and another woman came and yelled at the man, and started to also pull the child away from the man. In the end, police came and the man was arrested. See here for story:
http://www.myfoxdc.com/dpp/news/vir...attempted-kidnapping-of-seven-year-old-061710

Use of force question.... If one were OCing or CCing, and they witnessed this scene, and demanded the man release the child, at one point could one draw weapon and force man to lie on ground? I would assume this case would warrant that.

Second question.... What if the man, who is not armed with any weapon, begins to move toward you as you have your weapon drawn? At this point, if you do not use your firearm, you risk having it used against you if you were to engage in a physical encounter. However, I am not sure whether this would warrant use of force with your weapon since he is unarmed. Obviously if he had a knife, your life would clearly be at risk. But that would not be the case here.
 

skidmark

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I'm not absolute on the statute and case law here, but will venture that abduction comes under the rubric of great bodily harm. Depending on the circumstances (lack of blood/marriage relationship) it might be possible to say that the fiction of a "reasonable person" would conclude that the abduction was for the purpose of sexual assault/defilement of a child, which dors allow the use of force up to lethal force to replel.

Given that one is allowed to use force to protect the life of an innocent other, then it appears that this might bea case where the application of lethal force would be allowed.

On the other hand, the question will always be raised if there were some other way of protecting the child. Pistolwhipping the guy might wind up as a case of brandishing, and is not recommended as a pistol makes a poor club. Quite possibly anything larger/heavier than an umbrella would be declared lethal force, and an umbrella like the one I carry (stout, heavy & has a long pointy part at the tip and is advertised/sold as a self-defense weapon rather than as an umbrella) certainly would.

Could you simply get between him and the child, or wrestle the child away from him?

But "and force man to lie on ground"?? Unless you want to go through the hell of dealing with a citizen's arrest which most likely will involve transporting the perp to a magistrate yourself, I'd avoid that.Holding him - at gunpoint or no -is abduction/ kidnap and you go from hero to felon. Follow him in a safe manner. Take pictures of him with your cellphone. Do what you can to ID him dor when the cops arrive.

As for the second part - once he lets go of the child I believe the legal "right" to the use of lethal force ends. Of he approaches with no obvious weapon in hand there is no threat of death or great bodily injury *barring very special circumstances).

As an aside: in my experience referring tothe Good Samaritanas "a Salvadoran woman" is code for undocumented illegal alien, as otherwise she would be merely "a woman". Strange that she was willing to intercede while several 6-foot+ males just stood around. Just sayin'. Also - who called the cops? Just wondering, as that was never revealed.

stay safe.
 

ProShooter

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I have to lean towards Skid's assessment. While there is no immediate clear cut sign of death or serious bodily injury, I believe that a judge and a reasonable jury of your peers would side with you in this case.

On a separate note, I'm awarding double points to Skidmark for the use of the word rubric. Well played, sir.
 

Glock27Bill

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I'm on the fence with this one.

Could be a pure family/custody issue.

I'd probably call the cops, take pics and try to be a good witness.

Unless there were violence involved. Then it depends...
 

45acpForMe

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I don't know why Skidmark is so skidish!

When it comes to my childrens safety I don't compromise.

In this case, if I was the one playing tug of war and OC-ing, my gun would have quickly been pointed at the perp and I probably would have issued one warning to let go before firing. I don't care if he is mentally "all there" or not, while he has contact with my child he is a threat.

If I was a bystander I would approach it very differently because I wouldn't know all the facts of whether it was a family argument or such.
 

NovaCop

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Jim Thorpe wrote:
Not sure if you guys saw the attempted abduction today in Fairfax. In the incident, an unknown man attempted to pull a child from a vehicle at a 7-Eleven in Fairfax. The mother in the vehicle had her child by one arm, while the unknown man had the child by the other arm. It was clear, in this case, that the man did not know the child. The mother screamed, and another woman came and yelled at the man, and started to also pull the child away from the man. In the end, police came and the man was arrested. See here for story:
http://www.myfoxdc.com/dpp/news/virginia/good-samaritan-foils-attempted-kidnapping-of-seven-year-old-061710

Use of force question.... If one were OCing or CCing, and they witnessed this scene, and demanded the man release the child, at one point could one draw weapon and force man to lie on ground? I would assume this case would warrant that.

