Sunday 5 December 2010

Is waving an unleaded gun at trespassers illegal?

A New Brunswick man who confronted three teenage trespassers on March 28th 2010 with an unloaded shotgun was charged in the following November with possessing a weapon for a purpose dangerous to public peace, which sparked a fresh debate over how authorities treat citizens who take action for their own protection. Some will say that Manzer was acting in self-defence.

Lawrence Manzer, the accused said,“A lot of people at work and around the area think it's outrageous that I'm being charged.” Manzer, who served 18 years in the Canadian Forces as a radio technician added, “Even complete strangers have been phoning to voice their support and express their outrage.”

Back in March, there was a wave of vandalism and thefts in the Burton, New Brunswick area. Manzer had awoken around 2:30 a.m., when his neighbour, Brian Fox, phoned to warn him that three prowlers were in his backyard and that he (the neighbour) was going to confront them. Both men had had their homes and cars damaged by vandals in the past.

Manzer said, “When I got that call, I just thought, ‘They're at it again.’ ” Wearing only a pair of pants in -13C weather, Manzer told his wife to call the police and he then grabbed his unloaded shotgun. He said, “I stepped out front onto my steps with my firearm for my own protection. There was a lot of yelling and it was pretty dark," he said. "I couldn't make a lot of things out, so I yelled 'Be quiet. The police are on their way.’ ”

I can’t imagine how he expected to protect himself with an unloaded firearm unless he hoped to scare off the intruders.

He soon saw that his neighbour had already been able to get the intruders to sit down. Manzer said, “When I saw that everything was all right, I went back inside and locked up my firearm.” I can’t help but note that his neighbour was able to control the intruders without a firearm in his hand.

The RCMP soon arrived, and the teenagers were charged with underage drinking. But then a week later, the police returned to Manzer's home and arrested him. If found guilty, Mr. Manzer faces $5,000 in fines and/or six months in jail.

How far can someone go when acting in self defence against an intruder? In my opinion, if an intruder breaks into a home in the middle of the night, a homeowner waving a loaded or unloaded gun at the intruder is quite appropriate. We have all heard horror stories of intruders murdering people in homes during home invasions. Homeowners can take reasonable and necessary steps to prevent home invasions and even kill the intruders if their lives are at risk.

But how far can we go if the intruder is outside the home and is merely trespassing?

The neighbour said, “They could have been armed with something. He came out with a shotgun out of concern for myself.” The neighbour added. “If someone's out there at 3 a.m., prowling around the neighbourhood and in your backyard, you have a right to be concerned. They're not supposed to be there and they're probably up to no good.” In all likelihood, he is right.

But Sergeant Pierre Gervais of the RCMP in New Brunswick argued that taking matters into your own hands is irresponsible. I totally disagree with that statement. If an intruder is prowling around your home and night, calling the police is the right thing to do but keep in mind, you can’t be absolutely sure that the police will arrive on the scene on time to prevent a crime taking place.

For example, suppose the intruder is an arsonist and your mother is a very heavy set woman who is disabled and is sleeping in her bed in the basement apartment. While you are waiting for the police to arrive, the arsonist has set fire to your home and by the time the police arrive, you home is in flames and you can’t get your mother out of her apartment so you both perish in the flames.

The officer did follow up on his statement by making one that made more sense. He said, "If you're not in immediate danger, or if you can safely disengage from a situation, then please, call the police. I would say that something like 99.9% of cases like this can be resolved without incident. But, I would say, that if there is immediate danger, it's a different type of situation. Then you do what you need to do.”

There have been some real horrible instances when people taking the law into their own hands have shot and killed innocent trespassers.

On May 7th 2009, a 7-year-old boy who was shot in the head by a couple who thought he and three other people were trespassing on their property. Donald Coffey Jr. died at a Houston hospital, less than two days after he was struck in the head by shotgun pellets from a 12-guage shotgun.

The boy, struck in the face, was among eight people, including four children, who had been on the river outing. Four people, including another child, were shot. The boy’s 5-year-old sister, Destiny, and their father, Donald Coffey Sr., 36, were hit but have been treated by doctors and released. The fourth shooting victim was a family friend, Patrick Cammack, 30, whose condition has improved since surgery. Doctors had to leave a shotgun pellet in his head, said his wife, Cindy Nelton, who was also there that night. Nelton said the ordeal happened over two or three minutes in pitch darkness.

