Boobytrap Law

International conventions ban landmines in what is charmingly called “civilized warfare.” The law will not tolerate them being used to protect mere property.

An “Alarm Gun.” The hammer is held back by a nail between the hammer and a pivot in the center of the gun. When the lever at left is raised, the pivot is released onto a percussion cap and a charge of black powder is fired. The burglar then presumably runs screaming into the night. If a bullet is loaded into the barrel something worse might happen. Of course people have been killed with blank ammunition, birdshot and BB guns.

An Iowa farmer spent ten years trying to prevent break-ins at an old farmhouse used for storage.

Boards were nailed across windows and doors and “no trespassing” signs were put up to no avail. Tired of being tormented, the farmer set a 20-gauge shotgun to fire when an interior bedroom door was opened. On his wife’s suggestion he lowered the barrel from stomach level to leg level. The gun was not visible from outside the building and no warning of the trap was given. On July 16, 1967, Marvin Katko broke into the old house to steal antique jars and similar items. He had broken into the house before without injury and seems to have considered this a precedent.

Generally it is not necessary to make property safe for trespassers, but it is not legal to make property more dangerous through boobytraps.

Mr. Katko opened the bedroom door, triggering the shotgun. Time magazine, not a bastion of ballistic reliability, reported that the gun was loaded with buckshot. Whatever the load, the results were crippling and at short range even birdshot has proven lethal.1 Mr. Katko would later say that he was six feet two inches on his left leg, and six feet zero inches on his right. Mr. Katko pled guilty to burglary. Since this was the first time he had been caught, he was fined $50 and paroled during good behavior from a 60-day jail sentence. He then decided to sue.

Mr. Katko’s damages totaled $3,578.65 including $750 for lost wages while in the hospital. The jury awarded him damages of $20,000 actual damages and pain and suffering, and an additional $10,000 for punitive damages. This was a substantial sum for the time. There was an outcry. It was suggested that the jury had been unduly influenced by the physical appearance of the parties. Mr. Katko is reported to have been handsome, and the defendant farmers were not. Some thought that the all-female jury had swooned over the verdict forms.2

The matter was appealed and the all-male justices of the Iowa Supreme Court affirmed the jury verdict.3 The issue on appeal involved the duty a property owner owes to a trespasser. Generally it is not necessary to make property safe for trespassers, but it is important to know that boobytrap law—make property more dangerous through boobytraps—is not legal.

Modern comparative fault systems would have compared the faults of the parties and perhaps a different damages figure would have been reached, but the outcome would have been the same, and the farmer would have been forced to pay.

The defendants later sold the majority of their farm to pay off the judgment. Four years after the decision the farmer was asked what he would change about the situation if he could. He replied, “There’s one thing I’d do different, though. I’d have aimed that gun a few feet higher.”4

Almost twenty years later another property owner was pushed beyond legal boundaries, breaking the “boobytrap law.” Prentice Rasheed owned a store in the Liberty City area of Miami, Florida. Burglars were driving him out of business. A hole had been chopped in his roof, which the burglars could renew faster and cheaper than he could repair it. He went to the police and the City Council to request increased police patrols.

But Liberty City was not a police-friendly or politically powerful neighborhood and the police are not required to provide any measure of protection to any given area. Frustrated, he placed a metal grid under the hole and ran a wire from the grid to an electrical outlet. Mr. Rasheed had been shocked by electrical outlets and believed that burglars would be deterred by similar shocks.

Today, international conventions ban landmines in what is charmingly called “civilized warfare.” The law will not tolerate them being used to protect mere property.

The Story of Mr. Rasheed

On September 30, 1986, Odell Hicks broke in through the roof, negotiated the electrified grid without incident and began removing merchandise. When he tried to drag a stolen boom box through the grid something new happened, and he was found electrocuted the next morning. The reason for his ability to get in but not out is unclear. Perhaps the stolen boom box allowed a better electrical connection. Perhaps it was one of those situations where God says, “Let’s see what they do now.”

What they did was bring Prentice Rasheed’s case in front of the Grand Jury on manslaughter charges and violation of the Florida law against boobytraps. The Grand Jury is one of the Constitutional protections against government abuse, but despite the grandiose title, the Grand Jury knows less about a case than trial juries, often less than a diligent newspaper reader. It only hears from the prosecutor, and only learns what the prosecutor believes to be important to getting an indictment.

Mr. Rasheed was invited to waive his rights and appear before the grand jury. His lawyer wisely forbad such a step. One appears before the Grand Jury alone, without friend or legal counsel. A professionally trained inquisitor asks questions and challenges actions until enough material exists from which to knit an indictment. If the guest of honor survives the experience, the prosecutor can regroup and bring the matter before another Grand Jury. The prosecutor can also go over the transcript to find some statement that lacks a hairsbreadth of the truth, and charge the witness with lying to the Grand Jury.5

Mr. Rasheed’s attorney took the case to a higher court, that of public opinion. The late, unlamented Mr. Hicks was a notorious burglar, drug addict6 and rapist. Mr. Hicks is said to have bragged of raping seventy-five to one hundred women. He had recently been sentenced to life plus thirty years.

