Re: Can I sell & get my money back
Mark A
news:171269a7-f1bb-40c6...@t2g2000yqn.googlegroups.com...
> Hi,
>
> Thanks in advance. I had a contractor who was working on my house I
> paid him by check the whole amount of the job plus extra for
> materials. He did not show up for a few days sayiing he had medical
> issues with his girlfriend / Finally he showed up after many many
> calls from me. He was supposed to install 7 windows and installed only
> 1 which took him another 2 or 3 days. and more calls from me.
>
> At this time I did not trust him and I said I want my money back and
> he said that he had no money to give me . I told him then to leave his
> trailer in lieu of the money he owed me.
>
> Its been more than 3 weeks and I have not heard or seen the guys he
> will not even respond to my emails texts or phone calls.
>
> I have checked the trailer and have not found any liens or any records
> where its stolen. Its never been registered.
>
> My question is : Can I sell the trailer and get my money back?
>
>
> thanks again
Not unless you have a written agreement that ownership of the trailer is
transferred to you in case of default of the construction contract. Even
then, I don't know if the trailer is titled (like a car or truck) with your
state (not sure what kind of trailer you are talking about).
But if you did take "physical possession" (if not legal possession) of the
trailer so that he would have to sue you to get it returned, then that would
give you some leverage power during resolution of the original construction
contract issue.
slide
[feels he's owed money. He can physically access a trailer belonging to
one who he thinks is debtor]
>
> My question is : Can I sell the trailer and get my money back?
>
No, you cannot without a judgment against the current owner. To sell the
trailer would be what the law calls 'self help' and is never, to my
knowing, permitted.
Depending upon the amount you say is owed and the area you're in, you
can take him to court (perhaps small claims), get that judgment and then
once you have that, your way is open to seize any of his property you
can find to satisfy the judgment.
mm
<dryads...@xxxxyahoo.com> wrote:
>Dave wrote:
Dave, aiui, you're not supposed to pay any contractor in full until
the work is done. Customary is half in advance and the rest after
completion and inspection, or in thirds, with some modification I
guess if he has to buy a lot of materials.
>>
>> My question is : Can I sell the trailer and get my money back?
>>
>
>No, you cannot without a judgment against the current owner. To sell the
>trailer would be what the law calls 'self help' and is never, to my
>knowing, permitted.
I totally agree that this kind of self help would not be permitted.
But your phrasing seems to make it seem that no self help is ever
permitted? Is that so?
Specifically, right after college, one of my roommates went away for
the summer and he sublet to a girl who turned out to have a
boyfriend. I went to Wisconsin to work on a political campaign and
while I was gone, they stole my electric drill, propane torch, bed,
and desk chair when they moved out. (plus the rooomate's dresser).
Somehow I found out where his apartment was and I went there when he
wasn't home and his roommate let me in when I told him I was supposed
to meet him there, and I looked for my stuff. Later I saw his very
distinctively painted van parked on the street near this apartment and
the rear door was unlocked and I went into it and searched for my
drill and torch. I didn't find anything, but I would have taken
anything of mine I found. I thought at the time I was doing
something moral but illegal, but later during a lecture about related
stuff, I got the impression it was legal. I've never asked anyone
before. Was what I did legal in all states/most states/Illinois?
(For the record: When I got back to my apartment in Chicago from
Wisconsin, they were gone, with my stuff. I filed a police report. I
found a whole carton of matches taken from a bar on Rush Street, where
the restaurants and night clubs are, and figured the girl worked
there. I went there and paid the cover and went in and it was a strip
club, with 7 strippers and one comic, eight 15-minute shows, every two
hours. Four of the strippers were not attractive, one was very cute
with almost a child's body, one was very cute with a great body, and
"mine" was more like a truck driver, not cute but with a good body. I
found it strange that I took a perverse pride that "mine" was in the
top 3. During her act she must have seen me, and after her act, she
put on a short, skimpy, but opaque cover and sat next to me at the
bar, and told me she had nothing of mine and didn't know where her
ex-boyfriend was. She said she broke up with him because he beat her,
something the janitor of my building had tended to confirm.
So a few days later I borrowed a friend's car, since she might have
known what mine looked like, and sat nearby outside the strip club at
2 or 4 in the morning when it closed, to see her leave and follow her,
but the first time from 100 feet away with glare from the street
lights, a bunch of people left but I couldn't recognize her. I don't
think I ever waited for her a second time.
Eventually the girl got a phone and a listing in information with an
address, and I had the court serve her with a summons. When she got
served, she called me, said she had nothing, and said her lawyer said
there was nothing I could do! I said "We'll see about that." (No way
she had a lawyer). She said I could come over and check. When my
second roommate and I did, I found my desk chair which I hadn't even
noticed was missing. (All three of us moved out by Oct. 1, but friends
of one rommmate had moved in.) The girl, the summer sublet, also said
she knew where the bed was, and would get it for me. I had moved out
of the apartment in October, this was December, and I was moving out
of Chicago that week, so my second roommate picked up the bed for me
and used it for 2 years at which point he paid me what I had paid for
it used. I'd only slept on it twice before they stole it. I don't
know her origins, but her boyfriend, the main thief, had been a
college student at the U of Chicago. I don't know how he ended up like
he did. It's 40 years later now. I don't know how he turned out, and
his name is too common to find out. He also used my electric razor,
which had a coiled cord, and I never wound the cord around the razor
at all, but he stretched and wound it so tightly, it took two years to
get back to normal. Of course I didn't want him using my razor, but
at least he didnt' steal it.)
slide
> On Wed, 04 Nov 2009 10:59:02 -0700, slide
>
> I totally agree that this kind of self help would not be permitted.
> But your phrasing seems to make it seem that no self help is ever
> permitted? Is that so?
>
> Specifically, right after college, one of my roommates went away for
> the summer and he sublet to a girl who turned out to have a
> boyfriend. I went to Wisconsin to work on a political campaign and
> while I was gone, they stole my electric drill, propane torch, bed,
> and desk chair when they moved out. (plus the rooomate's dresser).
> Somehow I found out where his apartment was and I went there when he
> wasn't home and his roommate let me in when I told him I was supposed
> to meet him there, and I looked for my stuff. Later I saw his very
> distinctively painted van parked on the street near this apartment and
> the rear door was unlocked and I went into it and searched for my
> drill and torch. I didn't find anything, but I would have taken
> anything of mine I found. I thought at the time I was doing
> something moral but illegal, but later during a lecture about related
> stuff, I got the impression it was legal. I've never asked anyone
> before. Was what I did legal in all states/most states/Illinois?
>
>
I don't see that as self help because there was no conversion and you
were invited in by someone who had the right to admit you. Thus there
was no trespass either.
Bob La Londe
news:171269a7-f1bb-40c6...@t2g2000yqn.googlegroups.com...
> Hi,
>
> Thanks in advance. I had a contractor who was working on my house I
> paid him by check the whole amount of the job plus extra for
> materials. He did not show up for a few days sayiing he had medical
> issues with his girlfriend / Finally he showed up after many many
> calls from me. He was supposed to install 7 windows and installed only
> 1 which took him another 2 or 3 days. and more calls from me.
>
> At this time I did not trust him and I said I want my money back and
> he said that he had no money to give me . I told him then to leave his
> trailer in lieu of the money he owed me.
>
> Its been more than 3 weeks and I have not heard or seen the guys he
> will not even respond to my emails texts or phone calls.
>
> I have checked the trailer and have not found any liens or any records
> where its stolen. Its never been registered.
>
It sounds like a verbal contract to exchange the trailer for the money owed
to me. Its not that simple though. You will still have to spend some time
and some money to establish ownership prior selling it, and this may be
harder in some states than others.
Make a visit to your local DMV and establish ownership of the trailer before
doing anything else. If the party in question actually owns the trailer
free and clear send them a certified signed receipt requested letter to the
address of record with the DMV asking for the notarized document of
ownership from them. Take whatever you get back (either the title or the
unopened letter) to the DMV and proceed as they direct.
If the OP does not own the trailer in full then report it as abandoned to
your local law enforcement agency. You really want nothing more to do with
it.
Another great bit of conjecture from a non-lawyer.
Robert Bonomi
for the residence, and the access granted by his roommate, you are correct.
The _subsequent_ entry to the van is an entirely different matter --
1) the roommate did _NOT_ -- at least as reported by the OP -- grant
access to the van.
2) even if he had done so, the roommate had no 'apparent' authority to
grant such access, thus OP would not have any reasonable basis to
'rely' on such, absent some explicit showing of such authority.
The door of the vehicle (a putatively private space) was closed, OP had to
open it to gain access, and he then entered that private space. In most
jurisdictions, that is sufficient to constitute the crime of 'breaking and
entering', as well as 'criminal trespass'. In a fair number of jurisdictions,
the fact that it was 'to a motor vehicle' is an aggravating condition, that
raises the severity of the crime.
mm
<dryads...@xxxxyahoo.com> wrote:
>mm wrote:
>> Somehow I found out where his apartment was and I went there when he
>> wasn't home and his roommate let me in when I told him I was supposed
>> to meet him there, and I looked for my stuff. Later I saw his very
>> distinctively painted van parked on the street near this apartment and
>> the rear door was unlocked and I went into it and searched for my
>> drill and torch. I didn't find anything, but I would have taken
>> anything of mine I found. I thought at the time I was doing
>> something moral but illegal, but later during a lecture about related
>> stuff, I got the impression it was legal. I've never asked anyone
>> before. Was what I did legal in all states/most states/Illinois?
>
>I don't see that as self help because there was no conversion and you
>were invited in by someone who had the right to admit you. Thus there
>was no trespass either.
That's good to hear. What about when I went into his van? Was that
legal? No one invited me in there.
That lecture I talked about was in law school, where I didnt' graduate
or take the bar review course, and wasn't a very good student even
when I was there, but I did pay attention in class, and regardless of
my situation in this specific case, I sure got the impression in that
lecture that self-help was sometimes legal.
Mark A
news:nj2if55bf0ihhrnos...@4ax.com...
> That lecture I talked about was in law school, where I didnt' graduate
> or take the bar review course, and wasn't a very good student even
> when I was there, but I did pay attention in class, and regardless of
> my situation in this specific case, I sure got the impression in that
> lecture that self-help was sometimes legal.
Self-help is legal so long as it is not illegal. Stealing is illegal.
slide
?
>> I don't see that as self help because there was no conversion and you
>> were invited in by someone who had the right to admit you. Thus there
>> was no trespass either.
>
> That's good to hear. What about when I went into his van? Was that
> legal? No one invited me in there.
>
> That lecture I talked about was in law school, where I didnt' graduate
> or take the bar review course, and wasn't a very good student even
> when I was there, but I did pay attention in class, and regardless of
> my situation in this specific case, I sure got the impression in that
> lecture that self-help was sometimes legal.
Also look at Robert's response to mine. I was referring solely to the
initial incident of entry in to the residence and failed to make that
clear. Robert's response is more comprehensive than mine was.
Seth
Is it stealing for me to put my property in my pocket and walk away?
Suppose the item of my property happened to be in someone else's place
at the time?
Some "breaking and entering" statutes require intent to perform an
illegal act as part of the crime; so if taking my property isn't
illegal, entering (without damaging anything) wouldn't be, either.
Seth
Stuart A. Bronstein
> I sure got the impression in that
> lecture that self-help was sometimes legal.
As far as I'm aware, self help is legal when you are going after
personal property, have a perfected security interest, and can do so
without a breach of the peace.
I'm not aware of any other situations where it would be permitted.
Remember OJ and his taking back what was supposedly his own property
from someone who wasn't supposed to have it. He's now in jail as a
result.
mm
wrote:
>
>Self-help is legal so long as it is not illegal. Stealing is illegal.
I don't understand the reference to stealing. Taking back my own
property would not have been stealing.
Breaking and entering or trespass were illegal I guess. I'm trying to
absorb that. I'm glad he didn't catch me, although mostly I was
worried he'd try to beat me up if he did. I assumed he was bigger than
I am, 5'8". I found his picture in the student directory from 5 years
earlier when we both entered college. Though I never met him, from
the cord wrapped tightly around the razor, and from the fact that the
janitor, an old man, said the girl was unwilling to talk to him,
didn't even look at him, when this guy was with her, and said he heard
sounds like this guy was beating her when he walked by the window, he
seemed violent and irrational. Although he might have controlled
himself and just called the police. But even his detaining me until
he got to a phone could have gotten me hurt.
Still, I was so angry at him I was willing to risk any of that. I'd
filed a police report about the theft, and maybe the police might have
let me go.
A couple months later, as I was driving up Lake Shore Drive, I saw his
van driving south. I was on my way to Mexico, but I would have driven
across the wide grass median and followed him to find out where he
actually lived, if I had not had two riders/gas sharers/co-drivers as
far as Oklahoma waiting for me on the north side of Chicago.
A year later, I was in the city he was from, and I looked his last
name up in the phone book and found people by that last name living at
the address that was printed in the First Year Student Directory. I
called and asked for him. The person said there is no one here by
that name. I should have checked first if the person answering had
the name in the phone book, so I called a few weeks later, and asked
that question. Yes. It was clearly his parents and I guess he had
caused them so much grief, they pretended they didn't know him.
Otherwise they would have assumed I was a friend, and at least asked
who I was, instead of acting like they didn't know the name. I didn't
say why I had called.
I didn't need one anymore and couldn't rationalize buying a second
propane torch, and later they didn't sell that unusual model, but 45
years later, I found for sale cheaply a used propane torch like the
one he stole. It needs a jet, I think, and then I'll be almost back to
where I started.
Barry Gold
>I totally agree that this kind of self help would not be permitted.
>But your phrasing seems to make it seem that no self help is ever
>permitted? Is that so?
Pretty much. Once "possession" has transferred, the law doesn't want
you to "take it back", because that can lead to a breach of the peace.
For example, you have a roommate R. You get into some sort of
argument with him, then go away for a few days. While you're gone, he
"helps himself" to your toolkit and moves out. You come back, find
the toolkit gone, go to his new home, find the door unlocked, walk in
and grab the toolkit.
In some states, you have just committed a felony: burglary. In other
states, it would be a misdemeanor, petty theft. Why? Well, suppose
he came home while you were "helping yourself" to get your toolkit
back. Maybe he felt justified in taking them, because of something
you did to him (or that he imagined you did to him). So he tries to
get it back, a wrestling match starts, and he grabs a wrench and
starts hitting you with it. So you grab a hammer to defend yourself,
and he ends up dead.
That kind of escalation can easily happen, and is a large part of why
"self help" isn't allowed.
There are a few exceptions. Somebody who lends money on a car -- and
gets loan formally registered with the state -- can "repossess" the
car. Just use a spare key (or a "slim jim"), open the car and drive
away. The professionals who do this know, however, that if the
registered owner shows up before they get the car started, they better
just walk away. Otherwise bad things can happen.
[OP had a temporary roommate steal some of his stuff while he was
gone. He went into the roommate's boyfriend's van to look for them,
planning to take them back if he found them.]
Bad idea. In California, that would have been burglary from a vehicle.
Now, this is the sort of thing you might well get away with. Why?
Because if the thief reports it, he'll effectively be admitting that
he had the stuff, and _he'll_ go to jail too. Still, it is a crime
and if he wanted to press charges, or if somebody else saw you do it
and called the police, you'd be in trouble. At the very least you'd
get probation and have a criminal record.
--
Barry Gold, webmaster:
Conchord: http://www.conchord.org
Los Angeles Science Fantasy Society, Inc.: http://www.lasfsinc.org
Mark A
news:hdf7oh$ftc$1...@reader1.panix.com...
> Is it stealing for me to put my property in my pocket and walk away?
> Suppose the item of my property happened to be in someone else's place
> at the time?
>
> Some "breaking and entering" statutes require intent to perform an
> illegal act as part of the crime; so if taking my property isn't
> illegal, entering (without damaging anything) wouldn't be, either.
>
> Seth
The trailer does not belong to the homeowner, it belongs to the vendor who
was contracted to do the repairs. There is no legal document stating that
the ownership of the trailer was to be passed to the homeowner, nor does the
homeowner have a title to the trailer.
So in your hypothetical (pretending to be the in the situation of the OP),
it is not your property.
Mark A
> I don't understand the reference to stealing. Taking back my own
> property would not have been stealing.
If you read the original post, Dave does not own the trailer and has no
legal rights to it and therefore cannot legal sell it. Your case is
different, although I don't necessarily agree with all your conclusions.
Stuart A. Bronstein
>>Self-help is legal so long as it is not illegal. Stealing is
>>illegal.
>
> Is it stealing for me to put my property in my pocket and walk
> away? Suppose the item of my property happened to be in someone
> else's place at the time?
It can be, if the other person claims it as his. Stealing from a
thief is just as illegal as stealing from someone else.
Remember OJ - he's in jail now for, as he claimed, retaking his own
property from someone he claimed should not have had it.
Timothy
> My question is : Can I sell the trailer and get my money back?
The trailer (most likely) isn't yours to sell-- but I might also add
that it probably isn't worth enough money to make up for the
unfinished portion of the contract. Six windows and the installation
of those windows are worth several thousand dollars. If he indeed
legally bartered the trailer to you in lieu of the services he didn't
perform and the materials he didn't install, you got ripped off. Not
only that, he legally should have registered it if he is using it on
public highways.
Seth
Mark A <no...@nowhere.com> wrote:
>"Seth" <se...@panix.com> wrote in message
>news:hdf7oh$ftc$1...@reader1.panix.com...
>> Some "breaking and entering" statutes require intent to perform an
>> illegal act as part of the crime; so if taking my property isn't
>> illegal, entering (without damaging anything) wouldn't be, either.
>
>The trailer does not belong to the homeowner, it belongs to the vendor who
>was contracted to do the repairs.
I was referring to a different situation, closer to my post downthread
from the OP. Some other guy took my drill. It's mine, I can prove it
(it has a serial number and I have the receipt). I walk into his
house, put it in my pocket, and walk out.
Seth
Fred the Red Shirt
How long must the trailer remain in on his property before it becomes
abandoned property?
Mike
Probably 30-90 days. However, vehicles (at least in SC) do NOT become
"finders-keepers" as A Michigan Attorney said in another post (that may
be true for some stuff but not vehicles.) Now I don't recall if a
trailer is a vehicle under that law or not (it can be registered but is
not required to be and doesn't have to have a tag as some states require.)
In SC, if you have an abandoned vehicle or mobile home, you have to
report it and have it towed. The state then auctions it off and, I
believe, pays the towing company some of that for the tow. Now if you
own a garage or parking lot or such, you can put a lien on an abandoned
vehicle yourself and then put it up for auction (or have the state
auction it, I forget which, offhand) and get a storage fee back out of
that. But an ordinary Joe who's buddy dumps a car in his yard and splits
wouldn't get anything from the vehicle at all.
Mike
<talking about an abandoned trailer>
Not
> only that, he legally should have registered it if he is using it on
> public highways.
Not always. In SC, you can register a trailer but you do not have to.
You also don't get a tag for a trailer, even if registered (now there
might be some exceptions for commercially used trailers where they do
have to be registered and/or tagged.)
Mark A
news:689e4d1d-7b8f-4a13...@g23g2000yqh.googlegroups.com...
> How long must the trailer remain in on his property before it becomes
> abandoned property?
An "abandoned property" scenario is a possibility, but if the trailer is
titled by the motor vehicle division of the state (I don't know if it is),
then it becomes a more complicated issue.
Stuart A. Bronstein
>>> perform an illegal act as part of the crime; so if taking my
>>> property isn't illegal, entering (without damaging anything)
>>> wouldn't be, either.
>>
>>The trailer does not belong to the homeowner, it belongs to the
>>vendor who was contracted to do the repairs.
>
> I was referring to a different situation, closer to my post
> downthread from the OP. Some other guy took my drill. It's
> mine, I can prove it (it has a serial number and I have the
> receipt). I walk into his house, put it in my pocket, and walk
> out.
Again, generally taking something from a thief is still theft, even
if what you've taken is yours.
Mark A
> I was referring to a different situation, closer to my post downthread
> from the OP. Some other guy took my drill. It's mine, I can prove it
> (it has a serial number and I have the receipt). I walk into his
> house, put it in my pocket, and walk out.
>
> Seth
I was talking about the situation of the OP of this thread.
It gets confusing when you change the facts (or change the entire scenario).
If you want start a discussion with a completely different scenario, then I
would suggest for the sake of clarity that you start a new thread.
Seth
Stuart A. Bronstein <spam...@lexregia.com> wrote:
>Again, generally taking something from a thief is still theft, even
>if what you've taken is yours.
Taking my own property is theft? According to which statute? In at
least some states, there's a requirement of intent to (permanently)
deprive the rightful owner of (the use of) his property. If I'm the
rightful owner, how can that possibly apply?
Seth
Seth
>> Is it stealing for me to put my property in my pocket and walk
>> away? Suppose the item of my property happened to be in someone
>> else's place at the time?
>
>It can be, if the other person claims it as his.
Claiming it as his doesn't make it his. I specified that it _is_
mine, and is _provably_ mine.
I understand that the police might not immediately realize this, but
I'm talking about the law (and end results after court, if necessary),
not the immediate reactions.
> Stealing from a
>thief is just as illegal as stealing from someone else.
But stealing requires intent to deprive the owner of property, and I'm
the owner. I have no intent to deprive myself of my property; exactly
the reverse.
>Remember OJ - he's in jail now for, as he claimed, retaking his own
>property from someone he claimed should not have had it.
"he claimed" is the operative part.
Seth
Timothy
> "Seth" <se...@panix.com> wrote in message
>
> news:hdkh4a$1q5$3...@reader1.panix.com...
>
> > I was referring to a different situation, closer to my post downthread
> > from the OP. �Some other guy took my drill. �It's mine, I can prove it
> > (it has a serial number and I have the receipt). �I walk into his
> > house, put it in my pocket, and walk out.
In that case, all the receopt proves is that one point in the past you
owned it. You could have sold or given away the drill and then stole
it back. That was how OJ Simpson got thrown in jail: he stole his own
stuff back, which is illegal.
