Tuesday, November 26, 2013
Free in Kentucky: The Knockout Game: What Crimes are Committed?: The big story this past week in criminal law is the “knockout game.” Last things first – I’ve heard several people say this is not a “g...
The big story this past week in criminal law is the “knockout game.”
Last things first – I’ve heard several people say this is not a “game” because it is dangerous/reckless/a terrible idea. I submit that the fact that something is dangerous or reckless does not preclude it from being a game. Take Russian Roulette, for example. It’s a horrible idea, and just about as dangerous as games come – but it’s a game. If people play it for the purpose of gambling or amusement, it can be a game.
According to various news sources I am too lazy to cite, there are groups of young people (mostly guys) who make a game out of knocking out strangers. One of the aggressive youngsters will turn to another aggressive youngster and dare (or bet) him to knock out some nearby person. The really messed up part of the game is that they don’t necessarily “pick on someone their own size.” The victims of the game have been men, women, and even children and elderly people.
Then the stranger gets punched.
Videos have surfaced wherein the victim falls to the ground, unconscious and seemingly lifeless. There have also been multiple stories regarding the intended victim using force, sometimes deadly, to defend themselves.
Today we’re going to talk about the legal ramifications of the knockout game.
As you've probably already guessed, this type of behavior is clear cut “Assault.” But we’re going to turn to the Kentucky Revised Statutes to figure out what type of assault we are dealing with, and whether it could be a higher crime.
I’ll go ahead and spoiler alert Assault in the 4th Degree for you. As long as there is some sort of injury received by the victim, it counts as Assault 4th. Assault in the 3rd Degree (for the purposes of this conversation) is reserved for assault on public servants like police officers, fire fighters, etc. The real question for today is whether the actions in the knockout game would constitute Assault in the 1st or 2nd Degree – because they are felony offenses.
Since we’re not dealing with deadly weapons the real question is: did the victim receive a “serious physical injury?” And that depends on the circumstances. Serious Injury is defined in the KRS under 500.080(15) and states:
"Serious physical injury" means physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ.”
So basically, yes, playing the knockout game could constitute a felony assault offense – but it depends on how bad the victim gets hurt.
Let’s say the victim is one of these little old ladies, and she is struck hard enough to cause death. If the youngster playing the game did not intend for her to die, would it be murder? After all, the point of the game is just to knock people out and not to kill them.
The answer to that question is maybe. It could still constitute Murder depending on how reckless or wanton a jury thought the conduct of the "knockout game" was. I think most everyone would agree that playing the knockout game is reckless behavior. But reckless conduct only gets us to Reckless Homicide – which carries 1-5 years in prison because it’s a class D Felony.
The question is whether the conduct rises to the level of wanton conduct with conscious disregard for human life. The “depraved heart” section of the Kentucky Murder statute states that the actions can constitute murder if “under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person.”
Personally, I think this is where defining the conduct as a “game” would help convict the participant of a higher crime. It sounds horrible. To take something so dangerous as punching an elderly woman in the face or head, and call it a “game” makes the conduct seem more reckless and could cause jurors to believe it rises to the level of wanton conduct.
So the answer to the murder question is, yes – if a jury believes the game is wanton conduct and that the assailant acted with extreme indifference to human life – the knockout could constitute murder in some cases.
As a side note, some people have asked whether this could be a "hate crime" if committed by members of one race against members of another race. And that type of thing depends on the motives of the attacker. From what I understand the choosing of a victim in the knockout game is somewhat arbitrary and on the fly. It isn't based on race, age, or some protected class. If that is the case, it most likely wouldn't constitute a "hate crime."
But that doesn't mean the conduct would go unpunished.
If you have any more questions about Assault, Murder, or other homicide crimes, please let me know. My door is always open. Feel free to give me a call.
Louisville DUI Lawyer
Murphy & Powell, PLC.
Thursday, November 21, 2013
Free in Kentucky: "Burglary" and "Robbery" Don't Mean the Same Thing...: Robbery and Burglary are often used interchangeably by the general public. “Some Ahole burglarized my car.” or “My house got robbed last n...
Robbery and Burglary are often used interchangeably by the general public. “Some Ahole burglarized my car.” or “My house got robbed last night.” But Robbery and Burglary are 2 very different crimes. Today, we’re gonna talk about the differences between the two – so that next time you’re at a party and someone screws it up, you can point that out. That’ll make you really popular.
The Kentucky statute that governs Robbery in the Second Degree is located at KRS 515.030, and states:
(1) A person is guilty of robbery in the second degree when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft.
(2) Robbery in the second degree is a Class C felony.
Basically, we’re dealing with stealing from another person by use of force or threat of force. The definition of robbery doesn’t usually surprise people – but the definition of Burglary usually does. Let’s check out KRS 511.030 and we’ll get the basic scoop on Burglary.
(1) A person is guilty of burglary in the second degree when, with the intent to commit a crime, he knowingly enters or remains unlawfully in a dwelling.
(2) Burglary in the second degree is a Class C felony.
So Burglary means that you entered a dwelling (and for the purpose of this conversation that means any building owned by another person) with the intent to commit a crime, and you did not have permission to be in that building.
The primary differences between Robbery and Burglary are 1) Burglary involves being in a building unlawfully, and Robbery does not; and 2) Robbery is a theft crime and Burglary is not necessarily a theft crime. While it is true that often Burglary involves stealing, it doesn’t have to. Example? Sure.
Let’s say you broke into your enemy’s home for the purpose of urinating on the rug. Let’s assume this rug REALLY tied the room together.* Once you break into the home with the intent to commit that particular bit of criminal mischief, you have burglarized the home. It does NOT matter if you actually carry out the act of rug pissing. Breaking in with the intent to micturate upon it is sufficient to make you guilty of Burglary.
