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Can You be a Menace on Your Own Property?

That’s part of the question in an Alabama case that the NRA Civil Rights Defense Fund is getting involved with down there. It’s definitely an interesting case based on the details provided in this news account.

A developer/landlord was convicted of misdemeanor menacing after he was merely holding his shotgun (not pointing it, from the description in the article) on his property while ordering a former tenant who owed millions in back rent off site. The former tenant was removing hundreds of thousands of dollars worth of items from the property that the landlord said were considered part of the property until the back rent was paid – items like sinks, stoves, and booths that might, depending on the nature of the contract, actually be considered part of the building. In other words, the tenant wasn’t on site to grab his coat or family pictures that he left behind. He was ordered from the property, and the police were called.

The police officers at the time didn’t feel like the developer was committing any crimes in how he handled himself with the trespassing tenant. However, the trespasser filed charges later. So now there’s a question over whether or not Alabama residents may legally possess a firearm on their own property while ordering a trespasser to leave.

19 Responses to “Can You be a Menace on Your Own Property?”

  1. Barrett says:

    But of course! Obviously you shouldn’t possess a firearm on your own property… it’s for the public good, and for the children!

    Besides, that angry ex-tenant might have taken that shotgun away from him and hurt him with it.

  2. mikee says:

    Odd coincidence here – I got my Texas CHL precisely because I felt threatened by a very recent ex-tenant, and wanted to make doubly sure I knew the laws for going legally armed and for self defense here.

    I kept a pistol with me while cleaning the apartment after the tenant left. I kept it openly on the countertop in the kitchen because I was pretty sure at the time I could not openly carry it in Texas off my property, and extremely sure I could not carry it concealed without a license. I was correct in both, as I found out at my CHL class.

    Fortunately, the ex-tenant was all bark and did not show up ever again.

    • Matthew Carberry says:

      You didn’t own the apartment?

      Usually property to which you are entitled is considered your property, although I’ve been surprised by other Texas gun laws before.

  3. Old NFO says:

    Interesting quandry, and I can’t help but wonder if Pate filed counter charges for theft! I can’t personally see where he was in the wrong, if he owned the property, and they had defaulted.

    • Jujube says:

      Commercial property works differently than other rental property. Usually “improvements” (sinks, cabinets, booths, industrial kitchen equipment, carpets, etc.) are property of the tenant. That property may have had a separate liens on it (bank loans with the property as collateral) so Pate had no right to it even if he was owed rent.

      That’s the purpose of bankruptcy: to sort the whole mess out.

      • Jujube says:

        There is more information in this story: http://www.tuscaloosanews.com/article/20120623/news/120629951

        “The lease was terminated Sept. 29, 2009, due to non-payment of rent, but Santa Fe employees went to the property with several police officers the next day to retrieve leased restaurant equipment.

        “Police Officer Robert B. Phillips testified that everyone present was calm until Pate showed up, changing the “atmosphere.” He said Pate noted that he had a gun in his truck and if police couldn’t evict “everyone,” then he would “take care of it.”

        • HSR47 says:

          I don’t know how they handle things in that neck of the woods, but around these parts, if the landlord locks the tenant out over non-payment of rent, the landlord basically takes ownership of the contents of the rental property. Generally speaking, the landlord doesn’t have to deal with anyone other than the tenant regarding the property.

  4. Divemedic says:

    You don’t settle a civil matter, especially one where the other party has filed for bankruptcy protection, by intimidating them with a firearm. Let’s be honest here, that is the only reason he happened to be holding a shotgun.

    • HSR47 says:

      The issue is that the tenant presumably had notice that he was going to be locked out, and the landlord followed through with locking out the tenant.

      Once that lockout occurred, the former tenant no longer had a legal right to be on the premises, nor did said tenant have the right to remove items from the property. Essentially, what the former tenant did amounted to criminal trespassing and theft.

  5. Bubblehead Les says:

    Hmmm. Not sure that this is the right case to determine a 2A Issue regarding Commercial Property. But I think that this area needs to clarified on a National Level. I’m thinking of Koreatown during the Rodney King Riots, New Orleans during Katrina, etc. Just what is the Legal Limit for a Shop Owner? I can’t see “Castle Doctrine” coming onto this, because the Property Owner didn’t live above the business. Nor can I see “Stand Your Ground” applying, because no one came after the Property Owner using Deadly Force. And the Police were already on the scene, so the old “Citizen’s Arrest” doesn’t seem to apply, either.