Stuart A. Bronstein
> Stuart A. Bronstein <spam...@lexregia.com> wrote:
>
>>Again, generally taking something from a thief is still theft,
>>even if what you've taken is yours.
>
> Taking my own property is theft? According to which statute?
> In at least some states, there's a requirement of intent to
> (permanently) deprive the rightful owner of (the use of) his
> property. If I'm the rightful owner, how can that possibly
> apply?
By taking your own property back from a thief, you are intending to
deprive him of its possession. That's not the problem.
Because you claim it's your property you believe that taking it is
not "wrongful," thus no intent. However you may be wrong about the
person who took your property, or that the specific property you
plan to take is really yours. The law takes a dim view of
individuals acting as judge, jury and executioner, because
sometimes they are wrong and tragedy results.
If someone has something of yours and you can't get it back without
a breach of the peace or otherwise violating laws prohibiting
things like assault or trespass, you should call the authorities
and let them handle it. Otherwise you could, like OJ, end up in
jail.
Stuart A. Bronstein
> Stuart A. Bronstein <spam...@lexregia.com> wrote:
>>se...@panix.com (Seth) wrote:
>
>>> Is it stealing for me to put my property in my pocket and walk
>>> away? Suppose the item of my property happened to be in
>>> someone else's place at the time?
>>
>>It can be, if the other person claims it as his.
>
> Claiming it as his doesn't make it his. I specified that it
> _is_ mine, and is _provably_ mine.
So prove it to the authorities, and don't act like a vigilante.
> I understand that the police might not immediately realize this,
> but I'm talking about the law (and end results after court, if
> necessary), not the immediate reactions.
You're also talking about breaking the law to, in your view, to
right a wrong.
>> Stealing from a
>>thief is just as illegal as stealing from someone else.
>
> But stealing requires intent to deprive the owner of property,
> and I'm the owner. I have no intent to deprive myself of my
> property; exactly the reverse.
No, it's the intent to deprive the one in possession. If you lend
something to a friend and someone steals it from your friend, are
you seriously claiming it's not illegal because the thief is
intending to deprive someone who is not the owner?
>>Remember OJ - he's in jail now for, as he claimed, retaking his
>>own property from someone he claimed should not have had it.
>
> "he claimed" is the operative part.
Exactly. Just like you claim. You may or may not be right. And
whether right or wrong, the act is illegal because we can't allow
people to run around stealing things just because they think it's
the right thing to do.
Seth
Stuart A. Bronstein <spam...@lexregia.com> wrote:
>se...@panix.com (Seth) wrote:
>> Stuart A. Bronstein <spam...@lexregia.com> wrote:
>>
>>>Again, generally taking something from a thief is still theft,
>>>even if what you've taken is yours.
>>
>> Taking my own property is theft? According to which statute?
>By taking your own property back from a thief, you are intending to
>deprive him of its possession. That's not the problem.
Right.
>Because you claim it's your property you believe that taking it is
>not "wrongful," thus no intent.
Not because I claim it's my property, but because it _is_ my property.
> However you may be wrong about the
>person who took your property,
Why would it matter who took it? (If the person currently in physical
possession bought it from the thief, it's still my property.)
> or that the specific property you plan to take is really yours.
That's a separate issue. If it isn't really mine, then taking it is
stealing (the intent to keep it maps to intent to deprive the owner).
>If someone has something of yours and you can't get it back without
>a breach of the peace or otherwise violating laws prohibiting
>things like assault or trespass,
My point was that there's no breach of the peace, and no violation of
other laws (specifically, no assault; and no trespass because that
would require intent to commit a crime in the premises, which didn't
exist).
> you should call the authorities and let them handle it. Otherwise
>you could, like OJ, end up in jail.
"armed robbery, assault with a deadly weapon, coercion, . . ." He
clearly didn't merely take back his property without a breach of the
peace.
Seth
Timothy
wrote:
>
> >>Remember OJ - he's in jail now for, as he claimed, retaking his
> >>own property from someone he claimed should not have had it.
>
> > "he claimed" is the operative part.
>
The OJ situation was even more tangled than we have depicted it in
this thread. He claims he was reclaiming items which had been stolen
from him. However, he is known to have sold some memorabilia under
the table. He was selling items for cash to avoid taxation as well as
the terms of his bankruptcy filings--- and the main reason he declared
bankruptcy was to avoid having to pay off wrongful death lawsuits
related to his (apparent) murder of his wife and a friend of hers.
If he sold those items at all, he was selling them illegally.
Seth
>> Claiming it as his doesn't make it his. I specified that it
>> _is_ mine, and is _provably_ mine.
>
>So prove it to the authorities, and don't act like a vigilante.
That's one option. The issue is whether another option is a crime.
>> I understand that the police might not immediately realize this,
>> but I'm talking about the law (and end results after court, if
>> necessary), not the immediate reactions.
>
>You're also talking about breaking the law to, in your view, to
>right a wrong.
Which law? (findlaw.com says "Theft/larceny is typically defined as
the taking of almost anything of value without the consent of the
owner, with the intent to permanently deprive him or her of the value
of the property taken." That's specifically what I'm not doing, since
I have the consent of the owner (me).)
>> But stealing requires intent to deprive the owner of property,
>> and I'm the owner. I have no intent to deprive myself of my
>> property; exactly the reverse.
>
>No, it's the intent to deprive the one in possession.
So I'm clumsy, and I drop my keys while fiddling with them. You pick
them up, and I rudely grab them out of your hand. Is that theft?
You're in possession (intending to hand them to me a few seconds
later), and I deprived you of them.
> If you lend something to a friend and someone steals it from your
>friend, are you seriously claiming it's not illegal because the thief
>is intending to deprive someone who is not the owner?
My friend intends to return it. So the action of the thief deprives
me of my property, hence it's theft. (If a third party knew it was
mine and didn't realize I'd lent it, so he takes it and hands it to
me, is that theft?)
>>>Remember OJ - he's in jail now for, as he claimed, retaking his
>>>own property from someone he claimed should not have had it.
>> "he claimed" is the operative part.
>Exactly. Just like you claim. You may or may not be right.
It's my hypothetical, so I _am_ right.
> And whether right or wrong, the act is illegal because we can't
>allow people to run around stealing things just because they think
>it's the right thing to do.
And we don't. We allow people to take things that are their own
property when it _is_ the right thing to do.
We don't allow people to run around killing others just because they
think it's the right thing to do; but we do allow self-defense. The
difference is whether something _is_ or _is believed to be_.
Seth
Mike
> se...@panix.com (Seth) wrote:
>> But stealing requires intent to deprive the owner of property,
>> and I'm the owner. I have no intent to deprive myself of my
>> property; exactly the reverse.
But no-one knows that at the time. Appearances make a lot of difference.
Are you willing to sit in jail for 3 months waiting trial just so you
can prove, at that point, that the drill really was yours to begin with?
> No, it's the intent to deprive the one in possession. If you lend
> something to a friend and someone steals it from your friend, are
> you seriously claiming it's not illegal because the thief is
> intending to deprive someone who is not the owner?
The thief, in this case, WOULD be depriving the rightful owner of the
item, since the item could no longer be returned to said rightful owner.
So, IMHO, that's a bad example.
>
>>> Remember OJ - he's in jail now for, as he claimed, retaking his
>>> own property from someone he claimed should not have had it.
>> "he claimed" is the operative part.
>
> Exactly. Just like you claim. You may or may not be right. And
> whether right or wrong, the act is illegal because we can't allow
> people to run around stealing things just because they think it's
> the right thing to do.
Although I agree with you about self-help being wrong, I do believe OJ
DID breach the peace with his "self-help." Seth was talking about being
invited into the residence, seeing (what he though to be) his drill,
picking it up and calmly walking out. Nowhere near what OJ did
(brandishing a gun, forcing his way in, etc.) So, again, IMHO, a bad
example.
Stuart A. Bronstein
>> or that the specific property you plan to take is really yours.
>
> That's a separate issue. If it isn't really mine, then taking
> it is stealing (the intent to keep it maps to intent to deprive
> the owner).
People shouldn't be taking the law in their own hands. Sometimes
they're wrong. And allowing that would encourage even more people
to try self-help, even if whatever they take is not theirs.
>>If someone has something of yours and you can't get it back
>>without a breach of the peace or otherwise violating laws
>>prohibiting things like assault or trespass,
>
> My point was that there's no breach of the peace, and no
> violation of other laws (specifically, no assault; and no
> trespass because that would require intent to commit a crime in
> the premises, which didn't exist).
If you can do that, you might be ok. But I'd think it would be
unlikely. If you see someone on the street and he has something of
yours, his resistance to your taking "your" property is a breach of
the peace.
Stuart A. Bronstein
> The OJ situation was even more tangled than we have depicted it
> in this thread. He claims he was reclaiming items which had
> been stolen from him. However, he is known to have sold some
> memorabilia under the table. He was selling items for cash to
> avoid taxation as well as the terms of his bankruptcy filings---
> and the main reason he declared bankruptcy was to avoid having
> to pay off wrongful death lawsuits related to his (apparent)
> murder of his wife and a friend of hers.
Intentional torts are not discharged in bankruptcy, so he still owes
the money. He put his substantial assets into exempt property - a
homestead in Florida and pension-type plans. Normally memorabilia is
not exempt from creditors.
Mike Jacobs
> In article <Xns9CC54E2001FF1spamtraplexregia...@130.133.1.4>,
> Stuart A. Bronstein <spamt...@lexregia.com> wrote:
> >Because you claim it's your property you believe that taking it is
> >not "wrongful," thus no intent.
>
> Not because I claim it's my property, but because it _is_ my property.
Okay, I'm jumping into this thread late, since Seth doesn't seem to
want to take Stu's word for it that self-help recovery of allegedly
stolen property is, in most situations, against the law. Or maybe,
knowing Seth, he accepts that this _is_ the law, but wants to pick and
dig and find out _why_, by asking pesky Socratic questions. You do
know they can force you to drink hemlock if you keep that up, don't
you, Seth?
Deconstructing Seth's comment, above, it appears he is taking a
literalist, realist view of what "is" is. That is, Seth (at least
for purposes of argument) believes that "what is, is" and "what isn't,
isn't" and that these realities are mutually exclusive and absolutely
knowable to 100% degree of certainty at all times and places - it's
just that sometimes, we fallible humans are in the dark about what the
real "is" is. That is certainly one valid philosophical position it
is possible to take, one consistent with a belief in an all-knowing,
all-powerful G-d whose cosmic justice says, beyond all doubt, that
Seth owns the tchotchke that is currently in someone else's hands.
However, it is not necessary to go all the way over to the other
philosophical position and assert, along with Blood, Sweat, and Tears,
"Does anybody _really_ know what time it is?" in order to solve this
conundrum. Because, see, "ownership" is not something divinely
sanctioned and set in stone forever, but is a HUMAN legal concept that
most people MISTAKENLY assume is of the former, definite, G-dly
variety.
What "ownership" is, is a "bundle" of "claims of right" as to what a
particular person (the purported "owner") can DO with (or to) a
certain, non-human (the concept formerly extended to fellow humans,
but we won't go there now) tangible or intangible object, concept, or
"noun-thing." If you can name it, you can own it. The thing is,
what we call "ownership" is not inherent in the object itself, nor is
it cosmically ordained. As in most situations, the cases on the
margin - those where ownership is "genuinely" in dispute - illuminate
the underlying nature of the apparently solid cases in the middle of
the bell curve, but the same rule applies to all. That rule being,
(are you ready for this)
"Possession is nine points of the law." He who has the gold, makes
the rules. You can have it when you come and pry it out of my cold,
dead fingers. Let the best man win. The divine right of kings,
divine right of conquest, divine right of discovery - I planted my
flag here first. What, someone else _was_ here first? Well, they
don't count because they didn't really have a concept of "ownership"
did they? And they never did anything much to exploit and extract
the fabulous natural resources that this land they (used to, until we
killed most of them off) reside on, and which we now claim as our own,
(used to) have in abundance (until we extracted nearly them all, using
of course the hired or bought labor of others). Might makes right.
You snooze, you looze. The tough guy gets all the marbles (and all
the chicas). Carry a big stick. Mutual Assured Destruction. The
law of the jungle.
Okay, that's the way humans naturally are. And that's how the
concept of "ownership" grew - if you glommed onto some thing, and your
_claim_ of a right to do things with that thing was _stronger_ than
somebody else's claim, we came to say you "owned" that thing. In the
absence of law, our struggles over ownership would be played out on
the field of honor, in combat or duels, or just in muggings in a dark
alley - it makes no difference, they are all variations on the same
theme - the use of force to get what we want.
But, THE LAW claims a virtual monopoly on the use of force to resolve
disputes. What LAW has to say about it is, competing claims of
ownership need to be resolved IN COURT, based on presentation of
evidence, with a neutral, fair factfinder deciding whose claim of
ownership is superior to the other's - and that trial of the contested
issue TAKES THE PLACE OF "might makes right" and self-help, except in
very limited circumstances beyond the scope of this discussion.
To summarize, saying "I own this thing" simply means "I _claim_ a
certain bundle of rights as to what I am allowed to do with, or to,
this thing, and I claim the right to exclude anybody _else_ from doing
those things to this thing." That's ALL ownership is, a CLAIM. In
the typical, middle-of-the-bell-curve, no-real-dispute case, it's a
pretty SOLID claim, sure, one which no one else in your social milieu
is likely to dispute from day to day, any more so than the other male
sea elephants are likely to challenge the alpha bull over "ownership"
of the cows in his harem once the Big Guy has asserted his dominance
(but the rest of the guys _will_ challenge him, at the beginning of
that process of the honcho's ascension, or towards the end of his
regime, when he shows signs of weakness). We do get confused,
though, if we lose track of what ownership really IS, and instead
misleadingly reify and give permanency to this fuzzy concept that we
human animals have created.
Now, one could substitute Mafia dons and their numbers-running
territories for elephant seals and their harems in the above analogy,
and get the same result. Or, substitute international relations and
big-power diplomacy and war, matters which are equally primitive in
concept and, like the Mafia, mostly unconstrained by formal legalism
about "ownership." And one could postulate that a major reason why
law-abiding folks, and particularly law enforcers, despise organized
crime so much is that it is a _competing_ model of social organization
and political economy to that provided by our legal constructs. All
of which would be true - criminals are "deviant" only because
bourgeois society SAYS they are, but if we let them get away with
everything, it would be the END of the civilized world as we know it,
the one created by and enforced by law.
The lens through which we look at things colors the result. But, we
_are_ talking about how "the law" sees things, not how Don Corleone
sees things. And in the law's light, SELF HELP IS WRONG because it
_can_ provoke a breach of the peace even if it doesn't ACTUALLY do so
in every instance.
> > �However you may be wrong about the
> >person who took your property,
>
> Why would it matter who took it? �(If the person currently in physical
> possession bought it from the thief, it's still my property.)
But you may also be wrong that it's "your property" the other person
has. Maybe his property just _looks_ like yours. "Oops, sorry"
comes to mind here, after the mistaken identity is cleared up. But
"oops" doesn't help if a breach of the peace has already occurred, and
someone is lying bleeding in the street. That's part of what the law
against self-help in this situation is intended to prevent.
> > or that the specific property you plan to take is really yours.
>
> That's a separate issue. �If it isn't really mine, then taking it is
> stealing (the intent to keep it maps to intent to deprive the owner).
Sorry, I agree with Stu and disagree with Seth here - it's _not_ a
separate issue. What Seth has if he claims "ownership" is simply a
claim of right to use and possess a certain thing to the exclusion of
other persons. If the actual thing in question is not the thing Seth
thinks it is, then his claim of right is WEAKER, but not non-existent,
simply BECAUSE HE _DOES_ CLAIM IT. While the absolute realists among
us would call Seth's belief in that situation a "mistake of fact," the
relativists among us would simply say that Seth's claim is weaker than
the other guy's, and therefore, the law would decide (based on the
evidence) that the _other_ guy owns that particular thing (even though
Seth's claim of ownership rights may be the stronger one, as to some
_other_ thing that Seth _thought_ this other guy's thing was).
> >If someone has something of yours and you can't get it back without
> >a breach of the peace or otherwise violating laws prohibiting
> >things like assault or trespass,
>
> My point was that there's no breach of the peace, and no violation of
> other laws (specifically, no assault; and no trespass because that
> would require intent to commit a crime in the premises, which didn't
> exist)
But it _does_ count as a trespass if you enter someone else's private
domain to retrieve "your" (allegedly stolen) property from out of that
person's possession and control. In doing so you are bypassing the
court and acting (in Stu's immortal words) as judge, jury and
executioner of your own judgment that your claim of rightful ownership
is superior to that of the actual current possessor's. And, while
you may be able to get away with it in the odd case here or there,
that's exactly the kind of "dissing" of the actual possessor that, by
Law of the Jungle rules, is likely to get somebody beaten up or shot,
_if_ you get caught doing it. Hence, the preference of the law to
substitute rational choice based on competing evidence rather than
merely "fighting" over ownership with sticks and rocks.
> > you should call the authorities and let them handle it. �Otherwise
> >you could, like OJ, end up in jail.
>
> "armed robbery, assault with a deadly weapon, coercion, . . ." �He
> clearly didn't merely take back his property without a breach of the
> peace.
Well, maybe OJ wasn't the best example. But that doesn't disprove
the concept. What if, instead of barging in with guns as actually
happened, OJ had simply tried to jimmy the door and burgle his way
into the Las Vegas hotel room where the tchotchkes were, at a time
when he knew the "new owners" were all downstairs at the casino?
Would you think that was perfectly okay, Seth?
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Seth
>> > I was referring to a different situation, closer to my post downthread
>> > from the OP. �Some other guy took my drill. �It's mine, I can prove it
>> > (it has a serial number and I have the receipt). �I walk into his
>> > house, put it in my pocket, and walk out.
>
>In that case, all the receopt proves is that one point in the past you
>owned it. You could have sold or given away the drill and then stole
>it back.
OK, the receipt, etc. provides a rebuttable presumption that I own
it. Since I _didn't_ sell it or give it away, that won't be provable.
> That was how OJ Simpson got thrown in jail: he stole his own
>stuff back, which is illegal.
He was convicted of burglary while in possession of
deadly weapon, kidnapping (2 counts), assault with a deadly weapon (2
county), robbery with use of a deadly weapon (2 counts), and
conspiracy for some of them (3 counts). That doesn't resemble my
hypothetical very well, which doesn't involve multiple actors or
weapons.
I also haven't seen any reports that it was actually his own stuff
(that is, a court saying so). Who has the stuff now?
Seth
Seth
Timothy <Timothy....@alumni.usc.edu> wrote:
[OJ sold stuff secretly for cash.]
>If he sold those items at all, he was selling them illegally.
I understand that if he didn't report the sales, it was tax evasion.
Likewise, hiding the sales/assets might well have been contempt of
court (violation of a court order).
But does that make the sale illegal? I'd say that the sale itself was
legal, his actions (or lack thereof) following the sale weren't.
Seth
Seth
Mike <prab...@shamrocksgf.com> wrote:
>> se...@panix.com (Seth) wrote:
>>> But stealing requires intent to deprive the owner of property,
>>> and I'm the owner. I have no intent to deprive myself of my
>>> property; exactly the reverse.
>
>But no-one knows that at the time. Appearances make a lot of difference.
>Are you willing to sit in jail for 3 months waiting trial just so you
>can prove, at that point, that the drill really was yours to begin with?
No, and I wouldn't have to, either.
Given that it's mine, who is going to report me for taking it?
Someone who wants to confess to possession of stolen property?
In any case, the question was about whether an action was illegal, not
whether it was advisable.
Seth
Timothy
>
> "armed robbery, assault with a deadly weapon, coercion, . . ." �He
> clearly didn't merely take back his property without a breach of the
> peace.
>
OJ Simpson was charged with a long list of offenses--- including
assualt, burglary and robbery--- but NOT larceny per se. The
prosecution didn't get into the issue of whether or not he owned the
stuff which he stole back: they prosecuted him for physically
attacking the people who were in possession of the stuff.
Stuart A. Bronstein
>>If he sold those items at all, he was selling them illegally.
>
> I understand that if he didn't report the sales, it was tax
> evasion. Likewise, hiding the sales/assets might well have been
> contempt of court (violation of a court order).
>
> But does that make the sale illegal? I'd say that the sale
> itself was legal, his actions (or lack thereof) following the
> sale weren't.
There was probably a judgment lien on the property, so selling it and
avoidng the lien would be illegal under the circumstances.
Illegal doesn't necessarily mean he'll go to jail for it - it could
just mean that the transaction is void or voidable.
Mike
> In article <he3d6i$581$1...@news.eternal-september.org>,
> Mike <prab...@shamrocksgf.com> wrote:
>>> se...@panix.com (Seth) wrote:
>>>> But stealing requires intent to deprive the owner of property,
>>>> and I'm the owner. I have no intent to deprive myself of my
>>>> property; exactly the reverse.
>> But no-one knows that at the time. Appearances make a lot of difference.
>> Are you willing to sit in jail for 3 months waiting trial just so you
>> can prove, at that point, that the drill really was yours to begin with?
>
> No, and I wouldn't have to, either.
>
> Given that it's mine, who is going to report me for taking it?
> Someone who wants to confess to possession of stolen property?
No, someone who bought it from the original thief, not knowing it was
stolen.
> In any case, the question was about whether an action was illegal, not
> whether it was advisable.
Many things are legal to do but yet it might not be a good idea to do
them. Jumping off a cliff comes to mind.
Seth
Stuart A. Bronstein <spam...@lexregia.com> wrote:
[OJ selling stuff under the table for cash]
>There was probably a judgment lien on the property, so selling it and
>avoidng the lien would be illegal under the circumstances.
>
>Illegal doesn't necessarily mean he'll go to jail for it - it could
>just mean that the transaction is void or voidable.
It seems to me to depend on whether he received FMV: If he did, the
sale should be valid (of course, OJ has to give up the proceeds). If
he did not, then the sale is voidable, as a preference. (What happens
if the sale is voidable and OJ no longer has the cash to undo the
sale?)
