Thursday, November 30, 2017

Not content to blow smoke up our butts about trespass issue, Patty Poe also spewed rubbish about Missouri Castle Doctrine and its impact on Carol's case

Patty Poe
As she was unleashing a monstrous lie about plans for deputies to arrest Carol for trespassing, Missouri public defender Patty Poe also was blowing plumes of smoke up our fannies about another legal issue -- one that actually applies to the case and presents grounds for dismissal.

We are talking about Missouri's Castle Doctrine Law, which allows for the use of force to protect the home. In Carol's case, it now is clear she did not use force against deputies who unlawfully entered our home for an eviction in September 2015; Officer Jeremy Lynn, the "victim" of Carol's alleged assault, admits he caused physical contact with Carol, not the other way around -- and that means Carol is not guilty of the "assault" charge against her.

Even if Carol had caused physical contact with Lynn, she would have been acting lawfully under Missouri's Castle Doctrine Law. We know that, despite the following words that Poe sent to us in an August email:

Castle Doctrine does not apply in Carol's case. Pursuant to RSMo 563.031 law enforcement are exempt from the protections of the castle doctrine. What matters is were the law enforcement officers reasonably believe they are executing an arrest (RSMo 563.046). In Carol's case, based on the execution for possession, the law enforcement officers thought they were reasonably executing an arrest for trespass.

We've already shown that Poe's last sentence is off target by the length of several Midwestern cornfields. But her statements regarding the Castle Doctrine also are wildly off base. Missouri's law is not much different from one in Indiana, which specifically allows a citizen to shoot a "public servant" (including a cop) he believes is unlawfully entering his residence. Here's how we summarized the two laws in a previous post:

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.

In our situation, there were at least 10 reasons cops did not have grounds to be there. And Carol had a reasonable belief cops were unlawfully entering our residence, especially since she knew we had filed a Notice of Appeal the day before, putting a stay on execution of the eviction.

So where did Poe come up with her contention that the Missouri Castle Doctrine did not apply in our case? We can only assume she pulled it out of her ass -- or maybe she just enjoys lying straight to the faces of her clients. Let's examine Poe's two claims regarding the Castle Doctrine:

(1) RSMo 563.031 excludes law-enforcement officers --  What does RSMo 563.031 actually say? Here it is, in pertinent part:

563.031. Use of force in defense of persons. — 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;

Poe apparently believes item (b) exempts law-enforcement officers from the Castle Doctrine. But it clearly does not do that. It simply says that officers, in instances of entry into a residence, are an aggressor, by definition. In other words, officers (by their job descriptions) are the ones who can seek lawful entry into a private citizen's home, not the other way around -- but if the occupant has reason to believe the officer is attempting to enter unlawfully . . . well, the officer could have problems on his hands.

(2) RSMo 563.046 excludes officers who reasonably believe they are executing an arrest -- What does RSMo 563.046 actually say? Here it is, in pertinent part:

563.046. Law enforcement officer's use of force in making an arrest. — 1. A law enforcement officer need not retreat or desist from efforts to effect the arrest, or from efforts to prevent the escape from custody, of a person he or she reasonably believes to have committed an offense because of resistance or threatened resistance of the arrestee. In addition to the use of physical force authorized under other sections of this chapter, a law enforcement officer is, subject to the provisions of subsections 2 and 3, justified in the use of such physical force as he or she reasonably believes is immediately necessary to effect the arrest or to prevent the escape from custody.

This one is easy to deal with. The statute clearly involves possible use of force in making an arrest or preventing an escape from custody. The officers' own written statements show they were at our residence to conduct an eviction (although it was an unlawful eviction), and there is no indication an arrest was planned or that there were grounds for an arrest -- and Carol certainly was not in custody.

Even if an arrest had been in the picture, Sec. 563.046 includes the following language:

The use of any physical force in making an arrest is not justified under this section unless the arrest is lawful or the law enforcement officer reasonably believes the arrest is lawful, and the amount of physical force used was objectively reasonable in light of the totality of the particular facts and circumstances confronting the officer on the scene, without regard to the officer’s underlying intent or motivation.

It is "objectively reasonable" for an officer to break a tenant's arm while executing an eviction? Uh, I don't think so -- and even the Missouri deputies aren't vacant enough to make that assertion.

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