    This should prove interesting.

    • Harold says:

      Context really matters. I.e. who initiates the violence or threats of violence? Not the ones we’re concerned about in Koreatown or New Orleans.

    • HSR47 says:

      Theoretically Castle Doctrine and/or Stand Your Ground laws could apply here. It’s all in the context.

      The way I understand the law to work, at least around these parts, is that when a landlord decides to evict and lock out a tenant due to non-payment of rent, the landlord has the right to seize the contents of the rental property so he may sell them in order to recoup what he is owed in back rent.

      It’s a concept that has a very long history in common law: http://en.wikipedia.org/wiki/Distraint

      The issue is that the former tenant presumably received notice of eviction from the landlord, and was likely also informed that the landlord intended to sell off the contents of the rental property to recoup unpaid rent.

      Thus, by entering the property in order to remove valuable hardware, the former tenant(s) likely committed a number of felonies.

      Generally speaking, many states have statutes that permit the use of force by citizens to stop felonious actions, especially when the citizen using force is doing so to protect his own property.

      Now, I haven’t really read much into this case, but on the surface I have no reason to suspect that anything other than the above is true.

      As for the presence of police there aiding the former tenant, I wish to remind everyone of the fact that police officers are rarely in-the-know with regard to applicable laws. If I had to guess, they confused the laws regarding RESIDENTIAL property and COMMERCIAL property: It’s generally illegal to lock a tenant out of residential property, but it’s entirely legal (and common practice) to lock tenants out of commercial property.

      • Jujube says:

        The landlord has no rights to property owned by parties other than the tenant.

        Also, what happens with the automatic stay provided by filing bankruptcy?

        • HSR47 says:

          Wrong.

          The landlord locked the tenant out and claimed distraint.

          The landlord has a contract only with the former tenant, and therefore he had no legal obligation to deal with anyone other than responsible party on the lease.

          As for any stay imposed by a bankruptcy filing, I assume that all it would do is require the landlord to postpone selling off the contents of the property.

          • Jujube says:

            Beyond the fact Pate was dealing with the tenant, you are wrong about leased equipment.

            Leased equipment remains property of the lessor and cannot be distrained. http://corporate.findlaw.com/business-operations/landlord-lien-waivers.html

            I don’t know what state you are in, but all states have different laws. What may be totally fine in your state may be completely illegal in mine.

            • HSR47 says:

              I’ll preface this by acknowledging the obvious: I am NOT a lawyer, and nothing below should be construed to be legal advice.

              Anyway, besides the fact that your article applies to NJ, it’s also old, and based on fairly solid common law traditions.

              I read a good chunk of it though, and what I took away from it is this:

              First, absent a separate agreement between the landlord and the lessor, The landlord DOES have a claim against the property leased by the former tenant; That claim entitles the landlord to recover back rent from the lessor of the equipment.

              Second, that such separate agreements are common practice.

              That said, were the former tenant to make entry into the property, without the advance knowledge nor consent of the landlord, to recover said equipment, he would be committing criminal trespass and theft.

              Assuming that the landlord signed a lien waiver regarding the leased equipment, it falls to the lessor to recover the property directly from the landlord.

              A bankruptcy filing does not grant the former tenant the right to enter the rental property without the consent of the landlord.

  6. Jujube says:

    I think the NRA is only getting involved in this because Pate is politically connected. It’s politics, not law.

  7. dustydog says:

    I suspect that the appellate judge will find the police behavior outrageously illegal. Reads like a couple of good old boys went to help their buddy get the leased equipment back.

    As a parallel example, if you have rented equipment in your truck and the city tows it for being illegally parked, they won’t let you get the equipment out while you fight the ticket. The government is always ‘pay me first and figure it out later.’

    • Harold says:

      And if so, that could explain although not excuse the belligerence of the landlord (like it or not, outside of Texas you are not allowed to use lethal force to prevent property theft).

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