Seth
Stuart A. Bronstein
A preference is only a consideration in bankruptcy. And even in
bankruptcy it's not voidable - the creditor just has to give back
whatever he received from the bankrupt debtor.
When there is insufficient consideration, the transaction is still
not void. The transaction can be unwound by the court to the
extent consideration was insufficient. That's not the same thing.
Stuart A. Bronstein
> Many things are legal to do but yet it might not be a good idea
> to do them. Jumping off a cliff comes to mind.
I remember a guy who once threatened to jump off a cliff. Turned out
to be a bluff.
Seth
Mike <prab...@shamrocksgf.com> wrote:
>Seth wrote:
>> In any case, the question was about whether an action was illegal, not
>> whether it was advisable.
>
>Many things are legal to do but yet it might not be a good idea to do
>them. Jumping off a cliff comes to mind.
This newsgroup is misc.legal.moderated, not misc.advisable.moderated.
That's why I'm asking what the law says, not whether something is a
good idea.
Seth
Seth
Mike Jacobs <mjaco...@gmail.com> wrote:
>On Nov 18, 11:03�am, se...@panix.com (Seth) wrote:
>> In article <Xns9CC54E2001FF1spamtraplexregia...@130.133.1.4>,
>> Stuart A. Bronstein <spamt...@lexregia.com> wrote:
>
>> >Because you claim it's your property you believe that taking it is
>> >not "wrongful," thus no intent.
>>
>> Not because I claim it's my property, but because it _is_ my property.
>
>Okay, I'm jumping into this thread late, since Seth doesn't seem to
>want to take Stu's word for it that self-help recovery of allegedly
>stolen property is, in most situations, against the law.
So you agree that there are situations (e.g. the owner can take his
stuff without a breach of the peace) where it is not against the law?
> Or maybe, knowing Seth, he accepts that this _is_ the law, but
>wants to pick and dig and find out _why_, by asking pesky Socratic
>questions.
No, I don't accept that it's the law. All I've seen here is people
saying that under circumstances that differ from my hypothetical, it
violates some other law, which violation depends on the change in
circumstances.
> You do know they can force you to drink hemlock if you
>keep that up, don't you, Seth?
I know that's been done, but I don't believe the precedent allowing it
applies in my state.
>Deconstructing Seth's comment, above, it appears he is taking a
>literalist, realist view of what "is" is. That is, Seth (at least
>for purposes of argument) believes that "what is, is" and "what isn't,
>isn't" and that these realities are mutually exclusive
Yes.
> and absolutely knowable to 100% degree of certainty at all times and
>places - it's just that sometimes, we fallible humans are in the dark
>about what the real "is" is.
I don't believe it's always knowable.
> Because, see, "ownership" is not something divinely sanctioned and
>set in stone forever, but is a HUMAN legal concept that most people
>MISTAKENLY assume is of the former, definite, G-dly variety.
And when it comes down to it, ownership is determined according to the
findings of a court. I'm assuming that the court will rule with the
hypothetical owner that he's the actual owner.
>What "ownership" is, is a "bundle" of "claims of right" as to what a
>particular person (the purported "owner") can DO with (or to) a
Isn't that a "claim of ownership"? While a given item has one owner
(which can be a partnership, even an informal one), many people can
make claims.
> If you can name it, you can own it.
I don't understand that statement. First, there's lots of stuff I can
easily name, and can't own (because the present owner refuses to sell,
especially in exchange for anything I can provide). Second, there's
lots I can name and can't own, because it isn't subject to ownership
(e.g. the copyright on the Congressional Record for yesterday).
>"Possession is nine points of the law."
But clearly not sufficient, else "possession of stolen property" would
be an empty concept.
>But, THE LAW claims a virtual monopoly on the use of force to resolve
>disputes.
Which is why I specified that my hypothetical *did not involve force*.
> What LAW has to say about it is, competing claims of
>ownership
There probably won't be any in my hypothetical: if the previous
possessor claims ownership, he's admitting to having had physical
possession; and when the court determines that the ownership was
always mine, he stands to be convicted of possession of stolen
property.
>To summarize, saying "I own this thing" simply means "I _claim_ a
Yes, a statement is a claim.
>certain bundle of rights as to what I am allowed to do with, or to,
>this thing, and I claim the right to exclude anybody _else_ from doing
>those things to this thing." That's ALL ownership is, a CLAIM.
No, ownership is the *actual legal ability* to do (or exclude others
from doing) those things. When a court says "Seth owns the property
at $LOCATION" it doesn't continue "and therefore he can _claim_ to
exclude others from entering that property", but rather "and therefore
he _can_ exclude others from entering that property".
> We do get confused, though, if we lose track of what ownership
>really IS, and instead misleadingly reify and give permanency to this
>fuzzy concept that we human animals have created.
I still say that *actual ownership* isn't a claim of rights, it _is_
those rights. I _own_ the copyright on (my part of) this posting.
That doesn't mean I can _claim_ to prevent someone else from
publishing it against my will, it means I can *actually do that*.
>The lens through which we look at things colors the result. But, we
>_are_ talking about how "the law" sees things, not how Don Corleone
>sees things. And in the law's light, SELF HELP IS WRONG because it
>_can_ provoke a breach of the peace even if it doesn't ACTUALLY do so
>in every instance.
But does the law actually specify that?
>But you may also be wrong that it's "your property" the other person
>has.
That's a possibility; but in my hypothetical, it's not the case.
> Maybe his property just _looks_ like yours.
Sure, he has a suitcase the same make and color as mine; that's easy.
That it has a belt around it with my name sewn into it, somewhat less
likely.
> "Oops, sorry" comes to mind here, after the mistaken identity is
>cleared up. But "oops" doesn't help if a breach of the peace has
>already occurred, and someone is lying bleeding in the street.
That's why I was careful to specify a hypothetical that did not
involve a breach of the peace.
>> That's a separate issue. �If it isn't really mine, then taking it is
>> stealing (the intent to keep it maps to intent to deprive the owner).
>
>Sorry, I agree with Stu and disagree with Seth here - it's _not_ a
>separate issue. What Seth has if he claims "ownership" is simply a
>claim of right to use and possess a certain thing to the exclusion of
>other persons. If the actual thing in question is not the thing Seth
>thinks it is, then his claim of right is WEAKER, but not non-existent,
>simply BECAUSE HE _DOES_ CLAIM IT.
The non-owner's claim is weaker to the point of being non-existent,
empty, meaningless. Sure, you can _claim_ to own my home, but that
doesn't give you any rights whatsoever. Your claim _exists_ because
you made it, but that's all.
> While the absolute realists among us would call Seth's belief in
>that situation a "mistake of fact," the relativists among us would
>simply say that Seth's claim is weaker than the other guy's, and
>therefore, the law would decide (based on the evidence) that the
>_other_ guy owns that particular thing (even though Seth's claim of
>ownership rights may be the stronger one, as to some _other_ thing
>that Seth _thought_ this other guy's thing was).
The court would rule that my claim was *incorrect* and that I *don't
own* the object. It wouldn't say that I have a "weaker claim" and
hence get to use the object only on Tuesdays and Fridays.
>> My point was that there's no breach of the peace, and no violation of
>> other laws (specifically, no assault; and no trespass because that
>> would require intent to commit a crime in the premises, which didn't
>> exist)
>
>But it _does_ count as a trespass if you enter someone else's private
>domain to retrieve "your" (allegedly stolen) property from out of that
>person's possession and control.
The various legal definitions of "trespass" I've seen don't seem to
cover that: they mention interference with *his* property, and I'm not
doing that, just removing *my* property.
> In doing so you are bypassing the
>court and acting (in Stu's immortal words) as judge, jury and
>executioner of your own judgment that your claim of rightful ownership
>is superior to that of the actual current possessor's.
Yes, I am acting according to my own beliefs. I understand that
should I be incorrect, such action might well be criminal. That's
always the case. However, in my hypothetical, my beliefs are correct.
> And, while you may be able to get away with it in the odd case
>here or there, that's exactly the kind of "dissing" of the actual
>possessor that, by Law of the Jungle rules, is likely to get somebody
>beaten up or shot, _if_ you get caught doing it.
Yet it's legal to repossess a car, which is even more likely than my
hypothetical to lead to such a breach of the peace.
>> "armed robbery, assault with a deadly weapon, coercion, . . ." �He
>> clearly didn't merely take back his property without a breach of the
>> peace.
>
>Well, maybe OJ wasn't the best example. But that doesn't disprove
>the concept.
Agreed; it's an irrelevant example.
> What if, instead of barging in with guns as actually
>happened, OJ had simply tried to jimmy the door and burgle his way
>into the Las Vegas hotel room where the tchotchkes were,
Jimmying the door is breaking and entering.
> at a time
>when he knew the "new owners" were all downstairs at the casino?
>Would you think that was perfectly okay, Seth?
No, and neither would the hotel whose property was damaged.
Now, if the "new owners" left and the door failed to lock behind them,
that would be a different issue.
(And I still don't know if OJ's claim of ownership was upheld by the
court; after the trial, to whom was possession of the stuff granted?)
Seth
Stuart A. Bronstein
> Mike Jacobs <mjaco...@gmail.com> wrote:
>>se...@panix.com (Seth) wrote
>>> Stuart A. Bronstein <spamt...@lexregia.com> wrote:
>>
>>Okay, I'm jumping into this thread late, since Seth doesn't seem
>>to want to take Stu's word for it that self-help recovery of
>>allegedly stolen property is, in most situations, against the
>>law.
>
> So you agree that there are situations (e.g. the owner can take
> his stuff without a breach of the peace) where it is not against
> the law?
Of course there are some - never say never. It's not against the law
when there is a law that allows you to do so.
>> Or maybe, knowing Seth, he accepts that this _is_ the law, but
>>wants to pick and dig and find out _why_, by asking pesky
>>Socratic questions.
>
> No, I don't accept that it's the law. All I've seen here is
> people saying that under circumstances that differ from my
> hypothetical, it violates some other law, which violation
> depends on the change in circumstances.
Because different circumstances are treated differently by the law.
You have been given the reasons for those differences and their basic
parameters. But you have rejected it all.
>> Because, see, "ownership" is not something divinely sanctioned
>> and set in stone forever, but is a HUMAN legal concept that most
>>people MISTAKENLY assume is of the former, definite, G-dly
>>variety.
>
> And when it comes down to it, ownership is determined according
> to the findings of a court. I'm assuming that the court will
> rule with the hypothetical owner that he's the actual owner.
Right. And you seem to want to pre-judge the situation. Could I
simply claim that something you bought is really mine and just take
it? I mean, I really, really think it's mine, after all.
>>What "ownership" is, is a "bundle" of "claims of right" as to
>>what a particular person (the purported "owner") can DO with (or
>>to) a
>
> Isn't that a "claim of ownership"? While a given item has one
> owner (which can be a partnership, even an informal one), many
> people can make claims.
No, nothing like that. Ownership being a bundle of rights doesn't
mean that different people necessarily have rights in the same goods.
It means that there are different kinds of rights of ownership (e.g.
the right to use, the right to sell, etc., and those rights can be
owned by different people.
>> If you can name it, you can own it.
>
> I don't understand that statement. First, there's lots of stuff
> I can easily name, and can't own (because the present owner
> refuses to sell, especially in exchange for anything I can
> provide).
Who is to determine who the true owner is if anyone can simply claim
ownership and seize property without any legal supervision? That's
in essence what you are claiming the right to do.
>>But, THE LAW claims a virtual monopoly on the use of force to
>>resolve disputes.
>
> Which is why I specified that my hypothetical *did not involve
> force*.
Ah, so burgary is ok if nobody notices you've broken in until you're
gone?
> There probably won't be any in my hypothetical: if the previous
> possessor claims ownership, he's admitting to having had
> physical possession; and when the court determines that the
> ownership was always mine, he stands to be convicted of
> possession of stolen property.
First of all, ownership doesn't always mean possession. You can buy
something on lay-away, and you don't get it until it's paid off. You
are still the owner, subject to the store's security interest to
assure full payment.
And if you don't pay, the store can take it back because there is a
specific statute that allows them to do that.
Also, since when did you want a court interfering with your "right"
to take back your property?
>>certain bundle of rights as to what I am allowed to do with, or
>>to, this thing, and I claim the right to exclude anybody _else_
>>from doing those things to this thing." That's ALL ownership
>>is, a CLAIM.
>
> No, ownership is the *actual legal ability* to do (or exclude
> others from doing) those things. When a court says "Seth owns
> the property at $LOCATION" it doesn't continue "and therefore he
> can _claim_ to exclude others from entering that property", but
> rather "and therefore he _can_ exclude others from entering that
> property".
You clearly don't understand that ownership is not a single concept,
but a conglomeration of different rights. At any given time you can
have some but not others.
For example you can buy a house that has a tenant with a five year
lease. You are the owner, but have no right to possession until the
lease is up.
> I still say that *actual ownership* isn't a claim of rights, it
> _is_ those rights. I _own_ the copyright on (my part of) this
> posting. That doesn't mean I can _claim_ to prevent someone else
> from publishing it against my will, it means I can *actually do
> that*.
And how do you establish that you ARE the owner as opposed to merely
claiming you are the owner, if you want to be able to just grab those
things you claim without the supervision of courts?
>>The lens through which we look at things colors the result.
>>But, we _are_ talking about how "the law" sees things, not how
>>Don Corleone sees things. And in the law's light, SELF HELP IS
>>WRONG because it _can_ provoke a breach of the peace even if it
>>doesn't ACTUALLY do so in every instance.
>
> But does the law actually specify that?
Yes. See UCC �9609 for example. It says that someone with a
security interest in property can retake it on default, "Without
judicial process, if it proceeds without breach of the
peace."
>>But you may also be wrong that it's "your property" the other
>>person has.
>
> That's a possibility; but in my hypothetical, it's not the case.
How does everyone else in the world know that you are right
> The non-owner's claim is weaker to the point of being
> non-existent, empty, meaningless. Sure, you can _claim_ to own
> my home, but that doesn't give you any rights whatsoever. Your
> claim _exists_ because you made it, but that's all.
But you insist on being able to grab property that, as far as the
rest of the world is concerned, you merely claim ownership to.
> The various legal definitions of "trespass" I've seen don't seem
> to cover that: they mention interference with *his* property,
> and I'm not doing that, just removing *my* property.
If it's just lying on the street then it's not in his possession. If
it's min his possession (not necessarily in his home or on his
person), then taking it is considered a trespass.
> Yes, I am acting according to my own beliefs. I understand that
> should I be incorrect, such action might well be criminal.
> That's always the case. However, in my hypothetical, my beliefs
> are correct.
In doing so you are placing yourself and others in potential danger.
Those are situations when someone is more likely to be hurt than
other times, so the law prohibits it.
Just like with burglary, it is considered a more serious offense than
theft, because breaking into someone house has a greater potential to
injure someone. Should a thief be able to avoid the greater charge
simply because he was lucky enough that no one was at home at the
time? That might encourage breaking and entering on the hope that no
one is at home, so the policy of the law is not to allow it.
> Yet it's legal to repossess a car, which is even more likely
> than my hypothetical to lead to such a breach of the peace.
There is a specific law that allows it under certain circumstances.
>> What if, instead of barging in with guns as actually
>>happened, OJ had simply tried to jimmy the door and burgle his
>>way into the Las Vegas hotel room where the tchotchkes were,
>
> Jimmying the door is breaking and entering.
But not necessarily illegal in itself. The law in Nevada, as
probably most if not all other states, is that breaking and entering
is not a separate crime. It's an element in the crime of burglary.
If you break and enter into someone's house without any criminal
intent, it's not burglary. See Nevada Revised Statutes �205.065.
Mike Jacobs
> In article <04ad11e3-3031-47f0-9cd1-0e2f814c1...@m13g2000vbf.googlegroups.com>,
> Mike Jacobs <mjacobs...@gmail.com> wrote:
> >On Nov 18, 11:03 am, se...@panix.com (Seth) wrote:
> >> In article <Xns9CC54E2001FF1spamtraplexregia...@130.133.1.4>,
> >> Stuart A. Bronstein <spamt...@lexregia.com> wrote:
>
> >> >Because you claim it's your property you believe that taking it is
> >> >not "wrongful," thus no intent.
>
> >> Not because I claim it's my property, but because it _is_ my property.
>
> >Okay, I'm jumping into this thread late, since Seth doesn't seem to
> >want to take Stu's word for it that self-help recovery of allegedly
> >stolen property is, in most situations, against the law.
>
> So you agree that there are situations (e.g. the owner can take his
> stuff without a breach of the peace) where it is not against the law?
Yes, I agree, there are some situations where the purported rightful
owner (or rightful possessor) has the right of self-help recovery.
But that right is _not_ based on some absolute determination as to the
fact of his ownership, as Seth's post which precipitated my jump into
this thread implied. All _anybody_ has, at any stage of a legal
dispute, are "colorable claims" (before judgment), and/or "judgments"
in which a court has _declared_ them the rightful owners There is no
pre-existing absolute fact of ownership UNTIL that declaration is
made, is all I'm saying.
Auto repossessions are one example of permitted self-help, without
obtaining a judgment first. Foreclosures without judicial process are
another. A merchant's right to apprehend shoplifters is a third.
Each case must be analyzed separately, as the grounds differ - there
is no "one size fits all" rule that "if I say it's mine, I can take it
back" without fear of legal consequences.
I hesitate to even try to give an exhaustive list, since, as Seth
surely knows by now, the law is a single, vast web, and everything is
connected somehow to everything else, so if we really wanted a
comprehensive take on the issue, we would wind up writing Corpus Juris
Tertium (the original Corpus Juris, an attempt to compile all of Roman
law, was the work product of the Byzantine emperor Justinian, and
forms the basis of law in most of the continent of Europe as well as
Latin America to this day. Corpus Juris Secundum is a legal
encyclopedia of the American common law, available from our friends at
Thompson-West Publishing Co.).
Also, we deconstructed "ownership" last time to see that it is a
bundle of rights that human law _attributes_ to the relationship
between a person and a thing, defining what that person may legally do
to or with that thing and may exclude other people from doing to that
thing; "ownership" is not some inherent characteristic of the thing.
We can also deconstruct Seth's saying something "is not against the
law" and see that this does not lead us to an absolutist, carved-in-
stone Decalogue of revealed truth, but rather to a statistical
_prediction_ of what the outcome of a trial would likely be, given the
precedent of legislative action and past case decisions. As a fellow
lawyer told me on a bar association listserv the other day (I'm
paraphrasing), precedent tells us what happened in the LAST case.
Our mission as lawyers, if we choose to accept it when the odds appear
good enough, is to try and see what result we can get in THIS case.
And, as we have said many times in _this_ newsgroup, that answer is
not certain until the jury actually comes in with its verdict (and
even then, is subject to appeal).
Which is why, Seth's insistence that we tell him as an ABSOLUTE value,
whether it IS or IS NOT illegal to attempt self-help repossession of
one's own goods when that can be accomplished without a breach of the
peace, is ALSO something, like ownership itself, which we cannot
answer absolutely. Sorry, but the deeper you dig, the more you find
there isn't any "there" there, other than PREDICTIONS OF THE OUTCOME
of the next judicial case.
That is, as far as HUMAN law is concerned. "Thou shalt not steal" is
in a different category, and for those who believe in the absolute
quality of that statement as a pillar of basic morality, what I said
above is not intended to shake your faith - I'm a religious man,
myself, not that it matters in this context. But, human law is and
can only ever be an APPROXIMATION of our concept of the Divine _ideal_
of justice and fairness, and all we can hope for from it is that it
will provide a relatively calm, predictable basis for human
interrelations that replaces "the law of the jungle."
Remember, the State claims a virtual monopoly on the use - OR THREAT -
of force to accomplish desired ends, and so the BIGGEST offense one
commits by attempted self-help is against the STATE's hegemony in that
arena, not merely against the (purportedly wrongful) possessor as to
whom such direct take-back action is being taken.
> > Or maybe, knowing Seth, he accepts that this _is_ the law, but
> >wants to pick and dig and find out _why_, by asking pesky Socratic
> >questions.
>
> No, I don't accept that it's the law. All I've seen here is people
> saying that under circumstances that differ from my hypothetical, it
> violates some other law, which violation depends on the change in
> circumstances.
Of course "it depends" is always the right answer at MLM. YMMV and
all that.
But, what was your original hypothetical? Do you mean, a situation
where you are in the thief's home as a permitted guest or invitee, see
an object of yours lying in the open, see that no one is nearby or
watching and thus no one is likely to discover your "self-help
repossession" effort, and you then pocket the tchotchke that had been
stolen from you? Is that it?
Okay, that doesn't work. Because, YOU CAN'T BE SURE that (a) no one
is watching - did you forget the security camera? Or the kid behind
the curtain? (b) no one will notice the tchotchke is missing before
you can make your escape, and the gang of thieves may detain and
search everyone leaving the premises until they find it - putting
aside the legality of doing so - this is a gang of thieves, remember?
And _they_ certainly believe in self-help - that's how they came into
possession in the first place, by helping themselves to what they
wanted. So, the issue remains, whether there is any reasonable chance
your self-help action could lead to a breach of the peace. Since
there is, the law generally considers your action illegal.
One could build the plot of a potboiler narrative around what might
happen next. You, the rightful owner, pocket the tchotchke, are
discovered by the thief, who is clever and sophisticated enough to
then CALL THE POLICE to have you arrested, since you took the
property from his home and POSSESSION IS NINE POINTS OF THE LAW, and
then the burden would be on YOU to prove your contention that YOU were
the rightful possessor. Even if you can point to evidence of the
object's provenance (your initials carved discreetly into a hidden
place, or such) the thief has witnesses who will swear that they saw
you take it from the thief's side table in the front hall, and you
(being honest) will not disavow that. The thief may also cook up some
story that even thought the tchotchke _used_ to be yours, you sold it
to him, or lost it in a poker game, or whatever. And, if he is clever
enough, the thief is likely to win, and YOU could wind up not only
losing a civil lawsuit for return of the goods, but be convicted of a
crime (which one, depends on what the prosecutor decides to charge you
with - but, larceny comes to mind).