Second question.... What if the man, who is not armed with any weapon, begins to move toward you as you have your weapon drawn? At this point, if you do not use your firearm, you risk having it used against you if you were to engage in a physical encounter. However, I am not sure whether this would warrant use of force with your weapon since he is unarmed. Obviously if he had a knife, your life would clearly be at risk. But that would not be the case here.
I don't think there is any clear cut answer to your question, I believe it would all depend on the many circumstances surrounding the incident. Just because someone is unarmed, you may be able to articulate that you had to shoot if there were reasons why you thought you would become a victim of a serious bodily injury or death.

The question will also come into play about why you pulled your weapon on an unarmed person initially. Example- you get into a mutual argument outside a restaurant and the guy squares up to fight you....you pull your gun... now fearing to be shot.. he lunges at the weapon and you shoot. I think in a case along those lines you would not be justified.

Either way, if you shoot an unarmed person, most likely you will be looking at having the court system determine the case, which is not only expensive on your end, but also extremely stressful and difficult as one would imagine.
 

skidmark

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45acpForMe wrote:
I don't know why Skidmark is so skidish!

When it comes to my childrens safety I don't compromise.

In this case, if I was the one playing tug of war and OC-ing, my gun would have quickly been pointed at the perp and I probably would have issued one warning to let go before firing. I don't care if he is mentally "all there" or not, while he has contact with my child he is a threat.

If I was a bystander I would approach it very differently because I wouldn't know all the facts of whether it was a family argument or such.

Because, as you say, if I was not there at the beginning and possessed all the facts it might be a domestic dispute or some such. Remember, the OP asked what the Rules of Engagement would be if you came upon the scence.

Also, while I am a lawyer I am not an attorney, and certainly not trying to be your attorney. Contrary to the belief of many lawyers one can give legal advice without being an attorney - but one cannot be paid for such advice unless an attorney. Just like a attorney I want to give you the best advice so that you can decide how to proceed. In order to do that I need to cover ground both pro and con various courses of action.

The OP posed a situation regarding abduction. See § 18.2-47. Abduction and kidnapping defined; punishment for the definition of a Class 5 Felony act. That could come around 180* to bite you if you held the perp at gunpoint while waiting for the cops to arrive.

You ought to be "skidish".

stay safe.
 

NovaCop

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Skid- Don't forget brandishing or perhaps felonious assault if you pointed your gun at him. Best be careful in situations that you insert yourself into and aren't sure of the facts.

If I was in that Walmart situation (not a LEO, but just a citizen carrying) I would have called 9-1-1, gave them the details, including suspect descriptions, but most importantly the tag number and vehicle description, and would attempt to follow the car at a reasonable distance while still talking to 9-1-1. If it was thought to be an abduction in progress, I'm sure all police units would have broke from calls and have gone priority to that location.

Now being a LEO, I would have called 9-1-1 and requested backup priority while giving them the tag and vehicle description. I would have interdicted myself into the situation at first, without identifying myself as a LEO but just as someone concerned for the girl. I would not draw a weapon because that may escalate things too quickly or allow them to see I had one. I would only identify myself as a LEO if they weren't responding to my inquests and only draw my gun if I established it was an abduction in progress, believed they were armed, or they began to advance on me. Hopefully by that time, I would have some friends arriving on scene.

Side note- When a car is run with VA tags..the VA DMV does not include the "model" of the vehicle, just the make...so it's always helpful to get the model as well. Hopefully someday they will change that.
 

Jim Thorpe

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skidmark wrote:
I'm not absolute on the statute and case law here, but will venture that abduction comes under the rubric of great bodily harm. Depending on the circumstances (lack of blood/marriage relationship) it might be possible to say that the fiction of a "reasonable person" would conclude that the abduction was for the purpose of sexual assault/defilement of a child, which dors allow the use of force up to lethal force to replel.

Given that one is allowed to use force to protect the life of an innocent other, then it appears that this might bea case where the application of lethal force would be allowed.

