Probation in murder of man whose dog urinated on lawn

[RamboLiberal]

A University Park grandfather who gunned down a dog owner after the man’s pet urinated on his lawn escaped a prison term Wednesday when a Will County judge sentenced him to four years of probation.

-----

Funches, the father of three young children, was walking his dog in the 500 block of Landau Road in the far south suburb when his pet wandered onto Clements’ yard and relieved itself.

Clements confronted him about the dog’s actions and at one point took a .45-caliber pistol out of his pocket.

But Clements didn’t fire the weapon until after Funches cursed at him, then punched him in the face, according to testimony during his October trial.

Clements told police he shot Funches once in the abdomen because he feared the younger man would harm him.

http://www.suntimes.com/news/metro/3066589-418/clements-funches-dog-murder-actions.html

In declining to send Clements to jail, Will County Judge Daniel Rozak noted the episode was Clements' first contact with the legal system in his 69 years.

He also said the slaying wasn't about a dog urinating on a lawn, but "about your reaction ... to being yelled at, pushed and punched in the face by a 23-year-old man"

The Will County state's attorney's office, which had asked for jail time, indicated it would not appeal the sentence. "He (Rozak) is an excellent judge and we respect his decision," prosecutors said in a statement.

After Funches cursed at him, Clements pulled out a .45-caliber handgun and put it back in his pocket. Soon after, Funches punched Clements once in the face. Clements said Funches was standing still when he pulled out his gun and fatally shot him.

http://www.chicagobreakingnews.com/2010/12/man-gets-xx-years-in-dog-lawn-murder.html

Funches, the father of three young children, was walking his dog in the 500 block of Landau Road in the far south suburb when his pet wandered onto Clements’ yard and relieved itself.

Clements confronted him about the dog’s actions and at one point took a .45-caliber pistol out of his pocket.

But Clements didn’t fire the weapon until after Funches cursed at him, then punched him in the face, according to testimony during his October trial.

Clements told police he shot Funches once in the abdomen because he feared the younger man would harm him

http://www.suntimes.com/3066589-417/clements-funches-dog-murder-actions.html

Earlier discussion on this case at DU: http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=118x352188

[ZombieHorde]

1. Fucking crazy. nt

[onehandle]

2. Crazed loon who pulled a gun over a dog peeing on his lawn gets probation. nt

[SteveM]

5. Please see #4.

[spin]

3. I will not defend the 60 year old man for pulling a weapon over dog piss

I don't really see dog shit or piss as a life and death matter.

However, I also will not defend the younger man's decision to punch the 69 year old man in the face, especially after he was shown the handgun. That was EXTREMELY foolish. I've had firearms pointed at me several times in my lifetime and I survived probably because I decided to be very polite.

A 69 year old man is normally at a disadvantage in a fight with a 23 year old man (assuming both are in average physical shape for their age). The law will favor the older man and quite possibly the jury would have felt the incident was clearly self defense had the older man not escalated the situation by showing his .45 caliber handgun to the younger man prior to being hit.

The Florida government offers some guidelines to the legitimate use of firearms in its state. Other states may differ somewhat but are probably basically similar.

Q. When can I use my handgun to protect myself?

A. Florida law justifies use of deadly force when you are:

* Trying to protect yourself or another person from death or serious bodily harm;
* Trying to prevent a forcible felony, such as rape, robbery, burglary or kidnapping.

Using or displaying a handgun in any other circumstances could result in your conviction for crimes such as improper exhibition of a firearm, manslaughter, or worse.

Example of the kind of attack that will not justify defending yourself with deadly force: Two neighbors got into a fight, and one of them tried to hit the other by swinging a garden hose. The neighbor who was being attacked with the hose shot the other in the chest. The court upheld his conviction for aggravated battery with a firearm, because an attack with a garden hose is not the kind of violent assault that justifies responding with deadly force.

***snip***

Q. What if I point my handgun at someone but don't use it?

A. Never display a handgun to gain "leverage" in an argument. Threatening someone verbally while possessing a handgun, even licensed, will land you in jail for three years. Even if the gun is broken or you don't have bullets, you will receive the mandatory three-year sentence if convicted. The law does not allow any possibility of getting out of jail early.

Example: In a 1987 case, a woman refused to pay an automobile mechanic who she thought did a poor job repairing her car. They argued about it, and the mechanic removed the radiator hose from the car so she couldn't drive it away. She reached into her purse, pulled out an unloaded gun, and threatened to kill the mechanic if he touched her car again. The mechanic grabbed the gun and called the police.

The woman was convicted of aggravated assault with a firearm and sentenced to serve a mandatory three-year prison term. The fact that the gun was not loaded was irrelevant. Even though she was the mother of three dependent children and had no prior criminal record, the statute does not allow for parole. Her only recourse was to seek clemency from the Governor.

Q. What if someone uses threatening language to me so that I am afraid for my life or safety?

A. Verbal threats are not enough to justify the use of deadly force. There must be an overt act by the person which indicates that he immediately intends to carry out the threat. The person threatened must reasonably believe that he will be killed or suffer serious bodily harm if he does not immediately take the life of his adversary.
http://licgweb.doacs.state.fl.us/weapons/self_defense.html

Florida also has laws dealing with attacks on the elderly.

