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Thursday, April 27, 2017

My wife did not "get physical" with any Missouri deputies during eviction, but even if she had, it would have been legal under the state's "Castle Doctrine" law


(From ammoland.com)
My wife, Carol, has been arrested in Missouri, twice, for "assault on a law enforcement officer." We've shown that Carol committed no such crime during our unlawful eviction on Sept. 9, 2015, but get this: Even if she had engaged in the alleged conduct, it would have been legal.

To borrow a phrase from Dave Barry, "I'm not making this up."

How do we know that: (A) Carol did not engage in the alleged conduct; and (B) Even if she had, it would have been lawful? Well, it's all right there in Missouri's "Castle Doctrine" Law, which is not much different from the Indiana law that specifically allows a citizen to shoot a "public servant" (including a cop) he believes is unlawfully entering his residence.

Our research on the Indiana and Missouri laws shows that , while the language varies between the two, the main difference is this: The Indiana law specifically includes public servants (law-enforcement officers, etc.) among those against whom physical force can be used when they appear to unlawfully be entering a residence. The Missouri law, on the other hand, does not exclude law enforcement types from being the targets of physical force under such circumstances.

Both laws also allow for the use of deadly force against cops who appear to be making unlawful intrusions into a residence. Bottom line: It's a bad idea for cops in Indiana or Missouri to enter a residence without knowing for sure they have lawful grounds to be there.

That's where Carol's alleged actions, which she did not actually do, are legal. That means Greene County Sheriff Jim Arnott and Prosecuting Attorney Dan Patterson concocted a set of "facts" that, even though they are false, still do not amount to unlawful conduct.

How do we know? As we have shown in a previous post, the eviction was unlawful on at least four grounds. Here's how we've summarized them:

(1) Breach of contract -- Cowherd was trying to boot us because my mother wanted out as cosigner, and they claimed we had to qualify on our own to continue on a month-to-month basis. Our lease, however, contained no such provision, so Cowherd was violating his own contract.

(2) Eviction was unlawfully scheduled -- The Sept. 9 date was inside the 10-day window, from the date judgment was entered, when execution cannot take place.

(3) Eviction ignored our timely filed notice of appeal -- A notice of appeal, with proper payment of fees, puts a stay on eviction, under Missouri law. We filed our notice on Sept. 8 and notified all lawyers for parties in the case on that same day. The eviction was stayed, as a matter of law, but it took place the next day anyway.

(4) Eviction was unlawful because rent was not late for one month -- Eviction proceedings could not have started until Sept. 1, the date we would have been behind on rent by one month (although we would have timely paid if we had not been told we were being booted out regardless). Cowherd started eviction proceedings on Aug. 5, 25 days too early.

Carol knew about grounds 1-3 when cops stormed through our door on 9/9/15 -- armed with assault rifles and waving more pistols than we could count. We learned about ground No. 4 later. But I had shown her the law on the first three grounds, and she knew the filing of our notice of appeal (with payment of fees) -- filed the day before, on Sept. 8 --  put an automatic stay on the eviction.

Why does that matter under Missouri law? Well, it's spelled out under the state's Castle Doctrine Law, which was enacted in 2007, amended in 2010, and again in 2016. (The 2016 amendment mostly involved "stand your ground" provisions, which likely were not a factor in our situation. Plus, that amendment was adopted after our incident, so it does not appear to be in play.)

Two key provisions of Missouri's Castle Doctrine Law, which can be found at RSMo 563, apply in our eviction. The first involves use of physical force:

Use of force in defense of persons.

563.031. 1. A person may, subject to the provisions of subsection 2 of this section, use physical force upon another person when and to the extent he or she reasonably believes such force to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful force by such other person, unless:

(1) The actor was the initial aggressor; except that in such case his or her use of force is nevertheless justifiable provided:

(a) He or she has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened use of unlawful force; or

(b) He or she is a law enforcement officer and as such is an aggressor pursuant to section 563.046; or

(c) The aggressor is justified under some other provision of this chapter or other provision of law;

A few quick questions and answers:

* Did Carol "reasonably believe" physical force was necessary to defend herself from "imminent use of unlawful force"? Answer: Yes.