On the other hand, the question will always be raised if there were some other way of protecting the child. Pistolwhipping the guy might wind up as a case of brandishing, and is not recommended as a pistol makes a poor club. Quite possibly anything larger/heavier than an umbrella would be declared lethal force, and an umbrella like the one I carry (stout, heavy & has a long pointy part at the tip and is advertised/sold as a self-defense weapon rather than as an umbrella) certainly would.

Could you simply get between him and the child, or wrestle the child away from him?

But "and force man to lie on ground"?? Unless you want to go through the hell of dealing with a citizen's arrest which most likely will involve transporting the perp to a magistrate yourself, I'd avoid that.Holding him - at gunpoint or no -is abduction/ kidnap and you go from hero to felon. Follow him in a safe manner. Take pictures of him with your cellphone. Do what you can to ID him dor when the cops arrive.

As for the second part - once he lets go of the child I believe the legal "right" to the use of lethal force ends. Of he approaches with no obvious weapon in hand there is no threat of death or great bodily injury *barring very special circumstances).

As an aside: in my experience referring tothe Good Samaritanas "a Salvadoran woman" is code for undocumented illegal alien, as otherwise she would be merely "a woman". Strange that she was willing to intercede while several 6-foot+ males just stood around. Just sayin'. Also - who called the cops? Just wondering, as that was never revealed.

stay safe.
Thanks for all the responses everyone.... So couple of more points here:

1. The problem with carrying at all, is that if you get into a physical altercation, you are much more at risk than if you were unarmed (that is, if all it will ever be is a fistfight). If your assailant discovers you have a weapon while grappling, he could pull it on you in a bad scenario. This causes me to be extra careful with staying out of conflict when I am carrying because the last thing I want is to have to fight someone. I would never draw my weapon on someone who wanted to get into an old fashioned fist fight. Therefore, you have to avoid conflict.

This case, however, is different, because you are clearly witnessing a felony -- a kidnapping of a child. I state "clearly" because the reason I have used this example is that it was clear to everyone that this was a kidnapping and NOT a family incident. To put it bluntly, you have a white woman pulling the arm of her white child, while on the other side you have an older, black male pulling on the child while the woman is screaming on the top of her lungs for help.

2. Second, regarding forcing the subject to the ground.... In this context, Fairfax, VA, you are looking a suburb of Washington DC, one of the heaviest policed locations in the country. One would not need to take the perp anywhere. The reaction time of police here is probably less than five minutes.

I see your point about stopping the threat and then letting the perp go... But I cannot imagine in a case such as this (and it always depends on the case) that you would be charged with kidnapping yourself! The interesting thing is that you could clearly physically detain the perp WITHOUT a firearm and with help from other bystanders -- and you would never be charged for a crime in this case. So I wonder.

3. I mentioned this before, but the biggest problem with drawing your weapon is if an unarmed threat moves toward you to engage you physically. If he has no weapon, it is not a good situation. Pistol whip? If you are 5'10 or 6', and the perp is 6'4 and 240 pounds, give me a break. I will be running as fast as I can in the opposite direction before I try to pistol whip him and RISK losing my weapon and getting shot myself. Then the perp tells the authorities that it was self defense and that I was some sort of nutjob.

No, the only reason I would ever actually engage anyone physically with my firearm is if I am prepared to shoot. And that's the problem.
 

wylde007

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A good reason to have an efficient draw.

I might not draw-down on the guy but I would keep a safe distance and a safe reach of my sidearm. One false move in my direction indicates an imminent threat and justification for preemptive defense.

That some people are so bold they will attempt this kind of crap in broad daylight leads me to believe that they are already unstable, whether it is a legitimate case of abduction or a family conflict.

Either way, violence towards an innocent (child) in such instances is never justifiable. Never. Children are not emotional tools and they are not chips to be bargained with or for.

Enough damage is done to their fragile psyches by television and government skrewls without subjecting them to the further aggravation and distress of parental estrangement.
 

gis

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There are too many variable in real life, unlike in made up scenarios. In my prior LE life I have come across the "abduction" scenarios. In 99% (if not 100%) of thecases they were domestics. When one parent is trying to retreive a child from another uncooperative parent, whether doing so legally or illegally, it looks about the same. I had parents with judge's signed court orders trying to take kids, which ended up looking similar to this. I remember one father trying to catch up to a mentally ill mother who actually kidnaped the child trying to snatch him back at a traffic light. Not smart, but not a kidnapping either.