825.102

Abuse, aggravated abuse, and neglect of an elderly person or disabled adult; penalties.
—
(1)

“Abuse of an elderly person or disabled adult” means:
(a)

Intentional infliction of physical or psychological injury upon an elderly person or disabled adult;
(b)

An intentional act that could reasonably be expected to result in physical or psychological injury to an elderly person or disabled adult; or
(c)

Active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or psychological injury to an elderly person or disabled adult.

A person who knowingly or willfully abuses an elderly person or disabled adult without causing great bodily harm, permanent disability, or permanent disfigurement to the elderly person or disabled adult commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(2)

“Aggravated abuse of an elderly person or disabled adult” occurs when a person:
(a)

Commits aggravated battery on an elderly person or disabled adult;
(b)

Willfully tortures, maliciously punishes, or willfully and unlawfully cages, an elderly person or disabled adult; or
(c)

Knowingly or willfully abuses an elderly person or disabled adult and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to the elderly person or disabled adult.
http://www.flsenate.gov/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0800-0899/0825/Sections/0825.102.html

The moral of the story is:

Never start a fight with an old man, he may just kill you."

[lepus]

4. Also to add

The dog owner repeatedly threatened to beat up the old man before the weapon was ever drawn.

It was only after the homeowner was attacked by the dog owner, did the dog owner get shot.

Good to see the home owner did not get prison.

[Hassin Bin Sober]

6. I too am glad the shooter didn't get prison. That way he can be homeless..

.. when the deceased man's family gets a judgment against him. I hope they turn his lawn in to a dog park.

[lepus]

7. Doubtful if you can get a jury that will award a judgement against a seventy year old man who

killed a kid who had attacked him.

[Hassin Bin Sober]

8. Wait till they see crying mothers, wife and 3 weeping children.

Keep in mind he was ALREADY convicted by a jury without those aspects introduced. Apparently, the jury didn't agree with your line of thinking.

The judge, perhaps rightfully so, believed locking the man up would serve no benefit to the community - especially considering his life history and lack of criminal record.

The criminal conviction was based on the highest standard of proof.

Now comes a a family who lost their breadwinner to a man ALREADY convicted? You think a jury with a lower required threshold of proof is going to cut this guy some slack? No effin way.

Furthermore, I don't believe you can file BK on serious assault torts. He'll lose his house.

[Euromutt]

11. Where does it say Funches was married?

You may have inadvertently used the correct wording when you referred to "crying mothers," because it doesn't seem to say anywhere that he had those three kids with the same partner either, or how much support he was providing for any of them.

And that opens an avenue of investigation in a civil trial that Funches' next of kin might prefer not to have explored, namely whether he was actually a father to his kids, or merely a sperm "donor."

[Euromutt]

9. Considering a jury convicted him in the first place, I'd say that's a possibility

Though a civil suit would grant an opportunity to delve a little deeper into the character of the late Mr. Funches. Like by how many different women he had those three kids, and how many he was actually supporting.

[RamboLiberal]

14. I also understand Funches had a criminal record

That could certainly play in to a civil trial where it would most like be inadmissable in a criminal trial. Might possibly show Funches was prone to violence.

Wonder if there is a possibility the homeowner's insurance could also be involved. We had a case in my area where the parents homeowner's insurance was successfully sued when the adult son living with them went on a racially motivated spree killing of 5 people(the toll eventually grew to 6 when a paralyzed victim died 7 years later).

An insurance company can be required to defend policyholders accused of negligence in the aftermath of a deadly shooting spree conducted by their son, the Pennsylvania Supreme Court has ruled.

However, the shooting spree that took five lives over several hours at various locations should be considered a single occurrence and not several under the Donegal Mutual Insurance Co. policy's $300,000 per occurrence limit, the state's high court also ruled.

The court reasoned that the parents' alleged negligence was a single occurrence covered by the policy even though multiple deaths and injuries followed.

The high court agreed with lower court rulings that the homeowners insurance policy Donegal issued to Andrejs and Inese Baumhammers was triggered by the actions of their son, Richard, a former attorney who was convicted of killing five people and leaving a sixth paralyzed during a rampage in April 2000.

However, in its split decision, the high court differed with lower courts on the single occurrence question. An Allegheny County judge and state Superior Court had ruled each shooting qualified as a separate occurrence, which could have exposed Donegal Mutual to as much as $1.8 million in payments to the estates of the victims.



Read more: http://www.insurancejournal.com/news/east/2007/12/31/86019.htm#ixzz19bNEXggP

[Hassin Bin Sober]

21. An insurance policy won't cover crimes covered by the policy holder.

The policy is not insurance against your OWN criminal acts. It can be insurance against your own NEGLIGENCE. In the case you cited, the negligence would be the policy holder's failure to vet or contain his guests.

The same idea applies in dog bites. The policy will apply if your dog bites a person but not if YOU bite a person.

