The two men say that they were leaving the bar on September 3rd and Krummenacher was wearing a backpack while Argueta was wearing a messenger bag. Prosecutors say that they two men were stumbling drunk and even threw up in the bar.
The defense says that four men then set upon them and knocked off Krummenacher’s glasses and shoved Argueta against a car and hitting him with some type of weapon. Krummenacher then broke loose with the messenger bag while the four men are seen surrounding Arguetta. The videotape reportedly shows the attacking men armed with a bat, a cane and a skateboard. At some point, Arguetta stabs Thomas twice.
According to prosecutors, the scene was quite different. They say that “Krummenacher saw Thomas pushing a shopping cart with a messenger bag that he mistakenly thought was Argueta’s missing bag and took it…Thomas took the bag back, but Argueta then took the bag again, gave it to Krummenacher and allegedly stabbed Thomas twice during a struggle.” They further maintain that the video shows “Argueta stick the older man with a knife. The man later identified as Thomas drips blood on the sidewalk, stumbles and falls over.” After they were surrounded by an angry crowd, prosecutors say that “a drunken Krummenacher hopped on a BART train, passed out and woke up at the end of the line.”
The common law does not allow the use of force calculated to cause serious bodily injury or death in protection of property. In famous cases like Bird v. Holbrook, 4 Bing. 628, 130 Eng. Rep. 911 (1825), courts have ruled that “[n]o man can do indirectly that which he is forbidden to do directly.” Not only are such devices viewed as immoral (because human life is more valuable than property), but dangerous because such devices cannot tell the difference between friend and foe. The case however also has been cited for the long-standing rule that no property is viewed as more valuable than a human life. That does not mean you cannot take steps to protect your property and a case of protection of property can become protection of self (with the right to use higher levels of force) when the suspect resists or attacks.
Prosecutors see this case as exceeding any justified self-defense. They apparently believe that the messenger bag did not belong to Arguetta and have charged the two defendants with robbery and possession of stolen property as well as the murder of Thomas. Reports state that the video shows Argueta walking alongside the alleged assailants but no longer holding his bag and, in the next video clip, Krummenacher is seen holding a messenger bag.
If the initial violence was due to the bag, it would appear a mistaken defense of property with force calculated to cause serious bodily injury or death. That is prohibited under the common law and can be litigated as a tort of battery. It obviously can also be a crime. however, despite the videotape, there remains room for the defense to claim that confrontation quickly escalated from defense of property to defense of self. There were weapons used on both sides and rivaling claims of self-defense.
Argueta remains in jail but Krummenacher posted on a $1 million bail.