Free in Kentucky: That's Assault, Brother.

Free in Kentucky: That's Assault, Brother.: “Assault” is a weird piece of legalese.  In normal people terms, it means somebody got struck by someone else.   In legal terms, it ha...

That's Assault, Brother.

“Assault” is a weird piece of legalese.  In normal people terms, it means somebody got struck by someone else.  

In legal terms, it has two meanings.  Let’s say Jim and Toby are hanging out at Blandford’s store.  Toby was all like, “you’re book is weak.”  So Jim smacked Toby in the mouf, and then Jim broke out.  Assuming Toby wants to pursue all legal options, he can choose to initiate both Civil and Criminal proceedings against Jim.  Civilly, Jim has committed a “Battery” against Toby.  “Assault,” in civil terms, is an act that puts someone in anticipation of a battery.

Toby can also go to the County Attorney’s office and swear out a charge against Jim.  In criminal terms, the mouf smack was an “Assault.”  Most likely, this would be charged as  “Assault in the 4th Degree” (hereinafter, “Assault 4”) pursuant to KRS 508.030.  A person is guilty of Assault 4, if he or she intentionally or wantonly causes physical injury to another person; or with recklessness, he or she causes physical injury to another person by means of a deadly weapon or a dangerous instrument.

Jim would most likely be prosecuted under subsection 1(a) of KRS 508.030, because he intentionally caused a physical injury (albeit a mild one) to Toby.  Assault 4 is a Class A Misdemeanor, so Jim would be facing up to one (1) year in jail.

Pursuant to the KRS and anyone with a lick of common sense, the act of intentionally striking someone WITH something makes the act more culpable than intentionally striking someone with a fist alone.  That is a common theme with the Assault statutes.  Also, and just as obviously, causing more serious injury to someone will get you in more trouble.

About this time, we should probably dissect the difference between “physical injury” and “serious physical injury.”  And maybe figure out what exactly counts as a “deadly weapon.”  And “dangerous instrument.”  That might be it.  We’ll see - I haven’t really planned this out.

The definitions - if you are following along in the KRS* - are actually located in the “general provisions” of the Kentucky Penal Code section of the KRS - NOT in the Assault section.  So go to the 500 section, not 508.

"Physical injury" means substantial physical pain or any impairment of physical condition.  If you are wondering what “substantial physical pain” means, join the club.

"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.  If you are thinking that this is a pretty high bar for damage in an Assault case, you are right.  This definition provides the basis for some pretty good criminal defense work in the world of Assault.

"Deadly weapon" means any of the following:

(a) A weapon of mass destruction;

(b) Any weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged;

(c)  Any knife other than an ordinary pocket knife or hunting knife; 

(d) Billy, nightstick, or club; 

(e)   Blackjack or slapjack; 

(f) Nunchaku karate sticks;

(g) Shuriken or death star; or

(h) Artificial knuckles made from metal, plastic, or other similar hard material.

No, I didn’t make that up.  The KRS actually uses the words “Nunchaku karate sticks” and “death star.”

"Dangerous instrument" means any instrument, including parts of the human body when a serious physical injury is a direct result of the use of that part of the human body, article, or substance which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or serious physical injury.

Ok - so we’ve defined the words we need to define - let’s move on to other levels of Assault.

Assume that Assault 3 is reserved for Assault on an officer of the law, teacher, or other similar public servant.  We aren’t going to drone on and on about Assault 3.  Don’t hit a public servant.

Rather, let’s move on to Assault 2 - a Class C Felony which carries a penalty of 5-10 years in prison.  As you might imagine, the reason for the increased penalty is because the acts enumerated in the statute are more serious.  Pursuant to KRS 508.020, a person can be guilty of Assault 2 by doing any of the following:

(a) He intentionally causes serious physical injury to another person; or

(b) He intentionally causes physical injury to another person by means of a deadly weapon or a dangerous instrument; or

(c)  He wantonly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.

As you can see, in order to be guilty of Assault 2, generally you have to either 1) cause a serious physical injury OR 2) cause a physical injury with a deadly weapon.

That brings us to Assault in the First Degree, or “Assault 1.”  If you take a look at KRS 508.010, you will find the requirements for this particular offense, which are as follows:

(1)      A person is guilty of assault in the first degree when:

(a) He intentionally causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or

(b)   Under circumstances manifesting extreme indifference to the value of human life he wantonly engages in conduct which creates a grave risk of death to another and thereby causes serious physical injury to another person.

