Re: Assault vs. Self Defense
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Publius Syrus
My question involves criminal law for the state of: CA
OK, I already know the first answer: get a lawyer.
Here are the details:
I have been "stalked" by a competitor in my industry for well over a year now. Lots of innuendo through various channels about harm coming to me, comments about my family etc. and at least one incident of verbal harassment. Pictures of me photoshopped into various compromising positions, or made to look like I was beaten and bruised. Bottom line, I have felt threatened, feel threatened by this individual. There is more than enough evidence to substantiate this.
And in light of all of this evidence, have you sought a restraining order, filed a stalking report, or taken any sort of legal action to counteract these actions? (Not that I care, but it's going to be the first question asked in court should this matter see the inside of either a civil or criminal courtroom, regardless of which side pursues the matter.)
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Recently, the individual came within very close proximity to me at a business event. He had a camera with him and at one point when my back was turned he began surreptitiously taking pictures of me - from the angle of the camera, they would have been of my butt.
I approached the individual asking him what was he doing.
So instead of moving away, you chose to confront the individual by approaching him? When you physically approach in a confrontational manner, that's going to make you look like the aggressor, even if in your own mind you were in "defensive" mode.
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He moved toward me and raised the camera toward my face - which alarmed me -
Alarmed you how? Did you truely believe that he was about to physically assault you with the camera, or were you just pissed off due to the ongoing nature of things? Did he attempt to swing the camera at you or otherwise make some motion or gesture other than raising the camera (a typical motion done with cameras) that would make a reasonable person (ie a person on the jury hearing the case) believe that some physical attack was forthcoming?
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and began taking pictures of my face at close range.
He'd have been taking pictures from a greater distance, if you hadn't approached him and closed that distance.
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Using the tips of my fingers, I gently pushed him away to created some distance. This was a defensive move. He stood his ground and continued to take pictures of me and at that point I put my hand on the camera lens, again as a defensive measure.
Look, he's taking pics - you touched him first. You lose. "Defensive" doesn't mean you touch first. You were on offense here.
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While the contact was brief, gentle and caused no physical harm nor any damage to the camera (other than a finger on the lens), it was contact.
Contact is enough. You can face battery charges even without damage or injury to the other party, particularly when you were the one to approach him.
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I am concerned as now this individual has sent emails threatening unspecific legal action, citing physical assault and damage of property. The individual has also posted such claims on public newsgroups. It is obvious that he intends to embellish the incident and use it to tarnish my name and/or get a settlement of some sort should the matter become a civil one.
In civil court, he'd have a pretty heavy burden to show damage either to himself or his equipment given your description. He needs something to sue you FOR (medical bills, replacement lens for the camera, pain and suffering, or some other quantifiable damage that he suffered due to your actions). However, there's no such restriction on the DA pursuing criminal charges against you - probably for misdemeanor battery.
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Please do not insult my intelligence by telling me to get a lawyer. I will when the time is appropriate.
Keep numbers handy for both a civil defense attorney as well as a criminal defense attorney; especially the second as that's the more likely course.
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Until that time I am looking to get some opinions on what the possibilities are as far as courses of action this individual might take and what I should do to protect myself, ie: I consider this individual's actions as threatening in nature. Should I file an assault complaint with the authorities? I am not a US resident, but travel to the US frequently.
Thanks in advance.:cool:
I'd be more worried about HIM filing an assault complaint. You filing the complaint, given your description of events, would be like a person carrying a mask and a wad of $50 bills sticking out of his pocket running up to a police officer to report a bank robbery down the street.
If you feel this person is an ongoing threat, and have whatever "documentation" you think can make your case, then get your butt in front of a judge and ask for a restraining order (although now that YOU have layed hands on HIM, he's got a good chance of getting one first or in conjunction with your request). When you go before a court and want to go on and on about continuing issues that might constitute threats or harassment, the first words out of your mouth need to be something along the lines of "and here's my stack of police reports about the many things that I feel constitute threats or harassment". Not, "I got sick of it and took it upon myself to deal with the issue physically".
