July 10, 2007
It Helps to Know What A Crime Is
Few things are less reassuring about the state of crime and degree of safety we have in this town than police officers who can't be bothered to learn basic law. Blogger Amber at Prettier than Napoleon reports a story we sincerely hope is not true. Her friend, she says, was home when two men attempted to break into her house. Apparently her presence made them rethink their efforts, but they remained nearby in an alley while she called the police. Even though she could identify them and the police investigated at least enough to discover one had been released on robbery charges that morning, they refused to arrest the two men because, according to them, "D.C. doesn't have an attempted burglary statute."
In case you can't hear it, the lawyer in this writer is hollering in frustration. The District of Columbia's burglary statute is D.C. Code 1981 Section 22-1801, and while the Code itself may not explicitly list "attempted" burglary, the fine legal interpreters on the bench of the U.S. Supreme Court District of Columbia Court of Appeals defined the crime in Shelton v. U.S., 505 A.2d 767 (1986), stating that "[c]onviction for attempted burglary, which differs from burglary only in that act remains incomplete, requires finding that defendant had already formed intent to commit criminal offense inside."
The supreme irony here is that inchoate crimes (of which "attempt" is one) were created in order to give police authority to prevent more harmful criminal acts. Giving law enforcement officers the ability to arrest someone standing in front of your window with a suspiciously house-breaking-into-looking object helps prevent actual burglaries and perhaps more violent crimes from being committed.
We hope, at the very least, that Amber's friend reported these two police officers to their superiors in the Third District. Similarly, we suggest that if you ever find yourself in a similar situation, perhaps demand that a judge decide what the law is and is not.
Photo by Terecico.
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I've got a better idea. I'm just going to bring you wherever I go so you can be my human law encyclopedia.
This lawyer cringed a little at this post. The D.C. Court of Appeals (which is where the cited case seems to be from) cannot define a crime that doesn't exist on the books. Criminal law just doesn't work that way. It's not like civil law. The Courts can't punish crime unless the legislature defined the crime with some specificity.
Many criminal codes have a generic "attempt" statute that applies to all of the substantive crimes. So, in some states, the code defines "murder" and "rape" as a crime, and there will be one entirely separate section defining and criminalizing "attempts"; by reading them together, you get attempted murder and attempted rape. D.C. seems to have a similar generic attempt provision: § 22-1803
Of course, the cop is still a fracking moron.
I think the police officer did the right thing. The guys didn't actually break into the house, so what's the big deal?
Enforcing an "attempted burglary" law would basically be enforcing a mind-crime. no thanks.
If these guys even touched the house, then the cops could have arrested them for some sort on vandalism or malicious destruction of property charge. Not as serious of burglarly, but enough to get them off the street for a few hours for processing and likely a parole/probation violation for the one with the record.
Sounds like it was lazy police work. I hope these officers are properly investigated.
What about the crime of trespassing...?
Technically, they could have been arrested for conspiracy, right?
22-1805a. Conspiracy to commit crime.
(a) If 2 or more persons conspire either to commit a criminal offense...each shall be fined not more than $10,000 or imprisoned not more than 5 years, or both, except that if the object of the conspiracy is a criminal offense punishable by less than 5 years, the maximum penalty for the conspiracy shall not exceed the maximum penalty provided for that offense.
Love the photo of the squad car. Very subtle allusion to the theme of the article.
guest at 4:37 - nope, they can't punish you for thinking about it. government usually has to prove intent AND an overt act in furtherance for inchoate crimes of any sort. for "attempt" in most states, the crime has to be pretty imminent -- i.e., defendant fired a gun at your head but missed, or defendant was opening the window in order to burglarize your apartment.
Parker vs. DC needs to get to the supreme court pronto.
DC cops like usual, are fracking retards
(http://www.mcsm.org/noduty1.html)
"In an infamous local case, Warren vs. District of Columbia, two women who heard their roommate being assaulted downstairs called the police for help. The police came but left without entering the building. Again the women called, and this time the police didn't bother to dispatch anyone to the scene at all. The attackers, however, heard the women upstairs and assaulted them too . . . for 14 hours. No police came. The women sued the city, but the courts dismissed their claims saying it was a "fundamental principle" that the government has "no general duty to provide public services, such as police protection, to any individual citizen."
#7: Give us a break, wouldja? We don't always have time to scour Flickr for the perfect shot. Heather's plenty busy.
Actually, Tom, I think that was a more or less legitimate compliment based on the fact that police car in the photo is parked next to a fire hydrant.
