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I Thought I Was Going to JAIL!

7K views 48 replies 20 participants last post by  Adam5 
#1 ·
:shock:

:jail:

So, my wife and I go to lunch together. She wants to look in these little stores full of over-priced foo-foo boring stuff, and I am being nice, so I go along. This is Atlanta, though, so I am packing, of course.

We decide to eat at a little sandwich shop nearby with an outdoor seating area. We go inside, order, and, as I am getting ready to pay, what do I see?

A little refrigerator with with a glass door behind which are bottles of beer and wine!

#-o

:banghead:

So, I nonchalantly pay the lady, and we go outside to sit and eat. I nervously look around, thinking nobody had noticed.

Several minutes later, as we are eating, I notice two police officers walking through the parking lot, picking a path through the cars more or less in our general direction. The adrenaline starts to trickle. Nothing major, just a trickle, surely they are looking for someone or something else.

Then I notice them scanning the restaurant. They are halfway across the parking lot now. A little more adrenaline begins to flow.

Three-fourths of the way across the parking lot, one of the officers looks right at me. I notice his direction change from a point off to my left to my exact direction. The other officer follows.

The patio on which we are eating has steps covering the entire length. They can climb up the steps anywhere along them, but they have turned at an angle to come up the steps directly where I am sitting.

I quickly begin thinking of excuses!

I want to blurt out, "But I didn't know they serve alcohol!" Or, "I came outside when I saw it!"

Instead I bite my tongue. My heart is racing, and the adrenaline is in full dump mode as the officers ascend the stairs and now are less then three steps from me!

:help:
 
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#4 ·
They went in and got something to eat.

My wife nudged me and said, "See, if the police can afford to eat here, it is not too expensive."

"Huh?" I responded. My heart was still racing.

Whew!
 
#6 ·
Methinks it would depend on the cop you ran into. If he's a nice guy and believes in the right to keep and bear arms you may get away with a warning and please leave now. If he is on a power trip or thinks only cops should carry then your taking a trip downtown....
 
#8 ·
Malum,

As I'm sure you remember

Mistake of fact excuses
Mistake of law does not excuse

Obviously the "law" here is: Thous shall not carry at places which serve alcohol.

But, whether a place serves alcohol, I think, would be a matter of fact.

Of course try explaining this to an officer seems like it would be a waste. This is definetly a defense for after you get taken downtown. Of course at the time you were at the registered you had actual notice of their serving beer. So... that might not be so great for you.

And another thing, this defense would work unless the courts said you "should have known" that the place sells beer and wine on account of the "heightened responsibilty that we must expect out of those who have entered into a social contract with the state to carry firearms" or some other such contrived nonsense. Which would suck but wouldn't be beyond what I think is possible.

Another thing, were you open carrying?
 
#9 ·
mzmtg, is that a defense?

I once walked out of a building and out into a parade that I did not know was taking place? Would that defense work?

Must a judge not let the case go to the jury if I can prove I did not know they sold beer and wine until after I paid?

This is not the first time I have failed to know whether a restaurant serves alcohol until after I walked in.

If you had never been to a Chili's or something similar, is there any way to know before walking in whether they serve alcohol?

Shouldn't one at least know he is violating a malum prohibitum law before carting him off to jail?
 
#11 ·
16-11-127 http://www.legis.ga.gov/legis/GaCode/?t ... ection=127
(d) It is an affirmative defense to a violation of this Code section if a person notifies a law enforcement officer or other person employed to provide security for a public gathering of the presence of such item as soon as possible after learning of its presence and surrenders or secures such item as directed by the law enforcement officer or other person employed to provide security for a public gathering.
It is only an affirmative defense, but I have a feeling most LEOs would not know that means in court and not on the street.
 
#12 ·
Malum, mistake of fact is an defense in criminal law. I think for situations like going to Chilis or Olive Garden you'd be charged with constructive notice that they serve alcohol in those locations (since they are chains) but for places that aren't chains I think it's probably a much stronger defense.

