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Thursday, May 13, 2010

Dog Takes a Leak, Fatal Shooting Ensues

A fox terrier puppy stopped to relieve himself on some grass Sunday evening in Chicago. A few minutes later, the dog's owner lay dead from a gunshot wound.

Charles J. Clements, 69, has been arrested in the shooting death of 23-year-old Joshua Funches. Their confrontation started when Clements, a regular winner of neighborhood beautification awards, noticed the dog urinating on his lawn.

According to news reports, Clements instructed Funches to keep the dog off his lawn, and Funches sassed the former Marine and retired truck driver. That sparked an argument that ended in gunfire. The story shines an unfortunate spotlight on property-related issues, a frequent topic here at Legal Schnauzer.

Here is how the Chicago Tribune describes the incident:

Joshua Funches, a 23-year-old father of two, was walking his fox terrier Gucci in the 500 block of Landau Road on Sunday night when the dog lifted its leg and urinated on Clements' lawn, said Funches' mother Patricia, 53.

The two men began arguing, and at some point, Clements, a retired truck driver, pulled out a pistol and pointed it at Funches, a Crete-Monee High School graduate who drove a bus, said Will County Assistant State's Attorney Sondra Denmark.

Witnesses said Funches then said to Clements, "Next time you pull out a pistol, why don't you use it?" Denmark said. At that point, witnesses said they saw orange and white light and heard a loud noise. They saw Funches fall to the ground.

"It was all over a little wooden plaque," said an emotional Patricia Funches, referring to the beautification award. "It was a senseless death."

A report in the Chicago Sun-Times indicates Clements did not have a gun when he initially spoke to Funches, but went back in his house to get the weapon after the two had argued. The report says the shooting occurred several doors down from where Clements lived:

Will County prosecutors made no mention of the dog urinating in the yard when they outlined their case at a bond hearing Tuesday, saying only that Funches was walking the dog and crossed the lawn, which resulted in words exchanged with Clements and escalated into a shouting match and some shoving before the older man pulled a gun and shot him.

Funches' mother said she was told by neighbors that after the initial arguments Clements went back into his house to get the gun and returned to shoot her son, who by then was several houses down the block on his way home, which would undermine any self-defense claim.

Patricia Williams, 16, pointed out to me the weed-strewn yard where Funches was actually shot.

You wonder if Clements would have stopped himself if it had meant spilling blood in his own yard.

The story raises a number of legal and ethical questions, not to mention high emotions. One Chicago columnist said it reflects two conflicting American values: the lawn as icon and our love of dogs.

I think it's more complicated than that--and I have a lot of personal experience in this area. The legal headaches I've reported on this blog started when a man with an extensive criminal record, Mike McGarity, moved in next door to us and immediately began trampling on our property rights.

McGarity built a fence on our yard that took up about 400 square feet of our property. When we noticed the possible encroachment, we had our yard resurveyed to prove it. Then we had a lawyer send McGarity a letter, stating the fence would have to be moved and we expected to be reimbursed for our expenses.

After removing the fence and failing to reimburse us, McGarity apparently decided to retaliate. He, family members, and guests began to repeatedly trespass on our property. Our house was vandalized--with eggs, paintballs, objects thrown through our windows, you name it.

When I told McGarity verbally on multiple occasions to stay off our yard, he threatened to sue me for "harassment." My wife and I consulted with multiple lawyers before I swore out a warrant against McGarity for criminal trespass, third degree. He was acquitted at trial, even though the transcript shows he confessed to the crime as charged, and that allowed him--with the help of lawyer William E. Swatek--to sue me for malicious prosecution.

The whole ordeal has cost us tens of thousands of dollars, and my decision to write about the corrupt handling of the lawsuit in Shelby County Circuit Court almost certainly contributed to the loss of my job at the University of Alabama at Birmingham (UAB).

As you can see, property issues can get complicated, expensive, even dangerous. But here is a key thought to keep in mind: One of the concepts that makes our country America is the notion of private-property rights. Some people are quite relaxed about this right; others are highly sensitive about it. But there is no question that, under the law, any owner has an almost unfettered right to manage what takes place on his property. Renters have similar rights.

So what's our take on the Chicago story? First, I think it's about way more than lawns vs. dogs. According to news reports, several people who lived nearby said Clements was an excellent neighbor, and they appreciated the fact that he took care of his property. They also said his concern usually was about children who came on his yard, not pets.

That's one thing Clements and I have in common. I've never been concerned about animals coming on our property. I frequently scoop up dog poop off our front yard, and I don't mind. We have a terrier that lives behind us who makes regular forays into our back yard to dig holes. I go out after a while and fill them up with dirt, but I've never complained to the owner. The presence of animals on our property just does not bother us--and my wife and I are especially fond of terriers.

After all, we've never had an animal sass us. We've never had an animal lie to us--or about us. We've never had an animal's parent call to threaten us. We've never had an animal sue us.

People are my concern because I've learned that people can lie, cheat, steal, threaten, and vandalize. Well-behaved children, who have parents that I know and trust, used to always be welcome on our yard. Before McGarity moved in, the neighbors on the other side of us asked if their two boys could come on our yard to retrieve balls, etc. We said yes, and that worked fine for awhile. But when it became a problem, and we raised concerns with the parents, they indicated they weren't going to take the matter seriously. So we rescinded the invitation to come on our yard. We have a feeling the mother bad-mouthed us to numerous neighbors, and that made us even more determined that kids no longer were going to romp on our yard. That was our mindset when McGarity moved in.

Charles Clements had every right to be vigilant about what took place on his property. But he and Funches both made mistakes on Sunday evening, mistakes that had fatal consequences.

