Harassment, Stalking, Misconduct Disturbing the peace

[Jenbau]

On May 8th, a dispute with the neighbor over parking turned bad. He came to my home (when my husband was gone) and made a threat to kill my husband. When my husband returned home and found out that the neighbor had been there making threats, he called the police. The police came out and calmed the situation, but to our knowledge did nothing about the threat at that time, like taking a report.

Later that evening, we reviewed a video tape from our surveillance system, which we purchased due to the ongoing situation with the neighbor. It turned out we had audio and video of this neighbor making the threat. The police were called out 3 days later to make a formal report on the threat and receive the tape as evidence. This tape was sent on to the DA for prosecution of a 422, making terrorist threats.

Later I found out that the neighbor was (also?)charged with a 415, disturbing the peace, which I am assuming stems from the first night he made the threats.

I would like to know if the 415 and the 422 (penal code) are two different charges? If so, do they charge the neighbor with the 415 first and then the 422? Is the PD covering their behinds by submitting a 415 versus just a 422 to the DA?

One final question, can this be a slam dunk case for the DA if there is audio and video on the threat he made?

 

[NYClex]

since you don't mention the state you are in I cannot comment on the exact provisions of the penal code.

But yes, those two offenses are two different and separate offenses. It is common practice of prosecutors to charge an offender with every applicable offense in order to have a certain bargain power for a plea bargain.

I give you an example of my home state New York:

One offense chargeable here would be what New York calls "menacing", that would be what your state calls "making terroristic threats." Here it would be charged as a third degree offense which is a class B misdemeanor. It carries a maximum sentence of 3 months in prison.

The other offense would in New York be "disorderly conduct" which is defined among other elements as a person engaging in "tumultous or threatening behavior with the intent to annoy or alarm..."

This only is a violation which carries a maximum sentence of 15 days in jail and/or a $ 250 fine.

Now the prosecutor can offer: if you plead guilty to the violation charge of disorderly conduct and avoid the inconvenience of a trial I will drop the misdemeanor charge of menacing. If you don't and cause me all the trouble of a trial, I will go after you and see that you sit in jail for 3 months!


But be that as it may, your video surveillance tape in connection with your eyewitness statement of course is a very good proof.

By the way, you might also have a civil case against the neighbor for trespass. The tape should be great evidence for that charge, too.

 

[Jenbau]

I live in California.

I guess the bottom line is, I don't want the neighbor to get away with what he's done. I don't know how the courts work, and figured this might not be an offense they take too seriously.

Tell me more about trespass. This might be something I want to pursue.

 

[NYClex]

Trespass to land is a civil tort, a wrongful act for which the courts will provide a remedy in a civil case.

Here you probably have "intentional trespass to land", that is the intentional unauthorized entering of land in the possession of another. The law doesn't really care about why the tortfeasor entered the land (except if he had a privilege to do so), so even if he would have had good intentions, if you did not authorize him to enter your land, he committed a trespass. Or in other words, the person unlawfully entering your land does not need to have the intent to do harm on or to your land, he just needs to have the intent to enter the land, to commit this tort.

Usually of course the scope of tort law is to provide the plaintiff a remedy for suffered damage. Now this person probably did not cause any damage to the land. But the courts have also decided, that there need not be any damage. If there are no actual damages, nominal damages will be awarded, may be one Dollar.

Of course it is arguable, if it is worth to sue someone for this if all you might get out is one Dollar.

But there are more possibilities: Some courts have awarded damages for the "mental distress" that a trespass caused them, even when there was no tangible damage. It could probably be argued that this person here caused you mental distress when he trespassed on your land.

If the defendant's conduct was "outrageous or malicious" the court might even award "punitive damages." One should not rely on that, though, because the courts do interpret conduct as "outrageous or malicious" only in a very restrictive way.

Depending on what exactly went on in this encounter you might even want to look into an action for "intentional infliction of emotional distress." Usually this is much more difficult to prove than a trespass, because in the latter you only need to prove the defendant entered your land intentionally without being authorized to. In an IEED case you have to prove that the defendant intentionally (!) inflicted emotional distress on you by conduct that was "extreme and outrageous". Again the courts intrepret this very restricively, most conduct, as much reprehensible the average person thinks it is, does not qualify as "extreme and outrageous."

Or you might even have an assault case, though this is probably a little far fetched, since the courts do not usually hold that an assault occurred when the threats were made by words alone, and they never rule an assault occurred, when the threats were against a third person who was not present. But if you can prove that you felt that this person might harm you in the next moment, this would be an assault.

So the easiest way to go probably is to pursue the trespass case. You might want to consult a lawyer and go over the details of the case with him to find out if it is worth pursuing it.

 

[Jenbau]

Thank you for the information on the trespass. I am going to probably look into this with an attorney.

I am hoping the neighbor smartens up. So far, he hasn't shown respect for the courts. His first appearance was for July 12, which he FTA'd. He then made an appointment for July 21 and took care of the FTA. It looks like he is going to be in the court system for a while longer.