[Kennah]

10. I wasn't on the jury ...

... but AOJP--Ability, Opportunity, Jeopardy, Preclusion.

I'd like to see and hear more details, but the fact remains that the shooter was convicted so the jury appeared not to buy his self defense argument.

[NaturalHigh]

12. Better headline for this story...

"Man attacks senior citizen, gets himself shot."

[Euromutt]

13. So what I wonder is: what if Clements hadn't shown the pistol?

The weak point in Clements' defense, in my opinion, was stating that he fired at least partly out of fear that Funches might try to wrest the gun away from him. The obvious rejoinder to that is that, if Clements hadn't shown the gun to Funches in the first place, that wouldn't have been an issue.

So does anybody think that if Clements had not shown the gun to Funches first, and Funches had punched him anyway (which doesn't seem unlikely, given Funches' behavior up to that point), and Clements had then drawn and fired the handgun that Funches up to that moment would not have known he had on him, would Clements have been more justified? Or would the peanut gallery instead be bitching that Clements was in the wrong because he failed to give Funches any warning to the effect that he, Clements, was armed?

In short, is there any way this wouldn't be a Catch-22 for Clements, assuming that he wasn't prepared to just let Funches let his dog excrete all over his lawn, or to back down in the fact of the threat of unlawful violence?

[RamboLiberal]

15. That is a helluva of a Catch 22

Would've been better if Clements had not shown the gun. He would've had a better chance of a not guilty by reason of self-defense. Still manslaughter or perhaps a lesser charge would've been possible since Clements started it by confronting the dog walker.

A better thing if Clements (who stories say obsessed on his lawn's appearance) was so concerned that dogs pissed and pooped on his lawn would be to have a nice decorative fence that would've kept the dogs off the lawn.

I walk my dog & try to keep her off the edges of lawns but sometimes the dog gets there & is going before you can drag them off. Of course I clean up the poop but there's not a darn thing I can do about the urine.

More extensive story here on the confrontation: http://articles.chicagotribune.com/2010-12-29/news/ct-met-clements-sentencing-20101229_1_patricia-funches-puppy-urinating-joshua-funches

[one-eyed fat man]

16. Interesting quandry

Given the apparent history and "bad blood" between the the two, I'd say the late Mr. Funches, upon seeing the pistol, challenged the old man. Funches said, "Old man, if you pull a gun on me you better plan on using it." Then he punched him in the face, that indicates he did not think that Clements had the nerve to shoot him.

This is really a classic example of a pissing contest, and not all of it was the dog's.

If anything, it does point out the wisdom of the adage: "Never pick a fight with an old man.
If he's too old to fight, he'll just kill you."

[Atypical Liberal]

18. He should not have shown the gun.

If it was just words up to that point, he should not have drawn his firearm.

But it's hard to armchair quarterback these kinds of things. The law says that it has to be an action, that words are not sufficient to make someone fear for their safety. But I disagree. The guy's language, including body language, may well have alerted the homeowner to the fact that his safety may be in danger. Add a barking dog into the mix (assuming it was barking) and the guy may well have felt threatened.

But it goes to show: unless you are physically in imminent danger it's risky, legally, to produce a firearm.

Personally, if it were me on my property, I'd probably take that risk. I'd rather suffer the legal penalties and hopefully head off any physical confrontation and possibility of injury to myself by demonstrating that I was armed.

On my property, I should be able to walk the perimeter of it with a rifle slung over my shoulder, if I choose.

[PavePusher]

20. In most states you can. n/t

[RamboLiberal]

22. Problem in this case is the argument moved down the street

Clements followed the man down the street. One thing you have to learn and do if you carry a gun is to try to walk away from a verbal argument and to not escalate the situation. Back off.

As another poster said, this was a pissing contest and the dog was the least of the pissers.

[PavePusher]

19. Which brings up the question...

how would that play out in an Open Carry state?

If the pistol was already apparent, does that equate to the deliberate revealing of a concealed weapon?

[RamboLiberal]

23. IMHO no it wouldn't because it would be apparent to the person

you are confronting that you are armed with a gun. The provocation or brandishing would probably be if you placed your hand on the grip of the gun in a manner that inferred you might draw it.

[spin]

24. It may depend on the laws in the state ...

I was talking to a local cop recently and he mentioned that if a younger man punched or attacked an elderly individual, the younger individual could be in deep shit because of Florida's laws on age discrimination and crime against the elderly.

Of course, I asked if it would be considered legitimate self defense if the elderly individual shot the younger man in the situation. He indicated that he believed that it would be.

Of course, in Florida, you are never supposed to show your concealed weapon in an argument to gain leverage as that can escalate the situation. If the elderly individual showed his weapon before being punched, he probably would have been in serious trouble.

It could also be pointed out that the younger man lacked commonsense. It's not a good idea to punch anyone with a .45 auto in his hand.

[Atypical Liberal]

17. Better Title: Homeowner shoots trespasser who assaulted him.

Better Title: Homeowner shoots trespasser who assaulted him.

[lawodevolution]

25. The old man should have no prison time or probation.