Sheila Muhs and her husband, Gayle Muhs, both 45, were charged with second-degree felony counts of aggravated assault in the shootings. One of the charges was later upgraded to murder.

The boy, his 5-year-old sister, their father and a family friend were driving on an off road near a residential area about 40 miles northeast of Houston when they were shot after stopping so the children could go to the bathroom. Police said the families in the two cars were driving on a public road when the Muhs opened fire from their house. Authorities said the couple fired after they mistakenly thought the group was trespassing on their property.

The area includes a dirt road, trees and overgrown brush and that it wasn't uncommon for people to go off-roading there. The Houston Chronicle reported that a sign in front of the suspects' home reads: ‘Trespassers will be shot. Survivers will be reshot!! Smile I will.’ The misspelling of the word ‘survivors’ was the Muhs’ mistake, not mine.

Liberty County Chief Deputy Ken DeFoor said Sheila Muhs fired a 12-gauge shotgun once and then she handed it to her husband, who also fired once. DeFoor said Sheila Muhs then called 911 and told the dispatcher: “They're out here tearing up the levee, so I shot them.” DeFoor said the levee belonged to the subdivision and was not private property. There was no indication the unarmed victims did anything threatening toward the Muhs or damaged the levee.

Donald Coffey Sr. suffered a pellet wound in his right shoulder and his daughter, Destiny, suffered a wound to the elbow. The family friend, 30-year-old Patrick Cammack, was in serious condition with a head wound, Memorial Hermann-Texas Medical Center spokeswoman Alex Rodriguez said.

In Sumter, South Carolina, a 12-year-old boy, accompanied by his father and three siblings, was shot to death while trick or treating on October 31, 2008. The boy's father and brother were also shot, but their injuries were not life-threatening. The shots came from inside the house. The mother was not injured as she waited in the vehicle. Quentin Patrick, 22, was charged with murder and three counts of assault and battery with attempt to kill in the shooting.

On September 8th, 2010, a 17-year-old was arrested on charges that the day before at 1:30 a.m., he pointed a gun at a woman, then fired a shot into the air after she got into an argument with the teen, Jessie Sagen, about his trespassing on her property. The teenager was arrested on charges of burglary, aggravated assault and possession of a firearm by a person under the age of 18.

In the State of New Hampshire, Moultonborough resident Ward Bird was sentenced on April 9th 2010 to three to six years in state prison after the state Supreme Court upheld his conviction for criminal threatening. His sentence has sparked outrage among some Lakes Region residents, dozens of whom sent e-mails to News 9, urging the state to "Free Ward Bird."

A jury found Ward guilty of using a gun to threaten a woman to leave his property. The woman accidentally arrived on Bird's property, which had signs stating, "No trespassing." Bird came out of his home, screaming, “Get the fuck off my property.” No one was hurt in the incident.

“She wasn't threatening him," said Carroll County Attorney Robin Gordon. "She wasn't going there to create any sort of criminal activity.” Gordon said that despite the numerous "no trespassing" signs that line the way to Bird's home, the woman went on the property because she was lost and needed directions. Gordon said Bird went too far. I would say extremely too far.

“By him brandishing, waving a gun around at her,” Gordoni said. “He had a pistol. She was put in fear of imminent bodily harm.”

At Ward Bird's sentencing, the judge recommended that he spent about 30 days in prison, and then be let out on work release or home confinement. That decision is up to the Department of Corrections, which said the earliest Bird could be considered for such a program would be in two years.

Defence-of-dwelling laws have generated fierce debate in other jurisdictions. For example, consider the case of Co Mayo, a farmer whose farm is at Funshinaugh Cross in the United Kingdom. He shot and killed John Frog Ward in October 2004 when the latter came to his house. He was sentenced to six years for manslaughter. He served 11 months before the case was appealed to the Court of Criminal Appeal and his conviction quashed on the basis that the trial judge had misdirected the jury by allowing them to consider self-defence only as a partial defence.