* Does the law exclude use of physical force against law-enforcement officers? Answer: No.

* Does the law make any reference to law-enforcement officers? Answer: Yes. In section (1)(b), it states that officers are, by definition, aggressors in castle-doctrine cases, and thus, are limited in their use of force.


In a Probable Cause (PC) Statement, Officer Debi Wade claimed (while admitting she did not witness it) Carol "pushed" and "got physical with" Jeremy Lynn, who was one of the first officers through our door. (The PC Statement is embedded at the end of this post, along with Carol's Motion to Dismiss Charges.) Carol did not push or get physical with anyone. But if she had, such force would have been lawful under Missouri's Castle Doctrine.

The second key provision involves use of deadly force:

2. A person shall not use deadly force upon another person under the circumstances specified in subsection 1 of this section unless:

(1) He or she reasonably believes that such deadly force is necessary to protect himself, or herself or her unborn child, or another against death, serious physical injury, or any forcible felony;

(2) Such force is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter a dwelling, residence, or vehicle lawfully occupied by such person; or

(3) Such force is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter private property that is owned or leased by an individual, or is occupied by an individual who has been given specific authority by the property owner to occupy the property, claiming a justification of using protective force under this section.

A few quick questions and answers:

* Did Carol "reasonably believe" she needed to protect herself from "serious physical injury" or a "forcible felony"? Answer: Given that she actually sustained serious physical injury (a broken arm) and was victim of two forcible felonies -- assault and deprivation of rights under color of law -- the answer clearly is yes.

* Did officers "unlawfully enter," "remain after unlawfully entering," or "attempt to unlawfully enter" a dwelling or residence? Answer: Yes, they did all three. (Note that the Missouri law also includes efforts to unlawfully enter a vehicle.)

* Do officers get a free pass if they try to unlawfully enter leased property? Answer: No. We were leasing a duplex apartment, and the law protects both renters and owners.


A key point: At the time of our eviction, we knew nothing about Missouri's Castle Doctrine Law, and in fact, we didn't even know, or care, if the state had one. We did know that our filing of a notice of appeal, put a stay on our eviction, and we naively thought a Missouri landlord and sheriff would feel compelled, at least a little bit, to follow state law.

We were wrong about that. But it's interesting to learn, after the fact, that a police officer who barges into a residence with no grounds for being there is acting very stupidly -- and putting his life at risk. Missouri, like Indiana, takes a dim view of anyone (including cops) who might unlawfully violate the sanctity of your "castle."

Here, though, is the hard reality: Carol and I were the ones who had our lives at risk -- from officers who, by law, had no grounds to be on the premises. I was sitting in a chair with my hands folded when officers burst through our door, one of them aiming an assault rifle at my head. Carol, meanwhile, was having her brain scrambled as officers repeatedly banged her head against the wall while applying handcuffs. If either of us had made the slightest move indicating we might be reaching for anything -- we didn't have a gun -- I would not be typing this post right now. I would have been riddled with enough bullets to render me unrecognizable.

(Note: It's not out of the question, in my mind, that the plan was to murder us. Why else would cops, with help from my lawyer brother David, concoct a fantasy about me placing a threatening 911 call? It gave them an excuse to act like a SWAT team and bring high-powered weaponry, and I'm guessing they were planning to use those weapons. That I was sitting stock still in a chair, hands folded -- and Carol was having her brain scrambled -- might have been all that saved us.)

How dangerous was the situation? Our kitty kat, Baxter, wisely ran for the bedroom and hid under the bed during all the commotion. But what if he had stayed in the living room? What if he had jumped toward my lap, and I had reached to catch him. What if I had bent down to pick him up? We both likely would have been splattered.