All in all, whether you are a civilian or a cop walking into this situation, you don't know who is who and what their rights and intentions are. The best you can do is diffuse the situation. If you are a cop, you get IDs, run people, see who is who, get backup, and try to make sense of the stories, if noone is clealrly at fault. If you are a civilian, you don't have the same authority, but you can do your best to get people to stop and talk to you. Of course, get the authorities there ASAP. And, yes, do remember the plates involved and vehicle/people details, which may be hard under sstress.

As far as use of force, drawing your weapon usually doesn't help as a behavior modification technique. I learned that early on in my career. As far as I am concerned, unless you can articulate danger of great bodily harm to yourself or the child (in which case you should actually shoot the perp), waving you gun around is bad for you both legally and tactically. I learned this myself on the job and tell people that if they want to be effective in situations like this, they need to learn CQB fighting, which more times than not means using your hands effectively. If you are carrying a tazer, OC, etc., those may help, but your firearm, open or concealed is the last resort for a very limited set of circumstances. As a civilian, of course, you don't have an obligation to intervene, so it's your decision in the end.
 

wylde007

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gis wrote:
As a civilian, of course, you don't have an obligation to intervene, so it's your decision in the end.
The supreme court has said, in as many words, that as an enforcer, the police have no obligation to intervene.

Or something like that.:(
 

Jim Thorpe

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gis wrote:
There are too many variable in real life, unlike in made up scenarios. In my prior LE life I have come across the "abduction" scenarios. In 99% (if not 100%) of thecases they were domestics. When one parent is trying to retreive a child from another uncooperative parent, whether doing so legally or illegally, it looks about the same. I had parents with judge's signed court orders trying to take kids, which ended up looking similar to this. I remember one father trying to catch up to a mentally ill mother who actually kidnaped the child trying to snatch him back at a traffic light. Not smart, but not a kidnapping either.

All in all, whether you are a civilian or a cop walking into this situation, you don't know who is who and what their rights and intentions are. The best you can do is diffuse the situation. If you are a cop, you get IDs, run people, see who is who, get backup, and try to make sense of the stories, if noone is clealrly at fault. If you are a civilian, you don't have the same authority, but you can do your best to get people to stop and talk to you. Of course, get the authorities there ASAP. And, yes, do remember the plates involved and vehicle/people details, which may be hard under sstress.

As far as use of force, drawing your weapon usually doesn't help as a behavior modification technique. I learned that early on in my career. As far as I am concerned, unless you can articulate danger of great bodily harm to yourself or the child (in which case you should actually shoot the perp), waving you gun around is bad for you both legally and tactically. I learned this myself on the job and tell people that if they want to be effective in situations like this, they need to learn CQB fighting, which more times than not means using your hands effectively. If you are carrying a tazer, OC, etc., those may help, but your firearm, open or concealed is the last resort for a very limited set of circumstances. As a civilian, of course, you don't have an obligation to intervene, so it's your decision in the end.
Great comments...
 

skidmark

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Jim Thorpe wrote:
Thanks for all the responses everyone.... So couple of more points here:

1. The problem with carrying at all, is that if you get into a physical altercation, you are much more at risk than if you were unarmed (that is, if all it will ever be is a fistfight). If your assailant discovers you have a weapon while grappling, he could pull it on you in a bad scenario. This causes me to be extra careful with staying out of conflict when I am carrying because the last thing I want is to have to fight someone. I would never draw my weapon on someone who wanted to get into an old fashioned fist fight. Therefore, you have to avoid conflict.
Can you cite an incident? The call for a valid incident citation is now many years old, and nobody has won the prize yet.

This case, however, is different, because you are clearly witnessing a felony -- a kidnapping of a child. I state "clearly" because the reason I have used this example is that it was clear to everyone that this was a kidnapping and NOT a family incident. To put it bluntly, you have a white woman pulling the arm of her white child, while on the other side you have an older, black male pulling on the child while the woman is screaming on the top of her lungs for help.
There is no provision under law for a citizen to use deadly force to stop a felony in progress.

