Tuesday, March 21, 2017

Missouri deputies used "strong hand," "circumstances of terror," and a bogus 911 call to evict us, meaning they will face a "forcible entry and detainer" charge

(From copblock.org)
We soon will be filing a federal lawsuit in Missouri over the unlawful eviction and police brutality that led to my wife's shattered left arm. It will come under the broad heading of a civil-rights case, but it also will feature state-law claims, including one for a tort that is new to me -- and it's probably new to you, although you might be faced with it someday, especially if you are a tenant.

The tort is called "forcible entry and detainer." It's a very old legal concept, and one piece of case law says it's been around for almost 900 years -- long before Missouri became a state.  Here is the gist of the tort: (1) If you think you have the right to possess certain property, you'd better be damned sure that you are correct; (2) If you plan to dispossess someone of property, you'd better be careful about using a "show of force."

Concern about the tort probably is the reason deputies concocted the story of a mythical 911 call in which I allegedly threatened to shoot anyone who tried to unlawfully evict us. The mythical call likely was created to give deputies an excuse to terrorize us. That plan, of course, had a slight problem -- I never made any such call or any such threat.

If you violate either of the two concepts outlined above, you could find yourself staring down the barrel at a "forcible entry and detainer" (FED) lawsuit. And I've found no citation that says creating a bogus 911 call allows you to skirt the repercussions of FED law.

Why is this an issue in our case? One, landlord Trent Cowherd did not have a legal right to re-possess his property, on at least four different grounds, and we've spelled those out in a series of posts. Two, Cowherd and his lawyer (Craig Lowther) clearly caused a "show of force," which included Greene County deputies pointing an assault rifle at my head and various pistols at both Carol and me. The show of force ended with Carol's left arm being snapped in two, just above the elbow -- an injury so severe that it required trauma surgery for repair.

X-ray of Carol Shuler's broken arm
Bottom line: Throwing people out of property where they legally are entitled to remain, and using force to do it . . . well, that's a piss-poor idea.

FED cases can be found in Alabama. In fact, we were targets of the tort in Birmingham. When Spartan Value Investors conspired with Birmingham Water Works to have our water shut off, that is a form of forcible entry and detainer. In Missouri, the tort is covered under RSMo 534.020, which reads:

Forcible entry and detainer defined.

534.020. If any person shall enter upon or into any lands, tenements or other possessions, with force or strong hand, or with weapons, or by breaking open the doors or windows or other parts of a house, whether any person be in it or not, or by threatening to kill, maim or beat the party in possession, or by such words or actions as have a natural tendency to excite fear or apprehension of danger, or by putting out of doors or carrying away the goods of the party in possession, or by entering peaceably and then turning out by force, or frightening, by threats or other circumstances of terror, the party out of possession, and detain and hold the same in every such case, the person so offending shall be deemed guilty of a "forcible entry and detainer" within the meaning of this chapter.

That's a long-winded statute, but let's break it down into these elements:

(1) Entering onto property with "force or strong hand" can be . . . a bad idea;

(2) Entering property with "weapons" can be . . . a bad idea;

(3) Entering property by "threatening to kill, maim, or beat the party in possession" can be . . . a bad idea. (In our case, the cops did not just threaten to maim or beat a party in possession; they actually did it.)

(4) Entering property by use of words or actions that "have a natural tendency to excite fear or apprehension of danger" can be . . . a bad idea. (Again, we weren't just made to feel we were in danger -- we were in danger.)

(5) Entering property and "putting out of doors or carrying away the goods of the party in possession" can be . . . a bad idea;

(6) Entering property and "turning out" by force or "other circumstances of terror" can be . . . a bad idea.

All six of those elements were present during our eviction on Sept. 9, 2015. It's almost as if our experience was taken right out of a legal textbook. Details about FED law can be found in a Missouri case styled Walker v. Anderson, 182 SW 3d 266 (Mo: Court of Appeals, Western Dist., 2006):

In an unlawful detainer action, under section 534.200, RSMo 2000, "[t]he complainant shall not be compelled to . . . make further proof of the forcible entry or detainer than that he was lawfully possessed of the premises, and that the defendant unlawfully entered into and detained or unlawfully detained the same." "[T]he principal issue in an unlawful detainer action is the immediate right of possession. . . . " 

That's the law in a nutshell. Under at least four grounds, we were "lawfully possessed of the premises." Cowherd, Lowther, and Greene County Sheriff Jim Arnott caused deputies to "unlawfully enter . . . and unlawfully detain the same." Creating a bogus 911 call does not provide an excuse for such conduct.

As we've noted several times, tenants do not have many rights in the U.S., especially in Missouri (which must be one of the most pro-landlord states in the country). But if you are lawfully in possession of the premises, you do have a right not to be forced out via "strong hand," "weapons," "threats," and "circumstances of terror."

That law has held for 900 years, and it isn't likely to change soon.


Bell said...

Sounds like a slam dunk case, if I ever saw one. So what's the catch? Will discovery be extremely difficult? Will proving causation be an issue? Or maybe the anticipated damages amount won't be tremendously high, meaning you'll be litigating based on principle?

Either way, good luck with your case!

Anonymous said...

From your description of it, I'd say you were under a domestic terror attack, funded by taxpayer dollars. Charming.

Anonymous said...

I'm looking forward to seeing what discovery turns up in your lawsuit. The actions of the landlord, his lawyer, and the cops make no sense. Want to know what really happened.

legalschnauzer said...