In my view, this all likely was because rogue political forces in Alabama wanted rogue legal forces in Missouri to punish us, or control us, because of my blog -- and if lives were lost . . . well, they really didn't care.

On that sobering thought, let's close with this: Missouri's Castle Doctrine Law does not apply just to charges against Carol. It also applies to bogus allegations that have been made against me -- even though I've not been hit with any criminal charges.


(To be continued)







30 comments:

Anonymous said...

Very interesting post, LS. The Castle Doctrine laws are getting more potent -- or more extreme (depending on your view) -- all the time.

Anonymous said...

Sounds like Carol would have been justified in smashing the cop over the head with a crow bar.

legalschnauzer said...

@10:46 --

We didn't have a crow bar, but under Missouri law, she would have been justified in using one. If you are unlawfully entering someone's home or vehicle -- as these cops were -- you are fair game for any level of force, including deadly force.

Anonymous said...

I'm a big believer that motives explain most actions. Here, the landlord had no motive to seek eviction because your rent had been timely paid and you had been a good tenant. The sheriff had no motive to barge in and threaten with guns and act abusively because he didn't know you, and you had broken no laws. That tells me someone was pulling strings from behind a curtain, and I agree that the curtain probably was in Alabama.

Anonymous said...

The proliferation of these laws shows the unbelievable political clout of the NRA.

Anonymous said...

I wonder how Alabama's castle doctrine law reads.

legalschnauzer said...

@11:12 --

Good question. I did some quick research and found this. Haven't studied it yet:

Section 13A-3-23
Use of force in defense of a person.
(a) A person is justified in using physical force upon another person in order to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he or she may use a degree of force which he or she reasonably believes to be necessary for the purpose. A person may use deadly physical force, and is legally presumed to be justified in using deadly physical force in self-defense or the defense of another person pursuant to subdivision (4), if the person reasonably believes that another person is:
(1) Using or about to use unlawful deadly physical force.
(2) Using or about to use physical force against an occupant of a dwelling while committing or attempting to commit a burglary of such dwelling.
(3) Committing or about to commit a kidnapping in any degree, assault in the first or second degree, burglary in any degree, robbery in any degree, forcible rape, or forcible sodomy.
(4) In the process of unlawfully and forcefully entering, or has unlawfully and forcefully entered, a dwelling, residence, or occupied vehicle, or federally licensed nuclear power facility, or is in the process of sabotaging or attempting to sabotage a federally licensed nuclear power facility, or is attempting to remove, or has forcefully removed, a person against his or her will from any dwelling, residence, or occupied vehicle when the person has a legal right to be there, and provided that the person using the deadly physical force knows or has reason to believe that an unlawful and forcible entry or unlawful and forcible act is occurring. The legal presumption that a person using deadly physical force is justified to do so pursuant to this subdivision does not apply if:

(Cont.)

legalschnauzer said...

a. The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner or lessee, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person;
b. The person sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used;
c. The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
d. The person against whom the defensive force is used is a law enforcement officer acting in the performance of his or her official duties.
(b) A person who is justified under subsection (a) in using physical force, including deadly physical force, and who is not engaged in an unlawful activity and is in any place where he or she has the right to be has no duty to retreat and has the right to stand his or her ground.

(Cont.)

legalschnauzer said...

(c) Notwithstanding the provisions of subsection (a), a person is not justified in using physical force if:
(1) With intent to cause physical injury or death to another person, he or she provoked the use of unlawful physical force by such other person.
(2) He or she was the initial aggressor, except that his or her use of physical force upon another person under the circumstances is justifiable if he or she withdraws from the encounter and effectively communicates to the other person his or her intent to do so, but the latter person nevertheless continues or threatens the use of unlawful physical force.
(3) The physical force involved was the product of a combat by agreement not specifically authorized by law.
(d) A person who uses force, including deadly physical force, as justified and permitted in this section is immune from criminal prosecution and civil action for the use of such force, unless the force was determined to be unlawful.
(e) A law enforcement agency may use standard procedures for investigating the use of force described in subsection (a), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force used was unlawful.
(Acts 1977, No. 607, p. 812, §610; Acts 1979, No. 79-599, p. 1060, §1; Act 2006-303, p. 638, §1.)