2. Second, regarding forcing the subject to the ground.... In this context, Fairfax, VA, you are looking a suburb of Washington DC, one of the heaviest policed locations in the country. One would not need to take the perp anywhere. The reaction time of police here is probably less than five minutes.
The cops have no obligation to transport the subject of a citizen's arrest. They risk liability if the citizen screwed up, so actuallyrefuse to transport.

I see your point about stopping the threat and then letting the perp go... But I cannot imagine in a case such as this (and it always depends on the case) that you would be charged with kidnapping yourself! The interesting thing is that you could clearly physically detain the perp WITHOUT a firearm and with help from other bystanders -- and you would never be charged for a crime in this case. So I wonder.
I cited the law. How you interpret it, how someone else interprets it, and how the court at your trial interpret it are 3 separate matters.

3. I mentioned this before, but the biggest problem with drawing your weapon is if an unarmed threat moves toward you to engage you physically. If he has no weapon, it is not a good situation. Pistol whip? If you are 5'10 or 6', and the perp is 6'4 and 240 pounds, give me a break. I will be running as fast as I can in the opposite direction before I try to pistol whip him and RISK losing my weapon and getting shot myself. Then the perp tells the authorities that it was self defense and that I was some sort of nutjob.

No, the only reason I would ever actually engage anyone physically with my firearm is if I am prepared to shoot. And that's the problem.

stay safe.

edited for spelling
 

ChinChin

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Given the case as described; and as a 3rd party who doesn't know the full situation at the time; it would be my opinion that pulling out your firearm is not lawful. There is no immediate threat of grievous bodily injury or death to the child nor to the adults. This could simply be a father who is in a child custody dispute with the mother and the two are hashing it out in the parking lot. At the time one has no true way of knowing; and pulling your gun in that situation, while well intentioned could land you in the klink.

Now what *I* would do in that situation would be to issue one loud and commanding verbal warning to the male to let the child go and step away. Failure to comply with that would have him winning a punch to the face; with consolation prizes of continued punches if he didn't back off. If it was an issue of parental custody, I'll gamble with those charges more than I would with an ADW charge by pointing my firearm. Now if he comes at *me*; he'll be told I'm armed and if he continues he'll be given a face full of Sabre CS. Yes I would be the primary aggressor it that one; but again minus any immediate demonstration of action which would result in grievous bodily injury and/or death. . .introducing a firearm into the mix is just a bad idea.
 

AbNo

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skidmark wrote:
....it might be possible to say that the fiction of a "reasonable person" would conclude that the abduction was for the purpose of sexual assault/defilement of a child, which dors allow the use of force up to lethal force to replel.
ProShooter wrote:
I have to lean towards Skid's assessment. While there is no immediate clear cut sign of death or serious bodily injury, I believe that a judge and a reasonable jury of your peers would side with you in this case.
I agree. Any lawyer worth his salt would make Skid's argument as well. I sure as well would on my own behalf if the lawyer didn't.

On a separate note, I'm awarding double points to Skidmark for the use of the word rubric. Well played, sir.

Yeah, he does that. Even at Bass Pro Shop. :p
 

W.E.G.

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You think this guy had a record?

barbour1.jpg

barbour2.jpg

barbour3.jpg

barbour4.jpg
 

skidmark

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W.E.G. wrote:
You think this guy had a record?
So what's your point? That's not a record of violence, to be sure. If anything, it's a record that he's a PITA to folks who would just rather not have to have any dealings with him and tried to use the legal/judicial system instead of any other way of dealing with him.

Andwhilesome keyboard commandos were just itching to pull they irons and shoot him, this just reinforces the considered opinions of some othersthat the use of lethal force is going to be a difficult sell given the totality of circumstances.

Had you come up with a record of felonious assualt & batteries, sexual assaults, abductions, contributing to the delinquiency of minors related to all those other charges - then I might agree that his record has some bearing. BUT ONLY IF a person witnessing the instant event was aware of his criminal record as suggested in this paragraph. Without actual knowledge of such a record, its existence is meaningless until criminal sentencing.

stay safe.
 
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