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Old 02-24-2012, 08:51   #21
CitizenOfDreams
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Quote:
Originally Posted by TheeBadOne View Post
What does OH law say?
The law may say that the Moon is made of blue cheese, but it does not make it so.

Petty theft and armed robbery are very different crimes. No matter how much I despise both thieves and robbers, I don't like the idea of people being charged with crimes they did not de facto commit. The mere presence of a firearm should not magically turn theft into robbery, or, say, speeding into carjacking.
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Old 02-24-2012, 08:56   #22
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Quoted post deleted for inappropriate content.
Our statutes here would require that the weapon be used in the robbery in some way, or the person would at least have to use force or a threat of force to accomplish the theft, but in Ohio:

Quote:
2911.02 Robbery.
(A) No person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall do any of the following:

(1) Have a deadly weapon on or about the offender’s person or under the offender’s control;
* * *
(B) Whoever violates this section is guilty of robbery. A violation of division (A)(1) or (2) of this section is a felony of the second degree. A violation of division (A)(3) of this section is a felony of the third degree.
Their statute, they can do that.

A similar thing in Kentucky increases the degree of a bruglary if you are armed with a deadly weapon during it - the good thing about that is that it boosts the penalty range for any burglar who steals a gun from 5-10 years to 10-20 years, because he is armed with a deadly weapon during a burglary, as soon as he picks up the home owner's gun.
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Old 02-24-2012, 09:02   #23
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Originally Posted by CitizenOfDreams View Post
The law may say that the Moon is made of blue cheese, but it does not make it so.
It does not make it so, but it does make it the law.

The example I use to explain this in classes is that this is a picture of 2 cattle, as a matter of law, according to Kentucky statutes:
Carry Issues
"'Cattle' includes horse, mule, ass, cow, ox, sheep, hog, or goat of any age or sex[.]" KRS 446.010(7).
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Old 02-24-2012, 09:23   #24
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Originally Posted by CitizenOfDreams View Post
The mere presence of a firearm should not magically turn theft into robbery
A gun is a very significant force multiplier. As a result, in many states the mere existence of a gun in the possession of a person committing a crime results in the gun being a charge multiplier. Much like how the presence of alcohol in a person's body often is a charge multiplier, even if it was consumed in a perfectly legal and "constitution" (pursuit of happiness) manner. Nothing "magic" about it.
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Old 02-24-2012, 09:37   #25
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Originally Posted by EAJuggalo View Post
Since the two people who were asked the question will not answer it, I will.


With a statutory sentence of two to eight years.

I agree he should be arrested and tried, I don't think if he's convicted he should face two to eight years for exercising a constitutional right.

Thanks for posting the statute - that certainly makes this a bit clearer. That said, my guess is that the instant he decides to commit theft he apparently lost any Constitutional right regarding guns.
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Old 02-24-2012, 09:45   #26
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When teaching handgun usage to students, the first issue I emphasize: carrying a firearm promotes many misdemeanors to felonies, even if the firearm never comes out of its concealment! Many choke on this doctrine.

If you are packing, don't do anything that might possibly be considered a misdemeanor. If you decide to commit a misdemeanor, check that you are not packing during that action. If you find you ARE packing, pass up that temptation.
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Old 02-24-2012, 09:52   #27
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Like one of our circuit judges was quoted saying, when he sentenced a couple of guys to the max for theft many years ago: "I don't know of anything around here that needs stealing."

Regardless of the law, I have no sympathy for the thief. It's not like he was stealing food for starving children.
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Old 02-24-2012, 10:00   #28
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Quote:
Originally Posted by CitizenOfDreams View Post
The law may say that the Moon is made of blue cheese, but it does not make it so.

Petty theft and armed robbery are very different crimes. No matter how much I despise both thieves and robbers, I don't like the idea of people being charged with crimes they did not de facto commit. The mere presence of a firearm should not magically turn theft into robbery, or, say, speeding into carjacking.
In many states the commission of a misdemeanor crime while armed with a weapon, especially a firearm, elevates the crime to a felony. And it probably doesn't matter if you are legally armed or not.
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Old 02-24-2012, 10:06   #29
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I'm not seeing where brandishing or threating with a gun is necessary to commit armed robbery. He was armed. He committed theft. He met the definition of armed robbery of the state.