Nothing ever is a slam dunk in a system as compromised as ours. It all will come down to the judge. Even in a jury trial, a corrupt judge can make a case turn out the way he wants. We will be facing opposing parties who are entrenched, with lots of resources. Discovery shouldn't be difficult, if the rules of discovery are followed. Causation should be clear; Carol needed trauma surgery for a reason -- she was on the receiving end of a traumatic use of force. I have no idea what damages might be, but not sure what you mean by they "won't be tremendously high." Have you seen the X-rays of Carol's arm? Damages she suffered could not be more clear.

Anonymous said...

Do you think it's wise to announce here that you are going to be bringing a lawsuit in this case?

legalschnauzer said...

@10:12 --

Why not announce it? They know what's coming; that's the whole reason they filed bogus criminal charges against Carol. That's the reason lawyer Craig Lowther has sent dozens and dozens of anonymous comments to this blog. If they are going to tamper with or throw away evidence, they've probably already done it.

Anonymous said...

Are you saying cops can't use force to evict somebody?

legalschnauzer said...

@10:21 --

It's not a matter of what I'm saying; it's what the law says. And yes, cops can use force, but they need to make sure the target is not in lawful possession of the premises. On Sept. 9, 2015, date of our eviction, we were in lawful possession of our apartment on at least four separate grounds. I tried to explain this to Sheriff Arnott that date, but he only turned his palms upward and shrugged his shoulders. He has no excuse for his unlawful actions, and those of his deputies. Using force against people who legally entitled to be on premises is a bad idea.

Anonymous said...

Thanks for the education, LS. I had never heard of this legal claim either. If it's been around 900 years, that's pretty darned impressive. Don't think I'll be around 900 years, although I have some socks that might last that long.

legalschnauzer said...

@10:29 --

Hah! I've got some underwear that might be around 900 years. (Actually, I think the cockroaches and bed bugs will outlive all of us.) Sounds like "forcible entry and detainer" is related to trespassing, and I think trespassing law dates to Biblical times.

Here's an interesting scenario: Imagine you forcibly remove a trespasser from your property, and it turns out he had a legal right to be there. Oops! I'm guessing you've got problems.

Anonymous said...

Is this a tort or a crime?

legalschnauzer said...

@10:36 --

Best I can tell, it's only a tort. But it sure seems to tippy toe right up to the edge of being a crime.

Anonymous said...

I'm glad to hear there is a law like this. Sounds like these cops acted like Nazis.

Anonymous said...

Incredibly stupid for these dumb asses to evict when they knew the case was stayed by an appeal.

Anonymous said...

Will be interesting to see if Cowherd, the landlord, files a cross-claim against the lawyer, Lowther. He should because Lowther is responsible for letting this happen. Sheriff's department also should file a cross-claim against Lowther.

I deal with cases like this in my practice, and there is no excuse for how the Lowther firm handled this.

legalschnauzer said...

1:13 --

Interesting comment. Lowther is the one who is supposed to know the law, and he let two different entities -- the landlord and sheriff's office -- move ahead with an eviction that could not be done at the time, under the law.

Anonymous said...

Don't mean any offense, LS, but this case bothers me even more than your arrest. That was bad, but at least you came out of it with all of your limbs intact. I assume Carol is in the 55-60 age range, and while I don't know her personally, she certainly does not come across as anyone who would initiate physical contact with cops, or anyone else.

It especially bothers me that these thugs cops had no reason to be there that day. I can only imagine Carol's sense of terror when she knew you had filed a notice of appeal (the day before?) and that put a stay on execution until the appeal had been heard. The two of you are sitting at home, minding your business, and her come these thugs, breaking through the door, waving guns and breathing fire, and ultimately breaking Carol's arm. It's just hideous.

e.a.f. said...

Good Luck! Lets hope this goes forward and you and Carol are successful. If I had a passport I'd come and watch the proceedings. its going to be interesting.

legalschnauzer said...

@5:57 --

No offense taken. This case bothers me more than my arrest, too. I still have nightmares about it, sitting in the car about 15 feet away, seeing the whole thing, but knowing one or both of us probably would get shot if I tried to intervene.

This may sound nuts to some people, but our late kitty kat, Baxter, had been thrown up on the hood of our car (in his pet taxi) by a cop, and I was already furious about that. Then I see Carol getting slammed to the ground, with her arms yanked and placed in handcuffed. I knew if I intervened, we both would get arrested (maybe shot), and Baxter almost certainly dies. Concern about keeping Baxter alive (he was a special-needs kitty kat, with asthma and high blood pressure, and we had just lost his sister, Chloe, a few months earlier) was high in my mind. Knowing how much Carol loved Baxter, it was almost like I had to choose between them.

In the matter of a split second, I decided Carol probably would live, whether I intervened or not, but Baxter almost certainly would die if I intervened and got arrested. At the time, I had no idea they had broken Carol's arm (didn't find that out til next morning), but I wanted to beat this one cop bastard senseless when I saw him slam her down and yank on her arms. Of course, he had an arsenal hanging from his belt and wouldn't have thought twice about shooting me if I had tried to help Carol. They had already threatened to shoot me once with an assault rifle. I just know the whole thing was a nightmare unfolding before my eyes, and I will never be the same person again, especially when you combine that with my arrest and the bogus foreclosure on our house.

I know for sure Carol is not the same, and I'm not just talking about her arm. I think she sustained a concussion, and her thinking and ability to communicate are not what they used to be. It's a regular source of frustration for me because we've always been able to communicate fairly well, and now I can't understand half the stuff she's trying to tell me. She seems to write fine, but there seems to be some kind of disconnect in her ability to express verbal thoughts.

That might be due to PTSD, with which we both have been diagnosed.