PDA

View Full Version : is this a crime?



Joanna Hoyt
12-13-2010, 12:19 AM
In my story the police in a small town that doesn't generally offer much in the way of violent crime have been called in to investigate a suspicious death--apparently could be accident, suicide or homicide. They're questioning the witnesses (and probable suspects), the estranged housemates of the deceased, none of whom are armed or acting threatening. One of my characters has good timing and reflexes, very poor judgment, and a strong desire to create a diversion. I was thinking of having him make a grab for one of the officers' guns while said officer is distracted by another rather hysterical witness. If he managed to get the gun and throw it away from the group, and followed this up with insubordinate remarks but not with any physically threatening move, what would be likely to happen to him? Would he have committed a crime (if so, what?) and would he be likely to be arrested?

Captcha
12-13-2010, 12:36 AM
What jurisdiction are you in?

There's probably some version of Interfering with a Police Investigation in most places. Also, I'd say possibly Theft, and/or Assault. Probably something about Careless Use of a Firearm. I don't know enough about guns, but I think maybe Reckless Endangerment, or equivalent.

The big risk would be the cop's partner, assuming there was one - your character would be lucky if he wasn't shot.

Drachen Jager
12-13-2010, 12:42 AM
Assault, theft, unlawful possession of a firearm. They'd throw the book at him.

He'd likely be arrested in a very rough fashion and thrown in a cell for 48 hours or whatever the maximum limit is before he even saw the light of day.

Also, it's very hard to remove a police officer's sidearm like that, they have holsters which are designed to prevent third parties from stealing their weapon. Look for Level 2 and Level 3 holster on the internet to get an idea of the security features, most departments use one or the other right now, bigger cities have generally already upgraded to Level 3.

jclarkdawe
12-13-2010, 01:27 AM
Assault, theft, unlawful possession of a firearm. They'd throw the book at him.

He'd likely be arrested in a very rough fashion and thrown in a cell for 48 hours or whatever the maximum limit is before he even saw the light of day.

Also, it's very hard to remove a police officer's sidearm like that, they have holsters which are designed to prevent third parties from stealing their weapon. Look for Level 2 and Level 3 holster on the internet to get an idea of the security features, most departments use one or the other right now, bigger cities have generally already upgraded to Level 3.

Drachen said it so well, why add more?

Best of luck,

Jim Clark-Dawe

JulieHowe
12-13-2010, 02:18 AM
If he managed to get the gun and throw it away from the group, and followed this up with insubordinate remarks but not with any physically threatening move, what would be likely to happen to him? Would he have committed a crime (if so, what?) and would he be likely to be arrested?

I can answer your last question. Not saying how I got there, mind you.

Disorderly conduct is the favored criminal charge for what police officers regard as contempt of cop (this last phrase is unofficial, but it's used), when someone mouths off to a cop, or even merely questions the legitimacy of a police stop, but offers up no physical resistance or threatening gestures.


However, your character's act of taking the gun rachets up the crime to assault of a police officer, interfering with a police investigation, resisting arrest, and a laundry list of other criminal charges. But... successfully grabbing a cop's gun from him is an event very unlikely to happen. If the suspect was high on drugs, mentally ill or amped on adrenaline (about to be arrested right after committing some crime), then he might try and grab the cop's gun, but in the context you describe, it seems unrealistic.

leahzero
12-13-2010, 03:07 AM
One of my characters has good timing and reflexes, very poor judgment, and a strong desire to create a diversion. I was thinking of having him make a grab for one of the officers' guns while said officer is distracted by another rather hysterical witness. If he managed to get the gun and throw it away from the group, and followed this up with insubordinate remarks but not with any physically threatening move, what would be likely to happen to him? Would he have committed a crime (if so, what?) and would he be likely to be arrested?