Tom, apparently the subtlety of the photo was too much for you. Note how the squad car is parked, illegally, in front of a fire hydrant, in odds with one of the most commonly-known parking laws. So yes, I was giving kudos to Heather for what I thought was a really great choice of photo. You, on the other hand... that's some serious Flickr WD.
4:37: Looking into the window, trying to open it, and trying to pry open the locked door are hardly "mind crimes" that are undeserving of punishment. Are you suggesting that the police shoudl wait until burglary and/or assault are complete before intervening?
And in Tom's defense, with the regular stream of commenters telling us writers we don't know what we're doing, it's often pretty easy for us to accidentally read sarcasm into a comment when there isn't. Hey, a compliment! :) Thanks, I was just going to grab a generic cop shot, but this one screamed, "I'm perfect for your post."
That case is a DC Court of Appeals case, not at SCOTUS case. That also means it's incorrectly cited. If I were the partner vetting your brief, I'd be tearing you a new one right now.
The officer could have arrested them, without any ambiguity, under:
D.C. Code Ann. § 22-3102 (1981): Any person who, without lawful authority, shall enter, or attempt to enter the property of another against the will of the lawful occupant or of the person lawfully in charge thereof, or being therein or thereon, without lawful authority to remain therein or thereon shall refuse to quit the same on the demand of the lawful occupant, or of the person lawfully in charge thereof shall be guilty of unlawful entry on property, a misdemeanor.
Emphasis added.
Whoops. Sorry -- I jumped the gun, and it was dumb of me. You're right, Nate: skimming past the picture, I completely missed the hydrant.
If I were the partner vetting your brief, I'd be tearing you a new one right now.
Really? The partners at my firm would probably have calmly said, "Heather, you made a typo, also, don't write 5 minute legal opinions on your break time because people will jump all the hell over you for not spending a bunch of billable hours on two paragraphs."
Moral: The police didn't know what they were talking about. They don't need to know citations, they need to know how to enforce the law.
cautionary lessons in why partners should be nice. 5:26, someone would be tearing you apart, too. That 1981 code language is no longer current. See DC ST § 22-801. The D.C. Code is available online through www.dc.gov. The attempt language is no longer part of the definition of burglary. Instead, there is a separate attempt section: § 22-1803
A bunch of billable hours? How much time would it take to read the case caption? Not saying, just saying.
stories like this underscore why there should be occasional acceptability for cops to beat a suspect to a pulp with their nightsticks.
5:26 here: You're right, old section. But I was never talking about burglary. The same law is now:
§ 22-3302. Unlawful entry on property.
Any person who, without lawful authority, shall enter, or attempt to enter, any public or private dwelling, building, or other property, or part of such dwelling, building, or other property, against the will of the lawful occupant or of the person lawfully in charge thereof, or being therein or thereon, without lawful authority to remain therein or thereon shall refuse to quit the same on the demand of the lawful occupant, or of the person lawfully in charge thereof, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $100 or imprisonment in the Jail for not more than 6 months, or both, in the discretion of the court. The presence of a person in any private dwelling, building, or other property that is otherwise vacant and boarded-up or otherwise secured in a manner that conveys that it is vacant and not to be entered, or displays a no trespassing sign, shall be prima facie evidence that any person found in such property has entered against the will of the person in legal possession of the property.
Jeez, guest, that is obviously not what I meant. I deeply apologize for my typo.
To clarify, the DC Code I cited in the post, in its commentary, specifically cites Shelton as the origin of the attempted burglary definition for this jurisdiction. I'm sure Hoodrat and the others are right that there are updated statutes on the books, I just didn't have time to research a full history on the subject, and I'm glad they filled it in. The point being, attempted burglary is, in fact, a crime in D.C.
my bad, 5:26/6:00, the unlawful entry section would work just fine. still, attempted burglary, is in fact a crime under 22-1803. shit, must go back to work now.
PLEASE complain. I have had so much trouble with police not knowing the law (or willingly ignoring it so they don't have to file a report) in my last 10 years in DC, I am prepared for it each time I deal with the police. It is far more frustrating than dealing with the criminals themselves.
I recall a guy throwing a bottle at my car while I was in it, which bounced off the windshield, but did not damage the car. The Police told me that was simply not illegal in DC because there was no damage. "Things that are illegal in VA and MD aren't illegal in DC", they told me, I'm sure completely based on my skin color. We do have some Officers, like Lt. Micheal Smith, who knows the laws, and would have made a charge in the incident. Instead, the record shows nothing ever happened.
