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.

22 comments:

Anonymous said...

Best advice for future: When you know your landlord wants you out, best to go ahead and get another place.

Anonymous said...

Poe was under pressure from somebody to either manage Carol or get off her case.

Anonymous said...

These people in Missouri almost make the Shelby Co., Alabama crowd look forward thinking.

legalschnauzer said...

@1:17 --

You are right, and I didn't think it was possible for SC thugs to look good in comparison to anybody.

legalschnauzer said...

@6:54 --

Mrs. Cowherd: Here is some advice for you: If you can't follow the law or your own lease, stay out of the landlord business. It could wind up costing you big money.

Anonymous said...

How long has Poe been a practicing attorney? If she ever had any idealistic notions about the law, the scales probably have fallen from her eyes after this episode.

legalschnauzer said...

I think she's been practicing law about a year.

Anonymous said...

I think your reading of the Missouri Castle Doctrine law is correct, but it is very poorly written

legalschnauzer said...

@11:40 --

Agreed, the statute is very poorly written. Plus, it's irrelevant in Carol's case because the "victim" (Jeremy Lynn) admits he caused physical contact with Carol, not the other way around. That means there is written proof Carol did not assault a law enforcement officer.

The point of this post is to show the mountain of falsehoods Patty Poe was throwing at Carol in recent weeks and months. But the Castle Doctrine does not apply in Carol's case.

legalschnauzer said...

For those struggling to figure out what the Missouri Castle Doctrine says and means, here is how I figured it out (sort of):

(1) First passage -- "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 . . . "

LS: "A person" is the subject of the entire passage, and it's the person who reasonably believes he is being threatened. It's "a person" who is in a passive position.

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

LS: This is where it gets confusing because "a person" becomes "the actor." But those two terms refer to the same person -- the subject of the passage. We're still talking about the original person who is feeling threatened. If that person was the initial "aggressor" -- and that's another confusing term -- Castle Doctrine protection might not apply to him. It's all about who is acting aggressively and who is acting passively.

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

LS: This adds another potential element of confusion, but once you realize this is referring to the original subject ("a person"), the whole thing becomes fairly clear. This is saying if the subject ("a person") is a cop, then by definition, he is the aggressor, under terms of the statute. And aggressors are subject to use of force if the passive individual reasonably believes they are acting unlawfully to enter a residence.

In other words, cops in Missouri need to be careful about how they approach a residence with the idea of making a forced entry. They'd better have their documents in order, and the cops in our situation did not.


Hope this helps.

legalschnauzer said...

A final note: I don't think Poe even read the Castle Doctrine statute; she probably just spewed out what somebody told her to tell us. But her interpretation is exactly the opposite of what the law says.

Rather than being exempt under the law, cops are put on notice that they are, by definition, aggressors -- and they need to make sure they are acting lawfully.

This law, like the one in Indiana, probably was driven by the NRA, and some might call it anti-law enforcement. I wouldn't call it anti-law enforcement, but it does seek to hold cops accountable -- and that is a rarity, under the law.

Anonymous said...

Why didn't the landlord conduct the eviction? That's the way it's supposed to be, with maybe one cop (holding a donut) standing by in case there is a problem.

legalschnauzer said...

@12:13 --

That's exactly right. That's what is supposed to happen, and that's how Web sites for a number of Missouri tenant/landlord lawyers describe the way it's supposed to work. You also don't normally have the sheriff himself, with six to eight officers in tow, on the scene. But nothing about this was normal.

Anonymous said...

Poe is a bad liar, so her prospects are dim in the legal profession.

Anonymous said...

The NRA wants guns in the hands of as many people as possible. If a few cops have to die to help make that happen . . . well, the NRA doesn't care.

Anonymous said...

If you read a little further in Sec. 563.031, you see this language in the Missouri statute:


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

This is exactly what happened in your case -- You and Carol were faced with "a person who unlawfully enters," and as the law is written, "a person" clearly can include a law enforcement officer. In fact, they are always considered "aggressors."

Carol probably would have been acting under the law by shooting the bastard. If he only got a push -- and as you say, he admits she didn't push him -- he was damned lucky.

Anonymous said...

I know it's not against the law to be ignorant or incompetent but it should be. Can you sue a lawyer for being incompetent? Or do they have immunity?

legalschnauzer said...

@2:54 --

Yes, you can sue a lawyer for legal malpractice, and that's probably where we are heading with Ms. Poe. No, they do not have immunity.

Anonymous said...