If your character goes through with this, they're going to throw the book at him as folks detailed above, and he'll be out of the action for quite a while. Is that what you want? Because it doesn't seem like it--you mention having the character throw the gun aside and mouth off to the cops afterward. I'd just stick with the mouthing off.

ajkjd01
12-13-2010, 03:17 AM
You know, he's got bigger problems than what he's charged with if he reaches for a cop's gun.

Cops hear horror stories all the time about fellow officers who had their guns taken and used against them. They will take seriously any attempt to do this. And they're trained to protect that gun. And they will react to this. Your character is attempting to draw a gun, even if it's not their own. That means the cop is faced with deadly force.

Regardless of whether you respect the jobs cops do or not, most (and I know there are exceptions, but still I say MOST) cops are more interested in making sure they go home alive at the end of the night than what the person gets charged with in the morning. They will restrain that person. They will use force to do so. And it's hard to say that they're using excessive force if the suspect has gone straight to the top by trying for the highest level of force possible. Just saying.

And, generally, they can't charge someone for the content of what they say, they can prosecute for threats, or fighting words, or the manner in which whatever was said comes out, if there it fits an offense.

Oh, and 48 hours before he sees a judge? Possibly. Is he going to have a fairly large bail amount set? Yup. Rocketing straight to the top of their suspect list? Most definitely.

Wayne K
12-13-2010, 03:22 AM
In my story the police in a small town that doesn't generally offer much in the way of violent crime have been called in to investigate a suspicious death--apparently could be accident, suicide or homicide. They're questioning the witnesses (and probable suspects), the estranged housemates of the deceased, none of whom are armed or acting threatening. One of my characters has good timing and reflexes, very poor judgment, and a strong desire to create a diversion. I was thinking of having him make a grab for one of the officers' guns while said officer is distracted by another rather hysterical witness. If he managed to get the gun and throw it away from the group, and followed this up with insubordinate remarks but not with any physically threatening move, what would be likely to happen to him? Would he have committed a crime (if so, what?) and would he be likely to be arrested?
He would be knocked down and subdued. If the cop has a partner, he could be shot

Kitti
12-13-2010, 03:43 AM
What is he trying to divert the cops' attention from, and how long does he need to get their attention? There is probably a better way... or at least, a way that's less likely to get him shot.

Steam&Ink
12-13-2010, 03:53 AM
Mostly I agree with the above, especially with the Assault and Hindering a Police Investigation charges (or some version of this).

In the jurisdiction I'm in, however, a Theft charge would not fly, because part of that offence is the intention to keep the goods for the person's own use. And as your guy just knocked the gun out of the cop's hand (or snatched it and threw it away), I don't think many judges would accept that the requirements for theft were satisfied.

Another point about "throwing the book at him". Bear in mind that for each action the police prosecutors can only choose one charge - and they will choose the one that they are most likely to succeed on, not the one with the most jail time.
This is because Judges don't like it when the police prosecutor says, "Well, we're fairly certain what he did would make him guilty of A, and if that won't work we've got B as a back-up, and if the judge doesn't like that we'll try for C".
A judge (in my jurisdiction) would have a pretty sharp tongue for that police prosecutor! They'd have to choose one charge and go for proving that. (That's why you don't see trials in which the defendant is charged with "Murder, or manslaughter, or assault with a deadly weapon".)

PS I'm fairly certain you will be able to access your legislation online, so I encourage you to look them up.

Joanna Hoyt
12-13-2010, 03:57 AM
He's trying to prevent his girlfriend, who is going off the deep end, from making remarks which might incriminate her. Or, alternately, to create such an uproar that no one has a chance to notice what she's saying. He's also in shock and also chronically unfond of police officers and of authority figures in general.

I was picturing only one officer present in the room, the other elsewhere trying to conduct individual interviews. And again, this is in a rural and low-crime area, and I'm picturing these as officers who probably have never had cause to shoot anyone before and aren't apt to do it in haste.