Re: Assault vs. Self Defense
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Quoting
Publius Syrus
I have been "stalked" by a competitor in my industry for well over a year now. Lots of innuendo through various channels about harm coming to me, comments about my family etc. and at least one incident of verbal harassment. Pictures of me photoshopped into various compromising positions, or made to look like I was beaten and bruised. Bottom line, I have felt threatened, feel threatened by this individual. There is more than enough evidence to substantiate this.
Recently, the individual came within very close proximity to me at a business event. He had a camera with him and at one point when my back was turned he began surreptitiously taking pictures of me - from the angle of the camera, they would have been of my butt.
Have you sought a restraining order against this person? If not, why not?
Have you notified the police of any repeatedly harassing calls or e-mails? If not, why not?
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Using the tips of my fingers, I gently pushed him away to created some distance. This was a defensive move.
Actually, in California, this could be considered battery - a misdemeanor criminal offense.
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While the contact was brief, gentle and caused no physical harm nor any damage to the camera (other than a finger on the lens), it was contact.
And potentially, criminal.
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I am concerned as now this individual has sent emails threatening unspecific legal action, citing physical assault and damage of property. The individual has also posted such claims on public newsgroups. It is obvious that he intends to embellish the incident and use it to tarnish my name and/or get a settlement of some sort should the matter become a civil one.
All the more reason to seek a restraining order. It won't stop him from posting to public boards, but it could stop him from e-mailing you or calling.
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Please do not insult my intelligence by telling me to get a lawyer. I will when the time is appropriate.
Just when will that be? When you are charged with a crime?
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Until that time I am looking to get some opinions on what the possibilities are as far as courses of action this individual might take and what I should do to protect myself, ie: I consider this individual's actions as threatening in nature.
The actions might be annoying and harassing, but they are not necessarily threatening. Actions this person could take could include reporting your attack to the police ... it wouldn't go very far, but it is technically a crime.
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Should I file an assault complaint with the authorities?
But ... YOU did the assaulting! When did this person assault you?
You MIGHT have a case for stalking or harassing electronic communication, so it might behoove you to speak to the police and provide them with proof of this ongoing contact and why it makes you fearful.
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I am not a US resident, but travel to the US frequently.
That could make any prosecution very difficult ... especially if the e-mails and such were sent to you while you were outside the jurisdiction as such would not be a crime here.
- Carl
Re: Assault vs. Self Defense
Thanks for that Catherine. I've been on the phone for most of the morning with various lawyers and police departments.
I'm not sure this individual is without fault or liability in this. Although the "evidence" may be somewhat weak (emails, posts on newsgroups etc), what this person has been engaged in over the past 16 months qualifies as stalking. My understanding of CA law is as follows:
Stalking refers to harassing or threatening behavior that is engaged in repeatedly. Such harassment can be either physical stalking or cyberstalking.
# Physical stalking is following someone, appearing at a person’s home or place of business, making harassing phone calls, leaving written messages or objects, or vandalizing one’s property.
# Cyberstalking involves using the Internet or other electronic means to harass.
Either type of action may or may not be accompanied by a credible threat of serious harm. But both types can cause psychological damage, and each can potentially lead to an assault or even murder.
Any thoughts on this?
Re: Assault vs. Self Defense
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cdwjava
Have you sought a restraining order against this person? If not, why not?
I discussed this today with an attorney. $1500 to go "the cheap way", $3500+ if filed on the office letterhead. If it is not contested, no problem - it's granted, but if he responds, I am in litigation, read :$$$$. I have to question the value of that. If there is an alternative to this method I'd like to hear it.
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cdwjava
Have you notified the police of any repeatedly harassing calls or e-mails? If not, why not?
The person isn't stupid enough to put his name on such actions. This is happening, but I cannot connect it to him in an actionable way.
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cdwjava
All the more reason to seek a restraining order. It won't stop him from posting to public boards, but it could stop him from e-mailing you or calling.
Emailing perhaps. Emailing from another email address / IP or using calling cards...useless.
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cdwjava
Just when will that be? When you are charged with a crime?
I spoke with 2 lawyers today. When SHOULD I speak to one?
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cdwjava
The actions might be annoying and harassing, but they are not necessarily threatening. Actions this person could take could include reporting your attack to the police ... it wouldn't go very far, but it is technically a crime.