The system either did not work or worked too well, and he was returned to the streets to die in Mr. Rasheed’s store. The public, from which the Grand Jury would be taken, knew the circumstances of Mr. Rasheed’s boobytrap, and the life of the monster he had killed.

The Grand Jury found that Mr. Rasheed had used deadly force without justification. However, it further found that he did not intend to kill Mr. Hicks. It closed with a recommendation that the laws against boobytraps be reviewed and enforced, but did not indict Mr. Rasheed. No relatives appeared to file suit. Mr. Rasheed continued to operate his store, and there is the occasional burglary.7

Boobytrap Law Cases

These two similar boobytrap law cases had massively different results. In the Iowa case the burglar was a handsome first offender who held a regular job and broke into an abandoned farmhouse. In Miami the burglar might have appeared on a postage stamp celebrating dangerous felons month. Legal strategy worked better in Miami, but both defendants spent enormous amounts of money on legal defense.

The Iowa case appears in every law school textbook on personal injury lawsuits. Every lawyer in America learns that this is what the law is, and what it should be. The common law is reinforced with statutes. Setting a “spring gun” is specifically a crime in most states. A spring gun is any device designed to cause an “explosion for the purpose of inflicting serious physical injury or death.”8 It does not have to be a gun; anything which triggers an explosion in any fashion qualifies.

Other types of boobytraps are not specifically criminalized. However, they are certainly dangerous and deadly devices, and, if used, will amount to assault at minimum. If a person is killed, the charge is likely to be at least second-degree murder. One defendant was convicted of capital murder and sentenced to death after setting a spring gun designed to kill police officers in general. He intended to blame the murder on a personal enemy.9 The concern is that a fireman or other emergency personnel might enter the boobytrapped premises and be injured. Even if the injured person were a burglar, charges would be filed. Hazardous force can only be used to protect persons, never property.

Spring guns, often called “alarm guns,” were commonly used through the mid nineteenth century. They are casually mentioned in Greener’s The Gun and Its Development.10 They came under increasing legal criticism as the law developed to consider human life to be worth more than property.11 Today, international conventions ban landmines in what is charmingly called “civilized warfare.” The law will not tolerate them being used to protect mere property.

Property protected by dogs frequently sport, “beware of dog” signs. Property not protected by dogs cannot fail to benefit from such a sign.

No cases have been found which include the use of dogs or other animals in the definition of boobytraps. Animals are often used to restrict access to business and property.12 Many of the boobytrap cases stress that there was no warning of the boobytrap.

Property protected by dogs frequently sport, “beware of dog” signs. Property not protected by dogs cannot fail to benefit from such a sign. Dogs with severed vocal cords, or other indications of hidden hazards might be taken as a boobytrap. Courts and juries have been known to stretch the law in extreme cases, on the theory that nothing should impede a good conviction.

Related: Don’t make these concealed carry mistakes: Learn your rights to defend and keep yourself out of jail…

 

[ Kevin L. Jamison is an attorney in the Kansas City Missouri area concentrating in the area of weapons and self-defense. ]

 


Please send questions to:

Kevin L. Jamison
2614 NE 56th Ter
Gladstone, Missouri 64119-2311
KLJamisonLaw@earthlink.net

Individual answers are not usually possible but may be addressed in future columns.

This information is for legal information purposes and does not constitute legal advice. For specific questions you should consult a qualified attorney.

  1. During the Young Brothers Massacre of January, 1932 in Green County, Missouri the Youngs killed six of ten police officers and wounded three more using a 25-20 rifle and 12 gauge pump shotgun loaded with #4 birdshot.
  2. Andrew J. McClurg, Poetry in Commotion: Katko v. Briney and the Bards of First-Year Torts, 74 Oregon Law Review 823 (1995).
  3. Katko v Briney, 183 N.W.2d 657 (IA 1971). See also Briney v Katko, 197 N.W. 351 (IA 1972) in which the Court essentially ruled, “Yes, we really mean it.”
  4. Not a helpful comment. If he had been in a self-defense situation later he would have been beaten to death with this sentence afterward.
  5. A consolation prize for the prosecution.
  6. The cocaine in his system may have contributed to his death but was not directly related.
  7. Rubin & Matera “Get Me Ellis Rubin!”, St. Martin’s Press N.Y. 1989 pages 127-147.
  8. RSMo 571.010(16).
  9. State v Deblar, 856 S.W.2d 641 (Mo. banc 1993) at 645 and 650.
  10. Greener The Gun and Its Development, Odysseus Edition Inc for the NRA reprint of Cassell & Co Ltd London and N.Y. 1910 at 519.
  11. Bird v Holbrook, 130 Eng. Rep. 911 (C.P. 1825). The court ruled that the thief could sue.
  12. See “Animal Weapons” Concealed Carry Magazine, May/June 2009 at 44.

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