I'll have to read up on holsters. Maybe I can have him grab for the gun and fail to get it; though I suppose this could be a lot worse for him legally, since there'd be nothing to show that he wasn't intending to shoot the officer. Having him jailed briefly wouldn't be a problem, but I'd like him to get out on bail--having him totally off-scene for months would be a problem. Maybe I'll have to settle for some more minor provocation.

Drachen Jager
12-13-2010, 04:06 AM
Most jurisdictions I know of it's either for personal gain OR to deprive the owner of it's use.

ie. If you steal a car and hide it it's theft, even if you don't intend to use it. What is the crime of depriving another of property without the intent to use it in your jurisdiction? It must be some kind of crime.

Throwing the book at him means hitting him for every conceivable crime.

Disturbing the peace, theft, interruption of a police officer in his duties, unlawful possession of a firearm, assault etc. Looking for every single law that can reasonably be applied.

jclarkdawe
12-13-2010, 04:46 AM
Mostly I agree with the above, especially with the Assault and Hindering a Police Investigation charges (or some version of this).

In the jurisdiction I'm in, however, a Theft charge would not fly, because part of that offence is the intention to keep the goods for the person's own use. And as your guy just knocked the gun out of the cop's hand (or snatched it and threw it away), I don't think many judges would accept that the requirements for theft were satisfied. The theft charge probably won't fly at trial. But the question at this point is whether there is probable cause to believe a theft occurred, not proof beyond a reasonable doubt. Depending upon the jurisdiction, I think a theft charge would hold up at this stage.

Another point about "throwing the book at him". Bear in mind that for each action the police prosecutors can only choose one charge - and they will choose the one that they are most likely to succeed on, not the one with the most jail time. This somewhat depends upon the jurisdiction. The Feds love to pile on the charges. Sell to two undercover cops at the same time and they'll charge you with two counts of distributing. But frequently the police charge each possible theory, and then drop for the plea or when the trial begins.

Because let's say you could charge A or B, but only choose A. Defense attorney finds a fatal flaw in the charge, and now the prosecutor's case is thrown out. Now the defendant is free until the police can find and arrest him on the other charge. Especially if the defendant is in jail, think the police want to go through that aggravation?

This is because Judges don't like it when the police prosecutor says, "Well, we're fairly certain what he did would make him guilty of A, and if that won't work we've got B as a back-up, and if the judge doesn't like that we'll try for C". Again depends upon the jurisdiction, but usually a prosecutor can use two alternative theory. The jury can only convict on one, however. I've had a couple of cases where that has happened. It's not a big deal procedurally.

A judge (in my jurisdiction) would have a pretty sharp tongue for that police prosecutor! They'd have to choose one charge and go for proving that. (That's why you don't see trials in which the defendant is charged with "Murder, or manslaughter, or assault with a deadly weapon".) Not quite. Manslaughter and assault are lesser included offenses of murder. The elements of common law murder are:

the killing
of a human being
by another human being
with malice aforethought.

Let's say the prosecutor proves 1, 2, and 3 of the elements, but the jury does not believe that the prosecutor proved malice aforethought. The jury brings back a verdict of manslaughter. The defendant might waive some of the elements at trial. For example, we could stipulate that the victim was in fact a human. Otherwise, the prosecutor has to prove that the victim was human.

PS I'm fairly certain you will be able to access your legislation online, so I encourage you to look them up.

I should point out there is a risk element to stacking charges. I had a client on a misdemeanor and a felony for the same act. Pled the sucker on the misdemeanor before the prosecutor figured out what was happening. Result was the felony had to be dropped because of double jeopardy. But that's a rare day.

Best of luck,

Jim Clark-Dawe

Steam&Ink
12-13-2010, 05:30 AM
The theft charge probably won't fly at trial. But the question at this point is whether there is probable cause to believe a theft occurred, not proof beyond a reasonable doubt. Depending upon the jurisdiction, I think a theft charge would hold up at this stage.