An injustice? Maybe, if you believe in the abstract certainty of your
own inner conviction that you are in the right - a view the author of
the potboiler would surely tweak his readers to share. But NOT in the
sense that you KNEW (or should have known) that, even if it _was_
"your" tchotchke, the proper legal way to go about recovering it would
be to sue the thief for replevin (return of the goods) or for damages
(for the tort of conversion) and then you would still have to PROVE
your rightful ownership, to regain possession.
OTOH, as the saying goes, "it's easier to get forgiveness than
permission." So, you MAY be able to pocket the tchotchke, walk away
with it, and now that the "possession is nine points of the law"
argument is on YOUR side, you have a much better chance of winning
when (as if) the thief sues YOU, especially if the object does bear
the marks of your prior provenance and you have disinterested
witnesses to that effect. But, it is still uncertain, and a risk,
when looked at BEFORE you take that self-help step.
> > You do know they can force you to drink hemlock if you
> >keep that up, don't you, Seth?
>
> I know that's been done, but I don't believe the precedent allowing it
> applies in my state.
I forgot the smiley face. 8*) You do know I was yanking your chain
about being Socratic, right, Seth?
I do respect and value your endless curiosity. How else are any of us
going to learn?
> >Deconstructing Seth's comment, above, it appears he is taking a
> >literalist, realist view of what "is" is. That is, Seth (at least
> >for purposes of argument) believes that "what is, is" and "what isn't,
> >isn't" and that these realities are mutually exclusive
>
> Yes.
>
> > and absolutely knowable to 100% degree of certainty at all times and
> >places - it's just that sometimes, we fallible humans are in the dark
> >about what the real "is" is.
>
> I don't believe it's always knowable.
Okay, sure, we're on the same page - I'm saying, in agreement with
you, that there is nothing inconsistent or mutually contradictory
about those two statements. Recognizing that the absolute truth is
not always knowable may co-exist with the view that there _is_ some
absolute, Divine truth, even if it is not completely revealed or known
to us humans.
> > Because, see, "ownership" is not something divinely sanctioned and
> >set in stone forever, but is a HUMAN legal concept that most people
> >MISTAKENLY assume is of the former, definite, G-dly variety.
>
> And when it comes down to it, ownership is determined according to the
> findings of a court. I'm assuming that the court will rule with the
> hypothetical owner that he's the actual owner.
Depending on all the evidence of ownership on _both_ sides, and on how
well both sides present their case, even in your hypothetical (if I'm
talking about the right one - see my summary, above) the court MAY
rule that the thief (the one you recovered it from) is the rightful
owner and, if so, would convict our protagonist of larceny.
> >What "ownership" is, is a "bundle" of "claims of right" as to what a
> >particular person (the purported "owner") can DO with (or to) a
>
> Isn't that a "claim of ownership"?
Yes. As far as human law goes, "ownership" and "claim of ownership"
are synonymous. It's just that, in the middle-of-the-bell-curve
situations, no one else challenges such a claim, so it remains
undisputed.
Postulating that ownership is some kind of "divine right" is what
usually gets us into trouble. It's what prevents peace in the Middle
East (where BOTH sides in the Israel-Palestine dispute claim, with
considerable justification, to have some rights in the land that
deserve recognition, but where the extremists, on both sides, refer to
"G-d-given" rights as grounds for completely ignoring or excluding the
claims of the opposition). What is called for, most of the time, to
accomplish human ends is not "G-d gave me this, so you go to hell" but
"Can we sit down and reason together?"
> While a given item has one owner
> (which can be a partnership, even an informal one), many people can
> make claims.
Only if you take the absolutist view. There's nothing _wrong_ with
that as an operating construct, most of the time, except, as I
mentioned last time, it gives you anomalous results when you
investigate situations at the extreme deviations of the standard
curve. What about "adverse possession" frex? Or even just some
mistake or glitch in the transmission of title that creates a cloud on
the title? You may SAY "I'm the owner" of Blackheath, but perhaps
someone _else_ has a claim on that real estate which must be
adjudicated in order to clear your title.
Also, keep in mind that historically, the roots of property law (and
the common law concept of ownership) mainly grew up around REAL
property - land - and was the concern of kings and lords, not
commoners. The original goal of property law was to create a
collective, agreed upon entity (the State) empowered to use force to
PROTECT the claims of the HAVES, not to empower the have-nots. Only
by loose analogy do these concepts apply to movable objects, let alone
to abstract, paper rights, all of which are of fairly recent invention
and depend exclusively on the human law, not basic morality, to
determine who gets what - corporate stockholder rights, frex, or
intellectual property rights. The evils the law is trying to prevent
by banning self-help recovery in most instances have more in common
with Hamas firing missiles at Israeli towns from their bases in Gaza
than it does with someone swiping your sandwich from the lunchroom
refrigerator, or "borrowing" your red stapler, or copying your design.
However, there is another root to property law, and it is probably
hardwired into our brains. One of the first words any infant (let's
call him "Id") learns to say, in just about any culture AFAIK, learns,
is "NO." Another early verbal accomplishment is, "MINE." Thirdly,
the linguistically precocious infant Id (or Adam, in the Bible story)
starts going around NAMING things ("MAMA", "DADA," "POOPOO") and also
applies the concept "MINE" to those things and begins to exercise
dominion over those things. He then wants Mama and Dada to devote
their EXCLUSIVE attention to little Id, not to each other or to Id's
siblings, let alone to the cousins or strangers or jobs or such, and
Id gets very upset when these beings he wants to possess have
different ideas. So, you see where that all leads.
> > If you can name it, you can own it.
>
> I don't understand that statement. First, there's lots of stuff I can
> easily name, and can't own (because the present owner refuses to sell,
> especially in exchange for anything I can provide).
Okay, now you're just parsing my grammar, but I deserved that by my
loose use of "you" which I usually deplore. I didn't mean "you,"
Seth, in particular, I meant "one" could do so - and by "do so" I
meant that it is THEORETICALLY possible to do so, not that each and
every individual human is capable, simultaneously, of doing so as to
each and every object that has a name in the entire universe. That,
as you point out, would lead to obviously ridiculous results, since
the whole idea of ownership is for one person (or a sharing group of
persons) to EXCLUDE other persons from being able to use that
particular thing the claimant claims he owns.
Let's use different pronouns, then. "If we humans can attribute
'nouniness' to an object or thing (i.e., if it is POSSIBLE to name
it), then it is POSSIBLE for some human to claim ownership of it."
I did not mean to imply that everything is ALREADY owned. Nor did I
mean to imply that it is a GOOD IDEA to claim ownership of, or that
the law would RECOGNIZE one's claim to exclusive ownership of,
something like, say, the air in toto, or the planet's entire water
supply. But there are plenty of ways, frex, in which a person, or a
company, or a nation MAY legally and enforceably claim ownership of
certain parcels of air (the airspace over a country's land, from which
they claim the right to exclude unauthorized flight, or the air inside
the compressor tank down at the gas station, which the station owner
used his own efforts and money to squeeze into that tank and which he
then wants you to pay him 25 cents if you want to fill your tires with
it).
> Second, there's
> lots I can name and can't own, because it isn't subject to ownership
> (e.g. the copyright on the Congressional Record for yesterday).
But my point is, SOMEONE does, or COULD, rightfully claim to own that,
to the exclusion of all other claims - the government does (or, in
another view, doesn't but _could_) own that copyright. At present, it
willingly shares the right to copy that work with the public at
large. That does not necessarily mean the government could not
decide, tomorrow, to start charging royalties to those who wanted to
copy stuff from that publication, or classify it as top secret, eyes
only, and thus exclude ANYBODY from copying it.
> >"Possession is nine points of the law."
>
> But clearly not sufficient, else "possession of stolen property" would
> be an empty concept.
Right, of course. All that old saw means, in my view, is that the
person who is in possession of something at the time a legal
proceeding begins is in A MUCH BETTER STRATEGIC POSITION in terms of
his chances of WINNING legally than is the one who is challenging the
possessor's right to continued possession. It gives you the
figurative "high ground," just like an army going into battle always
wants to hold the literal "high ground," or like the sailing-ship
fleet going into battle always wants to hold the upwind position ("the
weather gauge") relative to the other fleet. Having this advantage
gives you much more CONTROL over where and when you pick the battles
you want to enter, enhancing your chance to win. Because the burden
of proof is usually on the challenger, the law will presume the
rightfulness of the present possessor's continued possession, unless
and until that right is affirmatively DIS-proven to the satisfaction
of the fact-finder, by showing that the challenger has a SUPERIOR
right to possession - note, the challenger need not show he has an
ABSOLUTE right, merely that his claim is BETTER than the possessor's.
> >But, THE LAW claims a virtual monopoly on the use of force to resolve
> >disputes.
>
> Which is why I specified that my hypothetical *did not involve force*.
But, that's a fact you determined with 20-20 hindsight. NO ONE can
foretell, with absolute certainty, that a scenario identical to your
hypo WILL not have ANY chance to "involve force" at the OUTSET of the
alleged rightful owner's plot to recover his tchotchke. Bad things
can and do happen, and THAT's what the law attempts to prevent.
> > What LAW has to say about it is, competing claims of
> >ownership
>
> There probably won't be any in my hypothetical: if the previous
> possessor claims ownership, he's admitting to having had physical
> possession; and when the court determines that the ownership was
> always mine, he stands to be convicted of possession of stolen
> property.
Now you're talking about the practicalities and the possibilities and
percentages, Seth, just like I am.
Yes, I agree, realistically there is about a snowball's chance that
the person who _really_ owns, say, that Rolex will be legally charged,
let alone tried and convicted, when he gloms it off of the side table
where he espies it while he's visiting the kleptomaniac acquaintance
who took it from him. But, surely you recognize that, once the thief
recognizes that he has been found out - not merely discovered, but
cuckolded as it were, having had his own stolen goods taken away from
right under his nose, in his own house!! - that this Don Corleone-like
acquaintance of your hypothetical rightful owner might then later
invite the owner down to the Shoe Warehouse for a fitting of concrete
overshoes before taking a little trip on the Don's yacht? Revenge
is, as you probably already know, a dish best served cold.
> >To summarize, saying "I own this thing" simply means "I _claim_ a
>
> Yes, a statement is a claim.
>
> >certain bundle of rights as to what I am allowed to do with, or to,
> >this thing, and I claim the right to exclude anybody _else_ from doing
> >those things to this thing." That's ALL ownership is, a CLAIM.
>
> No, ownership is the *actual legal ability* to do (or exclude others
> from doing) those things. When a court says "Seth owns the property
> at $LOCATION" it doesn't continue "and therefore he can _claim_ to
> exclude others from entering that property", but rather "and therefore
> he _can_ exclude others from entering that property".
I think you're missing my point. First of all, I was talking about
the situation _before_ a judgment is entered, not after. You are
actually helping prove my own point that the final determination of a
particular dispute as to "ownership" of a particular thing depends on
the outcome of a trial, and upon a judgment entered upon the
factfinder's verdict - my point being, that as far as human law is
concerned, there IS NO absolute "there" there, _until_ that happens.
But even more basic, the judgment itself is just a piece of paper, one
which only "proves" your rightful claims of ownership AS AGAINST THAT
PARTICULAR OPPONENT who had challenged you, or who had BEEN challenged
by you, in that particular previous suit which led to that judgment in
your favor. That piece of paper, and the enforcement powers of the
State which it then puts at your disposal (to have the Sheriff evict
squatters or holdover tenants from "your" real property, to have the
Sheriff repossess for you a movable object as to which you have won a
replevin suit or to seize assets of a debtor to enforce a money
judgment for damages) says nothing about the possibly superior claims
of THE NEXT PERSON TO COME ALONG who challenges your ownership of that
parcel, and as to whom the process may begin all over again.
> > We do get confused, though, if we lose track of what ownership
> >really IS, and instead misleadingly reify and give permanency to this
> >fuzzy concept that we human animals have created.
>
> I still say that *actual ownership* isn't a claim of rights, it _is_
> those rights. I _own_ the copyright on (my part of) this posting.
So you claim. If you claim someone is infringing on those rights,
and they do not voluntarily cease and desist when you point out to
them their alleged transgression, you have to sue to enforce your
claim. And, the court may OR MAY NOT rule that your opponent's use of
your words was an infringement on your rights, even if, in that
judgment, it recognizes and declares that you do _hold_ certain
rights. All of that is just words until we get down to specific
cases, and GET A JUDGMENT. Before that, of course, RATIONAL actors
will attempt to PREDICT the likely outcome of such a trial, and
conduct themselves accordingly, lending predictability and calm to
(most of) the interactions you will have with others regarding your
(claimed) intellectual property rights.
> That doesn't mean I can _claim_ to prevent someone else from
> publishing it against my will, it means I can *actually do that*.
Parsing what you mean by "it means I can actually do that," let me
substitute:
it means you can BRING A LAWSUIT to do that, and you will not
immediately have your suit thrown out of court as a FRIVOLOUS one by
reason of your inability to come up with ANY colorable claim of right
to exclude others from using your intellectual property without your
permission. And then, it will be up to the judge and jury to decide
who owns what, and to define (at least as it relates to the particular
case) the extent of what conduct of the other person those ownership
rights allow you to exclude (on penalty of various, legally
enforceable consequences to your opponent if he persists).
So, I say again, what you have (at least before you win such a
lawsuit) is merely a CLAIM of ownership of certain rights. We give
that bundle of claimed rights a name, and call it "copyright," but
your CLAIM is not necessarily (in fact probably isn't) 100% co-
extensive with whatever abstract concept of "intellectual property
rights" a court may later determine actually applies in your
situation. That is, you may OR MAY NOT have the _particular_ right
you are claiming - e.g., to prohibit Joe Copier from publishing a
particular work of yours in a particular context - because Joe may
have COMPETING rights, such as the right to fair use, the right to
parody, and so on.
Sometimes, even with everyone acting in utmost good faith and nobody
committing perjury, your claim of rights CONFLICTS with someone ELSE's
claims of rights, and a trial is necessary, because WE DON'T KNOW
exactly where the boundaries of YOUR claim are, and of where the
opponent's claim is superior to yours. That's all I'm saying.
> >The lens through which we look at things colors the result. But, we
> >_are_ talking about how "the law" sees things, not how Don Corleone
> >sees things. And in the law's light, SELF HELP IS WRONG because it
> >_can_ provoke a breach of the peace even if it doesn't ACTUALLY do so
> >in every instance.
>
> But does the law actually specify that?
Now, _I'm_ not sure what you're asking. Do you want a citation? In
what context? In a situation like your hypo?
As you can probably guess, it would be pretty hard to find a situation
exactly like your hypo, because the thief is unlikely to want to use
the court system to prosecute the rightful owner who uses self-help.
As noted before, the thief is likely to have, um, OTHER methods to
"enforce" his "claim" that have nothing to do with seeking help from
the State's monopoly on the use of force.
> >But you may also be wrong that it's "your property" the other person
> >has.
>
> That's a possibility; but in my hypothetical, it's not the case.
Again, that's something you KNOW for certain only AFTER the fact,
after a judgment is entered, OR because you are ":playing G-d" as the
omniscient one who set up the hypo in the first place. This DOES NOT
happen, ever, in real life.
> > Maybe his property just _looks_ like yours.
>
> Sure, he has a suitcase the same make and color as mine; that's easy.
> That it has a belt around it with my name sewn into it, somewhat less
> likely.
Unless he claims you sold him the suitcase _and_ the belt, and the
jury believes his story. We could go on and on, but you get the
drift.
> > "Oops, sorry" comes to mind here, after the mistaken identity is
> >cleared up. But "oops" doesn't help if a breach of the peace has
> >already occurred, and someone is lying bleeding in the street.
>
> That's why I was careful to specify a hypothetical that did not
> involve a breach of the peace.
But that is something you didn't know in advance, if you were to take
such a risk in real life rather than in a hypo where you are in the G-
d role of creator and all-knower.
And, even in your hypo, a breach of the peace may still happen AFTER
the dust settles on the facts you did state. Um, what did you say
your shoe size was, for that concrete fitting? 8*)
> >> That's a separate issue. If it isn't really mine, then taking it is
> >> stealing (the intent to keep it maps to intent to deprive the owner).
>
> >Sorry, I agree with Stu and disagree with Seth here - it's _not_ a
> >separate issue. What Seth has if he claims "ownership" is simply a
> >claim of right to use and possess a certain thing to the exclusion of
> >other persons. If the actual thing in question is not the thing Seth
> >thinks it is, then his claim of right is WEAKER, but not non-existent,
> >simply BECAUSE HE _DOES_ CLAIM IT.
>
> The non-owner's claim is weaker to the point of being non-existent,
> empty, meaningless.
Okay. The thief's claim is at a pretty extreme end of the bell curve,
asymptotically approaching zero, but NOT ZERO. That's my point.
Although I _am_ saying that every fact knowable is in "shades of
grey," _don't_ mistake me for saying or implying that everything is
"medium grey" or is closer to the middle of the bell curve than it is,
or for saying that a weak claim has just as much a chance of success
as a strong claim. That would be ridiculous; let's get REAL. But
sometimes there are so few white pixels in the color mix that the
resulting picture is almost absolute black, or vice versa; and even
then, it's still ON A CONTINUUM, not a matter of absolutes. Reality
is analog, not digital.
And, the actual owner must at certain critical points take affirmative
steps to _claim_ his "own" property. If he fails to do so, at a
certain point the law will consider that he has abandoned that claim,
and others - who up to that point may have had no better claim than
our hypothetical thief - will step in with competing claims that,
MERELY BECAUSE THEY ASSERT those claims and take steps to enforce
them, eventually could be sufficient to defeat the original owner's
claim. The phrase "you snooze, you looze" comes to mind, as does the
Klondike Gold Rush.
> Sure, you can _claim_ to own my home, but that
> doesn't give you any rights whatsoever. Your claim _exists_ because
> you made it, but that's all.
And, if I am clever enough, and get the law on my side, and the
factfinder believes my evidence, I can KICK YOU OUT of your "own"
house, and usurp your ownership.
I believe it was Woody Guthrie who wrote that "some men rob you with a
six-gun, and some with a fountain pen."
There were plenty of Dust Bowl refugees around back then who would
back him up on that assessment. Most of them are dead now, but,
don't worry, we've got another new crop growing right now, of people
losing their homes to evil men with fountain pens (and with lawyers).
Who's right? Who's wrong? You tell me. I don't know what the
ultimate upshot will be. But, present your evidence in court, and a
jury will tell you for sure who's right and who's wrong in a
particular case. Their answer is true BECAUSE THEY SAY it's so -
that's what a "verdict" means. And the factfinder, at trial, is the
ONLY one about whom that can properly be said.
> > While the absolute realists among us would call Seth's belief in
> >that situation a "mistake of fact," the relativists among us would
> >simply say that Seth's claim is weaker than the other guy's, and
> >therefore, the law would decide (based on the evidence) that the
> >_other_ guy owns that particular thing (even though Seth's claim of
> >ownership rights may be the stronger one, as to some _other_ thing
> >that Seth _thought_ this other guy's thing was).
>
> The court would rule that my claim was *incorrect* and that I *don't
> own* the object. It wouldn't say that I have a "weaker claim" and
> hence get to use the object only on Tuesdays and Fridays.
Unlike the "equity" courts that hear, e.g. family law and custody
matters, the "law" courts don't believe in sharing.
You either WIN or LOSE your claim in the ENTIRE amount that the law
court awards you; so, even if your claim is not PERFECT, it still will
completely defeat an opposing claim that is weaker. That's an
artifact of the jurisdiction and procedure of the law courts, not of
the substantive law they are enforcing.
> >> My point was that there's no breach of the peace, and no violation of
> >> other laws (specifically, no assault; and no trespass because that
> >> would require intent to commit a crime in the premises, which didn't
> >> exist)
>
> >But it _does_ count as a trespass if you enter someone else's private
> >domain to retrieve "your" (allegedly stolen) property from out of that
> >person's possession and control.
>
> The various legal definitions of "trespass" I've seen don't seem to
> cover that: they mention interference with *his* property, and I'm not
> doing that, just removing *my* property.
But the operative definition of "his" in the context of trespass,
though, is POSSESSION, not whatever abstract concept of "ownership"
the court may ultimately find applies.
Frex, a landlord commits trespass if he enters (without permission or
necessity) the leasehold of his tenant, because he has given over, for
the duration of the lease, the right to exclusive POSSESSION of that
leasehold, to the tenant.
A bailee (person having rightful possession of the movable property of
another) has the right to exclude all other persons from recovering
possession of that object - INCLUDING THE RIGHTFUL OWNER - until the
terms of the bailment have been fulfilled ("No ticket, no laundry"
applies here). If you lose your ticket, the dry-cleaner may get to
keep your suit until HE is satisfied that you _are_ the rightful
owner. You do not get to jump over the counter and grab your suit off
the rack, even if you're sure it's yours, and even if you turn out to
be right, and you could be (rightfully) prosecuted for doing so.
I could think of other examples, but this reply post is already too
long as it is. And, I don't want to try to create Corpus Juris
Tertium.
> > In doing so you are bypassing the
> >court and acting (in Stu's immortal words) as judge, jury and
> >executioner of your own judgment that your claim of rightful ownership
> >is superior to that of the actual current possessor's.
>
> Yes, I am acting according to my own beliefs. I understand that
> should I be incorrect, such action might well be criminal. That's
> always the case. However, in my hypothetical, my beliefs are correct.
And if you reached over the dry cleaners' counter and grabbed your
suit, you would be subject to criminal prosecution even if your belief
that you were the rightful owner of that suit was correct.
> > And, while you may be able to get away with it in the odd case
> >here or there, that's exactly the kind of "dissing" of the actual
> >possessor that, by Law of the Jungle rules, is likely to get somebody
> >beaten up or shot, _if_ you get caught doing it.
>
> Yet it's legal to repossess a car, which is even more likely than my
> hypothetical to lead to such a breach of the peace.