Anonymous said...

I think the cops knew their entry would be unlawful, so they concocted the 911 tale as a reason to bring heavy artillery.

Anonymous said...

Here's what's so dangerous about these Castle Doctrine Laws: They encourage citizens to engage in force with individuals who are likely to have an edge in weaponry and training. In Carol's case, it appears she would have been justified under the law to break out a gun against invading cops. But, as you note, the cops were heavily armed and trained in the use of weapons, so Carol probably winds up dead or severely injured. That's not much of a victim, but the NRA and others who push for these laws don't care about that.

Anonymous said...

@2:04 --

Agree. Guns aren't nearly as protective as people think they are.

Anonymous said...

Alabama law lets rogue cops off the hook . . .

The legal presumption that a person using deadly physical force is justified to do so pursuant to this subdivision does not apply if:

d. The person against whom the defensive force is used is a law enforcement officer acting in the performance of his or her official duties.

legalschnauzer said...

@4:32 --

Thanks for sharing. Typical that Alabama would write a Castle Doctrine Law that lets corrupt cops slip through the cracks. The law seems to assume that a cop performing "official duties" is acting within the law. Reality tells us that is not necessarily the case.

Anonymous said...

"It's not out of the question, in my mind, that the plan was to murder us."

Yes, that's totally right. Because you're *so* important. Widely read by many, a threat to the powers that be, and not insane at all.

legalschnauzer said...

@8:49 --

Other than being a smart-ass, what knowledge or qualifications do you have that allow you to make any kind of informed statement about this situation. I'm guessing the answer is zero?

Anonymous said...

To Anonymous @ April 27, 2017 at 11:00 AM They were probably fingered by some of their enemies in Alabama, message carefully, possibly politically conveyed to Missouri. Then the common, classic "bait and trap" police tactic was used. Intimidate, harass, provoke, startle, frighten–– get a reaction from your victims then change the story and destroy them with it. It's amazing how networks of people connect from state to state, whether through politics, business, finance, family, or social means. Soon everyone in America will have to wear cameras 24/7 to help avoid this kind of conspiracy and prove their innocence. Never forget, most police are good folks–– problem being they all fall under the same hatchet called politics while straddling the barrel called salary and benefits.

Anonymous said...

A comment from a friend who suffered similar personal destruction down South: "You would be amazed at the extreme tactics that these wealthy, powerful people will use to destroy their enemies," going on to say, "if they want something really bad done, like murder, etc., they will sometimes get a crack addict to do it." Sadly, quite often, "officers of the court," (lawyers) have the connections to the underworld at their fingertips and little else needs to be said by a client besides, "I have this problem. How can WE take care of it?" Next question is quite possibly, "For how much?"

Roger found that leaving the state doesn't work, because he's up against a well-connected, extremely powerful network who wants him silenced and they will also be sure that he never gets any form of legal justice. Leaving the country might not work either because great wealth travels circles around the globe. If they want to destroy a person, they will find a way to do it. When they've taken everything a person has, at least in the USA he's still guaranteed FREE SPEECH. Roger, your blog might be the reason you're both still alive.

One thing is for certain. The police generally won't unravel these kinds of conspiracies, because they can't put their "higher ups" in prison. They know they can't win in court against them, just like the rest of us. It's another one of those glitches in the system that needs to be remedied.

Anonymous said...

Hello. I am a lawyer who occasionally practices in Missouri. I understand you don't much like lawyers. I don't represent any of the parties you are fighting. I'm commenting for entertainment -- nothing I'm writing is legal advice. I don't represent anyone you've mentionned -- specifically, not your brother, not your mom, not the Sheriff, not any county you've talked about, not the landlord, no company or agent of any of them. I am purely a kibbitzer.