Actually, the question was whether a crime had been committed, and whether the person would be arrested. As I said, in the jurisdiction I'm in, the police are (generally!) well-versed enough on the law that they won't arrest someone on charges they know won't even survive through the first hearing (and the theft charge wouldn't, because the "intention to keep" element is not present). It's just a waste of their time and resources.

Perhaps the charges stacking is very different from place to place, because what you describe would absolutely not fly in our courts. You're charged for a specific offence, and you base your defence on the specific conditions of that offence. Juries have two options: guilty, or not guilty.

As I noted several times in my post, I am speaking with the knowledge I've gathered of my own jurisdiction (feel free to PM me, Joanna, if you'd like more info on my job). I suppose it all goes to show that Joanna would be best served getting in touch with a local prosecutor or criminal defence lawyer, for authenticity.

jclarkdawe
12-13-2010, 05:49 AM
As I noted several times in my post, I am speaking with the knowledge I've gathered of my own jurisdiction (I'm a barrister/solicitor). It all just goes to show that the OP should get in touch with a local prosecutor or criminal defence lawyer, for authenticity.


Which shows me why we're having such a difference of opinion. And my American egotism was apparently running on overdrive.

Once I realized you weren't talking US criminal justice, I got you perfectly. Although criminal justice between England and Australia and Canada and the US is substantially the same, as compared to the system in France or Italy, for example, there are still big differences. Even within the US, there are marked differences between the states.

Sorry for the confusion.

To the OP, let us know where this story is taking place. It makes a big difference to the answer.

Best of luck,

Jim Clark-Dawe

Captcha
12-13-2010, 06:46 AM
Well, generally when a poster doesn't specify their jurisdiction, it's because they're American - so it isn't just your American egotism, jcd - it was probably a safe assumption on your part.

Joanna Hoyt
12-13-2010, 06:53 AM
Yes, a safe assumption. The story is set in rural NY.

Drachen Jager
12-13-2010, 10:08 AM
New York, I saw when I was checking my info on theft says depriving someone of an item of value is theft. So theft would be one of the many things he would be charged with. If he succeeded in drawing the weapon, of course. Even attempting and failing would land him in a heap of trouble and effectively disrupt everything that was going on. Cops do not take that sort of thing lightly.

RJK
12-13-2010, 10:35 PM
If this happened to any of the cops I know, the guy would get the snot beat out of him. Some may call this police brutality, but I call it a natural reaction to having someone use deadly physical force against you. Your character had his hand on the officer's weapon, even for a second. That is all it takes to pull the trigger and end the officer's life.

After the street justice has been administered, in New York, we have a law called "Obstructing Governmental Administration." This will cover what he did. It's a misdemeanor, but it would do.

I remember sitting at a lunch counter with another officer when a citizen tugged on the officer's gun to get his attention. The officer swung around with a back-hand punch knocking the man to the ground. Later, both officer and citizen apologized for the misunderstanding.

Hallen
12-14-2010, 01:30 AM
I question the entire situation. I seriously doubt a uniformed police officer (assumption, since you used the term "officer") would be doing any questioning, especially in or near the location of the crime (assumption again).

Unless there was some immediate need to chase after a suspect, in other words, the crime just happened, I suspect that the officers who respond to the call are simply going to segregate witnesses and get basic ID information. Then, they'll wait for the homicide squad to show up. If they go much further than that, they risk "contaminating" the witnesses and possibly causing problems for the trial later on.

Plus, any serious questioning is going to be done individually.

Most detectives will be wearing a shoulder holster. But if they're wearing a belt holster, it's probably like the one discussed above.

debirlfan
12-14-2010, 05:45 AM
Honestly - I'm not sure that as a reader I'd "buy" the idea of the guy grabbing and throwing the cops gun. IMHO, it would be more likely if - given the circumstances you describe - he got in the cops face yelling at him, and perhaps gave him a shove or even punched him. That would undoubtedly still cause a ruckus and get him into trouble at the time, but given a sympathetic cop/DA, it's possible they might go easy on him legally afterwards if convinced he was hyper-emotional because of his friend's death.