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Thread: Missouri man charged with murder for shooting thief on his property.

  1. #1
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    Missouri man charged with murder for shooting thief on his property.

    http://www.fox4kc.com/news/wdaf-neig...,3392677.story


    KANSAS CITY, MO. —
    Friends and neighbors are coming to the defense of a Kansas City, Missouri, man who police say shot and killed a would-be go kart thief in his back yard last weekend.

    Oscar Cerna is charged with second-degree murder after he allegedly shot and killed a man that he says he saw taking a go-kart from his home near 11th and Belmont last Saturday morning.

    Police say that Cerna told them that his barking dog woke him up, and he looked outside to see a man pushing his go-kart out of his yard. Police say Cerna grabbed a rifle, opened his window and fired two shots, hitting 43-year-old Ephram Merrit-Esquivel in the head, killing him.

    Neighbors say that theft is common in the Sheffield area of Kansas City, and that you should be able to protect your property.

    "I don't know if I personally would take it that far, maybe chase him with a bat or something but I think it's justified," said neighbor Jennifer Meeks. "I don't think they should charge him for anything actually. I think it should be legal. I thought it was."

    Missouri's Castle Doctrine allows citzens to use deadly force to defend themselves from unlawful force by another. In this case, prosecutors say the would-be thief was leaving Cerna's property and posed no imminent threat. Neighbors concede they probably wouldn't have used deadly force, but say they would have taken action to stop the stealing.

    "I don't blame him," said neighbor Todd Brown, Jr. "You have to blame the person who was stealing."

    Neighbors told FOX 4 that they understand why Cerna felt frustrated. They say he had been targeted in recent months by Hispanic gangs who vandalized his home and stole his property.

    Neighbor Lisa Jungo says that Cerna was a good neighbor, and says that many people in the neighborhood share his frustration with the crime that they say happens all around them.

    "Hopefully all these idiots out here that don't want to go get a job and don't want to take care of their family on their own and want to steal other people's property, maybe that will scare them away and we'll be left alone for a little while," said Jungo.

    Cerna remains in jail in lieu of $250,000 cash-only bond.

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    Regular Member Lokster's Avatar
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    Without discussing the legalities of this event as it occurred in Missouri or a similar event in any other state and regardless of how the state comes down on it, do you believe Cerna is morally justified in how he handled the situation?

    I think he is. I don't believe someone would have to put their own life at risk, ie chasing the BG off with a bat, especially on their property, in order to try to stop any crime being committed against them.

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    Regular Member FarNorth's Avatar
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    I would have to respectively disagree. I don't believe a 'go-kart' is worth a human life. There are several things he could of done before taking a life.

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    Well, lets say he didn't shoot him from the window...lets say this old bastard chased him outside with a bat in his back yard...lets say this gangbanger felon sob has a knife or gun and kills the old guy trying to protect is property. I suppose its better to be judged by 12 then to be carried by 6...this guy is one hardcore mother and I'd do the same thing if in his shoes. I guess blood does make the grass grow...Hoorah!!!

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    Regular Member Lokster's Avatar
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    Quote Originally Posted by FarNorth View Post
    I would have to respectively disagree. I don't believe a 'go-kart' is worth a human life. There are several things he could of done before taking a life.
    Of course a go-kart isn't anywhere near the value of a human life, complete apple and orange comparison in my opinion, but suppose he was shooting to stop the BG and not kill him. According to the news segment two shots were fired and one hit him in the head.

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    Quote Originally Posted by Lokster View Post
    Without discussing the legalities of this event as it occurred in Missouri or a similar event in any other state and regardless of how the state comes down on it, do you believe Cerna is morally justified in how he handled the situation?

    I think he is. I don't believe someone would have to put their own life at risk, ie chasing the BG off with a bat, especially on their property, in order to try to stop any crime being committed against them.
    I've been thinking about this one and its a toughie. I guess I am on the fence.

    If it were my go kart and it was worth a couple thousand dollars or more, that's worth alot more to me than some scumbag thief. That guys life isn't worth a nickel when it comes to my property being taken by him. However, if we do allow the man to shoot to kill in this situation, do we also allow anyone to kill another for taking something off their property or should be impose a monetary limit on the theft to meet the justification for the use of deadly force?

    I may want to shoot someone for stealing an expensive piece of machinery but do I shoot the guy stealing corn from my garden or stealing a snow shovel I left in my driveway? Do we allow Wal Mart or the local liquor store owner to shoot people trying to exit their premises with property that the business owner believes is stolen?