I know I'm not going to win any friends with this post, but....according to casenet, your judgment was signed on August 27, and indicates there was a full hearing. The judge found against you .... meaning that the argument you paid rent or that this action was brought too early failed.

Since the judgment was signed on August 27, that's the date of entry. The Nandan case says that one does not wait for the file-stamp by the clerk -- its the judge who enters judgment. This means that the 10-day clock started August 27 -- meaning that, at least on its face, it looks like there was no statutory violation.

As for your notice of appeal, I believe you had to file a bond or obtain an in forma pauperis to get the appeal to stop the eviction. I didn't find evidence in the record to show that you asked for a bond....

So....why am I writing this? Well, you have an extensive following -- you are a hero to a great many for your yeoman work in Alabama, and you are a journalist with 30 years experience. You know much and more; I, as I am told over and over again, don't know anything. What I'm worried about is that someone reading your stuff is going to decide that the castle defense means they can shoot a landlord or deputy who comes to evict them, based on their incorrect reading of a case file, and that they will cite you as a defense....

And that will be the next tool to discredit you and all that you do.

So, please, be careful. I apologize if my review of your case is incorrect; I am, in fact, glad to see you challenge all of this. For what it is worth, I think that there was a great error -- it looks to me like this should have been brought as a detainer action (which has more forgiving deadlines) than a rent and possession case. Which means, I suspect, that the Court lacked the power to throw you out of your house, because that is not what specifically was asked for....*if* you raised that issue on a timely appeal.

legalschnauzer said...

@7:57 --

Your review of the case is, as you anticipated, incorrect. The 8/27 docket entry shows that only an interlocutory judgment had been entered. The 8/31 docket entry shows a dated entry, which means the clock started ticking at that time. There is no judgment dated 8/27, and no evidence that anything was filed on that date. Your reading of Nandan is way off target.

You do, however, inadvertently raise an important point. Even the 8/31 docket entry labels this an "interlocutory judgment." That means it was not appealable, and no final judgment was to be entered until after a hearing scheduled for 10/1. That means we were not subject to eviction until sometime after 10/1. The the cops and the landlord (Cowherd) and Cowherd's lawyer (Lowther) were even more far off than I thought. The clock had never even begun to tick when cops unlawfully broke into our residence and broke my wife's arm.

This adds to evidence that our "eviction order" was signed by Craig Lowther and Deputy Scott Harrison, but not by a judge. That makes the eviction even more grossly unlawful than it already was. It also sounds a lot like fraud, what do you think? It also sounds a lot like a crime, one that needs to be investigated at the direction of the US attorney, what do you think?

As for the notice of appeal, we filed the appellate fee as required. There was no bond because there were no money damages designated in the order. If you read the order, you should be able to see that.

Thanks for pointing this out. It makes our civil case even stronger and our grounds for citing castle doctrine law even stronger.

BTW, you really expect me to believe you are a disinterested party. Mr. Lowther, don't make me laugh.

Anonymous said...

I am not he. I did go to the docket sheet and read the judgment. It appears dated August 27. Yes I saw when it got put on the docket but I don't think that governs per the case I cited.

legalschnauzer said...

@11:01 --

You can't read your own case. From Nandan:

"“Judgment” as used in these rules includes a decree and any order from which an appeal lies.   A judgment is rendered when entered.   A judgment is entered when a writing signed by the judge and denominated “judgment” is filed.   The judgment may be a separate document or included on the docket sheet of the case.

"Rule 74.01(a) requires that “a judgment must be (1) in writing, (2) signed by the judge, (3) denominated ‘judgment,’ and (4) filed.”   The rule is a “bright line” test to determine when a judgment becomes final and appealable. City of St. Louis v. Hughes, 950 S.W.2d 850, 853 (Mo. banc 1997)."