NEXT!
Oh, I agree, he meets the statutory definition.

But I still think its wrong, and bad policy.

The guy chose to NOT use the weapon, or draw the weapon when store security detained him. I find that (and may God have mercy on my soul for saying this) commendable...

Prosecute him for armed robbery, and the lesson you teach him is he might as well have used the gun, punishment and charges are the same either way.

If there's some discretion allowed in the DA's office, that should be taken into account, in my view.

He had the means to escape, and every reason to pull the weapon to further his escape, and did not. That to me puts a world of difference between him and the garden variety armed robber who has no regard for human life.

I think he screwed up and should be punished. But if that was regard for human life buried within that conscience somewhere, that is something worth working with. He doesn't sound like a hardened criminal yet, but a few years in the joint will change that.

Now if he was simply overwhelmed by a much bigger security guard and didn't have the opportunity to pull the pistol, that's a totally different story. Sucks to be him.

My line of thinking is entirely dependent on finding out why he didn't use the pistol when he had the opportunity, and chose to be captured rather than a killer.

Randy

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Old 02-24-2012, 10:28   #30
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Quote:
Originally Posted by steveksux View Post
Oh, I agree, he meets the statutory definition.

But I still think its wrong, and bad policy.

The guy chose to NOT use the weapon, or draw the weapon when store security detained him. I find that (and may God have mercy on my soul for saying this) commendable...

Prosecute him for armed robbery, and the lesson you teach him is he might as well have used the gun, punishment and charges are the same either way.
Nope, because then you add
Brandishing
Attempted murder
Assault
Assault with intent
Assault with deadly weapon
and other assorted crimes available for the buffet line to charge him with.

It's not the same charges at all.

Hell, if they turn him over to the feds he's looking at 50-10 years for a gun crime. I'd bet that wouldn't be something he would have thought about but the next person who is wondering about shoplifting while CCWing might.
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Old 02-24-2012, 10:34   #31
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Originally Posted by steveksux View Post
Oh, I agree, he meets the statutory definition.

But I still think its wrong, and bad policy.

The guy chose to NOT use the weapon, or draw the weapon when store security detained him. I find that (and may God have mercy on my soul for saying this) commendable...
---
If there's some discretion allowed in the DA's office, that should be taken into account, in my view.

I think he screwed up and should be punished. But if that was regard for human life buried within that conscience somewhere, that is something worth working with. He doesn't sound like a hardened criminal yet, but a few years in the joint will change that.
Your presentation is excellent ... as a sentencing consideration. Packing while stealing is, I believe, properly rated as a felony; figuring out the sentence after a conviction is where your thinking becomes properly applicable.
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Old 02-24-2012, 10:49   #32
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Don't get me wrong, I'm usually one of the first guys at the stake holding a torch, but I'm not ready to call this one "case closed" just yet.

I've actually walked out of a store without paying for an item before, but I didn't do it intentionally. I've had a small item fall into a plastic tote that the cashier did not find. I did return it to the store as soon as I found it. I've also caught myself stuffing something into my pocket at a store before paying for it (I got distracted by a phone call--and I'm the kind of guy that doesn't answer the phone in the car because I don't want to be distracted while driving). Again, I caught myself and put it back. Both of these incidents happened before I got my CCW, though.

I was not negligent of the law, nor did I have the intent to take something I did not pay for. I just made an honest mistake. With the lack of details in the article, I'm not so sure that this guy didn't just make an honest mistake.

Remember, we've all been a victim of being the easiest target to pick on (it's harder for the anti-gun groups to take guns away from criminals, so they try to take them away from law-abiding citizens). I have to wonder if this guy wasn't just the easiest target for loss prevention... I.e. LP happens to be watching him while he was looking at the jewelry when he got distracted and accidentally shoved them in his pocket. As compliant as the article says he was, it leads me to believe that he may have made an honest mistake but they're going to throw the book at him anyways, so as to make an example of him.

