16 year old brother arrested for stealing cigarrettes

[Buster86]

What is the name of your state? New York

Well I came home tonight to find out that my 16 year old brother had been arrested for stealing a pack of cigarrettes from a local gas store.

My question concerns the actions of one of the stores employees, according to my brother a Hispanic male in his 20s that is an employee of the store came after my brother as he was leaving and grabbed his shirt and started throwing my brother around, so hard that his shirt ripped. He then threatened my brother who was with his friends, they threatened him in return and then left in a car. They were soon pulled over and my brother was the only one arrested.

My brother asked if he could press charges against the Hispanic for touching him and the cops laughed at him and said no, he had every right to do what he did because it was a citizens arrest.

Is this true? First of all my brother is only 16, second of all he is over 18, and third it seems the amount of physical force he used was rather excessive.

As far as my brother goes, well he is telling my parents when they get up tomorrow, so we will see if they will get him a lawyer or not.

 

[JETX]

My brother asked if he could press charges against the Hispanic for touching him and the cops laughed at him and said no, he had every right to do what he did because it was a citizens arrest.

Is this true?

The OWNER of the property (or in this case, their agent the employee) has every legal right to take REASONABLE actions to protect THEIR property from being stolen by some scumbag.
Whether this was excessive or not is entirely up to the investigation based on the evidence. He can certainly file a charge, but based on your post, I doubt it would go anywhere.

First of all my brother is only 16, second of all he is over 18

Not relevant in this case. His being a minor does not mean he can't be detained.

and third it seems the amount of physical force he used was rather excessive.

The FACT that he apparently still ESCAPED their detention doesn't show that the force was excessive.

As far as my brother goes, well he is telling my parents when they get up tomorrow, so we will see if they will get him a lawyer or not.

And depending on how they handle this little idiot and teach him a life lesson about responsibility for his own actions and conduct... and to not try to blame the merchant/clerk as you are... we'll also see if they are good parents or not.

 

[racer72]

he was leaving and grabbed his shirt and started throwing my brother around, so hard that his shirt ripped. He then threatened my brother who was with his friends, they threatened him in return and then left in a car.

Give us an version of this story unedited, preferably from a uninvolved witness point of view, and I would bet the story would be different.

 

[Buster86]

I don't need a lesson on morals/values, right from wrong, ect. I'll go to my priest for that. Please stick to the facts about the law, and informing me what I can and can't do, legally. It's my understanding that is what this website is here for.

It was an employee, not an owner. And it is a chain gas station, so I'm sure they have strict policies on NOT being a hero and dialing 911, and letting the cops handle it.

I tried to find New York State's law on citizen's arrest, but all I could find was a general overview for our country. Most states seem to deter that kind of involvement for crimes that are below a felony and not violent, and a citizen does not have the protection that a law agency does, meaning that he is liable for his actions.

I've given you all the facts that I know to be true at the moment, if anything changes I'll be sure to inform you, but based on what I've informed you of, I'd like to know what can I do about this 20 year old, either criminally or civil?

 

[Caveman]

Sue the tobacco industry.


This too shall pass.


Have a nice fiber muffin and relax. please. the stress from this will kill you as you will see that after you see it will be alright.

Just go thru the thros and take breathes.

 

[JETX]

Please stick to the facts about the law, and informing me what I can and can't do, legally.

Wow... that is really simple.
You aren't involved.... and can do NOTHING... legal or not.... you TWIT!!

 

[CdwJava]

Well I came home tonight to find out that my 16 year old brother had been arrested for stealing a pack of cigarrettes from a local gas store.

He shouldn't be doing that.

My question concerns the actions of one of the stores employees, according to my brother a Hispanic male in his 20s that is an employee of the store came after my brother as he was leaving and grabbed his shirt and started throwing my brother around, so hard that his shirt ripped. He then threatened my brother who was with his friends

What kind of "threat"? the clerk does have every right under the law to detain suspected thieves using reasonable force. I suspect that the clerk didn't really toss your brother around so much as your brother tried to escape his grasp.

they threatened him in return and then left in a car. They were soon pulled over and my brother was the only one arrested.

The friends (and your brother) were lucky! Escaping by use of threats could have (and SHOULD have) resulted in a robbery charge for all involved! Robbery is a serious, violent felony, and still might come up. You simply cannot threaten force in order to escape with stolen property.

My brother asked if he could press charges against the Hispanic for touching him and the cops laughed at him and said no, he had every right to do what he did because it was a citizens arrest.

They were correct.

Is this true? First of all my brother is only 16, second of all he is over 18, and third it seems the amount of physical force he used was rather excessive.