The judgment you claim to have read clearly is marked "filed" on 8/31/15. That is a "bright line" test, end of discussion.

However, in this case, the 8/31 order is marked interlocutory, with a hearing on other issues set for 10/1. That means an appealable final judgment would not come until some time after 10/1. The eviction on 9/9, well ahead of 10/1, was about as grossly unlawful as one can get.

You are right about one thing: You acknowledged your analysis might be incorrect, and it is.

I don' care who you are, but you aren't the disinterested party you claim to be. You are a con artist, and you aren't worth a damn at the law.

Anonymous said...

I will trouble you no further. I am no con artist -- indeed I'm confused what con I could be playing. I don't represent any party in any suit involving you.

legalschnauzer said...

Good. Don't let the door hit you on the way out.

Anonymous said...

I agree with you on your assessment of the castle doctrine. It is an important law that should be followed but it should also be clearly Define so there's no question to where a man's Castle is really a man's Castle.
It's a shame law enforcement uses bully tactics instead of calmly communicating with citizens of the public. What would it have hurt to give it another day to collect proper information and calmly communicating to avoid anyone getting hurt or being at risk of death. It's a shame That the mentality of law enforcement is "we are right and never wrong" do what we order you to do or face loosing your freedom... and getting the shit beaten out of you... but it should not be any Wonder why they think they are right all the time its because no can tell them they are wrong except for themselves. It should be illegal for any agency to police itself. The old world of abusive military style of enforcing the law is getting out of hand and only getting worse. I guarantee that George Washington would be pissed at all of us Americans to allow the Kings soldiers enforcing tyranny on its citizens all over again. Would any of our forefathers want to engage in a revolutionary war knowing that it wouldn't do any good if the future being us would allow the bullies of the past to return once again.
Enforcing the law has gotten out of hand bye the officers of the law forcing their law as they see fit.
Enforcing the law is wrong in my opinion. Forcing others to do as they're told or else, is not what our forefathers wanted for us.
The cops mentality should change two protecting the law and following the law just as us commoners do in protecting and following the law there should not be a separate set of rules. I know it's tough to be a cop but that's enough to automatically give law enforcement the right to be judge jury and executioner.
But my question is to you after all that is said and your property being illegal entry by the Sheriff's Department and you win your case.
Where can we be protected from any law enforcement agency by claiming it was a clerical error or a simple human mistake and no malicious intent present to harm anyone they just thought they were doing their job, so they say ,so they think. So either cops are never wrong Or they protected by the courts of any wrong doing what so ever no matter what under the cover of unknowingly human error and calling it a simple mistake.
The only way you can turn this around on the law enforcement is to prove malicious intent by the sheriff.... correct? And that is always 99% impossible to prove anyone purposely broke the law.

Anonymous said...

nice

legalschnauzer said...

@9:16 --

Malicious intent is not always the standard on the civil side. You have many personal injury cases, for example, where the standard is negligence, recklessness, wantonnes, etc. In our case, we have evidence of intentional conduct on the civil side. The officer knew we had timely filed a notice of appeal, but they acted unlawfully anyway. On the criminal side -- Deprivation of Rights Under Color of Law -- the statutory standard is "willful" conduct.

Intent is a long, complicated subject under the law, and I can't go into it adequately in this space. But victims should not assume that "malicious intent" is the standard, and that the proper mindset is difficult to prove. Many times, it is not.

Anonymous said...

I have read so many papers where a person does 18yrs for false imprisonment, from mistakes collecting evidence to proper filing of reports and interviews completed properly by cops and prosecutors. from their mistakes a man lost his for the last 18 years and they're not held accountable for the mistakes they made I'm not even sure if they have to say they're sorry

Anonymous said...

I enjoy your blog, I hope the best for you and the road you face.

legalschnauzer said...

Thanks for the kind words. Many Americans have no idea that our justice system is badly broken.