There is an interesting case out of Leroy, Alabama where Nathanial Johnson, 68, is facing an investigation after subduing and trying a burglar to a tree. By the time, he returned with the police, the man, Cleveland Jones Gully, 31, was dead and Johnson could go from the victim to the accused in a criminal case.
Johnson admitted that he was hiding in waiting for the burglar after being the victim in prior burglaries. He parked his car at a neighbor’s house and turned off the light. When someone knocked around midnight, he did not answer.
Johnson’s mobile home about 60 miles north of Mobile.
The man went to the back of the house and broke the lock. Johnson sprang out of hiding and tackled the man, who fell off the back steps. Gully lives nearby and has a history of burglaries. He then put duct tape over the man’s mouth and tied him to a tree with a mix of electrical wire, rope from a clothesline and masking tape. He then went to his neighbor’s house to contact the police and insists that Gully was alive when he left him. However, he was very much dead when he returned with the police.
Washington County Sheriff Richard Stringer says that he does not believe that there was any intent to harm and that Johnson merely wanted to capture and hold Gully.
Johnson was held for 72 hours but not charged pending an autopsy on Gully.
This falls into a long controversial area of torts. 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.
However, there are Castle Doctrine laws or Make My Day laws. I have been a long critic of Castle Doctrine laws. The title refers to the old adage that “a man’s home is his castle,” which is not a common law doctrine of criminal law or torts but rather an aspirational statement. The Castle Doctrine is a generally a reference to the modern trend of legislatively empowering homeowners to use lethal force solely on the basis of a home invasion.
Under the common law, there was not “fear of prosecution or civil action for acting in defense of themselves and others” so long as you acted in reasonable self-defense or even “reasonable mistaken self-defense.” In the case of Courvoisier v. Raymond, 23 Colo. 113 (1896), a man chased a group out of his home only to fire when a man approached him outside his home from the stone-throwing mob. It turned out to be a deputy sheriff but the court found that Courvoisier could rely on reasonable mistaken self-defense.
The common law has long offered ample protections even for reasonable mistakes. These laws are based on an urban legend that people are routinely prosecuted for defending their homes from intruders. The laws have produced perverse results as in the infamous case of Tom Horn in Texas. Yet, the popularity of these laws have spawned “Make My Day Better” laws that extend the privilege of lethal force to businesses and cars. Montana’s law had been invoked in workplace shootings.
Alabama is a castle doctrine state and the law is included below. Johnson’s laying in wait is not a violation of the conditions of the law nor is his initial use of force. The question will be whether, after subduing Gully, Johnson used the tape or restraints to effectively smother or strangle Gully. This would turn on a question of intent, which would likely be hard to prove. The law gives Johnson significant protections and the sheriff’s public statement undermines allegations of intentional harm. There could also be a question of preexisting conditions that would be unknown to Johnson.
Section 13A-3-23
Use of force in defense of a person.
(a) A person is justified in using physical force upon another person in order to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he or she may use a degree of force which he or she reasonably believes to be necessary for the purpose. A person may use deadly physical force, and is legally presumed to be justified in using deadly physical force in self-defense or the defense of another person pursuant to subdivision (4), if the person reasonably believes that another person is:
(1) Using or about to use unlawful deadly physical force.
(2) Using or about to use physical force against an occupant of a dwelling while committing or attempting to commit a burglary of such dwelling.
(3) Committing or about to commit a kidnapping in any degree, assault in the first or second degree, burglary in any degree, robbery in any degree, forcible rape, or forcible sodomy.
(4) In the process of unlawfully and forcefully entering, or has unlawfully and forcefully entered, a dwelling, residence, or occupied vehicle, or federally licensed nuclear power facility, or is in the process of sabotaging or attempting to sabotage a federally licensed nuclear power facility, or is attempting to remove, or has forcefully removed, a person against his or her will from any dwelling, residence, or occupied vehicle when the person has a legal right to be there, and provided that the person using the deadly physical force knows or has reason to believe that an unlawful and forcible entry or unlawful and forcible act is occurring. The legal presumption that a person using deadly physical force is justified to do so pursuant to this subdivision does not apply if:
a. The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner or lessee, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person;
b. The person sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used;
c. The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
d. The person against whom the defensive force is used is a law enforcement officer acting in the performance of his or her official duties.
(b) A person who is justified under subsection (a) in using physical force, including deadly physical force, and who is not engaged in an unlawful activity and is in any place where he or she has the right to be has no duty to retreat and has the right to stand his or her ground.
(c) Notwithstanding the provisions of subsection (a), a person is not justified in using physical force if:
(1) With intent to cause physical injury or death to another person, he or she provoked the use of unlawful physical force by such other person.