Assault 1 is a pretty serious deal.  It is a Class B Felony, which means the actor is facing 10-20 years in prison.

Today, we’ve spent quite a bit of time talking about what makes a person guilty of Assault.  Bear in mind that we haven’t even scratched the surface on defenses to Assault at this point.  Any decent Louisville Assault lawyer would need to study your case in order to determine whether self-defense, anticipatory self-defense, defense of others, choice of evils, or intoxication may be ticket or tickets to your freedom.  Also "some people deserve to be smacked" may work, depending on the alleged victim.

If you have been charged with Assault in Louisville, Lexington, Elizabethtown, Frankfort, or the surrounding areas, you need an attorney.  Call an experienced Louisville Assault lawyer today.  For a free consultation, call 502.618.4949 and ask for Greg Simms.

Simms & Reed, PLLC.  

Individual Attention.  Extraordinary Results.

*If you’re doing that, stop it.

Illegal Possession of Alligator: Exotic Animal Law of Kentucky

Pursuant to NBC News, a New York couple was arrested for possession of guns, drugs and an alligator.  The gator was 3.5 feet long, and a picture of the same can be viewed at the following web address:

http://usnews.nbcnews.com/_news/2012/10/02/14181428-new-york-couple-busted-for-possession-of-guns-alligator?lite

Want to know about the law on exotic animal possession in Kentucky?  You’re in luck.

Many states have statutes or regulations prohibiting the possession of exotic animals.  Until recently, Kentucky was not one of those states.  You could own just about whatever kind of animal you wanted to, because in this great Commonwealth, we (used to) recognize that this is America.  And you’re supposed to have some individual liberties.

That changed in 2005.

Just because some people who didn’t have enough faith in God got bitten when they took up some exotic beasts, we all have to suffer.*

The current version of the Kentucky Administrative Regulations, and specifically at 301 KAR 2:082, prohibits the ownership of most fun animals.

Even more specifically, the following species are prohibited under subsections 4(1) and 4(2):

      (a) Baya weaver (Ploceus philippinus);

      (b) Blackbirds (Genus Agelaius), except native species;

      (c) Cape sparrow (Passer melanurus);

      (d) Cowbirds (Genus Molothrus), except native species;

      (e) Cuckoo (Family Cuculidae), except native species;

      (f) Dioch or red-billed quelea (Quelea quelea);

      (g) European blackbird (Turdus merula);

      (h) Fieldfare (Turdus pilaris);

      (i) Flying fox or fruit bat (Genus Pteropus);

      (j) Gambian giant pouched rat (Cricetomys gambianus);

      (k) Giant, marine, or cane toad (Bufo marinus);

      (l) Hawaiian rice bird or spotted munia (Lonchura punctulata);

      (m) Jack rabbit (Genus Lepus);

      (n) Java sparrow (Padda oryzivora);

      (o) Madagascar weaver (Foudia madagascariensis);

      (p) Mistle thrush (Turdus viscivorus);

      (q) Monk or Quaker parakeet (Myiopsitta monachus);

      (r) Multimammate rat (Genus Mastomys);

      (s) Mute swan (Cygnus olor);

      (t) Nutria (Myocastor coypus);

      (u) Prairie dog (Cynomys spp.);

      (v) Raccoon dog (Nyctereutes procyonoides);

      (w) San Juan rabbit (Oryctolagus cuniculus);

      (x) Sky lark (Alauda arvensis);

      (y) Song thrush (Turdus philomelus);

      (z) Starling (Family Sturnidae) including pink starlings or rosy pastors (Sturnus roseus), except for Indian Hill mynahs (Gracula religiosa);

      (aa) Suricate or slender-tailed meerkat (Genus Suricata);

      (bb) Tongueless or African clawed frog (Xenopus laevis);

      (cc) Weaver finch (Genus Passer), except Passer domesticus;

      (dd) White eyes (Genus Zosterops);

      (ee) Wild European rabbit (also called the San Juan Rabbit) not distinguishable morphologically from native wild rabbits;

      (ff) Yellowhammer (Emberiza citrinella); or

      (gg) A member of the following families:

      1. Suidae (pigs or hogs), except for domestic swine;

      2. Viverridae (civits, genets, lingsangs, mongooses and fossas); or

      3. Tayassuidae (peccaries and javelinas).

      (2) Except as specified in Section 5 of this administrative regulation, a person shall not import or possess the following species of inherently dangerous wildlife:

      (a) Alligators or caimans (Family Alligatoridae);

      (b) African buffalo (Syncerus caffer);

      (c) Bears (Family Ursidae);