Now, if it was his intent to steal this from the store... I'll bring the lighter fluid.
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Old 02-24-2012, 11:27   #33
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Nope, because then you add
Brandishing
Attempted murder
Assault
Assault with intent
Assault with deadly weapon
and other assorted crimes available for the buffet line to charge him with.

It's not the same charges at all.

Hell, if they turn him over to the feds he's looking at 50-10 years for a gun crime. I'd bet that wouldn't be something he would have thought about but the next person who is wondering about shoplifting while CCWing might.
But you're assuming he would still have been caught. He would have at least escaped had he brought the gun into play, and had a chance at facing no charges at all. Depending on where that crime occurs, could be a pretty good chance.

Yet he chose not to do so.

Regardless of the letter of the law, there's a world of difference between someone stealing while armed, with the intent to use the weapon to further the crime, or the getaway; versus someone stealing who happens to have a weapon on them that they have the opportunity, means and motive to put into play, but do not. If they're not willing to use it, they're effectively unarmed.

If there's an unarmed robber that would use a weapon without hesitation should he get one, he's more dangerous to society than this guy that happened to have a weapon on them during a robbery, but refused to use it, even when it would have greatly aided his getaway. The "unarmed" guy could pick up a rock or pipe and beat someone to death. This guy, doesn't seem to have that in him.

Clearly though, this kind of thing is so rare that I'm sure the law was not written with this in mind. You do a robbery, you have a weapon, its assumed you were willing to use it. Otherwise people would be trying to get off claiming they never intended to use it, it was just for show. Clearly bull, and would cause a lot of wasted time in court trying to prove lack of intent, which the law was intended to head off at the pass.

But in this case, he essentially proved he never intended to use it, by not using it when the robbery called for its use. I concede that is irrelevant under the laws there as written. Would not be the first time what is, and what should be a law are in conflict (or not, depending on your opinion on the matter, I'm not the arbiter of right and wrong, just this doesn't feel right to me).

Randy

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Old 02-24-2012, 11:30   #34
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Originally Posted by samurairabbi View Post
Your presentation is excellent ... as a sentencing consideration. Packing while stealing is, I believe, properly rated as a felony; figuring out the sentence after a conviction is where your thinking becomes properly applicable.
No disagreements here. I was thinking it could affect the charges brought against him too.

They could also charge the felony as leverage, and propose a more lenient plea than the garden variety armed robber would get offered I suppose.

Randy
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Old 02-24-2012, 11:30   #35
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Now, if it was his intent to steal this from the store... I'll bring the lighter fluid.
According to the article, he admitted to taking the items.
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Old 02-24-2012, 11:41   #36
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According to the article, he admitted to taking the items.
Admitting to taking it does not mean that he intended to. I admitted to taking the magazine (the paper kind) that fell into my tote when that happened. It does not mean I intended to take it.

The biggest thing casting doubt for me is the lack of details in the article.
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Old 02-24-2012, 12:01   #37
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Another example of gun owners having their cake and eat it too.
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Old 02-24-2012, 12:05   #38
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I despise thiefs and liars, but I'm glad I don't shop with the old lady anymore. I have, in the past, eat a few grapes off the bunch while we were still shopping. My wife looks at me one day and said you know you're stealing don't you? I said wtf? We're going to pay for the **** things in a few minutes. She said we're buying them by the pound, how you going to pay for the ones you're eating? Hey, stealing is stealing, where do you draw the line? Murphy's law, if anyone could spend life in prison for eating a couple grapes it's me.
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Old 02-24-2012, 14:05   #39
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Originally Posted by Bruce M View Post
Thanks for posting the statute - that certainly makes this a bit clearer. That said, my guess is that the instant he decides to commit theft he apparently lost any Constitutional right regarding guns.

I agree with this.

The fact he didn't use the gun is of no consequence, at any time he "could have" used it.
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Old 02-24-2012, 16:08   #40
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