Thats what I was told today by one attorney. I guess police and prosecutors have more serious investigations to devote resources to.
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cdwjava
But ... YOU did the assaulting! When did this person assault you?
If this fellow had been taking up skirt shots of women, would he be commiting a crime? My intent was not to offend, it was self-defense.
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cdwjava
You MIGHT have a case for stalking or harassing electronic communication, so it might behoove you to speak to the police and provide them with proof of this ongoing contact and why it makes you fearful.
And which jurisdiction would I report it to? US or my home country? His home county?
Thanks Carl.
Re: Assault vs. Self Defense
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Quoting
Publius Syrus
I discussed this today with an attorney. $1500 to go "the cheap way", $3500+ if filed on the office letterhead. If it is not contested, no problem - it's granted, but if he responds, I am in litigation, read :$$$$. I have to question the value of that. If there is an alternative to this method I'd like to hear it.
If you were HERE, you could try it on your own. But, since you do not live here, seekign a TRO will be more difficult and would likely require an attorney. Note that the TRO would ONLY be valid when you were within the jurisdiction of the United States. If you received e-mails in your home country, no violation will have occurred.
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The person isn't stupid enough to put his name on such actions. This is happening, but I cannot connect it to him in an actionable way.
Then that makes taking ANY action tough.
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I spoke with 2 lawyers today. When SHOULD I speak to one?
When you need one.
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Thats what I was told today by one attorney. I guess police and prosecutors have more serious investigations to devote resources to.
Yep. It's a minor battery that you committed, and - in the great scheme of things - a minor stalking case as well. Given the amount of subpoenas the police would have to try and issue (if the DA wanted to pursue the matter) they are likely to want to see some physical harm or threat of harm before they go through the expense and hassle of issuing subpoenas to internet providers and spending many man hours on what is not likely to amount to much of a case.
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If this fellow had been taking up skirt shots of women, would he be commiting a crime? My intent was not to offend, it was self-defense.
Yes, he would have been - but he wasn't. And, what you described was not "self defense" as you were not in danger of being assaulted and trying to protect yourself from harm or the threat of harm. While your actions might be understandable, they were not, technically, self defense.
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And which jurisdiction would I report it to? US or my home country? His home county?
To the jurisdiction where the e-mails, calls, threats are received. If that is in your home country, then you are pretty much out of luck here. It can be complicated if you receive them all over the place.
In the end, this is not going to be a case the police will want to pursue. These can be expensive and time consuming, and when their victim is not even a resident, it makes it even more likely that the matter would be dropped.
But, you can report it and see where it goes. The worst thing that happens is that they will tell you that they can't do anything.
- Carl
Re: Assault vs. Self Defense
Stalking happens to be one of my specialty areas. In fact, some of the content in the USDOJ's training manual on the topic came from yours truely.
Yes, there's the possibility of psychological damage. Case in point, British singer Adam Ant who had to be hospitalized for depression/nervous breakdown after an extended stalking spell. However, in order to bother with a law suit over such damages, you'll really need a licensed clinician who can stand before the court, testify that they've been providing treatment and/or counseling or other services, itemize symptoms leading to a diagnosis, provide a prognosis or anticipated level of possible recovery etc. before a dollar amount for damages can be evaluated. In other words, if it hasn't been SO psychologically damaging as to cause you to seek help, it's not likely to be fruitful in court. (Again, I'm not saying I agree with this situation, only that it is what it is - anyone can stand up and say "oh God, I'm scarred for life. It'll take more than that, like outside evaluation from a neutral third party, to establish.)
Psychological damage suits where the primary method of harassment is veiled, as opposed to flagrant or at least concrete threats, almost always go nowhere. Particularly when the medium is at least mostly electronic and it's just as easy to delete an email without reading it or to delete it once one can ascertain the nature of its contents. (Again, not that this is morally, or ethically correct, but if you want to see a jury roll their eyes in unision, try to explain why you're damaged by emails that you continued to willingly read.) You might get SOME level of punative damages for harassment if you can show a pattern of behavior, but damages for psychological injury in this case are going to crash almost from the start. If you decide to try to sue, get an attorney willing to work on contingency (if you can't find one willing to wait to get paid until you win, that's a good sign that even your attorney doesn't think a win will happen - if they make you pay up front, they'll get their money even if you walk away empty handed).