That is so, but only if very specific rules of engagement are
followed. I don't want to get into all of them here but, yes, as
noted above that _is_ one of the recognized exceptions where self-help
is sometimes allowed.
A trained and licensed repo man knows what the rules of engagement
are, and is unlikely to run afoul of the law if he is careful. An
amateur trying the same thing has many more chances to screw up and
cause a breach of the peace, and it would be no defense to the charges
that could then be brought against him, that he was merely trying to
repossess his own property.
> >> "armed robbery, assault with a deadly weapon, coercion, . . ." He
> >> clearly didn't merely take back his property without a breach of the
> >> peace.
>
> >Well, maybe OJ wasn't the best example. But that doesn't disprove
> >the concept.
>
> Agreed; it's an irrelevant example.
>
> > What if, instead of barging in with guns as actually
> >happened, OJ had simply tried to jimmy the door and burgle his way
> >into the Las Vegas hotel room where the tchotchkes were,
>
> Jimmying the door is breaking and entering.
>
> > at a time
> >when he knew the "new owners" were all downstairs at the casino?
> >Would you think that was perfectly okay, Seth?
>
> No, and neither would the hotel whose property was damaged.
>
> Now, if the "new owners" left and the door failed to lock behind them,
> that would be a different issue.
It would still be breaking and entering, in most states, or at least
trespass, if a reasonable person in his shoes would know he was not
invited or permitted to enter, even if the door was unlocked.
> (And I still don't know if OJ's claim of ownership was upheld by the
> court; after the trial, to whom was possession of the stuff granted?)
I have no idea either. Probably, continued ownership of the sports
memorabilia was awarded to the purchasers, unless they had come into
possession in some way that bypassed the rights of Nicole Simpson's
and Ron Goldman's estates, whose liens on that property were superior
due to the wrongful death judgments they had obtained, and who would
then have available other, additional remedies to recover the
tchotchkes (or to force the possessors to pay _them_ their fair value,
even if the possessors had already paid OJ for them). Frankly, I
haven't followed OJ's travails that closely.
Seth
>> Mike Jacobs <mjaco...@gmail.com> wrote:
>>>se...@panix.com (Seth) wrote
>>>> Stuart A. Bronstein <spamt...@lexregia.com> wrote:
>> So you agree that there are situations (e.g. the owner can take
>> his stuff without a breach of the peace) where it is not against
>> the law?
>
>Of course there are some - never say never. It's not against the law
>when there is a law that allows you to do so.
In this country, things are supposed to work the other way around. I
don't need a law specifically permitting something.
>> No, I don't accept that it's the law. All I've seen here is
>> people saying that under circumstances that differ from my
>> hypothetical, it violates some other law, which violation
>> depends on the change in circumstances.
>
>Because different circumstances are treated differently by the law.
That's why I carefully specified a particular set of circumstances and
asked about those.
>You have been given the reasons for those differences and their basic
>parameters. But you have rejected it all.
Because those answers are of the form "If you did Y instead of the X
you specified, it would be illegal because there's a law against Y."
>>> Because, see, "ownership" is not something divinely sanctioned
>>> and set in stone forever, but is a HUMAN legal concept that most
>>>people MISTAKENLY assume is of the former, definite, G-dly
>>>variety.
>>
>> And when it comes down to it, ownership is determined according
>> to the findings of a court. I'm assuming that the court will
>> rule with the hypothetical owner that he's the actual owner.
>
>Right. And you seem to want to pre-judge the situation.
No, I'm claiming knowledge of the situation.
> Could I simply claim that something you bought is really mine and
>just take it? I mean, I really, really think it's mine, after all.
You could certainly claim anything you want, and you might have the
physical ability to just take it. If a court didn't agree with your
claim of ownership, you'd be guilty of theft. It doesn't matter what
you "really, really think" it matters what the court decides.
>>>What "ownership" is, is a "bundle" of "claims of right" as to
>>>what a particular person (the purported "owner") can DO with (or
>>>to) a
>>
>> Isn't that a "claim of ownership"? While a given item has one
>> owner (which can be a partnership, even an informal one), many
>> people can make claims.
>
>No, nothing like that. Ownership being a bundle of rights doesn't
>mean that different people necessarily have rights in the same goods.
That wasn't my point. My point was that ownership is _rights_ rather
than _claims of rights_. I can claim anything I want to. Most of
those possible claims are false.
>>> If you can name it, you can own it.
>>
>> I don't understand that statement. First, there's lots of stuff
>> I can easily name, and can't own (because the present owner
>> refuses to sell, especially in exchange for anything I can
>> provide).
>
>Who is to determine who the true owner is if anyone can simply claim
>ownership and seize property without any legal supervision?
The law determines who the true owner is. Anybody can simply "claim
ownership" and might have the physical capability to seize property.
If someone else claims that the seizure was improper, the law
determines who the true owner is, and if it isn't the seizer, the
latter has committed a crime.
> That's in essence what you are claiming the right to do.
Only in the case where a court will determine that I am the true
owner. I acknowledge that if a court determines otherwise, the action
is theft.
>>>But, THE LAW claims a virtual monopoly on the use of force to
>>>resolve disputes.
>> Which is why I specified that my hypothetical *did not involve
>> force*.
>Ah, so burgary is ok if nobody notices you've broken in until you're
>gone?
And if you don't take anything that a court won't determine is your
property. (And if you don't damage anything that isn't your property
while breaking in.)
>> There probably won't be any in my hypothetical: if the previous
>> possessor claims ownership, he's admitting to having had
>> physical possession; and when the court determines that the
>> ownership was always mine, he stands to be convicted of
>> possession of stolen property.
>
>First of all, ownership doesn't always mean possession. You can buy
>something on lay-away, and you don't get it until it's paid off. You
>are still the owner, subject to the store's security interest to
>assure full payment.
I don't believe that's how it works; rather, the store remains the
owner until I finish paying.
>And if you don't pay, the store can take it back because there is a
>specific statute that allows them to do that.
How can the store "take it back" when the object is still inside the
store? I think you're confusing buying on a contract (where I get the
object immediately and am obligated to pay over time) with layaway
(where I don't get anything until I've finished paying for it).
>Also, since when did you want a court interfering with your "right"
>to take back your property?
Huh? If necessary, the court will determine that it *is* my property;
that's always been part of my hypothetical.
>>>certain bundle of rights as to what I am allowed to do with, or
>>>to, this thing, and I claim the right to exclude anybody _else_
>>>from doing those things to this thing." That's ALL ownership
>>>is, a CLAIM.
>>
>> No, ownership is the *actual legal ability* to do (or exclude
>> others from doing) those things. When a court says "Seth owns
>> the property at $LOCATION" it doesn't continue "and therefore he
>> can _claim_ to exclude others from entering that property", but
>> rather "and therefore he _can_ exclude others from entering that
>> property".
>
>You clearly don't understand that ownership is not a single concept,
>but a conglomeration of different rights. At any given time you can
>have some but not others.
The point is not that ownership is many rights, but rather that a mere
*claim* is meaningless. You can claim anything you have the physical
ability to state.
I could claim to own the White House; that claim gets me nothing. I
could claim to own my condo; that claim also gets me nothing. I *do*
own my condo; that *actual ownership* provides me with a set of
rights.
>> I still say that *actual ownership* isn't a claim of rights, it
>> _is_ those rights. I _own_ the copyright on (my part of) this
>> posting. That doesn't mean I can _claim_ to prevent someone else
>> from publishing it against my will, it means I can *actually do
>> that*.
>
>And how do you establish that you ARE the owner as opposed to merely
>claiming you are the owner, if you want to be able to just grab those
>things you claim without the supervision of courts?
If the issue arises, the court determines who the owner is. In that
case, I establish ownership by any of the usual means: proving my
purchase, etc.
>>>The lens through which we look at things colors the result.
>>>But, we _are_ talking about how "the law" sees things, not how
>>>Don Corleone sees things. And in the law's light, SELF HELP IS
>>>WRONG because it _can_ provoke a breach of the peace even if it
>>>doesn't ACTUALLY do so in every instance.
>>
>> But does the law actually specify that?
>
>Yes. See UCC �9609 for example. It says that someone with a
>security interest in property can retake it on default, "Without
>judicial process, if it proceeds without breach of the
>peace."
That specifies that someone with a mere security interest is permitted
to seize property under some circumstances. I'm asking about whether
someone with actual ownership, not a mere security interest, is
allowed to do the same.
>>>But you may also be wrong that it's "your property" the other
>>>person has.
>>
>> That's a possibility; but in my hypothetical, it's not the case.
>
>How does everyone else in the world know that you are right
They don't. If the issue arises, a court will determine that I am
right.
>> The non-owner's claim is weaker to the point of being
>> non-existent, empty, meaningless. Sure, you can _claim_ to own
>> my home, but that doesn't give you any rights whatsoever. Your
>> claim _exists_ because you made it, but that's all.
>
>But you insist on being able to grab property that, as far as the
>rest of the world is concerned, you merely claim ownership to.
And I'm willing to let a court determine whether or not I was the
actual owner, and to be convicted of theft if I wasn't.
>> The various legal definitions of "trespass" I've seen don't seem
>> to cover that: they mention interference with *his* property,
>> and I'm not doing that, just removing *my* property.
>
>If it's just lying on the street then it's not in his possession. If
>it's min his possession (not necessarily in his home or on his
>person), then taking it is considered a trespass.
Where is the trespassing statute that says _that_?
>> Yes, I am acting according to my own beliefs. I understand that
>> should I be incorrect, such action might well be criminal.
>> That's always the case. However, in my hypothetical, my beliefs
>> are correct.
>
>In doing so you are placing yourself and others in potential danger.
So you claim. I claim that I'd be placing others in _more_ potential
danger if I merely reported to the police that I saw my property in
someone else's home and they got a warrant to search for and seize it.
>Those are situations when someone is more likely to be hurt than
>other times, so the law prohibits it.
Can you specify which law, exactly?
>Just like with burglary, it is considered a more serious offense than
>theft, because breaking into someone house has a greater potential to
>injure someone. Should a thief be able to avoid the greater charge
>simply because he was lucky enough that no one was at home at the
>time? That might encourage breaking and entering on the hope that no
>one is at home, so the policy of the law is not to allow it.
Breaking and entering on the hope that no one is at home, compared
with what? Actually observing and breaking and entering in the
_knowledge_ that no one is at home? I would think that the law ought
to prefer the latter.
In fact, some states do have laws about burglary at night (when people
are more likely to be home) differing from burglary during the day
(when they are less likely to be home).
>>> What if, instead of barging in with guns as actually
>>>happened, OJ had simply tried to jimmy the door and burgle his
>>>way into the Las Vegas hotel room where the tchotchkes were,
>>
>> Jimmying the door is breaking and entering.
>
>But not necessarily illegal in itself.
Damaging someone else's property is generally illegal.
> The law in Nevada, as
>probably most if not all other states, is that breaking and entering
>is not a separate crime. It's an element in the crime of burglary.
>If you break and enter into someone's house without any criminal
>intent, it's not burglary. See Nevada Revised Statutes �205.065.
That refers to *Inference of burglarious intent* (by title), and
states that someone who *unlawfully* breaks and enters or unlawfully
enters . . . may reasonably be inferred to have done so with intent to
commit larceny, assault or battery, or some felony, unless the jury
decides that the evidence explains otherwise.
What is "unlawfully break[ing] and enter[ing]" in the first place?
Seth
Barry Gold
>>> So you agree that there are situations (e.g. the owner can take
>>> his stuff without a breach of the peace) where it is not against
>>> the law?
Stuart A. Bronstein <spam...@lexregia.com> wrote:
>>Of course there are some - never say never. It's not against the law
>>when there is a law that allows you to do so.
Seth <se...@panix.com> wrote:
>In this country, things are supposed to work the other way around. I
>don't need a law specifically permitting something.
You do if other laws specifically ban it. Various laws say you can't
take something that belongs to somebody else, or even that _appear_ to
belong to somebody else (e.g., they have possession and deny that it's
yours).
Then the law makes an exception for recovery of certain property that
secures a debt, esp. for repossessing an automobile.
>> Could I simply claim that something you bought is really mine and
>>just take it? I mean, I really, really think it's mine, after all.
>
>You could certainly claim anything you want, and you might have the
>physical ability to just take it. If a court didn't agree with your
>claim of ownership, you'd be guilty of theft. It doesn't matter what
>you "really, really think" it matters what the court decides.
Well, yes. But while he has possession, if you take it away from him
by force, or by entering his domicile without permission, your action
is illegal _even if_ a court later decides that you are the owner.
Note that this correlates with the danger of a "breach of the peace".
If you try to wrest something away from the current possessor, a fight
is likely. Somebody could even get killed. Similarly if you invade
his domicile, whether by force or by stealth.
And keep in mind that even if you see an object that you are sure is
something that he stole from you, you could be mistaken -- he might
already have a similar object. In that case, you _would_ be
committing larceny. And -- again -- the law does not approve of you
creating a situation that is likely to lead to a breach of the peace.
The _legal_ course of action is to report the theft and subsequent
location of (what you think is) your property to the police, or to
file a lawsuit for replevin, or both.
>That specifies that someone with a mere security interest is permitted
>to seize property under some circumstances. I'm asking about whether
>someone with actual ownership, not a mere security interest, is
>allowed to do the same.
Probably, under the same circumstances. E.g., if you find it parked
on the street with the thief not in evidence, you can use your
key to drive it away. Similarly if it's sitting in a driveway, or
sometimes if it's in a garage that you can open without breaking
anything.
Taking it from inside his house is a big no-no, unless you go to court
and get the sheriff to assist you.
>And I'm willing to let a court determine whether or not I was the
>actual owner, and to be convicted of theft if I wasn't.
The problem is that you are likely to be convicted of something
similar (e.g., burglary if you enter a house, larceny or attempted
larceny if you take it by stealth, assault if you take it by force) even
if it is later determined to be your property.
>So you claim. I claim that I'd be placing others in _more_ potential
>danger if I merely reported to the police that I saw my property in
>someone else's home and they got a warrant to search for and seize it.
You can make that claim. I doubt that a judge or jury would agree
with you. But hey, it's your life. You're "entitled" to go do
whatever you want -- and possibly get put in jail for it.
>What is "unlawfully break[ing] and enter[ing]" in the first place?
Depends on the specific statute, but my guess is that it has to do
with entering the place without consent of the owner/tenant. Some
states make this a crime if you merely "enter", others require that
you "break in". Depending on state (again), it is possible that
merely turning the doorknob is sufficient to constitute "breaking" for
this purpose. In others, you would have to physically break
something, or pick or otherwise defeat the lock, or force open a
window -- but it wouldn't be "burglary" to climb in through an already
open window, or even open one that you find unlocked.
My advice, FWIW: if you are ever thinking of using self-help to
recover your property, consult a lawyer first -- or at least read the
state's criminal code _carefully_.
--
Barry Gold, webmaster:
Conchord: http://www.conchord.org
Los Angeles Science Fantasy Society, Inc.: http://www.lasfsinc.org
Seth
>se...@panix.com (Seth) wrote:
>>In this country, things are supposed to work the other way around. I
>>don't need a law specifically permitting something.
>
>You do if other laws specifically ban it. Various laws say you can't
>take something that belongs to somebody else, or even that _appear_ to
>belong to somebody else (e.g., they have possession and deny that it's
>yours).
Which law says I can't take something that appears to belong to
somebody else when it actually belongs to me? Who gets to determine
whether it "appears to"?
>>You could certainly claim anything you want, and you might have the
>>physical ability to just take it. If a court didn't agree with your
>>claim of ownership, you'd be guilty of theft. It doesn't matter what
>>you "really, really think" it matters what the court decides.
>
>Well, yes. But while he has possession, if you take it away from him
>by force,
I specified not.
> or by entering his domicile without permission, your action
>is illegal _even if_ a court later decides that you are the owner.
The trespassing law states that entering (without breaking) is only a
crime if it is done with intent to commit a crime, so I see circular
reasoning here. Entering is a crime because taking is a crime because
entering is a crime because . . .
>Note that this correlates with the danger of a "breach of the peace".
I specified that doesn't happen.
>If you try to wrest something away from the current possessor,
I specified that doesn't happen.
> Similarly if you invade
>his domicile, whether by force or by stealth.
Is anything illegal if it _could_ lead to a breach of the peace? Say,
wearing the "wrong colors" in a neighborhood where a gang operates?
>And keep in mind that even if you see an object that you are sure is
>something that he stole from you, you could be mistaken -- he might
>already have a similar object. In that case, you _would_ be
>committing larceny.
I already agreed to that. I specified that in this case, I was _not_
mistaken. Similarity of objects does not generally include identical
serial numbers.
> And -- again -- the law does not approve of you
>creating a situation that is likely to lead to a breach of the peace.
There is no law that prohibits "creating a situation that is likely to
lead to a breach of the peace." And I specified that my hypothetical
is not such a situation in any case.
>The _legal_ course of action is to report the theft and subsequent
>location of (what you think is) your property to the police, or to
>file a lawsuit for replevin, or both.
In this country, there is usually well more than one lawful course of
action.
>Taking it from inside his house is a big no-no, unless you go to court
>and get the sheriff to assist you.
Why? Which law says that?
>>And I'm willing to let a court determine whether or not I was the
>>actual owner, and to be convicted of theft if I wasn't.
>
>The problem is that you are likely to be convicted of something
>similar (e.g., burglary if you enter a house, larceny or attempted
>larceny if you take it by stealth, assault if you take it by force) even
>if it is later determined to be your property.
A conviction of larceny for taking something that the court determines
that I owned? Can you provide any cases where that actually happened?
(The larceny statutes I've read, nowhere near all of them, specify
depriving *the owner* of *his property*. I'm clearly not doing that,
because I AM the owner.)
Seth
Timothy
> >The problem is that you are likely to be convicted of something
> >similar (e.g., burglary if you enter a house, larceny or attempted
> >larceny if you take it by stealth, assault if you take it by force) even
> >if it is later determined to be your property.
>
> A conviction of larceny for taking something that the court determines
> that I owned? �Can you provide any cases where that actually happened?
> (The larceny statutes I've read, nowhere near all of them, specify
> depriving *the owner* of *his property*. �I'm clearly not doing that,
> because I AM the owner.)
>
> Seth
Go take a look at OJ Simpson's case. He was jailed for the actions he
took to regain possession of his memorabilia. He was not actually
convicted of (or even tried for) larceny per se. The ownership of the
useless old crap was a non-issue (in the criminal case, that is: there
is still massive doubt about who owns the items and about where any
proceeds from selling them should go.)
Barry Gold
>>>In this country, things are supposed to work the other way around. I
>>>don't need a law specifically permitting something.
Barry Gold <bg...@nyx.net> wrote:
>>You do if other laws specifically ban it. Various laws say you can't
>>take something that belongs to somebody else, or even that _appear_ to
>>belong to somebody else (e.g., they have possession and deny that it's
>>yours).
[Seth]
>Which law says I can't take something that appears to belong to
>somebody else when it actually belongs to me? Who gets to determine
>whether it "appears to"?
A judge and/or jury.
>>Note that this correlates with the danger of a "breach of the peace".
>
>I specified that doesn't happen.
Note I said _danger_ of a breach of the peace. The mere fact that the
owner didn't walk in while you were grabbing "your" property does not
mean that a breach wouldn't have happened if he _had_.
Your argument would be like a burglar saying, "Well, it turns out the
owner wasn't home when I broke in, so I should only be convicted of
larceny and not burglary." It doesn't work that way: burglary is a
more serious crime because of the likelihood that it will lead to
somebody being hurt or killed, not _only_ if that injury/death
occurs.
>Is anything illegal if it _could_ lead to a breach of the peace? Say,
>wearing the "wrong colors" in a neighborhood where a gang operates?
No. Only if the legislature _says_ it is. And of course only if the
legislature is _allowed_ to say it is. For example, most speech and
especially political speech is protected by the constitution, and a
law making it illegal because it is offensive and likely to lead to a
breach would be struck down.
>>And keep in mind that even if you see an object that you are sure is
>>something that he stole from you, you could be mistaken -- he might
>>already have a similar object. In that case, you _would_ be
>>committing larceny.
>
>I already agreed to that. I specified that in this case, I was _not_
>mistaken. Similarity of objects does not generally include identical
>serial numbers.
Merely by picking it up to examine the serial number you may have
already broken the law. Or maybe not -- it depends on circumstances
and specific state law.
Seth
>> A conviction of larceny for taking something that the court determines
>> that I owned? �Can you provide any cases where that actually happened?
>> (The larceny statutes I've read, nowhere near all of them, specify
>> depriving *the owner* of *his property*. �I'm clearly not doing that,
>> because I AM the owner.)
>
>Go take a look at OJ Simpson's case. He was jailed for the actions he
>took to regain possession of his memorabilia. He was not actually
>convicted of (or even tried for) larceny per se.
That's right: he broke in, threatened people with guns, etc. Those
are clearly illegal.
> The ownership of the useless old crap was a non-issue (in the
>criminal case, that is: there is still massive doubt about who owns
>the items and about where any proceeds from selling them should go.)
That supports my claims: he wasn't convicted of larceny because
ownership is undetermined. He was convicted of other crimes, which in
my hypothetical are not present.
Seth
Robert Bonomi
>In article <12592507...@irys.nyx.net>, Barry Gold <bg...@nyx.net> wrote:
>>se...@panix.com (Seth) wrote:
>
>>>In this country, things are supposed to work the other way around. I
>>>don't need a law specifically permitting something.
>>
>>You do if other laws specifically ban it. Various laws say you can't
>>take something that belongs to somebody else, or even that _appear_ to
>>belong to somebody else (e.g., they have possession and deny that it's
>>yours).
>
>Which law says I can't take something that appears to belong to
>somebody else when it actually belongs to me? Who gets to determine
>whether it "appears to"?
Absent _proof_ (meaning 'legally *accepted* -- not just 'acceptable' --
evidence that has been ruled on by a 'trier of law and fact'), or admission
by the party 'in possession', to the contrary, it is presumed that title rests
with the party 'in possession' of the item.