A similar debate arose in the UK last year when Munir Hussain was jailed for 2½ years for causing grievous bodily harm with intent when he pursued and beat with a cricket bat, a man who had broken into his home and threatened his family with a knife. Mr Hussain was released after a public outcry. Last month the new British justice secretary, Kenneth Clarke, announced plans to examine ways to give increased legal protection to people who defended themselves against intruders.

A Bill published by Mr Ahern deals with the use of justifiable force in the defence of a person and his or her home, in the context of a trespasser entering the home with criminal intent, including to commit murder, rape, kidnapping or damage or destruction.

Keep in mind that in the New Brunswick case, there was no evidence showing that the three teenagers intended to enter Mr. Manzer’s home or do any damage elsewhere on his property.

The law in Canada and elsewhere does not require a person to retreat when defending a dwelling or the people in it against an intruder entering with criminal intent.

Most controversially, a person who uses force causing death against an intruder will not be guilty of murder, depending of course on the gravity of the threat posed by the intruder and the extent to which the person felt threatened.

In the New Brunswick case, there was no reason for Manzer to feel threatened especially since according to his own words, “I was pretty dark. I couldn’t make things out.” This means that he had no way of determining one way or another as to whether he or his wife or his property were in any danger. Just because you know that there is someone in the dark inside your back yard doesn’t necessarily mean that you, your family or your property are at risk. However, it is immaterial whether such a belief is justified or not as long as it is honestly held.

Hillsboro Police on September 29th 2010 arrested a Hillsboro man who they say fired shots at two trespassers in his backyard. Officers were called at about 2:15 a.m. to the 3000 block of Southeast Meriweather Drive after neighbors reported hearing shots fired from a residence in the area, said Lt. Mike Rouches, Hillsboro police spokesman. Around the same time, police also received a call about a burglary. Police contacted Matthew Linton, 23, at the home where the shots were reportedly fired. Responding officers learned that Linton had heard two people in his backyard and then fired two shots from a handgun toward them. That was very stupid on his part. Linton was charged with unlawful use of a weapon and attempted first-degree assault charges.

Police located a 16-year-old Hillsboro boy hiding in a ditch nearby, and they arrested him in connection to the trespass. Police were then looking for 19-year-old Alfredo DeJesus, of Forest Grove, on trespassing charges.

Linton could have killed the two trespassers when he shot at them. It seems that shooting trespassers dead simply because they are trespassing on your property is going to extremes. The cop was quite right when he said, “What we don't want is homeowners shooting at people in their backyards.”

In California, it is illegal to order someone off your own property with a firearm.

The Canadian Criminal Code addresses situations like the one in New Brunswick.

Section 86 provides: Every one who, without lawful excuse, points a firearm at another person, whether the firearm is loaded or unloaded, (a) is guilty of an indictable offence (felony) and liable to imprisonment for a term not exceeding five years; or (b) is guilty of an offence punishable on summary conviction (misdemeanor).

R. v. Pawlivsky (1981), the Saskatchewan Court of Appeal ruled (at p. 359): “Carelessness infers an element of negligence or recklessness. It describes a state of conscious indifference or oblivion to the potential consequences of an act or course of action. Pointing an unloaded firearm is necessarily foolish and very properly prohibited by the Code, because it encourages recklessness which could in another situation, lead to injury.”

In summary

Although I sympathize with the concern that Manzer had about trespassers on his property, especially since his property had been vandalized in the past, despite that, he was wrong to go out of his house waving a shotgun (loaded or not) at three unseen trespassers. If what he did was permissible, then it would be equally permissible to wave a loaded shotgun at unseen trespassers. That is when things can go really bad for everyone. If the gun is accidentally fired and someone is seriously injured or killed, it would not be a sufficient excuse for the homeowner to say that he was merely guarding his property.

If a homeowner is permitted to own firearms and keep them in his home, he is presumed to be a very careful person who doesn’t do stupid things with his guns. Waving a shotgun (or any other firearm) in the direction of trespassers in your back yard, especially when it is dark and you can hardly see them is not only stupid and dangerous, it is also illegal in Canada.

As to punishment, I don’t think he will go to jail. I believe that he will get a fine and probably be ordered to do volunteer work in the community for several months on weekends and in all likelihood, be prohibited from owing or being in possession of a firearm for a lengthy period of time.

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