      (d) Cheetah (Acinonyx jubatus);

      (e) Clouded leopard (Neofelis nebulosa);

      (f) Crocodiles (Family Crocodylidae);

      (g) Elephants (Family Elephantidae);

      (h) Gavials (Family Gavialidae);

      (i) Gila monsters or beaded lizards (Family Helodermatidae);

      (j) Hippopotamus (Hippopotamus amphibius);

      (k) Honey badger or ratel (Mellivora capensis);

      (l) Hyenas (Family Hyaenidae), all species except aardwolves (Proteles cristatus);

      (m) Lions, jaguars, leopards or tigers (Genus Panthera);

      (n) Old world badger (Meles meles);

      (o) Primates, nonhuman (Order Primates);

      (p) Rhinoceroses (Family Rhinocerotidae);

      (q) Snow leopard (Uncia uncia);

      (r) Venomous exotic snakes of the families Viperidae, Atractaspididae, Elapidae, and Colubridae, except for hognose snakes (Genus Heterodon);

      (s) Wolverine (Gulo gulo); or

      (t) Hybrids of all species contained in this list.

If you acquired your Gila Monster prior to July 13, 2005, if it hasn’t eaten you, and if you wish to keep it, you should read subsection (5) which states: “(5) A person who legally possessed wildlife listed in Section 4(2) of this administrative regulation prior to July 13, 2005, may continue to possess the animal and shall maintain:

      (a) Veterinary records;

      (b) Acquisition papers for the animal; or

      (c) Any other evidence that establishes that the person possessed the animal in Kentucky prior to July 13, 2005.”

That's all I got.  Hope you enjoyed this post.

If you or someone you know has been cited or arrested for harboring a dangerous exotic animal, call 502.473.6464 for a free consultation.  Murphy & Powell, PLC.

*May or may not have anything to do with this law.

Free in Kentucky: Heroin Possession in Kentucky: Penalties, etc.

Free in Kentucky: Heroin Possession in Kentucky: Penalties, etc.: Heroin is back. I’m not sure why, but it’s back.  In a big way.  I wish I could give you some statistics regarding how many more cases...

Heroin Possession in Kentucky: Penalties, etc.

Heroin is back.

I’m not sure why, but it’s back.  In a big way.  I wish I could give you some statistics regarding how many more cases of heroin possession have made their way through Kentucky courthouses than, say, five years ago – but I don’t have that information.  All I can tell you is that five years ago I saw very few heroin cases, and over the past 12 months, heroin possession has become a lot more prevalent.

Heroin is a Schedule I narcotic, pursuant to KRS 218A.050(2), which defines all Opium derivatives as such.  Schedule I is the classification for the most dangerous drugs, those which are considered to have a high potential for abuse and are generally without medicinal value.  This criteria for classification is enumerated in KRS 218A.040 (and, if I can recall correctly, it is borrowed from the language in federal statutes for drug classification).

Possession of a Schedule I narcotic, like heroin, is a pretty serious deal in Kentucky.  The name of the crime is Possession of a Controlled Substance in the First Degree (known in the legal community as POCS 1– pronounced “pocks first”).  It is a class D felony, carrying a penalty of 1-3 years.

Typically, a class D felony carries a penalty of 1-5 years, but fortunately for everyone who likes a hit of laudanum when the headaches start, house bill 463 (HB 463) came through Kentucky like a tornado of common sense and eased some of the penalties for non-violent, victimless drug possession.

Guess what else is a Schedule I narcotic.

Ok, seriously, we’re not going to play this game if you’re not going to guess.

It’s marijuana.  Marijuana is a schedule I narcotic in Kentucky (and in many other places).  “But Greg!?” you ask, “Didn’t you say that the criteria for schedule I narcotics includes 1) the high potential for abuse and 2) a lack of medicinal value?”  That’s a phenomenal question and I’m glad you asked it.  The answer is yes, and it appears that Kentucky legislators are completely ignoring the AMA, and countless doctors that have unequivocally stated that marijuana does have medicinal value.  Further, the fact that marijuana is not physically addictive seems to be ignored, regarding the “high potential for abuse” issue.

That does NOT mean that possession of marijuana counts as POCS 1.  There is a more specific statute governing marijuana possession, and whenever a general statute and a more specific statute conflict, you are supposed to rely on the more specific statute.  For more on marijuana, see my post “How Much Marijuana is Too Much Marijuana?”

We got a little off track today, because today’s post was supposed to be about heroin.  Sorry about that.  I just wanted to show you that your government thinks heroin and marijuana should be classified in the same category.  Which is asinine.