"Possession is nine points of the law".
To contest that, you _go_to_court_.
You may _think_ you have 'proof', and be in error. You simply _do_not_know_
until a court has validated your claim.
You think a bill of sale showing the serial number is sufficient.
What if the other party has a similar bill of sale, from the same party,
_predating_ yours?
What if the mfr. made an error and produced _two_ (or *more*) units with the
same serial number as the one on your bill of sale? Do you automatically own
_all_ of them?
What if what you 'know' is the result of hypnotic suggestion, and is, in fact,
contrary to 'reality'? You may well believe it unequivocally, and be 'sure'
that what you remember is true, and be _wrong_.
Stuart A. Bronstein
> That supports my claims: he wasn't convicted of larceny because
> ownership is undetermined. He was convicted of other crimes,
> which in my hypothetical are not present.
You should get your facts straight before you gloat. According to
Fox and Wikipedia one of the charges he was convicted of was armed
robbery - and you can't be convicted or robbery unless you committed
larceny.
Seth
>>>se...@panix.com (Seth) wrote:
>>Which law says I can't take something that appears to belong to
>>somebody else when it actually belongs to me? Who gets to determine
>>whether it "appears to"?
>
>A judge and/or jury.
They don't get to make laws. They get to decide if a particular law
was violated (by the defendant). So, they do get to judge whether
something "appeared"; but that's only relevant to the degree a law
specifies its relevance. Again, which law so specifies?
>>>Note that this correlates with the danger of a "breach of the peace".
>>
>>I specified that doesn't happen.
>
>Note I said _danger_ of a breach of the peace. The mere fact that the
>owner didn't walk in while you were grabbing "your" property does not
>mean that a breach wouldn't have happened if he _had_.
Many things cause *danger* of breach of the peace. That, per se,
isn't illegal.
>Your argument would be like a burglar saying, "Well, it turns out the
>owner wasn't home when I broke in, so I should only be convicted of
>larceny and not burglary."
What's the _legal definition_ of "burglary"? That's what matters. If
there's an enhanced sentence (or different crime name/code section)
for "burglary of an occupied dwelling", then if the burglar entered
when nobody was home, he isn't guilty of the latter.
> It doesn't work that way: burglary is a more serious crime because
>of the likelihood that it will lead to somebody being hurt or killed,
>not _only_ if that injury/death occurs.
Burglary is _defined by law_. You're discussing the reasons such a
law might have been passed. I'm discussing what the law _actually
says_.
>>Is anything illegal if it _could_ lead to a breach of the peace? Say,
>>wearing the "wrong colors" in a neighborhood where a gang operates?
>
>No. Only if the legislature _says_ it is. And of course only if the
>legislature is _allowed_ to say it is.
That gets back to my earlier question: which law says that taking
something that appears to belong to somebody else, which actually
belongs to the taker, and when that taking causes no breach of the
peace, is illegal?
Does it matter to _whom_ it appears? (E.g. I lent you my lawnmover,
and I want it back now. You're on vacation and you left it locked in
your garage, so you tell me how to get in by forcing the door, and I
do so. Someone passing by sees me, and it _appears_ that I'm stealing
your lawnmower by breaking into your garage. You and I both know
better. Is there a crime involved?)
Seth
Seth
NRS 200.380 Definition; penalty.
1. Robbery is the unlawful taking of personal property from the
person of another, or in his presence, against his will, by
means of force or violence or fear of injury, immediate or
future, to his person or property, or the person or property of
a member of his family, or of anyone in his company at the time
of the robbery. A taking is by means of force or fear if force
or fear is used to:
(a) Obtain or retain possession of the property;
(b) Prevent or overcome resistance to the taking; or
(c) Facilitate escape.
I don't see anything about the *actual ownership* of the taken
property in that statute.
Seth
Mike Jacobs
> That gets back to my earlier question: which law says that taking
> something that appears to belong to somebody else, which actually
> belongs to the taker, and when that taking causes no breach of the
> peace, is illegal?
I'm not going to keep arguing the same point with you over and over,
Seth. Either you get it, or you don't, so, after this, I'm going to
bow out of this thread.
In your hypo, both you _and_ the person who currently has possession
of the property (the one whom you say previously stole it from you)
have a CLAIM of ownership over that property. YOU say that your claim
is correct and absolute, but the news flash is, the thief DOES NOT
AGREE with you and he claims that HE is the rightful owner (as well as
current possessor) of that property. Who is right?
Of course, the thief is not as likely to go to court to enforce his
rights as you might be - instead, he may prefer to have Guido fit you
with a pair of concrete overshoes. This is also something the law
wants to avoid happening to YOU as a result of your self-help.
My point, and Barry's (I think), is that YOU are not the ultimate
judge, jury and executor of that ownership decision - rather, because
there _IS_ a dispute about ownership, the _court_ will decide who IS
in fact the rightful owner. And, despite all your absolutist
convictions that the property _is_ in fact yours, and that any
omniscient Being who is looking down on this scene would know that,
the problem is that human laws are NOT omniscient NOR prescient - so,
in cases of dispute, a TRIAL is necessary to determine the outcome.
Depending on the evidence, the court may even rule AGAINST you and in
favor of the current possessor, even ASSUMING that, in some Divine
sense, _you_ are the "true" owner. In that case, your attempted
taking will be wrongful because it is the Court's judgment of who the
true owner is, not yours or G-d's, that matters. And even if the
court rules (correctly, in your view) that _you_ were the rightful
owner, your attempt to deprive the current possessor of possession by
physical self-help (glomming the goods surreptitiously) while in the
possessor's domain (inside his house) and WITHOUT the possessor's
permission, may be a SEPARATE offense, totally apart from the decision
of who the rightful owner is.
> Does it matter to _whom_ it appears?
Yes, of course. Your own assessment of your own rightfulness is not
enough. You are not permitted to use self-help to recover your own
stolen property without the permission of the current (allegedly
wrongful) possessor. Instead, you are supposed to seek the aid of
the Court, by filing a suit, and once (or, I should say, _IF_ you gain
a judgment - remember, there is always the chance you might LOSE),
then all the physical enforcement tools of the State are available at
your command. THEN and only then, you can file for a Writ of
Attachment or Writ of Replevin, commanding the Sheriff to enter the
possessor's home, by force if necessary, and to recover your stolen
property (or, by Attachment if you got a money judgment, he can seize
goods or cash of equivalent value) by physically taking it and
removing it from the wrongful possessor's premises.
The part that makes self-help wrongful, except in those limited
circumstances where it specifically IS permitted (such as car repos)
is your USURPATION of the role of the Court, your CHALLENGE to the
State's MONOPOLY on the use of physical force to enforce disputed
legal rights, which is inherent in your act of simply re-taking the
goods yourself without involving the Court. THAT act is what Barry
was referring to (in the part I snipped) as "likely to lead to a
breach of the peace" and THAT (because it is an affront to the
exclusive authority of the Court in these matters) is why it is
illegal.
>�(E.g. I lent you my lawnmover,
> and I want it back now. �You're on vacation and you left it locked in
> your garage, so you tell me how to get in by forcing the door, and I
> do so.
In that case, you are NOT in any dispute with the current possessor
over ownership of the lawnmower, and YOU HAVE HIS PERMISSION to enter
his premises in that manner to retrieve your property. So, no problem
(as long as you don't mind being questioned by police in case a nosy
neighbor calls you in as suspicious - see below).
>�Someone passing by sees me, and it _appears_ that I'm stealing
> your lawnmower by breaking into your garage. �You and I both know
> better. �Is there a crime involved?)
No - because you have the permission of the neighbor to enter his
garage that way, and because you both agree that the lawnmower is
yours AND that the _possession_ (not merely ownership) of that item
should be returned to you that way.
BUT if you had done so WITHOUT the neighbor's permission, it WOULD
have been wrongful to break into his garage to retrieve your lawnmower
even if you both agree the lawnmower is YOURS. And, even if you HAVE
permission - or even if it's YOUR OWN HOUSE - that does not immunize
you from being stopped and questioned by police (and possibly even
arrested, if they do not like your answers) who, depending on the
circumstances, may have sufficient "reasonably articulable suspicion"
or even "probable cause" to conclude that you are committing the
offense of breaking & entering. Just ask Skip Gates how that works.
Cy Pres
Stuart Bronstein merely stated the fact that Nevada (as with most
other states with a robbery statute) treats larceny as a lesser
included offense. One cannot be convicted of robbery without also
being convicted of behavior which would give rise to a conviction of
larceny, if the prosecutor chose to undercharge while, at the same
time, one could be convicted of larceny by proving elements shared
with robbery, but fail to prove robbery.
If O.J. Simpson were convicted of robbery in Nevada he could, by
definition, have been convicted of larceny had that been charged
instead. I am not sure exactly what you are disagreeing with in what
Stuart Bronstein said, since it is simple black letter law.
Mike Jacobs
> In article <Xns9CD577BE1CC60spamtraplexregia...@130.133.1.4>,
> Stuart A. Bronstein <spamt...@lexregia.com> wrote:
> >se...@panix.com (Seth) wrote:
>
> >> That supports my claims: he wasn't convicted of larceny because
> >> ownership is undetermined. �He was convicted of other crimes,
> >> which in my hypothetical are not present.
>
> >You should get your facts straight before you gloat. �According to
> >Fox and Wikipedia one of the charges he was convicted of was armed
> >robbery - and you can't be convicted or robbery unless you committed
> >larceny.
>
> � � � NRS 200.380 �Definition; penalty.
> � � � 1. �Robbery is the unlawful taking of personal property from the
> � � � person of another, or in his presence, against his will, by
> � � � means of force or violence or fear of injury,
> I don't see anything about the *actual ownership* of the taken
> property in that statute.
No, but that supports Stu's analysis, not yours, Seth. POSSESSION,
not ownership, is what matters, when you "take" personal property from
the person of another and thereby commit the offense of "robbery."
Since you seem to feel that "larceny" would also not apply if
ownership was undetermined, let's look at the pertinent subsection(s)
of the Nevada statute defining _that_ offense (note that a single,
statutory offense of "theft" replaces larceny and various other
similar common law crimes, in the Nevada statutory scheme):
NRS 205.0832 Actions which constitute theft.
1. Except as otherwise provided in subsection 2, a person
commits theft if, without lawful authority, he knowingly:
(a) Controls any property of another person with the intent to
deprive that person of the property.
<snip>
(g) Takes, destroys, conceals or disposes of property in which
another person has a security interest, with intent to defraud that
person.
Commits any act that is declared to be theft by a specific statute.
<snip>
Note that in those subsections which might apply, the term "property
of another person" is used, NOT "property OWNED BY another person."
So, that term could reasonably mean simply "property IN THE POSSESSION
OF another person" for subsection (a), or "property in which ANOTHER
PERSON HAS AN INTEREST" for subsection (g). Neither of those are
100% congruous with current legal "ownership" of the property.
Note further that theft is the unlawful exercise of "control[ over]
property _of_ another" while robbery is the unlawful "taking of ...
property FROM THE PERSON OF another," the only significant difference
being that in the case of robbery, the victim is PRESENT at the time
of the taking, and the taking occurs FROM HIS PERSON. Proving the
victim's rightful titled ownership of the subject property is _not_ an
element of the State's prima facie case in the charge of robbery, nor,
in the NV statutory scheme, does it appear that proof of the victim's
titled ownership of the property is necessary as an element of plain
theft. I suppose we could agree to disagree over what "property _of_
another person" really means - whether that refers to ownership, or
merely current possession - but that's exactly why we have judges and
juries and trials, which was Stu's, Barry's, and my, point.
Stuart A. Bronstein
>>You should get your facts straight before you gloat. According
>>to Fox and Wikipedia one of the charges he was convicted of was
>>armed robbery - and you can't be convicted or robbery unless you
>>committed larceny.
>
> NRS 200.380 Definition; penalty.
> 1. Robbery is the unlawful taking of personal property
> from the person of another, or in his presence, against
> his will, by means of force or violence or fear of injury,
> immediate or future, to his person or property, or the
> person or property of a member of his family, or of anyone
> in his company at the time of the robbery. A taking is by
> means of force or fear if force or fear is used to:
> (a) Obtain or retain possession of the property;
> (b) Prevent or overcome resistance to the taking; or
> (c) Facilitate escape.
>
> I don't see anything about the *actual ownership* of the taken
> property in that statute.
Same for larceny. That's been the whole point that you've been
trying to deny.
Deadrat
88242a...@19g2000vbq.googlegroups.com:
<snip/>
> permission - or even if it's YOUR OWN HOUSE - that does not immunize
> you from being stopped and questioned by police (and possibly even
> arrested, if they do not like your answers) who, depending on the
> circumstances, may have sufficient "reasonably articulable suspicion"
> or even "probable cause" to conclude that you are committing the
> offense of breaking & entering. Just ask Skip Gates how that works.
I'd like to ask him, too. It got him a beer with the President.
<snip/>
> Mike Jacobs
<snip/>
Seth
>> I don't see anything about the *actual ownership* of the taken
>> property in that statute.
>
>Same for larceny. That's been the whole point that you've been
>trying to deny.
So why did you quote the definition of robbery?
I recently looked up the IL definition:
Illinois Criminal Code of 1961 - 720 ILCS 5, Section 16-1
Theft.
(a) A person commits theft when he knowingly:
(1) Obtains or exerts unauthorized control over property of the owner;
or
(2) Obtains by deception control over property of the owner; or
(3) Obtains by threat control over property of the owner; or
(4) Obtains control over stolen property knowing the property to have
been stolen or under such circumstances as would reasonably induce him
to believe that the property was stolen; or
(5) Obtains or exerts control over property in the custody of any law
enforcement agency which is explicitly represented to him by any law
enforcement officer or any individual acting in behalf of a law
enforcement agency as being stolen, and
(A) Intends to deprive the owner permanently of the use or benefit of
the property; or
(B) Knowingly uses, conceals or abandons the property in such manner
as to deprive the owner permanently of such use or benefit; or
(C) Uses, conceals, or abandons the property knowing such use,
concealment or abandonment probably will deprive the owner permanently
of such use or benefit.
So under IL law, it is logically impossible for the owner to steal his
own property. (While 4 or 5 might apply to his own property, A, B,
and C require depriving the owner.)
Seth
Stuart A. Bronstein
> Stuart A. Bronstein <spam...@lexregia.com> wrote:
>>se...@panix.com (Seth) wrote:
>
>>> I don't see anything about the *actual ownership* of the taken
>>> property in that statute.
>>
>>Same for larceny. That's been the whole point that you've been
>>trying to deny.
>
> So why did you quote the definition of robbery?
Robbery was one of the things he was convicted of.
> I recently looked up the IL definition:
>
> Illinois Criminal Code of 1961 - 720 ILCS 5, Section 16-1
>
> Theft.
>
> (a) A person commits theft when he knowingly:
>
> (1) Obtains or exerts unauthorized control over property of
> the owner;...
>
> So under IL law, it is logically impossible for the owner to
> steal his own property. (While 4 or 5 might apply to his own
> property, A, B, and C require depriving the owner.)
You looked at one statute but neglected to look at another. You
quote 720 ILCS 5 �16-1 but should have looked at �15-2 in the same
code, which defines "owner." It says,
"Sec. 15-2. Owner.
"As used in this Part C, 'owner' means a person, other than the
offender, who has possession of or any other interest in the
property involved, even though such interest or possession is
unlawful, and without whose consent the offender has no authority
to exert control over the property."
That completely refutes your point. Property can be stolen from
someone if he has possession, even if that possession is wrongful.
The "owner" under the theft statute means whoever has possession,
not the person who has title.
Mike
> Illinois Criminal Code of 1961 - 720 ILCS 5, Section 16-1
>
> Theft.
[...]
>
> (4) Obtains control over stolen property knowing the property to have
> been stolen or under such circumstances as would reasonably induce him
> to believe that the property was stolen; or
[...]
> So under IL law, it is logically impossible for the owner to steal his
> own property. (While 4 or 5 might apply to his own property, A, B,
> and C require depriving the owner.)
No, #4 very clearly says that a person CAN be guilty of theft even if
taking back what he said belonged to him originally. If I steal an item
from you, it becomes "stolen property." If anyone (INCLUDING you) takes
it from me, then that person is guilty of theft (and, of course, this
excludes LEO.)
I.e. if the item is stolen, you need to let the LEO handle it and return
it to you via proper channels.
Seth
Mike Jacobs <mjaco...@gmail.com> wrote:
>Since you seem to feel that "larceny" would also not apply if
>ownership was undetermined, let's look at the pertinent subsection(s)
>of the Nevada statute defining _that_ offense (note that a single,
>statutory offense of "theft" replaces larceny and various other
>similar common law crimes, in the Nevada statutory scheme):
>
>NRS 205.0832 Actions which constitute theft.
>
> 1. Except as otherwise provided in subsection 2, a person
>commits theft if, without lawful authority, he knowingly:
>
> (a) Controls any property of another person with the intent to
>deprive that person of the property.
. . .
>Note that in those subsections which might apply, the term "property
>of another person" is used, NOT "property OWNED BY another person."
>So, that term could reasonably mean simply "property IN THE POSSESSION
>OF another person" for subsection (a)
So an employer who takes the company-owned laptop from an employee in
order to re-allocate it to a preferred employee is committing theft?
I'd have to see a court agree with that reasoning before I believed
it. In my understanding of language, "property of a person" means
"property owned by that person", else why refer to it as "property"?
Seth
Seth
Mike Jacobs <mjaco...@gmail.com> wrote:
>In your hypo, both you _and_ the person who currently has possession
>of the property (the one whom you say previously stole it from you)
>have a CLAIM of ownership over that property.
Making a claim requires only the ability to communicate. Absent
specific legislation, making a claim has no value.
> YOU say that your claim
>is correct and absolute, but the news flash is, the thief DOES NOT
>AGREE with you and he claims that HE is the rightful owner (as well as
>current possessor) of that property. Who is right?
Reality says that I am. Since it's my hypothetical, the court agrees
with me.
>Of course, the thief is not as likely to go to court to enforce his
>rights as you might be - instead, he may prefer to have Guido fit you
>with a pair of concrete overshoes.
If it were that easy for him to get my stuff, why didn't he do it that
way in the first place?
>My point, and Barry's (I think), is that YOU are not the ultimate
>judge, jury and executor of that ownership decision - rather, because
>there _IS_ a dispute about ownership, the _court_ will decide who IS
>in fact the rightful owner.
Should it come to that, I agree. But it usually doesn't. There's no
argument about who owns the keyboard I'm typing on, and no court has
ever determined that, or will ever determine it (with 99.999999%
probability).
> And, despite all your absolutist
>convictions that the property _is_ in fact yours, and that any
>omniscient Being who is looking down on this scene would know that,
>the problem is that human laws are NOT omniscient NOR prescient - so,
>in cases of dispute, a TRIAL is necessary to determine the outcome.
And again, since it's my hypothetical, the result of the trial is that
the court determines the property was always mine, from the date I
bought it until the date of the trial.
> And even if the
>court rules (correctly, in your view) that _you_ were the rightful
>owner, your attempt to deprive the current possessor of possession by
>physical self-help (glomming the goods surreptitiously) while in the
>possessor's domain (inside his house) and WITHOUT the possessor's
>permission, may be a SEPARATE offense, totally apart from the decision
>of who the rightful owner is.
I keep hearing that it "may be" but nobody has quoted an appropriate
statute.
>> Does it matter to _whom_ it appears?
>
>Yes, of course. Your own assessment of your own rightfulness is not
>enough. You are not permitted to use self-help to recover your own
>stolen property without the permission of the current (allegedly
>wrongful) possessor.
Which statute states specifically that?
>The part that makes self-help wrongful, except in those limited
>circumstances where it specifically IS permitted (such as car repos)
>is your USURPATION of the role of the Court, your CHALLENGE to the
>State's MONOPOLY on the use of physical force to enforce disputed
>legal rights, which is inherent in your act of simply re-taking the
>goods yourself without involving the Court.
Again, any such action is prohibited only if theres a specific law
prohibiting it.
> THAT act is what Barry
>was referring to (in the part I snipped) as "likely to lead to a
>breach of the peace" and THAT (because it is an affront to the
>exclusive authority of the Court in these matters) is why it is
>illegal.
Again, I'm not interested in why a legislature might have passed a
particular law; I'm interested in whether or not it did, and what that
actual law says.
>>�Someone passing by sees me, and it _appears_ that I'm stealing
>> your lawnmower by breaking into your garage. �You and I both know
>> better. �Is there a crime involved?)
>
>No - because you have the permission of the neighbor to enter his
>garage that way, and because you both agree that the lawnmower is
>yours AND that the _possession_ (not merely ownership) of that item
>should be returned to you that way.
So the appearance of wrongdoing is not, per se, illegal. That was my
point.
>BUT if you had done so WITHOUT the neighbor's permission, it WOULD
>have been wrongful to break into his garage to retrieve your lawnmower
>even if you both agree the lawnmower is YOURS. And, even if you HAVE
>permission - or even if it's YOUR OWN HOUSE - that does not immunize
>you from being stopped and questioned by police (and possibly even
>arrested, if they do not like your answers) who, depending on the
>circumstances, may have sufficient "reasonably articulable suspicion"
>or even "probable cause" to conclude that you are committing the
>offense of breaking & entering. Just ask Skip Gates how that works.
What was he convicted of? That supports my point: he did nothing
illegal.
Please note that I'm not claiming any particular course of action to
be _advisable_.
Seth
Cy Pres
>So an employer who takes the company-owned laptop from an employee in
>order to re-allocate it to a preferred employee is committing theft?
If they burglarized his house to get it, or held him up at gunpoint,
or took it from him by strong-arm robbery, or otherwise met the
elements of a criminal offense, yes.
Every time I have seen such a situation arise, they simply asked for
the laptop. If the employee refused to turn it over, they would first
be fired, in all likelihood, and next, they would be sued for
conversion or the employer would seek a writ of replevin. Depending
on the circumstances, they might also be able to get the police to
arrest the employee and seize the laptop, though generally, police are
only sometimes interested in intervening in these kinds of disputes.