    Now in Missouri's Castle Doctrine, "bascially and far from being exact as written in statutes" you can use deadly force if the person has entered your dwelling or your vehicle, if they are committing a forcible felony against (I believe its your person) or if you are under threat of imminent physical harm. I believe if this thief would have been in the go kart, this man might have a much easier case based on an earlier case where a man wasn't charged in the state when he shot and killed another who jumped into his vehicle he left running at a service station and attempted to drive off with it.

    One thing is for sure, this shooter will lose alot more in value than what that go kart is worth before its all said and done. If he would have went out and physically or verbally confronted the guy and then could argue that the man aggressed towards him, in my opinion the shooter should have a better chance to defend himself in court or not even be charged in the first place. Unfortunately, in order to do that, the shooter would have to place himself in a much more dangerous situation should the perp be armed and willing to use it.

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    Regular Member FarNorth's Avatar
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    Yeah,, it's very possible he wasn't shooting to kill. Did the property owner say that? I guess I'd take him at his word if he did. Personally I've set the bar pretty high for taking a life myself and I can't say for sure if I were in a situation where I need to draw my weapon on someone that I could maintain that high mark. I hope I could but won’t know unless that happens, I may fail, I may not. I pray to God I make the correct decision.

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    I am not going to condemn the man for making the decision he made in shooting the guy but if I find myself in a very similar circumstance, I am not going to attempt to kill. Its not even so much as whether that guy's life is worth my go kart because I personally don't believe it is. Its that my life and freedom are much more valuable than that go kart and that's what you are risking when you make that choice.

    Its going to take a hell of a lot of fear or danger for me to feel like I need to shoot someone. I hope people take notice and realize even if its illegal to be shot for sneaking away from some man's home with his stuff, that you are still risking your life by choosing to do so.

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    I wasn't there so the specifics might matter. So I'm basing my opinion on the article alone and have no knowledge of MO law.

    For me, I would not have shot him from the window. I would have left my house, calling 911 on the way out, armed of course and vary wary, not gotten too close, and tried to stop the thief, yelling that police have been called. I would imagine him seeing my rifle and knowing LEO was on the way, the thief would leave in a big hurry. Any movement indicating he had a weapon or if he became a threat to me, and my finger would quickly have found the trigger.

    For my property that is not insured, I have already made the decision that losing it is not a big deal. If it is insured, then insurance would cover some or all of the loss. Either way, property is not worth a life. If my wife or child had been in the go-kart and was screaming to stop, the situation would be different. I would be protecting a life, not the go-kart.

    This is of course, what I would do. YMMV.

    I don't want to second guess Cerna since I wasn't there. The article doesn't mention his age - if he were older and more frail, running out of the house might not be an option and might have exposed him to more risk. If I were the DA, I'd want to plea bargain this down to lower charge, time served and perhaps probation. But I wouldn't want this man to serve time for protecting his property.
    What part of "shall not be infringed" do *they* not understand?

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    Regular Member Lokster's Avatar
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    The specifics of this case do matter. I doubt Cerna has said anything to anyone except his lawyer, well hopefully; but the fact that he is charged with second degree murder says something. I believe if he is found guilty he could get 10-30 years in prison. That's one jury that I would not want to be part of. Even if it is proven that he did shoot to kill what would be an appropriate sentence?

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    The Thief was on HIS Property in The Middle-of-The-Night! To me..., this one is Easy...,
    [...] The Self-Defense was JUSTIFIED.

    Under Missouri Law: Section M.R.So. 563.041(2) states, that: A Person may Use Deadly Force under Circumstances Described in Subsection [1] only when such Use of Deadly Force is Authorized under other Sections of this Chapter.
    Under Missouri Law: Section M.R.So. 563.041(4) states, that: The Defendant shall have The Burden of Injecting The Issue of Justification under This Section.

    Under Missouri Law: Section M.R.So. 563.031(2) states, that: A Person may NOT Use Deadly Force upon another Person under The Circumstances Specified in Subsection [1] of This Section unless: (3) Such Force is Used against a Person who Unlawfully Enters..., Private Property that is Owned or Leased by an Individual Claiming a Justification of Using Protective Force under This Section.

    Chapter M.R.So. 563 Covers BOTH M.R.So. 563.041(2), 563.041(4), AND M.R.So. 563.031(2).