Long story short – heroin is back and possession of heroin can get you in a lot of trouble.

If you have been charged with Possession of a Controlled Substance in the First Degree, you should have a lawyer that knows the law and fights for your rights.  Don’t get a lawyer who “dabbles” in drug possession law.  Get an experienced Louisville drug possession lawyer.  Call 502.618.4949 for a free consultation.  Ask for Greg Simms.

Simms & Reed, PLLC.  Individual Attention.  Extraordinary Results.

Free in Kentucky: Louisville Detective Shoots Unarmed Man in Street

Free in Kentucky: Louisville Detective Shoots Unarmed Man in Street: Not all police officers are bad.  I promise.  Most are upstanding servants of the community, actually.  I see a lot of cops and I cross ex...

Louisville Detective Shoots Unarmed Man in Street

Not all police officers are bad.  I promise.  Most are upstanding servants of the community, actually.  I see a lot of cops and I cross examine the best and the worst of them.  

Then I sue the worst of them for false arrest and police brutality.

Speaking of which, a Louisville Metro Police Detective shot an unarmed man Tuesday night right in the middle of the damn street.  Everybody take a guess now as to whether the Detective has been arrested for Attempted Murder.  Also guess whether the Louisville Metro Police Department is taking any responsibility.  Let’s see how you do…

Per WLKY:  “A veteran police officer is on administrative leave (which happens after every officer shooting, justified or not) after shooting an unarmed man in the street.  WLKY has learned the officer has been disciplined by the department before. 

The shooting happened near 24th and Chestnut streets late Tuesday night. 

A neighbor heard the single shot fired and ran outside. 

"I looked again and I saw this guy standing there with a gun on him," said a neighbor.  The man with the gun was Detective Chauncey Carthan, who has worked for LMPD since 2001. 

Police say Carthan was off duty when he got into an argument with another man and it quickly escalated. 

‘At some point, both the officer as well as the individual exited their vehicles, at which time the officer did identify himself. However, the subject, or rather the individual, did not comply with the officer, leaving him to draw his weapon and discharge it one time,’ said LMPD spokewoman Alicia Smiley. 

Other officers arrived on the scene, surrounded Carthan and surrendered his weapon.  The man he shot was taken to the hospital and is expected to survive.”

Apparently there are no charges yet against Carthan.  So if you guessed “No.” to the first question posed, congratulations!

Let’s see if LMPD is taking any responsibility…

LMPD seems to know something is wrong with this situation because they seem to be distancing themselves from Detective Carthan.  Specifically, they made it a point to say that he was “off duty.”  I would guess they’re doing this to set themselves up for a defense in any law suit that will follow (and if the gunshot victim calls me, that law suit will happen very quickly).  What they want everyone to know is: Detective Carthan shot that guy outside the scope of his employment.

But that might not work very well.  Because LMPD wants the best of both worlds here.  Instead of just distancing themselves from Carthan, they also made the statement that the “subject, or rather the individual, did not comply with the officer” which I laughed out loud at.  First, the spokeswoman for LMPD accidentally called the gunshot victim a “subject” which is akin to “person we suspected of committing some sort of crime.” and then she stated that the gunshot victim did not “comply” with the Detective.  That means that the Detective would have been acting as a police officer and giving some sort of official instruction that the gunshot victim would have to follow – but didn’t follow.

I'm not saying the gunshot victim didn't do anything wrong, but we certainly don't have any evidence of any wrongdoing at this time.  And he was UNARMED.  So whatever he may be accused of doing, it probably didn't justify a gun shot.

If this off duty Detective really did shoot an unarmed man in the street, there needs to be an investigation into the possible CRIMINAL CONDUCT of the Detective.  Make no mistake about it, blog reader – if you or I had shot an unarmed man in the street, we would be in handcuffs right now.  By not taking responsibility and not arresting Carthan, LMPD may only be increasing the damages in the subsequent law suit.

As I hear more on this story, I will keep you updated.

If you or someone you know has been shot by the police in the street, and you were unarmed, you should call a lawyer immediately.  It isn’t easy to find a Louisville police brutality lawyer.  A lot of attorneys will not take these kind of cases because they are difficult, and require a lot of work.  You deserve to have a lawyer on your side who cares about your case.  You deserve a lawyer who isn’t afraid of the work that needs to be put into your case.  Call 502.618.4949 and ask for Greg Simms.

Simms & Reed, PLLC.

Individual Attention.  Extraordinary Results.