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)