Yes, stalking and harassment cases are often linked to homicide cases, but the realistic truth is that such cases almost always have elements (usually several) not included in this particular case; no children together, no prior sexual or emotional relationship, never owned a business together, the person has never previously assaulted you, no concrete threats, or any of the other numerous items that would normally be even mid-level warning flags or indications that any escalation would be expected. There's also no dynamic where the person in question WANTS something from you. Most stalking cases that end up escalated center around something the stalker WANTS. Wants a relationship. Wants you to stop sleeping with his wife. Wants you to say, or do, or think something, or wants you to behave in a certain way. People don't stalk because they're bored - they do it as a means to an end. Before you try taking this before a court, ask yourself this (because the defense will certianly ask it): what does this person WANT? What have they asked for, threatened you about, what is their course of action trying to get you to DO? If you can't come up with something firm, the defense will have an easy win with one sentence "so, ladies and gentlemen of the jury, my client readily admits to being a jerk, and he's too stupid to realize that he shouldn't have continued to communicate with this plaintiff, but there's no INTENT here". (This intent being different than criminal intent, in which the end desired product is fear...the civil case will want MORE than that....fear WHY?)
As in all things, the criminal side of the equation will work a little differently - somewhat more in your favor in this case, so if you've got the evidence to substantiate the harassment, then go file for your restraining order. You don't need an attorney to do this.
If you'd like some professional level references on offender assessment and assessing dangerousness, I'll be happy to provide.
Re: Assault vs. Self Defense
Of course, there is a vast gulf between what might legally be considered stalking and what might result in a criminal prosecution.
Being on the investigation side, and going just on what the poster has written here, I do not see most agencies or prosecutors offices I know of moving on this to any great extent. Perhaps if the OP lived here or had been subject to more direct threats, but as of right now I see a couple of misdemeanors and a weak felony that would be quite expensive to pursue. Police and DAs have to cull the herd, so to speak, and pursuing cases that are not likely to go to court or not likely to result in a conviction are not going to be pursued.
If, to make the case, the state would have to call in a number of witnesses with alphabet soup after their name, the DA is not likely to go with it. It will be just too expensive.
It is a sad but true fact of life that the criminal justice has only limited resources and not all offenses can be pursued to their full potential.
Now, if the OP wants to pursue a civil case, and the defendant has the means to pay off an award, then the OP can pursue this angle. A civil case will, of course, be expensive, but will only require proof by a preponderance of the evidence and not proof beyond a reasonable doubt.
- Carl
Re: Assault vs. Self Defense
My sincere and humble thanks for your articulate and thoughtful replies.
Outside of my own unfortunate circumstances, this is a fascinating area of the law.
I have 4 more questions, if you will oblige me.
•What is the legal difference between a man surreptitiously photographing another man's "backside" vs. a man surreptitiously photographing a woman's backside?
•What is the difference between a restraining order and an injunction?
•If I want to try to file a TRO or get an injunction, how could I do this without having to pay a lawyer? I have friends in CA who could help me with the filing or I could do it in person the next time I am in CA.
•I am assuming I would apply in the county in which I would likely have proximity to the "stalker".
Re: Assault vs. Self Defense
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Publius Syrus
•What is the legal difference between a man surreptitiously photographing another man's "backside" vs. a man surreptitiously photographing a woman's backside?
That depends on what you mean by "backside". If the man was wearing a skirt, and someone tried to take a photo surreptitiously beneath the skirt, the photographer could be charged with a crime depending upon state law. Not all states make it a crime to do "upskirt" photos.
So, if the male is wearing a skirt, I suppose he is protected by the same laws.
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•What is the difference between a restraining order and an injunction?
In my state of CA? Nothing.
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•If I want to try to file a TRO or get an injunction, how could I do this without having to pay a lawyer? I have friends in CA who could help me with the filing or I could do it in person the next time I am in CA.
You get the paperwork from the court or you can download it from www.courtinfo,ca.gov and then bring it to the court.
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•I am assuming I would apply in the county in which I would likely have proximity to the "stalker".
That would be best. However, if the allegations did not occur in that county, your application will have some difficulty.
- Carl