Aboard the Eliza Battle Captain Marshall had the crew assembled for a round table discussion. The Captain asked the Ghosts why they stuck with the prediction they made 2 years previous. Dr Foreman replied that the Captain had based his choice for the option Mike would choose on what he had observed as a mortal man. But the Ghosts knew what duress Mike was under as a captive on the Victoria. A large sum of money was Mike's choice but the Eliza Battle unwittingly damaged that choice. Mary Mac asked for some-one to please explain. Admiral Tyron replied that for the Obama Justice Dept to keep the Bingo Trial corruption secret, It needed the Transcripts Roger said he had on August 5, 2015. The well planned Military operation to send DOJ agents into Roger's apt. dressed as SWAT Team members using their gear to conceal the electronic equipment to scan Roger's computer, was a success. They determined that the Transcripts were only in Roger's Scribd account. The Blue Shirt Thug who caused the collateral damage to Carol committed a perverse action which has reversed the success to being a total failure. The Obama DOJ then sent the Siegelman Documents to the Judge hearing his lawsuit To eliminate Mike's option #2. Mary Mac asked how the Eliza Battle had changed Mike's choice. The Admiral replied that when the Eliza Battle had informed Roger that the DOJ was after the transcripts, Roger replied that he still had them. Roger could be bluffing, but now options 1,3 and 4 will be a gamble for Mike. Admiral Tyron introduced Alan Poe as the special guest who would continue the discussion. Poe informed the crew that he had written two short stories to describe the crew of the Victoria. He added that Alan Shuler will write a sequel to "The Black Cat" and it will be titled The little Black Dog with the White Patch. Poe said the other story he wrote describing the crew was "The Imp of the Perverse". The county commissioner who told Captain Marshall that he would put the Captain out of business with legislation they had passed and the Mapper who told the Captain that the Captain could not prove the corruption they were committing are described in this story. The person who ordered the Captain's taxes to be audited and the Blue Shirt Thug are also described. These crew members are mirroring their Commander's perverse actions. The Captain of the Victoria will decide to abandon ship with his daughter and leave the Commander aboard ship to suffer the consequences of his erratic behavior. Many of his actions including the imprisonment of Roger had no Strategic Value to winning the war. The Caption of the Victoria must throw some-one overboard to secure seats in the life boat for him and his daughter.
People underestimate Mike. Mike has a plan.

Thomas S. Bean said...

I've been through stuff like this and it was never ending chicanery, fraud and aggravating humiliation by anyone and everyone who had a fiduciary duty to me: lawyers, public defendors (I too did my own research), doctors, contractors, etc. I could have filed at least ten different civil suits (just off the top of my head).

It's a long term COINtelpro operation and could be funded and supervised under the rubric of DOJ's Community Policing Programs (apparently DOJ has a Community Policing Division on a flow chart that I saw). I suspect you are targeted by more than just local LEO. I suspect that every county-town-city has counter terror funds to be used for political neutralizations like the 2000 lb shithammer you're under now.

Long term stressors like you've experienced can also include a more invasive methodology in which Military Grade Psychotronics are used to force your retreat from your own home. Sleep deprivations are common: notice being awakened after four hours (See, US Military Rule book on torture) Castle Doctrine doesn't protect much, when directed energy weapons are deployed.

I'm sorry to say, it can only get worse. Gangstalking is aided and abetted by county-city-state-fed law enforcement. The breadth and scope of your unfortunate marginalization by covert and overt sinister forces rang a familiar bell orchestra as I look back at my thirty year targeting. Apparently, COIN is a classified program and untouchable despite the fact non secure personnel will be deployed?

Sadly, your life is likely to take on diminished prospects for what you expected and deserve as a US citizen. Misery loves company: if I lived in Missouri, I think we would become fast friends piecing together the puzzle of all this madness.

Cheers

legalschnauzer said...

What caused you to be targeted?

Thomas S. Bean said...

I don't know...there has been no actual and explicit notice of any kind, but...I am sure tainted evidence has been used to make arrests. It's a secret surveillance with secret determinations: a star chamber run by Republican good solid citizens.

When it started is only suspected: divorce case involving a nut named Kurt Seidshlau who claimed to be both a "reserve deputy Sheriff" and a "private detective". Oddly enough, several of the gang decided to follow me into law school? Who's funding all this? If you were working a secret contract surveillance, would you bother applying to the same law school and finishing three years of rigorous study...just to say you were being thorough?

It is a pattern and practice not easily detected initially or proven well enough to file a lawsuit. I was stuck wondering "do Targeted Individuals have the burden of investigating suspected civil rights violations?" by law enforcement's secret civilian vigilante surveillance network...when that civilian would not have the benefits of a budget, team, sources, methods, and badges?

This secret community policing program seems to be protected either by "state secrets-National Security Classifications" or "casual sublime supreme authority turning indifference and criminal apathy" into the dreaded unfocused, never ending, unminimized, ubiquitous surveillance that crosses state lines for decades?

Is this what was covered up by Congress-Bush-Obama-NSA-FBI-DOJ after Risen's NYTIMES story barely scratched the surface in 2005 while being out spun by MSM who focused on possible FISA CT problems? The "warrantless wiretapping scandal" was assumed to be somehow tied to counter terrorism and/or "agents of a foreign power(?)" since MSM always focused on FISA requiring a warrant. They truth was, it was a Title III problem.....there is no counter terrorism, "agent of a foreign power" or counterinteligence issue......there never was.

Comey and Mueller were falsely portrayed as having some ideological reservation about some aspect of some secret program (The Ashcroft Hospital visit theatre charade storyline) that may have involved wiretapping without warrants: "The President Bush program".

We are all in the dark about organized community felonies, conspiracies, and abuse of "The Citizen Rule Exception to The Exclusionary Rule" when law enforcement organizes the dissemination of tainted info through organized citizens (who are all tied to law enforcement).