The other circumstances I have seen this, where the laptop is already
at the employer's offices, they simply remove the laptop from the desk
of one employee and put it on another. They need no permission for
this, because it is already in their possession. They are not
depriving the employee, who never possessed it.
Stuart A. Bronstein
>>Note that in those subsections which might apply, the term
>>"property of another person" is used, NOT "property OWNED BY
>>another person." So, that term could reasonably mean simply
>>"property IN THE POSSESSION OF another person" for subsection
>>(a)
>
> So an employer who takes the company-owned laptop from an
> employee in order to re-allocate it to a preferred employee is
> committing theft?
If the employee refuses to give it to him and he takes it by force,
yes.
> I'd have to see a court agree with that
> reasoning before I believed it. In my understanding of
> language, "property of a person" means "property owned by that
> person", else why refer to it as "property"?
On that point you've been shown to be wrong. Even the Illnois
statute you quoted to support your case was shown to apply to the
person who possesses the property, not necessarily the person who
is the legal owner.
John F. Carr
Stuart A. Bronstein <spam...@lexregia.com> wrote:
>> So under IL law, it is logically impossible for the owner to
>> steal his own property. (While 4 or 5 might apply to his own
>> property, A, B, and C require depriving the owner.)
>
>You looked at one statute but neglected to look at another. You
>quote 720 ILCS 5 �16-1 but should have looked at �15-2 in the same
>code, which defines "owner." It says,
>
>"Sec. 15-2. Owner.
> "As used in this Part C, 'owner' means a person, other than the
>offender, who has possession of or any other interest in the
>property involved, even though such interest or possession is
>unlawful, and without whose consent the offender has no authority
>to exert control over the property."
I read this as codifying the common law rule that a thief has
right of possession superior to the public in general but not
to the person he stole from. Owner here is not an absolute
term because of the limitation of the last clause. If I have
authority to exert control over the property without your
consent, you are not an owner relative to me.
--
John Carr (j...@mit.edu)
Stuart A. Bronstein
> Mike Jacobs <mjaco...@gmail.com> wrote:
>
>>In your hypo, both you _and_ the person who currently has
>>possession of the property (the one whom you say previously
>>stole it from you) have a CLAIM of ownership over that property.
>
> Making a claim requires only the ability to communicate. Absent
> specific legislation, making a claim has no value.
It clearly has value. The law is clear, and has been demonstrated
to you in several instances, that if you claim ownership and you
have possession, taking it from you without your consent and
without court intervention is larceny.
>> YOU say that your claim
>>is correct and absolute, but the news flash is, the thief DOES
>>NOT AGREE with you and he claims that HE is the rightful owner
>>(as well as current possessor) of that property. Who is right?
>
> Reality says that I am. Since it's my hypothetical, the court
> agrees with me.
But the court will throw you in jail if you try to take it back
before you get a court order.
>> And even if the
>>court rules (correctly, in your view) that _you_ were the
>>rightful owner, your attempt to deprive the current possessor of
>>possession by physical self-help (glomming the goods
>>surreptitiously) while in the possessor's domain (inside his
>>house) and WITHOUT the possessor's permission, may be a SEPARATE
>>offense, totally apart from the decision of who the rightful
>>owner is.
>
> I keep hearing that it "may be" but nobody has quoted an
> appropriate statute.
At least two have been quoted, one which is published adjacent to
one you incorrectly quoted to support your point.
> Again, any such action is prohibited only if theres a specific
> law prohibiting it.
It's called larceny, and it prohibits that in most cases.
Seth
Cy Pres <c.p...@yahoo.com> wrote:
>On Sat, 5 Dec 2009 17:23:44 +0000 (UTC), se...@panix.com (Seth) wrote:
>> NRS 200.380 Definition; penalty.
>> 1. Robbery is the unlawful taking of personal property from the
>> person of another, or in his presence, against his will, by
>> means of force or violence or fear of injury, immediate or
>> future, to his person or property, or the person or property of
>> a member of his family, or of anyone in his company at the time
>> of the robbery.
. . .
>>I don't see anything about the *actual ownership* of the taken
>>property in that statute.
>
>Stuart Bronstein merely stated the fact that Nevada (as with most
>other states with a robbery statute) treats larceny as a lesser
>included offense.
Where is the definition of larceny that allows for the committer
thereof to be the owner of the property involved?
> One cannot be convicted of robbery without also
>being convicted of behavior which would give rise to a conviction of
>larceny,
That applies _only_ if larceny is a lesser included offense. But the
definitions I've seen imply that it isn't: larceny involves taking
*someone else's property* while robbery involves *taking stuff from a
physical person's possession*.
>If O.J. Simpson were convicted of robbery in Nevada he could, by
>definition, have been convicted of larceny had that been charged
>instead.
Not under the IL definition of theft, at least, which specifically
refers to "property of the owner".
> I am not sure exactly what you are disagreeing with in what
>Stuart Bronstein said, since it is simple black letter law.
Is it black letter law that one can steal from himself?
Seth
Seth
Mike <prab...@shamrocksgf.com> wrote:
>Seth wrote:
>> Illinois Criminal Code of 1961 - 720 ILCS 5, Section 16-1
>>
>> Theft.
>> (4) Obtains control over stolen property knowing the property to have
>> been stolen or under such circumstances as would reasonably induce him
>> to believe that the property was stolen; or
>> So under IL law, it is logically impossible for the owner to steal his
>> own property. (While 4 or 5 might apply to his own property, A, B,
>> and C require depriving the owner.)
>
>No, #4 very clearly says that a person CAN be guilty of theft even if
>taking back what he said belonged to him originally.
I think you missed the "AND" at the end of (5).
and
(A) Intends to deprive the owner permanently of the use or benefit of
the property; or
(B) Knowingly uses, conceals or abandons the property in such manner
as to deprive the owner permanently of such use or benefit; or
(C) Uses, conceals, or abandons the property knowing such use,
concealment or abandonment probably will deprive the owner permanently
of such use or benefit.
> If I steal an item from you, it becomes "stolen property." If anyone
>(INCLUDING you) takes it from me, then that person is guilty of theft
>(and, of course, this excludes LEO.)
Only if the intent of the taker is to *deprive* the *owner* of the use
or benefit. As the owner, the taker is clearly not intending to
deprive *himself* of the property.
Seth
Seth
Stuart A. Bronstein <spam...@lexregia.com> wrote:
>You looked at one statute but neglected to look at another. You
>quote 720 ILCS 5 �16-1 but should have looked at �15-2 in the same
>code, which defines "owner." It says,
>
>"Sec. 15-2. Owner.
> "As used in this Part C, 'owner' means a person, other than the
>offender, who has possession of or any other interest in the
>property involved, even though such interest or possession is
>unlawful, and without whose consent the offender has no authority
>to exert control over the property."
You're right, I hadn't seen that.
Is there any place the code defines "authority to exert control over
the property"?
>That completely refutes your point.
Subject to the definition of "authority", yes. (It isn't defined in
any section of the code I saw.)
> Property can be stolen from
>someone if he has possession, even if that possession is wrongful.
Unless the person taking it has the authority to exert control over
that property. (It's theft if another thief steals it.)
>The "owner" under the theft statute means whoever has possession,
>not the person who has title.
Subject to the possibility that the offender has authority to exert
control over the property without the consent of the improper
possessor.
Seth
Stuart A. Bronstein
> Cy Pres <c.p...@yahoo.com> wrote:
>>se...@panix.com (Seth) wrote:
> . . .
>>>I don't see anything about the *actual ownership* of the taken
>>>property in that statute.
>>
>>Stuart Bronstein merely stated the fact that Nevada (as with
>>most other states with a robbery statute) treats larceny as a
>>lesser included offense.
>
> Where is the definition of larceny that allows for the committer
> thereof to be the owner of the property involved?
In which state? I've already shown you the statute in Illinois
that says that.
Here you're talking about Nevada. There they treat it differently.
Instead of calling it larceny, they make it a separate offense:
"A person who, under circumstances not amounting to robbery, with
the intent to steal or appropriate to his own use, takes property
from the person of another, without his consent, is guilty of [an
offense]." NRS 205.270
>> One cannot be convicted of robbery without also
>>being convicted of behavior which would give rise to a
>>conviction of larceny,
>
> That applies _only_ if larceny is a lesser included offense.
> But the definitions I've seen imply that it isn't: larceny
> involves taking *someone else's property* while robbery involves
> *taking stuff from a physical person's possession*.
You're just flat out wrong. If it's not larceny it can't be
robbery.
>>If O.J. Simpson were convicted of robbery in Nevada he could, by
>>definition, have been convicted of larceny had that been charged
>>instead.
>
> Not under the IL definition of theft, at least, which
> specifically refers to "property of the owner".
I've shown you that this statement is incorrect, based on the
adjacent illinois statute you neglected to notice.
Cy Pres
>In article <elsnh51mmb1534vrk...@4ax.com>,
>Cy Pres <c.p...@yahoo.com> wrote:
>>On Sat, 5 Dec 2009 17:23:44 +0000 (UTC), se...@panix.com (Seth) wrote:
>
>>> NRS 200.380 Definition; penalty.
>>> 1. Robbery is the unlawful taking of personal property from the
>>> person of another, or in his presence, against his will, by
>>> means of force or violence or fear of injury, immediate or
>>> future, to his person or property, or the person or property of
>>> a member of his family, or of anyone in his company at the time
>>> of the robbery.
>. . .
>>>I don't see anything about the *actual ownership* of the taken
>>>property in that statute.
>>
>>Stuart Bronstein merely stated the fact that Nevada (as with most
>>other states with a robbery statute) treats larceny as a lesser
>>included offense.
>
>Where is the definition of larceny that allows for the committer
>thereof to be the owner of the property involved?
Ask O.J. Simpson. The issue of whether he owned the property wasn't
even dealt with in his criminal trial, where he was convicted of
robbery. As Stuart pointed out, by definition, that means he could
have been convicted of larceny as well. The charging documents do not
even state the ownership of the property as not being Simpson's.
http://news.findlaw.com/cnn/docs/oj/ojnv92107cmp6.html
Why? Because that simply is NOT an element of the case, and he was
convicted without regard for the possession of the property. Indeed,
Fred Goldman's lawyer is apparently attempting to claim ownership of
the memorabilia to satisfy a legal judgment. This would not even make
sense if the property did not belong to Simpson (or his bankruptcy
estate).
Indeed, another court ruled that some of the memorabilia was to be
returned to O.J. Simpson in part, and that while Fred Goldman was to
receive the residue, O.J. Simpson was to receive the first $6,075.
http://www.msnbc.msn.com/id/32468262/ns/us_news
Stuart A. Bronstein
> Stuart A. Bronstein <spam...@lexregia.com> wrote:
>
>>"Sec. 15-2. Owner.
>>"As used in this Part C, 'owner' means a person, other than
>>the offender, who has possession of or any other interest in the
>>property involved, even though such interest or possession is
>>unlawful, and without whose consent the offender has no
>>authority to exert control over the property."
>
> You're right, I hadn't seen that.
>
> Is there any place the code defines "authority to exert control
> over the property"?
Not that I can find - it appears to be determined by courts on a
case by case basis. However I doubt that would be relevant. Not
that the statute says that ownership includes unlawful possession,
even if (but not limited to) when the ofender has no authority ro
exert control.
>>Property can be stolen from someone if he has possession, even
>>if that possession is wrongful.
>
> Unless the person taking it has the authority to exert control
> over that property. (It's theft if another thief steals it.)
You are misreading the statute. It has nothing to do with someone
else's authority to exert control. It says that "ownership" for
this purpose includes the person who wrongfully possesses property,
even though he has no authority to exert control.
>>The "owner" under the theft statute means whoever has
>>possession, not the person who has title.
>
> Subject to the possibility that the offender has authority to
> exert control over the property without the consent of the
> improper possessor.
The statute talks about the possessor's authority to exercise
control, and says it's "ownership" for this purpose even if he has
no such authority, not the opposite.
Robert Bonomi
>In article <elsnh51mmb1534vrk...@4ax.com>,
>Cy Pres <c.p...@yahoo.com> wrote:
>>On Sat, 5 Dec 2009 17:23:44 +0000 (UTC), se...@panix.com (Seth) wrote:
>
>That applies _only_ if larceny is a lesser included offense. But the
>definitions I've seen imply that it isn't: larceny involves taking
>*someone else's property* while robbery involves *taking stuff from a
>physical person's possession*.
You, perhaps 'conveniently', "forgot" to look up the definition of 'owner'
as related to the Illinois statute on 'theft'. For purposes of the theft
statute, 'he who is in possession' is the 'owner', EVEN IF he came in to
such possession unlawfully (e.g. by stealing it).
>>If O.J. Simpson were convicted of robbery in Nevada he could, by
>>definition, have been convicted of larceny had that been charged
>>instead.
>
>Not under the IL definition of theft, at least, which specifically
>refers to "property of the owner".
FALSE TO FACT.
As was pointed out to you in another posting, IL 15-2 defines 'owner'
as as "one who is in possession ... even if said possession is unlawful.."
Thus, for purposes of the theft statute, the thief in possession of stolen
property _is_ the 'owner' of that property, and it *is* the crime of theft
for the 'lawful owner' to take it back by self-help.
Needless to say, and utterly *regardless* of the details of the crime, he
couldn't be convicted _IN_NEVADA_, for an action that occurred IN NEVADA,
on the basis that he violated an ILLINOIS statute.
Now, if O.J. (or someone else) had performed the exact same actions _in_
Illinois, they _could_ have been convicted of the 'lesser included charge'
of 'theft', regardless of who the actual owner of the stuff that the perp
was attempting to reclaim
<grin>
Robert Bonomi
>In article <Xns9CDB3B1BC53E4s...@130.133.1.4>,
>Stuart A. Bronstein <spam...@lexregia.com> wrote:
>
>>You looked at one statute but neglected to look at another. You
>>quote 720 ILCS 5 �16-1 but should have looked at �15-2 in the same
>>code, which defines "owner." It says,
>>
>>"Sec. 15-2. Owner.
>> "As used in this Part C, 'owner' means a person, other than the
>>offender, who has possession of or any other interest in the
>>property involved, even though such interest or possession is
>>unlawful, and without whose consent the offender has no authority
>>to exert control over the property."
>
>that property. (It's theft if another thief steals it.)
WRONG. see below.
>
>>The "owner" under the theft statute means whoever has possession,
>>not the person who has title.
>
>Subject to the possibility that the offender has authority to exert
>control over the property without the consent of the improper
>possessor.
WRONG. Go read the language again. Notice that the 'offender' is
expressly excluded -- "... any person, OTHER THAN THE OFFENDER, who..'
Thus, per the statute, the offender _cannot_ be the owner.
Seth
Cy Pres <c.p...@yahoo.com> wrote:
>On Wed, 9 Dec 2009 22:23:27 +0000 (UTC), se...@panix.com (Seth) wrote:
>>Where is the definition of larceny that allows for the committer
>>thereof to be the owner of the property involved?
>
>Ask O.J. Simpson. The issue of whether he owned the property wasn't
>even dealt with in his criminal trial, where he was convicted of
>robbery.
Robbery is defined as taking from a person.
> As Stuart pointed out, by definition, that means he could
>have been convicted of larceny as well.
"By definition" is not a statute.
> The charging documents do not
>even state the ownership of the property as not being Simpson's.
>http://news.findlaw.com/cnn/docs/oj/ojnv92107cmp6.html
>
>Why? Because that simply is NOT an element of the case,
Because _robbery_ is defined as taking from a person.
Larceny is defined as depriving the owner of property.
> and he was
>convicted without regard for the possession of the property.
Armed robbery is a violent crime, no matter what the ownership of the
stuff is.
> Indeed, Fred Goldman's lawyer is apparently attempting to claim
>ownership of the memorabilia to satisfy a legal judgment. This would
>not even make sense if the property did not belong to Simpson (or his
>bankruptcy estate).
"Attempting to claim" is not a court ruling that it does so belong.
>Indeed, another court ruled that some of the memorabilia was to be
>returned to O.J. Simpson in part,
Which proves that he owned it, and could have retrieved it by lawsuit
rather than armed robbery.
If the dealer had put it on a display table and walked away, and OJ
had taken it when nobody was looking, that wouldn't have been larceny
(at least for the stuff that the court ruled he owned).
Seth
Seth
>
>>> or that the specific property you plan to take is really yours.
>>
>> That's a separate issue. If it isn't really mine, then taking
>> it is stealing (the intent to keep it maps to intent to deprive
>> the owner).
>
>People shouldn't be taking the law in their own hands.
The issue isn't should or shouldn't, it's legal or illegal.
> Sometimes they're wrong. And allowing that would encourage even
>more people to try self-help, even if whatever they take is not
>theirs.
That's meta-law: a reason that a legislature should create laws a
certain way. I'm interested in existing law.
>> My point was that there's no breach of the peace, and no
>> violation of other laws (specifically, no assault; and no
>> trespass because that would require intent to commit a crime in
>> the premises, which didn't exist).
>
>If you can do that, you might be ok.
Thank you. That's what I'm trying to establish. You say "might";
under what circumstances (given that I accomplish what I said) would I
still not be ok?
> But I'd think it would be unlikely. If you see someone on the
>street and he has something of yours, his resistance to your taking
>"your" property is a breach of the peace.
Sure; that's robbery (taking stuff from a person in physical
possession of it). But if he puts it on the ground while he walks
into a store and I pick it up and walk away, there's no breach of the
peace.
Seth
Seth
Robert Bonomi <bon...@host122.r-bonomi.com> wrote:
>In article <hfp80u$gls$1...@reader1.panix.com>, Seth <se...@panix.com> wrote:
>>In article <elsnh51mmb1534vrk...@4ax.com>,
>>Cy Pres <c.p...@yahoo.com> wrote:
>>>On Sat, 5 Dec 2009 17:23:44 +0000 (UTC), se...@panix.com (Seth) wrote:
>>
>>That applies _only_ if larceny is a lesser included offense. But the
>>definitions I've seen imply that it isn't: larceny involves taking
>>*someone else's property* while robbery involves *taking stuff from a
>>physical person's possession*.
>
>You, perhaps 'conveniently', "forgot" to look up the definition of 'owner'
>as related to the Illinois statute on 'theft'. For purposes of the theft
>statute, 'he who is in possession' is the 'owner', EVEN IF he came in to
>such possession unlawfully (e.g. by stealing it).
You neglected the final part of that paragraph: "even though such
interest or possession is unlawful, and without whose consent the
offender has no authority to exert control over the property."
Now, does the *actual legal owner* have authority to exert control
over *his own property*? I say he does, so with respect to *him*, the
illegal possessor is _not_ the owner.
>>>If O.J. Simpson were convicted of robbery in Nevada he could, by
>>>definition, have been convicted of larceny had that been charged
>>>instead.
>>
>>Not under the IL definition of theft, at least, which specifically
>>refers to "property of the owner".
>
>FALSE TO FACT.
>
>As was pointed out to you in another posting, IL 15-2 defines 'owner'
>as as "one who is in possession ... even if said possession is unlawful.."
See above.
>Thus, for purposes of the theft statute, the thief in possession of stolen
>property _is_ the 'owner' of that property,
only with respect to third parties, those who have "no authority to
exert control over the property".
>Now, if O.J. (or someone else) had performed the exact same actions _in_
>Illinois, they _could_ have been convicted of the 'lesser included charge'
>of 'theft', regardless of who the actual owner of the stuff that the perp
>was attempting to reclaim
Unless the court determined that, as the actual owner, OJ had the
lawful authority to exert control over the property.
Example: a laptop computer is stolen. It gets connected to the
Internet. Unknown to the thief, the owner has the ability to control
it, and uses that control to have the computer's camera take pictures
of the thief, and report its location. (He then calls the police, or
publishes the information; he doesn't attempt to retrieve it
physically himself.) Now, did the owner have the *authority* to
*exert control* over the computer? I say he did; do you believe he
could be convicted of illegal access to a computer as a result of his
actions?
Seth
Seth
Stuart A. Bronstein <spam...@lexregia.com> wrote:
>se...@panix.com (Seth) wrote:
>> Stuart A. Bronstein <spam...@lexregia.com> wrote:
>>
>>>"Sec. 15-2. Owner.
>>>"As used in this Part C, 'owner' means a person, other than
>>>the offender, who has possession of or any other interest in the
>>>property involved, even though such interest or possession is
>>>unlawful, and without whose consent the offender has no
>>>authority to exert control over the property."
>>
>> You're right, I hadn't seen that.
>>
>> Is there any place the code defines "authority to exert control
>> over the property"?
>
>Not that I can find - it appears to be determined by courts on a
>case by case basis. However I doubt that would be relevant. Not
>that the statute says that ownership includes unlawful possession,
>even if (but not limited to) when the ofender has no authority ro
>exert control.
In this case, the "offender" is the one who is being charged with the
taking; the "possession of stolen property" charge being irrelevant.
And the offender, being the owner, has authority to exert control.
>> Unless the person taking it has the authority to exert control
>> over that property. (It's theft if another thief steals it.)
>
>You are misreading the statute. It has nothing to do with someone
>else's authority to exert control.
That's the last clause.
> It says that "ownership" for
>this purpose includes the person who wrongfully possesses property,
>even though he has no authority to exert control.
No, it says that "ownership" for this purpose includes the person who
wrongfully possesses property, *unless* the person taking it (the
"offender") has authority to exert control without the consent of the
person who wrongfully possesses the property.
>> Subject to the possibility that the offender has authority to
>> exert control over the property without the consent of the
>> improper possessor.
>
>The statute talks about the possessor's authority to exercise
>control, and says it's "ownership" for this purpose even if he has
>no such authority, not the opposite.
No, it talks about the taker's authority to exercise control, and says
the possessor does not have ownership if the taker has that authority,
otherwise the possessor does have ownership.
Seth
Seth
Robert Bonomi <bon...@host122.r-bonomi.com> wrote:
>In article <hfp8ob$52l$1...@reader1.panix.com>, Seth <se...@panix.com> wrote:
>>>"Sec. 15-2. Owner.
