by Gila Hayes
bur·gla·ry ˈbərɡlərē/, noun
Entry into a building illegally with intent to commit a crime, especially theft.
The taking of money or goods in the possession of another, from his or her person or immediate presence, by force or intimidation.
Two simple dictionary definitions for massively different crimes, different targets and different responses if you use force to prevent the completion of the crimes identified above. Burglary? A property crime. Robbery? A violent crime against a human being. Allowable defenses against either–massively different.
Why, then, is it so common to hear, “Can I use my gun to stop someone from robbing my car?” or “If I see some people robbing the neighbor’s house, can I shoot them?” You’d be surprised how often people make that vocabulary mistake. The neighbor’s house or your car are not living things. Neither can be robbed.
Why does this matter? It matters because sloppy vocabulary clouds key concepts including when the armed citizen can use deadly force to prevent the commission of a felony. It matters because the very citizens who may sit on a jury to judge your use of force in self defense are inundated by these elementary vocabulary mistakes when they listen to the nightly news or read the daily paper. It matters because the standard of reasonableness to which your use of force will be judged is not likely to smile on shooting burglars carrying off your neighbor’s priceless coin collection, nor give the green light to shooting car prowlers from your balcony, a mistake for which a King County (WA) Superior Court found a young man guilty of second-degree manslaughter in 2008.
An awful lot of the newsworthy cases to recently paint armed citizens as dangerous and unstable started with the introduction of a gun into the interdiction of a property crime. Reporters–and as a result, the general public–nearly always fail to recognize when what started as a property crime turns into assault when a burglar rushes at or menaces a citizen who decides to prevent the theft. When that happens, the crime is no longer a burglary attempt it becomes assault and the trier of fact has to figure out if the shooter and his/her assailant both contributed to the conflict. Has the armed citizen left a place of safety to pursue the burglar?
Don’t count on the courtesy extended to the son of AR State Rep. John Payton when in April he shot a burglar who was running away from the family home, breaking down the gate and hopping fences. You may, instead, suffer the same fate as the armed citizen in Portland, IN who, despite testifying that he feared for his life, went to jail convicted of criminal recklessness resulting in serious bodily injury after shooting a fleeing intruder outside his garage. His defense attorney didn’t help much when she was quoted as saying, “People are tired of having their stuff taken.”
The Network exists to mitigate the legal aftermath for members who have to use force to avoid death or serious physical injury. While the threat of either could well be part of an assault suffered after a criminal breaks in, using deadly force in defense of human life needs to be articulated early, often and clearly as necessitated by the violent assault of the criminal, not because we got tired of the crime wave hitting the neighborhood.
Is it reasonable to go out to the garage to see who is in it? Is it reasonable to go over to the neighbor’s house to see who went in and left a car idling at the curb? If you make either choice, only you can explain why that was reasonable. Be prepared in advance and before intervening in what may be a crime in progress, think about how you will explain your actions.
Affiliated Attorneys in the News
Usually, when one of us makes news headlines it is not a good day. That was not the situation in two news reports that I happened across last month, both involving Network Affiliated Attorneys.
Attorney David J. Strachman, partner at the law firm McIntyre Tate, successfully represented a concealed weapon permit applicant who was denied by the City of East Providence in Gadomski v. Tavares/City of East Providence, according to the firm’s website. The Rhode Island Supreme Court quashed the decision denial of Gadomski’s application and directed the city to a new decision within 90 days.
The Court indicated that Rhode Island’s constitution and municipal licensing statute entitles applicants to procedural due process and accordingly “it is imperative that the local authority acts as a ‘finder of fact, not a master of puppets.’” The Court also took the unusual step of retaining supervision of the case after remand, the firm writes at http://www.mtlhlaw.com/Firm-News.shtml.
Strachman has litigated similar constitutional civil rights cases, which frequently are supported by civil rights organizations such as the ACLU. A link to the full text of this decision, Norman T. Gadomski, Jr. v. Joseph H. Tavares, Chief of Police for the City of East Providence, Rhode Island Supreme Court No. SU-14-0072 is provided on the law firm’s website.
Another Network Affiliated Attorney, this one from Michigan, was also in the news late last month: “A statewide gun-rights group and a father with children in the Ann Arbor schools are suing the school district over its new policies that ban firearms on school grounds.
“The lawsuit, filed in Washtenaw County Circuit Court, comes just as a crowd of about 500 gun-rights advocates are expected Wednesday at the annual Second Amendment March around the Capitol Building in Lansing. After hearing speakers, the crowd of pistol packers customarily stride into the chambers of state lawmakers, prominently bearing their arm” [sic] the online news report stated.
"We like to remind the legislators who we are and what our rights are," said Jim Makowski, a Dearborn lawyer who filed the lawsuit and said he personally served it Monday afternoon at the offices of Ann Arbor Public Schools. Makowski planned to march Wednesday in Lansing and is scheduled to speak from the Capitol steps.” See the whole story at http://www.gopusa.com/news/2015/04/30/lawsuit-challenges-ann-arbor-schools-gun-ban/?subscriber=1 from which these quotes are drawn.
Click here to return to June 2015 Journal to read more.