Whether it was excessive or not is up to a court. Given the circumstances, i doubt a court would see it as such. In any event, the force used is not going to be relevant to the theft charge. Mom and dad can always hire an attorney to tell them they have no great case, but that's up to them. Without damages, I doubt an attorney will take the case as a civil matter, and the police and prosecutor are almost certainly not going top file assault charges against a clerk for trying to detain a thief.

As far as my brother goes, well he is telling my parents when they get up tomorrow, so we will see if they will get him a lawyer or not.

How do they not know, yet? In my state, minors taken into custody for crimes are released to their parents! They just cut him loose without notifying his parents? Wow!

- Carl

 

[CdwJava]

I don't need a lesson on morals/values, right from wrong, ect. I'll go to my priest for that. Please stick to the facts about the law, and informing me what I can and can't do, legally. It's my understanding that is what this website is here for.

People are free to offer their opinions on the morals involved as well as the law. The values issue will be a factor in whether he gets charged or not ... if his actions and attitude tick off the DA, he will not be in for a good time.

It was an employee, not an owner. And it is a chain gas station, so I'm sure they have strict policies on NOT being a hero and dialing 911, and letting the cops handle it.

The state's laws do not concern themselves with the store's policy in this matter. If the law says that a person may effect a detention or arrest for a public offense committed in their presence, then the clerk may take the appropriate action under the law - regardless of store policy.

I doubt your brother will find an attorney to raise an argument like this: "Had the clerk adhered to store policy, my client would never have been identified, therefore I move that all charges be dismissed!"

I tried to find New York State's law on citizen's arrest, but all I could find was a general overview for our country. Most states seem to deter that kind of involvement for crimes that are below a felony and not violent, and a citizen does not have the protection that a law agency does, meaning that he is liable for his actions.

Most states discourage people from taking physical action, but that's a safety concern as you never know whether the petty thief you contact is armed or not. A pack of cigarettes is not worth the clerk's life, and that is why most chain stores have policies against clerk's nabbing thieves. But! Even if the policy says they cannot do it, this does not effect the law allowing the clerk to do so.

I've given you all the facts that I know to be true at the moment, if anything changes I'll be sure to inform you, but based on what I've informed you of, I'd like to know what can I do about this 20 year old, either criminally or civil?

YIOU can't do anything about it. YOU are not his legal guardian. If the police won't pursue criminal charges against the clerk, that is pretty much the end to that. if mom and dad are willing to pay a few thousand dollars for an attorney to TRY and pursue a suit against a store clerk, they are free to try ... but they shouldn't be surprised if the criminal charges suddenly go from theft to robbery if the threats by bro and friends is true. I doubt that any civil case will go anywhere, but if they have some spare change sitting around after paying for the criminal lawyer they can try to sue the clerk and the store.

Here is NY state law on the issue of force:

S 35.10 Justification; use of physical force generally.

6. A person may, pursuant to the ensuing provisions of this article,
use physical force upon another person in defense of himself or a third
person, or in defense of premises, or in order to prevent larceny of or
criminal mischief to property, or in order to effect an arrest or
prevent an escape from custody. Whenever a person is authorized by any
such provision to use deadly physical force in any given circumstance,
nothing contained in any other such provision may be deemed to negate or
qualify such authorization.


- Carl

 

[You Are Guilty]

The state's laws do not concern themselves with the store's policy in this matter. If the law says that a person may effect a detention or arrest for a public offense committed in their presence, then the clerk may take the appropriate action under the law - regardless of store policy.

I doubt your brother will find an attorney to raise an argument like this: "Had the clerk adhered to store policy, my client would never have been identified, therefore I move that all charges be dismissed!"...
Even if the policy says they cannot do it, this does not effect the law allowing the clerk to do so.

Entirely correct. The NY courts have made it explicitly clear that a violation of a company policy, unless the policy mimics a pre-existing law, is not "evidence of negligence". Since the law is, as you noted, very clear that the clerk had every right to attempt to restrain our little thief, the store policy means bupkis.

YIOU can't do anything about it. YOU are not his legal guardian. If the police won't pursue criminal charges against the clerk, that is pretty much the end to that. if mom and dad are willing to pay a few thousand dollars for an attorney to TRY and pursue a suit against a store clerk, they are free to try ... I doubt that any civil case will go anywhere, but if they have some spare change sitting around after paying for the criminal lawyer they can try to sue the clerk and the store.

OP: I charge $450/hour + expenses. Will need about a $5k retainer on this one. Let me know.

 

[BL]

Are you aware a 16 yr. old can be arrested and held in jail ???

You can do nothing for your brother legally , except pay his lawyer fee .