>>> "As used in this Part C, 'owner' means a person, other than the
>>>offender, who has possession of or any other interest in the
>>>property involved, even though such interest or possession is
>>>unlawful, and without whose consent the offender has no authority
>>>to exert control over the property."
>>
>>Unless the person taking it has the authority to exert control over
>>that property. (It's theft if another thief steals it.)
>
>WRONG. see below.
. . .
>WRONG. Go read the language again. Notice that the 'offender' is
>expressly excluded -- "... any person, OTHER THAN THE OFFENDER, who..'
The offender is the person who is being charged under the statute;
that is, the person doing the taking.
That merely implies that someone cannot steal from himself.
Otherwise, when you take your pen out of your pocket, it would be
stealing: without your consent, you have no authority to exert control
over your property.
>Thus, per the statute, the offender _cannot_ be the owner.
Therefore, the owner cannot be the offender. Since the offender is
the person charged, the owner cannot be charged. That's what I've
been claiming all along.
According to 15-2, 'owner' refers to anybody who has the property in
his possession *when the true owner (who, by law, has the authority to
exert control over the property he owns without consent from a
non-owner) is not the person being charged*.
Seth
Seth
>> Mike Jacobs <mjaco...@gmail.com> wrote:
>>
>>>In your hypo, both you _and_ the person who currently has
>>>possession of the property (the one whom you say previously
>>>stole it from you) have a CLAIM of ownership over that property.
>>
>> Making a claim requires only the ability to communicate. Absent
>> specific legislation, making a claim has no value.
>
>It clearly has value.
I claim to own your car. What value has that claim?
There's a pen in my pocket that says "Hilton". I don't claim to own
it. What would be different if I did claim to own it?
In both of those cases, the claim makes no difference.
> The law is clear, and has been demonstrated to you in several
>instances, that if you claim ownership and you have possession,
>taking it from you without your consent and without court
>intervention is larceny.
Only if the taker is not the actual owner.
>> Reality says that I am. Since it's my hypothetical, the court
>> agrees with me.
>
>But the court will throw you in jail if you try to take it back
>before you get a court order.
Do you have any citations for someone being convicted of larceny (not
robbery or burglary) for taking his own property?
>> I keep hearing that it "may be" but nobody has quoted an
>> appropriate statute.
>
>At least two have been quoted, one which is published adjacent to
>one you incorrectly quoted to support your point.
Though it was misinterpreted, and actually supports my point when you
include the final clause.
>> Again, any such action is prohibited only if theres a specific
>> law prohibiting it.
>
>It's called larceny, and it prohibits that in most cases.
Do you have a citation for any larceny conviction for someone taking
his own property?
Seth
Seth
Robert Bonomi <bon...@host122.r-bonomi.com> wrote:
>Absent _proof_ (meaning 'legally *accepted* -- not just 'acceptable' --
>evidence that has been ruled on by a 'trier of law and fact'), or admission
>by the party 'in possession', to the contrary, it is presumed that title rests
>with the party 'in possession' of the item.
Nice passive there. "It is presumed." Presuming is the sort of thing
that people do. Who presumes it? Why do they presume it? What is
the legal effect of the fact that they presume it?
>"Possession is nine points of the law".
Possession is clearly not definitive.
>To contest that, you _go_to_court_.
That's certainly an option.
>You may _think_ you have 'proof', and be in error.
You may think you're entering your own car, and be in error. People
make mistakes. That fact is irrelevant to this situation.
> You simply _do_not_know_ until a court has validated your claim.
I most certainly do know.
>You think a bill of sale showing the serial number is sufficient.
>
>What if the other party has a similar bill of sale, from the same party,
>_predating_ yours?
Then that party, who sold it to me "free and clear", is going to be
responsible for all my damages. (How did they get it back, anyway?
If I buy a tv set from a store, and then return it, does that give me
the right to steal it from whoever they sell it to later, because I
have the earlier bill of sale?)
>What if the mfr. made an error and produced _two_ (or *more*) units with the
>same serial number as the one on your bill of sale? Do you automatically own
>_all_ of them?
No, I own the one I bought and scratched my initials onto the bottom of.
>What if what you 'know' is the result of hypnotic suggestion, and is,
>in fact, contrary to 'reality'? You may well believe it
>unequivocally, and be 'sure' that what you remember is true, and be
>_wrong_.
That can apply to _anything_. What if you get in your car and drive
away, only the belief that it's your car is the result of hypnotic
suggestion?
Any such action might be illegal, if your knowledge of reality is
altered.
Seth
Stuart A. Bronstein
>
>>>Where is the definition of larceny that allows for the
>>>committer thereof to be the owner of the property involved?
>>
>>Ask O.J. Simpson. The issue of whether he owned the property
>>wasn't even dealt with in his criminal trial, where he was
>>convicted of robbery.
>
> Robbery is defined as taking from a person.
No, at common law robbery is defined as larceny from a person.
>> As Stuart pointed out, by definition, that means he could
>>have been convicted of larceny as well.
>
> "By definition" is not a statute.
Maybe, maybe not, depending on the state. It's either a statute or
the common law.
> Because _robbery_ is defined as taking from a person.
> Larceny is defined as depriving the owner of property.
No, sorry, but you're wrong.
> Armed robbery is a violent crime, no matter what the ownership
> of the stuff is.
So what? That has nothing to do with the question at hand
>>Indeed, Fred Goldman's lawyer is apparently attempting to
>>claim ownership of the memorabilia to satisfy a legal judgment.
>>This would not even make sense if the property did not belong to
>>Simpson (or his bankruptcy estate).
>
> "Attempting to claim" is not a court ruling that it does so
> belong.
No, but "attempting to claim" in this case means going into court
and asking for that ruling.
>>Indeed, another court ruled that some of the memorabilia was to
>>be returned to O.J. Simpson in part,
>
> Which proves that he owned it, and could have retrieved it by
> lawsuit rather than armed robbery.
He was convicted or armed robbery, not sticking a gun in someone's
face and asking for his own property back. Robbery requires
larceny, otherwise it's not robbery.
> If the dealer had put it on a display table and walked away, and
> OJ had taken it when nobody was looking, that wouldn't have been
> larceny (at least for the stuff that the court ruled he owned).
In this you are just wrong, and it has been demonstrated to you
several times.
Stuart A. Bronstein
> Stuart A. Bronstein <spam...@lexregia.com> wrote:
>>>
>>> Is there any place the code defines "authority to exert
>>> control over the property"?
>>
>>Not that I can find - it appears to be determined by courts on a
>>case by case basis. However I doubt that would be relevant.
>>Not that the statute says that ownership includes unlawful
>>possession, even if (but not limited to) when the ofender has no
>>authority ro exert control.
>
> In this case, the "offender" is the one who is being charged
> with the taking; the "possession of stolen property" charge
Right. So what?
> And the offender, being the owner, has authority to exert
> control.
But that's not what the statute says. It says that stealing from
someone is theft even if it's from a person who has no right to
possess the property AND as long as the person taking it does not
have the consent of the person he is taking it from. It says
nothing at all about the owner. It says nothing about someone
having authority to control having any rights OTHER THAN that the
person taking the property not have the consent of the person in
possession.
>>> Unless the person taking it has the authority to exert control
>>> over that property. (It's theft if another thief steals it.)
>>
>>You are misreading the statute. It has nothing to do with
>>someone else's authority to exert control.
>
> That's the last clause.
No it's not. It has nothing to do with that.
>> It says that "ownership" for
>>this purpose includes the person who wrongfully possesses
>>property, even though he has no authority to exert control.
>
> No, it says that "ownership" for this purpose includes the
> person who wrongfully possesses property, *unless* the person
> taking it (the "offender") has authority to exert control
> without the consent of the person who wrongfully possesses the
> property.
Almost. The owner is the person in possession for this purpose.
But it's not an offense if the offender has been given the
authority to control by the person in possession. It has nothing
to do with the title holder.
>>The statute talks about the possessor's authority to exercise
>>control, and says it's "ownership" for this purpose even if he
>>has no such authority, not the opposite.
>
> No, it talks about the taker's authority to exercise control,
> and says the possessor does not have ownership if the taker has
> that authority, otherwise the possessor does have ownership.
No, it says just the opposite. Again, it says that you can steal
from a person who has wrongful possession, unless that person gives
the "offender" the right to take it.
Stuart A. Bronstein
> Robert Bonomi <bon...@host122.r-bonomi.com> wrote:
>>
>>You, perhaps 'conveniently', "forgot" to look up the definition
>>of 'owner' as related to the Illinois statute on 'theft'. For
>>purposes of the theft statute, 'he who is in possession' is the
>>'owner', EVEN IF he came in to such possession unlawfully (e.g.
>>by stealing it).
>
> You neglected the final part of that paragraph: "even though
> such interest or possession is unlawful, and without whose
> consent the offender has no authority to exert control over the
> property."
That supports his claim, not the opposite.
> Now, does the *actual legal owner* have authority to exert
> control over *his own property*? I say he does, so with respect
> to *him*, the illegal possessor is _not_ the owner.
You are misreading the statute. The actual owner has the right to
go to the authorities or the courts and prove the property is his.
Otherwise it is illegal to take it from someone who has possession,
even if that someone's possession of the property is unlawful.
>>Thus, for purposes of the theft statute, the thief in possession
>>of stolen property _is_ the 'owner' of that property,
>
> only with respect to third parties, those who have "no authority
> to exert control over the property".
That's not what the statute says. When you get on the Supreme
Court you can argue this claptrap with the other justices. But
until then you are just flat out demonstrably wrong.
> Example: a laptop computer is stolen. It gets connected to the
> Internet. Unknown to the thief, the owner has the ability to
> control it, and uses that control to have the computer's camera
> take pictures of the thief, and report its location. (He then
> calls the police, or publishes the information; he doesn't
> attempt to retrieve it physically himself.) Now, did the owner
> have the *authority* to *exert control* over the computer? I
> say he did; do you believe he could be convicted of illegal
> access to a computer as a result of his actions?
You are misreading the statute. The phrase, "without whose consent
the offender has no authority to exert control over the property,"
refers to the person in possession, not the owner.
Stuart A. Bronstein
> Stuart A. Bronstein <spam...@lexregia.com> wrote:
>>>
>>> Making a claim requires only the ability to communicate.
>>> Absent specific legislation, making a claim has no value.
>>
>>It clearly has value.
>
> I claim to own your car. What value has that claim?
One valuation may be based on the amount of time and money it will
take me to establish it's really mine. If you have no paperwork
and have a reputation for making crazy claims, the value may be
extremely small. If you have forged paperwork, it may cost me more
to prove my ownership, so the value (e.g. what I might pay you to
drop your claim) is larger.
> There's a pen in my pocket that says "Hilton". I don't claim to
> own it. What would be different if I did claim to own it?
It only makes a difference if Hilton tries to have you thrown in
jail for theft.
> In both of those cases, the claim makes no difference.
You are making a general statement with respect to specific
situations for which your general statement may not apply. It
depends on the situation as to whether a "claim" makes a
difference.
>> The law is clear, and has been demonstrated to you in several
>>instances, that if you claim ownership and you have possession,
>>taking it from you without your consent and without court
>>intervention is larceny.
>
> Only if the taker is not the actual owner.
No, you're wrong. In OJ's case, remember, he was convicted of
armed robbery - stealing property, even though what he took was
supposedly his. The actual owner is not allowed to steal from the
person in possession any more than anyone else.
>>But the court will throw you in jail if you try to take it back
>>before you get a court order.
>
> Do you have any citations for someone being convicted of larceny
> (not robbery or burglary) for taking his own property?
Not off the top of my head. Send me $5,000 for my time, and I'll
find what there is.
But remember larceny is a necessarily included offense to robbey,
and often the intent to commit larceny is an element to burglary.
So if someone is convicted of one of those offenses for taking
property he claims to own (or even does own), he is necessarily
also guilty of larceny (robbery or attempted larceny (burglary).
If you don't understand this basic principle of criminal law, your
arguments will continue to be incoherent.
>>> I keep hearing that it "may be" but nobody has quoted an
>>> appropriate statute.
>>
>>At least two have been quoted, one which is published adjacent
>>to one you incorrectly quoted to support your point.
>
> Though it was misinterpreted, and actually supports my point
> when you include the final clause.
No, it was misinterpreted by you. Please read it carefully. It
has nothing to do with the title holder, and has nothing to do with
the person who actual has authority to exercise control. Nothing.
>>> Again, any such action is prohibited only if theres a specific
>>> law prohibiting it.
>>
>>It's called larceny, and it prohibits that in most cases.
>
> Do you have a citation for any larceny conviction for someone
> taking his own property?
Asked and answered.
Stuart A. Bronstein
> Stuart A. Bronstein <spam...@lexregia.com> wrote:
>>
>>People shouldn't be taking the law in their own hands.
>
> The issue isn't should or shouldn't, it's legal or illegal.
Then it's illegal.
>>Sometimes they're wrong. And allowing that would encourage
>>even more people to try self-help, even if whatever they take is
>>not theirs.
>
> That's meta-law: a reason that a legislature should create laws
> a certain way. I'm interested in existing law.
It is impossible to understand the "existing law" without
understanding what you refer to as the meta-law. The courts lok
into the policy of the law when necessary to determine, when
appropriate, what the existing law is in specific cases.
If you don't understand that basic principle of the law, your
attempts to argue legal points of the law will have no credibility.
>>> My point was that there's no breach of the peace, and no
>>> violation of other laws (specifically, no assault; and no
>>> trespass because that would require intent to commit a crime
>>> in the premises, which didn't exist).
>>
>>If you can do that, you might be ok.
>
> Thank you. That's what I'm trying to establish. You say
> "might"; under what circumstances (given that I accomplish what
> I said) would I still not be ok?
Your question is way too broad. Entire books can be written on the
subject. But basically if you find property that has been taken
from you, and that property is in public and not under the direct
control of another person, go ahead. Otherwise you are violating
the law.
>> But I'd think it would be unlikely. If you see someone on the
>>street and he has something of yours, his resistance to your
>>taking "your" property is a breach of the peace.
>
> Sure; that's robbery (taking stuff from a person in physical
> possession of it). But if he puts it on the ground while he
> walks into a store and I pick it up and walk away, there's no
> breach of the peace.
And there is also no taking property in the possession or under the
control of another person.
Cy Pres
wrote:
>In article <an72i59v7klngtvo4...@4ax.com>,
>Cy Pres <c.p...@yahoo.com> wrote:
>>On Wed, 9 Dec 2009 22:23:27 +0000 (UTC), se...@panix.com (Seth) wrote:
>
>>>Where is the definition of larceny that allows for the committer
>>>thereof to be the owner of the property involved?
>>
>>Ask O.J. Simpson. The issue of whether he owned the property wasn't
>>even dealt with in his criminal trial, where he was convicted of
>>robbery.
>
>Robbery is defined as taking from a person.
I don't know what you're talking about. I explained the concept of
"lesser included offense" and what it means, and that larceny is a
lesser included offense of robbery. What it means is that the greater
offense contains all the elements sufficient to convict of the lesser
offense.
Are you denying this basic, black letter law that routinely operates
in Nevada and many other jurisdictions that have not redefined these
common law offenses in such a way as to break the symmetry between
them? I don't know what game you're playing here, but you're wrong.
And I'm snipping your changes to the fact pattern, because they don't
change what really happened, and what really happened, in reality, was
what I was discussing.
Seth
>Here you're talking about Nevada. There they treat it differently.
>Instead of calling it larceny, they make it a separate offense:
>
>"A person who, under circumstances not amounting to robbery, with
>the intent to steal or appropriate to his own use, takes property
>from the person of another, without his consent, is guilty of [an
^^^^^^^^^^^^^^^^^^^^^^^^^^
>offense]." NRS 205.270
Violating that requires two things: (1) intent to steal or appropriate
to his own use; it's not clear that applies to property he owns, and
(2) it must be from the person of another; it clearly doesn't apply if
the "other" person is not physically present at the time.
>> That applies _only_ if larceny is a lesser included offense.
>> But the definitions I've seen imply that it isn't: larceny
>> involves taking *someone else's property* while robbery involves
>> *taking stuff from a physical person's possession*.
>
>You're just flat out wrong. If it's not larceny it can't be
>robbery.
By the law you quote, that isn't clear.
>> Not under the IL definition of theft, at least, which
>> specifically refers to "property of the owner".
>
>I've shown you that this statement is incorrect, based on the
>adjacent illinois statute you neglected to notice.
Except that you seem to have missed the last phrase.
Seth
Seth
Stuart A. Bronstein <spam...@lexregia.com> wrote:
>se...@panix.com (Seth) wrote:
>> Stuart A. Bronstein <spam...@lexregia.com> wrote:
>>> The law is clear, and has been demonstrated to you in several
>>>instances, that if you claim ownership and you have possession,
>>>taking it from you without your consent and without court
>>>intervention is larceny.
>>
>> Only if the taker is not the actual owner.
>
>No, you're wrong. In OJ's case, remember, he was convicted of
>armed robbery - stealing property, even though what he took was
>supposedly his. The actual owner is not allowed to steal from the
>person in possession any more than anyone else.
Rather, even the actual owner is not allowed to threaten other people
with lethal weapons in order to take property.
>>>But the court will throw you in jail if you try to take it back
>>>before you get a court order.
>> Do you have any citations for someone being convicted of larceny
>> (not robbery or burglary) for taking his own property?
>Not off the top of my head. Send me $5,000 for my time, and I'll
>find what there is.
How much will you pay me if you can't?
>But remember larceny is a necessarily included offense to robbey,
>and often the intent to commit larceny is an element to burglary.
>So if someone is convicted of one of those offenses for taking
>property he claims to own (or even does own), he is necessarily
>also guilty of larceny (robbery or attempted larceny (burglary).
No, I'm looking for a case where _only_ larceny is charged (and a
conviction obtained) for someone taking property that he *actually
owns*, and the court either acknowledges in the criminal case that he
owns it, or accepts into evidence the result of a prior case showing
his ownership.
>If you don't understand this basic principle of criminal law, your
>arguments will continue to be incoherent.
I understand the principle, but the definitions I've seen don't make
it apply. Robbery is taking from a person; the statutes quoted didn't
state anything about the ownership of the property.
>>>> I keep hearing that it "may be" but nobody has quoted an
>>>> appropriate statute.
>>>At least two have been quoted, one which is published adjacent
>>>to one you incorrectly quoted to support your point.
>> Though it was misinterpreted, and actually supports my point
>> when you include the final clause.
>No, it was misinterpreted by you. Please read it carefully. It
>has nothing to do with the title holder, and has nothing to do with
>the person who actual has authority to exercise control. Nothing.
Then why is the phrase "and without whose consent the offender has no
authority to exert control over the property." included? What does it
mean? Clearly, it refers to somebody who has authority to exert
control without the consent of the thief-in-possession. Who would be
a person with such authority? There must be some meaning to that
clause.
>> Do you have a citation for any larceny conviction for someone
>> taking his own property?
>
>Asked and answered.
With a negative.
Seth
Seth
>> Robert Bonomi <bon...@host122.r-bonomi.com> wrote:
>>>
>>>You, perhaps 'conveniently', "forgot" to look up the definition
>>>of 'owner' as related to the Illinois statute on 'theft'. For
>>>purposes of the theft statute, 'he who is in possession' is the
>>>'owner', EVEN IF he came in to such possession unlawfully (e.g.
>>>by stealing it).
>>
>> You neglected the final part of that paragraph: "even though
>> such interest or possession is unlawful, and without whose
>> consent the offender has no authority to exert control over the
>> property."
>
>That supports his claim, not the opposite.
OK, let's look at it clause by clause.
>"Sec. 15-2. Owner.
> "As used in this Part C, 'owner' means a person, other than the
>offender,
The offender is the person (potentially) being charged with the crime,
that is, the actual owner (not the thief-in-possession) who takes his
own property back.
> who has possession of or any other interest in the
>property involved, even though such interest or possession is
>unlawful,
That refers to the thief-in-possession, stating that taking from him
is stealing, except for the last clause:
> and without whose consent the offender has no authority
>to exert control over the property."
Now, what is the meaning of that final clause? What effect does it
have? When does it apply?
I don't think the legislature included it because they got paid by the
word. I think they intended it to have a meaning and effect.
According to that exception, anybody who has authority to exert
control over the property without the consent of the
thief-in-possession, if he is the "offender", then the
thief-in-possession is not considered the owner.
>> Now, does the *actual legal owner* have authority to exert
>> control over *his own property*? I say he does, so with respect
>> to *him*, the illegal possessor is _not_ the owner.
>
>You are misreading the statute.
Please explain the meaning and purpose of that final clause in that
case.
> The actual owner has the right to
>go to the authorities or the courts and prove the property is his.
That isn't part of the statute.
>Otherwise it is illegal to take it from someone who has possession,
>even if that someone's possession of the property is unlawful.
What does the final clause of 15-2 mean, then? When and to whom does
it apply, with what effect?
>>>Thus, for purposes of the theft statute, the thief in possession
>>>of stolen property _is_ the 'owner' of that property,
>>
>> only with respect to third parties, those who have "no authority
>> to exert control over the property".
>
>That's not what the statute says.
That's precisely what that final clause of the statute says.
>> Example: a laptop computer is stolen. It gets connected to the
>> Internet. Unknown to the thief, the owner has the ability to
>> control it, and uses that control to have the computer's camera
>> take pictures of the thief, and report its location. (He then
>> calls the police, or publishes the information; he doesn't
>> attempt to retrieve it physically himself.) Now, did the owner
>> have the *authority* to *exert control* over the computer? I
>> say he did; do you believe he could be convicted of illegal
>> access to a computer as a result of his actions?
>
>You are misreading the statute. The phrase, "without whose consent
>the offender has no authority to exert control over the property,"
>refers to the person in possession, not the owner.
The clause means "without the consent of the thief-in-possession, the
person taking has no authority to exert control over the property".
That applies to everybody *except* the owner, who has such authority
by dint of ownership.
Otherwise, what is the possible effect of that last clause?
Seth