(2) He or she was the initial aggressor, except that his or her use of physical force upon another person under the circumstances is justifiable if he or she withdraws from the encounter and effectively communicates to the other person his or her intent to do so, but the latter person nevertheless continues or threatens the use of unlawful physical force.
(3) The physical force involved was the product of a combat by agreement not specifically authorized by law.
(d) A person who uses force, including deadly physical force, as justified and permitted in this section is immune from criminal prosecution and civil action for the use of such force, unless the force was determined to be unlawful.
(e) A law enforcement agency may use standard procedures for investigating the use of force described in subsection (a), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force used was unlawful.
(Acts 1977, No. 607, p. 812, §610; Acts 1979, No. 79-599, p. 1060, §1; Act 2006-303, p. 638, §1.)
Kudos: Michael Barry
Give the guy a medal and as to the dead guy, move his family out of Dodge.
Squeek, The flyboy HATES illegals. You know there’s a story behind that!
Would love to see the crime investigation photos of the victim tied to the tree.
New poster child for the “Go ahead and break in you idiots” anti crime campaign.
Nothing wrong with going Medieval on some idiot to make a point to other idiot criminals.
Example: https://www.youtube.com/watch?v=zDsu-CnBHBY
@randyjet
Well, I am glad we agree on something.
Squeeky Fromm
Girl Reporter
I get rather tired of seeing the Tom Horn case mentioned as though he committed a crime. I got raked over the coals by some attorneys on this site for saying what he did was completely legal under Texas law. Then they did something intelligent, and READ the law. End of argument. In fact, Horn went beyond what was required under Texas law since he gave them a chance to surrender either themselves and/or the stolen goods. I would have just opened fire and removed them from our society. The rule is that if the crook drops the loot, you cannot shoot. They obviously thought they were still in CA or another state where you cannot shoot, or they read this blog and thought that Horn could not or wouldn’t shoot. That they were illegals only made the shooting better since Horn got two birds with one shot figuratively speaking.
There was NO unintended consequences with this law in this case. It was a good shoot, got rid of two illegals, and saved the State of Texas a lot of money and time and since I live in Houston, made MY place safer. I am damned glad Horn was a good shot, though it is hard to miss with a 12 gauge shotgun at that close range.
Johnson is clearly in violation of Bloomberg Statute 36472.43(d), wherein Johnson did, with malice and forethought, interfere in the commission of a crime falling within Bloomberg Statute 22903.1(c). Even if Johnson is also charged with involuntary manslaughter, under the strict Bloomberg Statutes, Johnson will be required to serve 6 months in jail, pay a $4,000 fine, and afterward shall serve a probation period of 2 years, wherein Johnson will also be required to provide 2,000 hours of community service monitoring politically incorrect speech at one of the designated colleges in his district. However, more severe penalties will be ordered under the Bloomberg Statutes if, after a blood test, Johnson is found to have consumed carbohydrates, particularly carbonated beverages, within 2 hours of Johnson’s interference in the commission of the crime.
@KarenS
Gully probably would not have entered if he thought someone was at home. Look at how many of the “Successful Burglar Tips” relate to telegraphing that you’re not at home:
http://patch.com/california/redwoodcity-woodside/top-10-reasons-why-im-a-successful-burglar
Burglars mostly want to get in, get out, and not get shot, beat up, or caught. This is not just theory. I have actually talked to many burglars through working for my BFF, Penelope Dreadful, who is an attorney.
Squeeky Fromm
Girl Reporter
It seems like the guy was trying to do the right thing. Common sense should prevail and he should allowed to go on with his life; perhaps a safer life with other criminals aware of what waits for them. The rest is legal masturbation.
KCFleming:
“It begs credulity to view the action of home invasion involving no intent for violence against the people inside. Criminals may insist they weren’t planning on hurting anyone, but they’re lying.”
The wife of the police chief in France was tortured to death in front of her young child, after which the terrorist killer went on Facebook asking his fans what he should do with the kid. There are plenty of terrible crimes here in the US where people are raped, injured, maimed, tortured, or killed by intruders. It is best to err on the side of caution when determining the intent of someone breaking into a home when people are inside. In my own family, someone tried to break down our door in the middle of the night, but had enough self preservation instinct to very politely leave when he heard my Dad chamber a round.
In this particular case, the suspect broke in after no one answered his knock. Since he was blatantly standing there knocking, I wonder what he would have done if someone did answer. Make up some excuse or push in?