Just 5 weeks ago, the restaurant (McDonald's) in the ground floor of my new condo started construction at 4AM. The police arrived 3 calls later at 7AM and stated that since there were no hours explicitly stated on their work permit, it must not be illegal to work 24 hours a day. So once again, nothing ever actually happened, which is why aside from the murders, crime in DC isn't all that bad, right Mayor Barry?
To guest 5:02 PM
(http://www.mcsm.org/noduty1.html)
"In an infamous local case, Warren vs. District of Columbia, two women who heard their roommate being assaulted downstairs called the police for help. The police came but left without entering the building. Again the women called, and this time the police didn't bother to dispatch anyone to the scene at all. The attackers, however, heard the women upstairs and assaulted them too . . . for 14 hours. No police came. The women sued the city, but the courts dismissed their claims saying it was a "fundamental principle" that the government has "no general duty to provide public services, such as police protection, to any individual citizen."
I had to publish it again, because that is so representative of the problem. So many people in DC are tryin' to get over on the system, not the least of which is the system itself. The police do put a lot of work into avoiding doing any work. Too bad they make such a bad name for the few good cops out there. I think the new Chief should really focus on this. It could do wonders.
Please, people, read between the lines.
The police knew that attempted burglary is a crime. They LIED, probably because they were too lazy to make the arrests.
What, Everett hasn't stopped by yet to tell us the guys were just defending their neighborhood, so the police were quite right to leave them alone?
lol, kc. i was thinking the same thing, but didn't want to say anything because poor everett had already taken a beating on the fireworks post. it's a good thing the "right" cops were there to protect these freedom fighters.
Soooo ... is Everett AWOL??? He must be out getting STONED.
#24 there is a condo with a mcdonalds in it?
The Mcdonalds is probably the boutique one with wi-fi they're putting in Gallery Place. Nice cushy leather couches for the homeless folks to relax in.
The poster should lay off the cops. Attempted Burglary is just a cultural expression and should be treated as such.
Re: From local blog via DCist: D.C. Police Don't Care About Attempt
Posted by: "Scott, Gerry (MPD)" gerry.scott@dc.gov
Sat Jul 14, 2007 5:15 pm (PST)
The report of the attempted burglary has been taken by the officers. In
reference to the burglary suspects they have both been arrested and are
currently being held. The complainant of the attempted burglary was
advised of this information. The Third District Detectives Office has
been apprised and the investigation into this complaint is still
ongoing. There is no excuse for the lack of police services and I take
full responsibility for the shortfall. In the future I will do the best
that I can do to ensure that services rendered are acceptable. I view
this offense as very serious and intrusive to have someone violate the
sanctuary of someone's home and the effort that was displayed by MPD was
less than acceptable.
Captain Gerry O. Scott
Assistant District Commander
Third District Substation
From: MPD-3d@yahoogroups. com
All who have posted here, lawyers and lay alike, seem to be missing many points. First, police officers must be able to make a determination of probable cause. Without probable cause, police officers are liable for any arrest they make. To charge "attempt" to commit any specific intent offense, the officer must be able to demonstrate and articulate the suspects' intent to commit the offense in accordance with the elements of that offense. In the case of the "burglary," the elements of the offense include entry "with the intent to assault, take property, or remove fixtures." In this case, the intent of the supsects could have been to harrass, to frighten, or to take awindow. To alledge "Attempt Burglary" the suspects would have had to have made statements that demonstrated their intent such as "when I get in there, I'm going to kick your ass." Therefore, without further evidence of intent, there is no probable cause for attempt burglary. If Captain Scott forced that report to be taken, it was a miscarriage of due process and motivated solely by politics. Follow up and see if it was papered by the US Attorney as attempt burglary as opposed to political appeasement bullshit. The correct charge here, as one of the more astute posters offered, would have been unlawful entry. The officers may have appeared lazy in this case however, police officers are not all law scholars. Regardless, they should have contacted a detective if there were any question.
Moreover, things like "bottles being thrown at car windows" - if they don't rise to the crime of destruction (i.e., they cause property damage) the "intent to destroy" the winshield needed to establish probale cause for the offense or any "attempt" is not there. As for building permits, DC cops get absolutely NO training in this area however, we ask them to respond and deal with alledged violations. The average cop doesn't know what is required of permits other than what they say on their face.
Many of the posters here seem highly critical of the police that work day and night to keep them safe and, in many case, unfairly so. Don't be so quick to jump to conclusions so that you can satisfy your reactionary inclinations. Not all DC cops are perfect, some are hard workers, some are not but most any one of them would put their life at risk to save your life when the situation demanded it.