This blog post is not intended to be a full spectrum analysis of the differing degrees of Robbery and Burglary – just know that each of those crimes can be made more serious depending on whether weapons are involved.
So there you have it. Robbery means “Stick-up” in the parlance of the 1950s*, while Burglary involves being unlawfully in a home with the intent to commit a crime.
For any more questions on Burglary, Robbery or the difference between the two, feel free to give me a call. 502.473.6464.
* Did it not? #shutupdonnie
Monday, November 11, 2013
Free in Kentucky: New Mexico Anal Cavity Search and Police Misconduc...: Police misconduct is unfortunately more common than most people understand it to be. Last week the story about the police officer...
Police misconduct is unfortunately more common than most people understand it to be. Last week the story about the police officer who ordered the anal cavity searching drew a lot of attention.
For those of you who are unaware of the story, a New Mexico man named David Eckert was stopped for running a stop sign.* After he got out, the officer claimed that Eckert looked to be “clenching” his buttocks. Because of this, the officer drove Eckert to a nearby hospital and asked a doctor to perform an anal cavity search. The doctor refused on the grounds that it was unethical. The police officer then drove Eckert to a neighboring county hospital and found another doctor who was willing to perform the search. Here’s what happened next:
1. According to Eckert’s abdominal area was X-rayed; no narcotics were found.
2. Doctors then performed an exam of Eckert’s anus with their fingers; no narcotics were found.
3. Doctors performed a second exam of Eckert’s anus with their fingers; no narcotics were found.
4. Doctors penetrated Eckert’s anus to insert an enema. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.
5. Doctors penetrated Eckert’s anus to insert an enema a second time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.
6. Doctors penetrated Eckert’s anus to insert an enema a third time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.
7. Doctors then X-rayed Eckert again; no narcotics were found.
8. Doctors prepared Eckert for surgery, sedated him, and then performed a colonoscopy where a scope with a camera was inserted into Eckert’s anus, rectum, colon, and large intestines. No narcotics were found.
After this story surfaced, I heard a lot of people call this sort of police activity “Shocking” and “Unbelievable.” I don’t find it to be either of those things. Sure, the facts of the New Mexico case are a little out there because we’re talking about a repeated cavity search. But the core issues, police misconduct and cover-up, are not unusual.
And don’t get me wrong – there are a lot of great cops out there. A lot. There are many police officers who work their butts off at a very dangerous job for too little pay, and they never engage in misconduct like unlawful arrests, police brutality, or other violations of citizens’ Constitutional Rights.
The problem is when the bad deeds of the rotten apples go unpunished. Then police misconduct spreads like a virus.
In Louisville, police misconduct is not unbelievable. It’s not shocking. Unfortunately it isn’t even “uncommon.” I’ll give you a few examples of some cases I’m working on.
“Barry” – Even the police agree that when Barry was walking down the street, he was doing nothing illegal. He was just walking to his mom’s house one night with a backpack on. The police pulled up and spotlighted him, stopping him on the sidewalk because he “matched a description.” The problem with that description is that the only description the police are trying to rely on was a generic description of an average black male with dark clothing who had dreadlocks. And Barry did not have dreadlocks.
But the police continued to detain Barry, demanding to search his backpack (which contained nothing illegal), frisk searching him for weapons (he had none), and eventually throwing him to the ground after he objected to the frisk search. They busted one of his teeth out when they threw him to the concrete.
Barry’s story checks out because he just so happened to be recording the incident on a digital recorder. By the way, he had the recorder because he had been stopped NINE times in the past year for no reason. Just for walking down the street.
“Tommy” – Tommy was hanging out with his cousin in the backyard of his cousin’s house. They were just standing around, talking. A police officer approached and, flashing the light in their eyes, walked into the yard and told them he would have to search them.
Tommy was wearing a cast following a recent surgical procedure on one of his arms. He raised his hands the best he could and advised the approaching officer that he had both a handgun and a CCDW license for the weapon in his back pocket. After removing the handgun and license from his pocket, the officer handcuffed Tommy’s free arm to his belt loop and called a second officer to the scene. While Tommy was in handcuffs, one of the officers drew his service revolver and pointed it at Tommy. When Tommy asked the officer not to point the gun at him, the officer replied, “I’m not fucking pointing it at you. Shut your fucking mouth.” Tommy said “that’s uncalled for, man” - at which time the officer slammed Tommy’s head against the police cruiser. The cop took him to the ground, injuring his knee (needing surgery after the fact), while another placed his knee on the back of Tommy’s neck. The officers then repeatedly punched him in the side, repeatedly slammed the arm that was in a cast against the pavement, and tore a lock of hair from Tommy’s head.
Toward the end of the encounter, the officers advised Tommy that they had been searching for burglary suspects in the vicinity. The officers took Tommy and showed him to the burglary victims, who were seated in a nearby police cruiser. They confirmed that Tommy was not involved in the burglary of their home.
I wish I could say that those 2 cases were the only police misconduct cases I had right now. But that’s just the beginning. And the worst thing about these cases is that the police who engage in this behavior never admit to any wrongdoing – often the police departments they work for stand behind them and stick up for the misconduct. They protect their own.
Not all of it is driven by racism, but a lot of it is.
When police misconduct is allowed, corruption is invited.
I don’t really have a follow up, cathartic ending to this story. Hopefully we’ll get some legitimate justice on some of these cases soon, and I’ll keep you posted. Until then, I just hope to shed some light on the problem. Maybe next time something like this hits the news, people won’t be so “shocked.”
*All of the info I received on the New Mexico case was from the Huffington Post, so if I got some details wrong, sue them. Not me.