    Therefore, althought NOT a Legal Opinion, it WOULD Depend on what Missouri Case Law Considers '... Unlawfully Enters...' as Opposed to Land OR Home.

    Suffice to say..., based off of His Charge, it Appears that it would Mean HOME, but I can NOT say for Certain.

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    Quote Originally Posted by aadvark View Post
    The Thief was on HIS Property in The Middle-of-The-Night! To me..., this one is Easy...,
    [...] The Self-Defense was JUSTIFIED.

    Under Missouri Law: Section M.R.So. 563.031(2) states, that: A Person may NOT Use Deadly Force upon another Person under The Circumstances Specified in Subsection [1] of This Section unless: (3) Such Force is Used against a Person who Unlawfully Enters..., Private Property that is Owned or Leased by an Individual Claiming a Justification of Using Protective Force under This Section.
    Bascially that means that the following criterea from Section 1 first has to also be met, which with the limited information available provided by the new's report, its questionable at best. Here is Section 1 along with the other disqualifying criterea for the use of physical force,

    563.031. 1. A person may, subject to the provisions of subsection 2 of this section, use physical force upon another person when and to the extent he or she reasonably believes such force to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful force by such other person, unless:

    (1) The actor was the initial aggressor; except that in such case his or her use of force is nevertheless justifiable provided:

    (a) He or she has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened use of unlawful force; or

    (b) He or she is a law enforcement officer and as such is an aggressor pursuant to section 563.046; or

    (c) The aggressor is justified under some other provision of this chapter or other provision of law;

    (2) Under the circumstances as the actor reasonably believes them to be, the person whom he or she seeks to protect would not be justified in using such protective force;

    (3) The actor was attempting to commit, committing, or escaping after the commission of a forcible felony.

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    I don't know the law in MO, but it sounds like the shoot was unlawful. In AL the law appears to say the shoot would have been lawful. (IANAL)

    However, I must say that I would not shoot, nor would I speak favorably of shooting just to protect property.

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    Personally I don't fault the man for shooting the thief, if you are willing to risk your life to rob a person you deserve every bullet you get plain and simple. Would I have shot him not likely, but I am sick and tired of people who bust their butt to support their family to only have ghetto scum trying to steal it. People like that deserve no quarter and if they die in the process of doing so, so be it. I would love to see the robbers family sent a bill from the city that had to remove the body and all clean up costs.
    Last edited by zack991; 01-27-2011 at 08:56 AM.
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    I think that anyone that takes up the profession of thievery, burglary, rape, etc. should have to register with there local police dept. submit to finger printing,and a photograph. Provide proof of insurance and provide the name of nearest living relative .
    Then when they get caught and shot there insurance will have to pay the victim and the next of kin will have to come and clean up the mess.
    I may not shoot them depending on the circumstances, but I have been know to chase them down.

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    REVISED MISSOURI STATUTES
    Use of physical force in defense of property.
    563.041. 1. A person may, subject to the limitations of subsection 2, use physical force upon another person when and to the extent that he or she reasonably believes it necessary to prevent what he or she reasonably believes to be the commission or attempted commission by such person of stealing, property damage or tampering in any degree.

    2. A person may use deadly force under circumstances described in subsection 1 only when such use of deadly force is authorized under other sections of this chapter.

    3. The justification afforded by this section extends to the use of physical restraint as protective force provided that the actor takes all reasonable measures to terminate the restraint as soon as it is reasonable to do so.

    4. The defendant shall have the burden of injecting the issue of justification under this section.

    He was justified and the law supports his actions.

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    Quote Originally Posted by Griz View Post
    REVISED MISSOURI STATUTES
    Use of physical force in defense of property.
    563.041. 1. A person may, subject to the limitations of subsection 2, use physical force upon another person when and to the extent that he or she reasonably believes it necessary to prevent what he or she reasonably believes to be the commission or attempted commission by such person of stealing, property damage or tampering in any degree.

    2. A person may use deadly force under circumstances described in subsection 1 only when such use of deadly force is authorized under other sections of this chapter.

    3. The justification afforded by this section extends to the use of physical restraint as protective force provided that the actor takes all reasonable measures to terminate the restraint as soon as it is reasonable to do so.

    4. The defendant shall have the burden of injecting the issue of justification under this section.

    He was justified and the law supports his actions.
    Was he? See the part I bolded. This section does not authorize deadly force. It says it is authorized only if authorized elsewhere. What does "elsewhere" say?

