Tuesday, November 26, 2019

Jayme Moore, of Shelby Co. Sheriff's Department, makes laughable assertions about the felony assault from Mike McGarity, our "Neighbor From Hell"

Mike McGarity
Sgt. Jayme Moore was the second stop on my law-enforcement runaround in Shelby County, AL. Like his underling, Dep. Lee Stockman, Moore was convinced -- no matter what the written law says -- that I was not the victim of a felony assault by our criminally inclined Alabama neighbor Mike McGarity.

Moore's efforts at a cover-up took a little different approach from Stockman's. And they even included comedic moments. that almost made me laugh out loud. But the results were the same -- he got the law wrong and referred me to someone else up the ladder.

The main difference with Moore was that he claimed the roadside sign McGarity used to strike me in the back -- near my spine and just inches below my neck -- was neither a "deadly weapon" nor a "dangerous instrument." To make our conversation even more enlightening, Moore kept mixing up those two terms -- as if they are interchangeable and mean the same thing.

In fact, they are very different. Even I acknowledge that the sign did not constitute a "deadly weapon," and I did not suffer a "serious physical injury" -- so it could not have been a first-degree assault, which is a Class B felony, punishable by two to 20 years in prison and a fine up to $30,000.

But McGarity's offense did involve a "dangerous instrument," based on how it was used (swung with two hands, as hard as he could, right at my spine), and it resulted in "physical injury." That makes it a second-degree assault, which is a Class C felony, punishable by one to 10 years in prison and a fine up to $15,000.

Let's take a look at portions of my conversation with Sgt. Moore. (A video, with the full conversation, is embedded at the end of this post.):

Jayme Moore (JM): To qualify for felony assault, it has to be a serious physical injury by means of a deadly instrument, and it's not going to fall into either one of those provisions. A for-sale sign does not qualify as a dangerous instrument.

Roger Shuler (RS): It was swung like a baseball bat, with two hands.
From the outset, Moore mixed up the terms "deadly instrument" (it's actually "deadly weapon") and "dangerous instrument" -- a sure sign he had no clue what he was talking about. But that didn't keep him from talking:

RS: Before I did anything, I went to the law library and read the entire section on assault. I've got a copy of it. The clear authority is . . . assault second degree, under item No. 2.

JM: On assault 2nd, if it causes physical injury, it has to be by means of a deadly weapon or dangerous instrument, and a for-sale sign is not going to qualify.

RS: Yes, it is. I've got case law that says something as small as a pencil, depending on how it's used . . . He swung it like a baseball bat and hit me in the middle of the back with it. This is a sign that is 3 ft x 2 ft, made of wood and plastic. The law says any substance can be a dangerous instrument, depending on how it's used. This was used to hit me in the middle of my back, swung like a baseball bat by a grown man, using the term 'man' loosely.

I've got case law in Shelby County, Burger v. State, where a Pelham police officer was kicked in the shins by a woman and it was classified as second degree.

One problem here: Everybody agrees it's assault, everybody agrees it's not first-degree assault. But it's also not third, because No. 3 under that, if it involves a dangerous instrument, you must have criminal negligence. And this is not a case of him swinging a sign around crazily, and I happen to run into it. It wasn't negligence.

At this point, the conversation with Sgt. Moore started going off the rails, with things turning in a nutty, goofy direction:

JM: Under assault second, that is intended if you use any kind of deadly instrument -- knife, gun -- but don't cause serious physical injury. Like if somebody is trying to stab you, and they wind up cutting your finger. That's what that statute is used for. [I have no idea where he got this; my research indicates it is pure fantasy.]

RS: This sign was five times bigger than a pencil, and he swung it and hit me in the back. . . .

JM: If he had rammed it in your eye socket, that would qualify.

RS: No kidding. That would be first, not second.

JM: Depending on the injuries.

RS: If somebody jams something in my eye socket, I think it's going to be pretty serious. [Moore seemed to be undecided if having something jammed in your eye socket would cause a serious injury.]

JM: I don't believe it will qualify, based on my experience with the DA's office.

RS: I don't want special treatment; I just want it applied the way it's written.

JM: I don't believe it would qualify as a deadly instrument.

RS: It doesn't have to be a deadly instrument. You're mixing up the words.

JM: If you disagree with me, you can call my supervisor.

RS: [Guffaws] How many people am I going to have to talk to?

Moore's supervisor turned out to be Lt. Howard Brogdon, so he became stop No. 3 on my runaround train.

(To be continued)

(Previously in the series)

* Dep. Lee Stockman starts the runaround on Alabama assault law -- 11/18/25

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