I think it likely that the burglar strangled. Some people are unable to breathe properly through their nose. If their nose is injured, or if they have been crying, they will be unable to get enough air and will smother. If he had any respiratory disease, such a risk would be amplified.
I am curious how this case resolves. Since Johnson went to all the trouble to bind and gag him, he does not appear to have had any intent to murder the man. So where does that leave him?
Regardless of whether Johnson is found criminally liable, it is not a safe occupation to burgle homes. I am sad that a young man was doing this, and wonder what led him down that road.
@ArtDeco
True. But TANF is just the direct cash benefits part of welfare. Which, believe it or not, I have no real animus against. But most “welfare” is now of the benefits sort, including Medicaid, food stamps, WIC, housing assistance, school lunch programs, etc.
IIRC, about 1/3 of blacks receive such benefits, compare to 1/10 or so of whites. For blacks, most of this is self-caused, not racism-based. As you said, the bulk of this is “minor-related”, and about 75% of black kids are born out of wedlock. So, yeah, it’s mostly self-caused by having more children than they can afford. Because as Tommy Sotomayor says, “they White Daddy, the government, pays for it!”
That being said, the more important question to me is why, if the thing that would most help blacks, even the irresponsible ones, is jobs, both more and higher paying and the 40 hour per week type,. . .;why, if that is what would most help blacks, do we insist of bringing millions of cheap laborers (illegal aliens) into the country???
And why do blacks support the party that is most behind the push for illegal aliens to stay?
Squeeky Fromm
Girl Reporter
but I thought somebody should speak for the liberals and black apologists here, who just got their welfare checks yesterday, and are still laid up in bed, hung over.)
There are 42 million blacks in the United States. If I’m not mistaken, about 2 million are drawing TANF benefits, of whom about half are minors. About 18 million are working.
This is his mother’s obituary, Squeaky
http://www.jacksonmemorialfh.com/obits/obituary.php?id=639797
He was an only child with a set of married parents. He had 3 children (with different surnames), but no daughter-in-law was listed among Mrs. Gully’s survivors.
No pictures of the burglar / deceased have been published. Given that he was tackled by a man nearly 70 years of age, I’m going to guess he was not in shape. Eric Garner weighed 350# by some accounts and suffered from diabetes and asthma. It would not surprise me if it were revealed that Cleveland Gully was a man of similar dimensions and state of health.
How can anybody decide anything about this case without knowing the “race” of the dead alleged burglar, Gully??? If he was black, which his name seems to indicate, then how can this not be yet another case of a racially based hate-crime murder??? You have a black guy, tied to a tree in God-forsaken Alabama, where there is a long history of tying innocent black men to trees, usually by the neck!
Talk about writing half a story. Oh, I know the old racissst hate-killer seems from his picture to be black, but did that make any difference in the Freddie Gray case??? I think that the DOJ needs to investigate this! Where is Al Sharpton? Where is MSNBC???
(I don’t mean any of this, but I thought somebody should speak for the liberals and black apologists here, who just got their welfare checks yesterday, and are still laid up in bed, hung over.)
Squeeky Fromm
Girl Reporter
I have no issue and the man should NOT be charged. He should however be given a medal and some people help him do some home repairs
“legislatively empowering homeowners to use lethal force solely on the basis of a home invasion.”
Home invasion entails the risk that someone is home, and therefore violence will be needed against them. Some thieves invade a home knowing full well people are present within and therefore violence is not just a risk but planned.
It begs credulity to view the action of home invasion involving no intent for violence against the people inside. Criminals may insist they weren’t planning on hurting anyone, but they’re lying.
KCFleming: You were all aces until you wrote this last sentence: “Criminals may insist they weren’t planning on hurting anyone, but they’re lying.”
I know neighborhood kids who’ve entered dwellings to steal the stereo when they thought the owners were gone. Juvenile delusions of being grandiose cat burglars, not murderers, were in their minds.
Great analysis! Thanks, Professor.
The first clause in (a)(4) is problematic: “(4) In the process of unlawfully and forcefully entering, or has unlawfully and forcefully entered, a dwelling, residence, or occupied vehicle, . . .” “In the process of” is arguably unconstitutionally vague. From parking on the street off the property to the actual entry and anything in between could be considered “[i]n the process of unlawfully entering” and would allow the use of deadly force if the presumption is rebuttable and rebutted.
I do not see the home owner committing a crime. He waited until his house was broken into and then tackled the guy. Then tied him to a tree and immediately called police from the neighbor’s. The death was surely unintentional and accidental.
This criminal won’t be burglarizing anymore people . It’s about time someone stops allowing these criminal acts to continue against citizens. Maybe Politicians need the same remedy.