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    Regular Member Griz's Avatar
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    Quote Originally Posted by eye95 View Post
    Was he? See the part I bolded. This section does not authorize deadly force. It says it is authorized only if authorized elsewhere. What does "elsewhere" say?
    Well, here's where my brain starts to hurt reading the statutes.

    This is the link to the whole chapter: http://www.moga.mo.gov/statutes/chapters/chap563.htm

    Specifically, and someone please correct if I'm wrong, I think your bolded part refers to 563.031.2(3):

    "2. A person may not use deadly force upon another person under the circumstances specified in subsection 1 of this section unless:
    (3) Such force is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter private property that is owned or leased by an individual claiming a justification of using protective force under this section."

    The part "claiming a justification of using protective force under this section." confuses me.

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    Quote Originally Posted by x1wildone View Post
    I think that anyone that takes up the profession of thievery, burglary, rape, etc. should have to register with there local police dept. submit to finger printing,and a photograph. Provide proof of insurance and provide the name of nearest living relative .
    Then when they get caught and shot there insurance will have to pay the victim and the next of kin will have to come and clean up the mess.
    I may not shoot them depending on the circumstances, but I have been know to chase them down.
    Might as well have an online service where you can see all known robbers, murders, etc who live around you, much like the pedophile online program. To include their crime, case file, date, mugshot and if a weapon was involved. They have zero right to privacy when they committed these crimes, I want to instantly know all their crimes when passing by these scumbags and whom to watch out for around my home. You want crime to drop make their entire record known that anyone can see and make it extremely hard for them to live their life without people knowing what they have done.
    Last edited by zack991; 01-27-2011 at 10:01 AM.
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    eye95:

    My Previous Thread Enumerates 'Else-where', however; Missouri Law is Sketchy.

    aadvark

    *** I still Think, as a Matter-of-Principle, that, The Shooting was JUSTIFIED. ***

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    Regular Member FarNorth's Avatar
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    Is it only the letter of the law that matters here? What about the morality of it? Does anyone think the shooter was morally justified in killing this man? Personally I don't think so. I think when we have the means to use deadly force on another person we need to exercise above average judgment so we can avoid something like this happening. The shooting may end up being legally justified or he may end up in jail for some time but he still will have to live with the memory of killing someone because they decided to steel his go-kart.

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    The law allows physical force but also appears to give a higher threshold for the use of deadly force. I imagine they use the different wording in order to allow a property owner to tackle and/or restrain someone who is shoplifting or stealing. It is confusing but after reading through all the subsections, that's what I take from it.

    Hopefully if it gets to a jury, this man will be set free. I wouldn't be surprised if the murder charge is used as a frightening leverage in order to get the shooter to plead down to a lesser charge.

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    Regular Member Lokster's Avatar
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    Quote Originally Posted by FarNorth View Post
    Is it only the letter of the law that matters here? What about the morality of it? Does anyone think the shooter was morally justified in killing this man? Personally I don't think so. I think when we have the means to use deadly force on another person we need to exercise above average judgment so we can avoid something like this happening. The shooting may end up being legally justified or he may end up in jail for some time but he still will have to live with the memory of killing someone because they decided to steel his go-kart.
    I have to assume that murder was not his intent when he fired his weapon (innocent until proven guilty). What in your opinion would be a reasonable sentence even if he admitted an intent to kill? Remember the news segment said this guy had been targeted by gangs, his house and property vandalized and who knows what else. I can't put myself in his shoes, who knows how much he feared for his life or even his family prior to and while this was happening.

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    Quote Originally Posted by FarNorth View Post
    Is it only the letter of the law that matters here? What about the morality of it? Does anyone think the shooter was morally justified in killing this man? Personally I don't think so. I think when we have the means to use deadly force on another person we need to exercise above average judgment so we can avoid something like this happening. The shooting may end up being legally justified or he may end up in jail for some time but he still will have to live with the memory of killing someone because they decided to steel his go-kart.
    Legal or illegal does not equate to correct, right, moral, etc. Many laws are simply idiotic. What some incorrectly call vigilantism is more properly called vengeance and true justice, when properly applied. Simply if your dumb and willing to risk your life to enter a mans/woman's property and your end goal is to cause harm being physical or financial harm you deserve every bullet you get.
    Last edited by zack991; 01-27-2011 at 02:30 PM.
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    You have to live with what you do, if you're good with killing someone over property then fine. No skin off my nose.

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