As far as knowing about whether or not you violate a malum prohibitum

If you are in MPC jursidiction (which Federal is) then mistake of law or fact will excuse so long as it negatives the mens rea.
The dichotomy I posted above is the common law treatment, which a lot of scholars think is too harsh. I have no idea how Georgia treats the mistake doctrine (but I do know that Georgia is a common law jurisdiction and not an MPC jurisdiction).

The problem is that a lot of newer criminal statutes try to impute strict liability as the standard instead of mens rea.

If you are interested Morissette v. United States is along these lines and talks about this, but it's not a GA case so, it's purely academic.

I think I'm getting this right, but I only got a B in criminal law, so please no one take this one way or the other as to reality in Georgia.

And as always I am not a lawyer, and even when I do become one I won't be a criminal lawyer.
 
#15 ·
Malum Prohibitum said:
viper32cm said:
Another thing, were you open carrying?
No, way!

I would have peed right there in my pants if that had been the case!

:shock:
That would have only drawn attention to you and possibly resulted in "contact" by the officers.
 
#16 ·
viper32cm said:
I have no idea how Georgia treats the mistake doctrine (but I do know that Georgia is a common law jurisdiction and not an MPC jurisdiction).
Me, either.

viper32cm said:
I think I'm getting this right, but I only got a B in criminal law, so please no one take this one way or the other as to reality in Georgia.

And as always I am not a lawyer, and even when I do become one I won't be a criminal lawyer.
I got the highest grade in the criminal law class, I think- if not I came in second, but I am not a criminal lawyer and find some of it just terribly confusing. A lot of the case law really seems driven by a desirable outcome to the judge rather than applying any rule of law.
 
#18 ·
Malum Prohibitum said:
viper32cm said:
I have no idea how Georgia treats the mistake doctrine (but I do know that Georgia is a common law jurisdiction and not an MPC jurisdiction).
Me, either.
I do:

16-3-5.
A person shall not be found guilty of a crime if the act or omission to act constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission.
 
#19 ·
Thanks jrm! But you forgot to quote the entire thing!

16-3-5.
A person shall not be found guilty of a crime if the act or omission to act constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission, unless, of course, he hangs around on the patio like a dummy long after the misapprehension of fact was dispelled.
 
#21 ·
16-3-5

Code section 16-3-5, Mistake of Fact, is a charge that is approved by the Council of Superior Court Judges and included in the standard pattern jury instructions book. So if M.P. had left the place as soon as he realized that they serve alcohol there, he would have this defense available. In theory. For whatever it's worth. Of course it's not guaranteed to result in an acquittal. That's really up to the jury.

M.P. would have to offer affirmative evidence of his mistaken belief, and why it was reasonable for him to believe that they didn't serve alcohol.

M.P. would then be subject to cross-examination about why he knew, or should have known, that alcohol was served there. Questions like, " Wasn't the cooler containing the booze in plain sight from where you entered the restaurant? Didn't the front door have a sign that said "No I.D., No Alcohol-- It's The Law"? Isn't it true that at least three other tables within sight of yours were occupied by people consuming alcoholic beverages, with those beverages on the table in front of them for everyone to see? Isn't there a "Miller Light" neon sign in the hallway leading to the bathrooms?"

Not to mention the argumentative and legally irrelevant questions that an anti-gun prosecutor might ask on cross-exam, which an inattentive or prejudiced judge might allow, and demand the defendant answer:
"Why did you want to take a gun into that place?"
"Who were you planning on shooting with your gun?"
"Don't you trust the police to protect you?"
"Why do you think you can carry a gun when the rest of the regular citizens cannot?"
 
#22 ·
Re: 16-3-5

"M.P. would then be subject to cross-examination about why he knew, or should have known, that alcohol was served there."

Oh, boy! A chance to get the jury on my side against Mr. Prosecutor is all that would be! :D

Questions like:

Wasn't the cooler containing the booze in plain sight from where you entered the restaurant?

No, Mr. Prosecutor. I already said it was in the corner and not noticeable until you pay. Didn't you visit the site of the restaurant before trying to prosecute me and put me in jail? What kind of prosecutor are you, anyway?

Objection, your honor, I . . .

That's ok, your honor, I withdraw my answer about what kind of prosecutor he is. I am sure under other circumstances he is a good one. My short answer is that no, it was not visible as you walk in, and had he visited the site he would know that.