To many people, a dog peeing on a lawn is a minor thing--and it certainly would be a minor thing to me. But under the law, Clements was within his rights to tell Funches that he would prefer the dog do his business elsewhere.

Allowing a dog to pee on a lawn almost certainly is not a crime, unless it would violate a municipal ordinance in some places. But if Clements had plenty of time and money to waste, he could have filed a lawsuit against Funches for trespass. That probably would have resulted in an injunction, hard feelings, and use of public resources that could be better spent elsewhere.

If Clements simply could not let the issue pass, he took the wiser path by simply telling Funches that he did not want the dog peeing on his yard. We don't know the kind of tone that Clements used to start the conversation. My guess is that he was fairly rough about it.

Funches' big mistake came when he apparently didn't simply say, "Sorry about that," and keep walking. When a property owner makes a lawful request--even if it's in a rough tone of voice--the appropriate response is to acknowledge the mistake, apologize, and say you'll try not to let it happen again. If you don't want to say all of that, just try "Sorry," and it should work. Even if you think the property owner is being a horse's ass, "sorry" is the best response.

Clements' big mistake came when he introduced a gun into the equation. There is no indication that Funches threatened him. So why go get a gun?

All of this reminds us of Edna Jester, the 88-year-old Cincinnati woman who wound up being arrested after she kept footballs that kids kept throwing onto her yard--despite her repeated requests that they quit doing it.

We tend to be sympathetic to the Edna Jesters and Charles Clements of the world. They have every right to be vigilant about what takes place on their property. But Charles Clements clearly went way too far. (I have a feeling Mike McGarity would have been dead a long time ago if he had moved in next door to Charles Clements.)

The Jester case, thankfully, ended in fairly benign fashion after area law enforcement had butchered the situation horribly--actually arresting a senior citizen for picking up objects off her yard.

The Clements case, sadly, ended in death. Joshua Funches should not have sassed a property owner, making a lawful request--no matter how silly it might have seemed. Clements should not have introduced a gun into the equation, no matter how disrespectful he thought Funches was being.

Now, multiple lives are ruined because of those mistakes.


mikkrikk said...

I have a similar neighbor who was trying to take property and harassed me in many ways when he was unsuccessful. I stopped his behavior by calling the police and having them file reports. During the first of such incidents, the police visited his home and discussed the situation with him for over an hour.

I wrote him 2 letters with delivery verification warning him that his behavior had to stop. The second letter forbade in writing anyone in his household from so much as talking about me within my earshot.

It is too bad that your attorneys did not advise you to follow a similar course of action, building a case that could not be disputed in either criminal or civil court. Your attorneys knew that; apparently they were more interested in fees than in divulging what was the best course of action. My purpose in writing this is to let others know what they should do in similar circumstances.

legalschnauzer said...


Thanks for sharing your experience, and your advice is excellent.

We tried to take a similar approach. When we filed our criminal trespass report with sheriff, we asked the deputy if he would go over and talk to the neighbor, explain the law, and say he and others had to stay off our property. The deputy said, "We don't do that. We don't try to solve disputes. We just take reports."

We've come to find out that quite a few law-enforcement types are just glorified stenographers.

Our sheriff's department probably could have solved this problem if they had done what your folks did.

mpotoka said...

Are you serious, this has to be one of the worst articles I have ever read. ITS GRASS. GRASS!!! The idea of property ownership and old men shooting people who walk on it is one of the most absurd things I have ever heard, not to mention horribly upsetting. You tend to sympathize with them? Are you serious??? You are an unbelievable prick for saying that. Don't touch my precious lawn, its full of grass and weeds, and dirt. I work real hard to keep it this way so stay off or you DIE. It is a yard, you sir along with everyone else who gets upset about this needs some perspective in their lives about what really matters. Certainly maintaining a artificial field to look at doesn't qualify as important.

legalschnauzer said...

You misread the post. I state repeatedly that Clements should not have introduced a gun into the equation, and therefore should not have shot anyone. I can't make it any clearer.

Also, you take the "sympathize" part out of context. If you read the entire passage, I say that I sympathize with people who are concerned about intrusions onto their private property. They have every right, under the law, to be concerned about such intrusions, regardless of how minor they might seem to others. (And a dog peeing on grass, as I state, would be of no concern to me.)

I don't say I sympathize with someone who shoots another person.

I appreciate your passion on this issue. But you are putting words into the post that aren't there.

Loki Freign said...

This article is rife with transparent paternal BS about how "we" Americans are so solemn about property rights.

This editorial pose is not nearly tight enough to draw even a gauzey veil over how much the author empathizes with the murderer, and how obviously he believes the slain boy earned his death.

Evil blogger: no one who doesn't "own" "property" cares about its "rights" at core, and that's certainly most of us, your fellow Americans. We come from people who run blockades, poach, suck eggs, and disappear before morning. The trogs who get this fired up over little patches of rented weeds are fools and brutes.

Your notion of 'property' is our own, and insane, I want to add, as no one owns any land in this nation.

One this is clear: you adore terriers and extend to them the humanity you withhold from human - children and young adults.

This tragedy is stupid; people are stupid - but you, Mr Blogger, are evil. Have a nice day.

Anonymous said...

Some people infact do need to be shot. Sadly, not only are those seldom the ones usually getting shot but we simply don't know if this was the case in this situation.
I'd be willing to bet this wasn't the first time the shootee was confrontational with the "Old Man" and was following his usual path through his yard knowing full he wasn't wanted there. I have known people who found pleasure in taunting others, especially when they viewed them as incapable of being a physical threat.