[Resuming] Didn't the front door have a sign that said "No I.D., No Alcohol-- It's The Law"?

[Laughing] No! It wasn't a convenience store! [Laughing] It was an overpriced sandwich shop, although my wife thinks the prices are just fine.

[Flustered] Isn't it true that at least three other tables within sight of yours were occupied by people consuming alcoholic beverages, with those beverages on the table in front of them for everyone to see?

I saw not a single person drinking any kind of alcoholic beverage, and there are no tables inside, just a counter, but then, you haven't bothered to visit the restaurant, have you, Mr. Prosecutor?

[A little louder and more desparate, with redness in the face] Isn't there a "Miller Light" neon sign in the hallway leading to the bathrooms?"

Um, I have never seen the bathrooms - I frankly don't even know if there are any, but there are no neon signs of any kind. As I said, it was "overpriced," and neon and "overpriced" do not usually go together.

"Why did you want to take a gun into that place?"

I have carried a gun with me every day for the last 17 years. When I stopped being a police officer I felt naked without one, having been required to carry a firearm everywhere for 12 years as a part of my job.

[Jury nodding in agreement and smiling]

"Who were you planning on shooting with your gun?"

Uh, [laughing] no, what kind of crazy question is that?

Objection, nonresponsive

Your honor, he is accusing me of planning a murder. [Face like this :roll: ]

Sustained.

"Don't you trust the police to protect you?"

Certainly not! Like I said, I was one for 12 years, and I know they cannot be everywhere. They typically show up to take a report after the crime is committed. It is up to every one of you [pointing to the jury with a friendly face] to take responsibility for your self, just like you might keep a fire alarm or fire extinguisher in spite of the fact that there is a fire department.

"Why do you think you can carry a gun when the rest of the regular citizens cannot?"

Oh, but they can! Assuming you good people [again, looking at the jury] are not criminals [smiling as I stress the word to make it sound ridiculous] you can get a firearms license and carry a firearm if you felt the need to. I never harassed law abiding citizens carrying a firearm when I was a police officer. [Wink].

Silence.

Mr. Prosecutor, do you have anymore questions of this witness?

Uh, just a moment your honor.
 
#23 ·
"Don't you trust the police to protect you?"

Certainly not! Like I said, I was one for 12 years, and I know they cannot be everywhere. They typically show up to take a report after the crime is committed. It is up to every one of you [pointing to the jury with a friendly face] to take responsibility for your self, just like you might keep a fire alarm or fire extinguisher in spite of the fact that there is a fire department.
Should be:

"Don't you trust the police to protect you?"

Certainly not! The police, as has been held in many cases [reciting list from memory], are not legaly required to protect me as an individual. And in fact the argument could be made that they are prohibited from protecting an individual.

(Prosecuter swallows gum, chokes, exits stage left)
 
#24 ·
Well I at least feel good that I guessed the mistake of fact standard in the state.

I'm glad you didn't get caught Malum. I don't think this would have been a pretty court fight. :D
 
#25 ·
Fun Cases

Okay, I can see that with you as the defendant, M.P., this would be a really fun trial to watch. If you ever end up there, invite your friends. Heck, sell tickets!

Did you get to do this to defense attorneys when they would cross-examine you about your cases you made as an officer?

Poor prosecutor-- I guess that'll teach him to ask questions of the other side's witness without knowing what the answer will be, and without knowing that there is only one correct, responsive answer to the question as it was phrased. I'll bet he'd feel like this after that "cross": :shattered:
 
#26 ·
A friend of mine used to moonlight tending bar. He said one guy came in one night and asked if he could leave his jacket behind the bar. My friend said OK, but on taking the jacket he realized there was something heavy in the pocket. :shock:

There was an off duty cop working security (Gwinnett County, I think) so the folks working at the bar let the cop handle it. As I remember the story, the cop gave the guy A LOT of grief, threatened to arrest him etc., but in the end just threw him out of the bar and let him keep his gun.

Obviously, it would depend on the cop, but I'd hope most would forgive an honest brain fart from a law abiding citizen. If you're making a nuisance in some other way, that's another story.

BB
 
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