WI - Corey Stingley, 16, dies in altercation at West Allis store, 14 Dec 2012

  • #21
I think the important element in this case is that the one customer put CS in a choke hold after CS punched him in the face which makes CS the aggressor. (Above and beyond instigating the event by shoplifting alcohol.) Further, the person who put him in the choke hold only intended to restrain him, not injure him. Legally, it will be interesting to see how this case evolves.

In criminal recklessness/assault/self-defense/mutual combat cases there is a concept of "like force". I don't know that I would consider suffocating a person who punched me "like force". Hitting them back would be.

The act of putting someone in a choke hold is done to keep a person from moving and to cause them to black out. Corey punched the guy because the guy was not letting him get away. Corey was not choked to prevent him from being hit again, since the act of punching his pursuer was so he could flee, not because Corey wanted to fight. The choke hold was done to detain him. The length of it (enough to kill him), was not "like force'.

Finally, Corey was not the aggressor. The person chasing him was. Especially since no law allowed him to chase the suspect or to detain him.

Here's more on self-defense laws in Wisconsin, which would be what you're talking about in justifying applying a choke hold on Corey because he was "the initial aggressor":
1) A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person. The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary to prevent or terminate the interference. The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.

(ar) If an actor intentionally used force that was intended or likely to cause death or great bodily harm, the court may not consider whether the actor had an opportunity to flee or retreat before he or she used force and shall presume that the actor reasonably believed that the force was necessary to prevent imminent death or great bodily harm to himself or herself if the actor makes such a claim under sub. (1) and either of the following applies: 1. The person against whom the force was used was in the process of unlawfully and forcibly entering the actor's dwelling, motor vehicle, or place of business, the actor was present in the dwelling, motor vehicle, or place of business, and the actor knew or reasonably believed that an unlawful and forcible entry was occurring.
2. The person against whom the force was used was in the actor's dwelling, motor vehicle, or place of business after unlawfully and forcibly entering it, the actor was present in the dwelling, motor vehicle, or place of business, and the actor knew or reasonably believed that the person had unlawfully and forcibly entered the dwelling, motor vehicle, or place of business.


(2) Provocation affects the privilege of self-defense as follows:
(a) A person who engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack is not entitled to claim the privilege of self-defense against such attack, except when the attack which ensues is of a type causing the person engaging in the unlawful conduct to reasonably believe that he or she is in imminent danger of death or great bodily harm. In such a case, the person engaging in the unlawful conduct is privileged to act in self-defense, but the person is not privileged to resort to the use of force intended or likely to cause death to the person's assailant unless the person reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant.

(3) The privilege of self-defense extends not only to the intentional infliction of harm upon a real or apparent wrongdoer, but also to the unintended infliction of harm upon a 3rd person, except that if the unintended infliction of harm amounts to the crime of first-degree or 2nd-degree reckless homicide, homicide by negligent handling of dangerous weapon, explosives or fire, first-degree or 2nd-degree reckless injury or injury by negligent handling of dangerous weapon, explosives or fire, the actor is liable for whichever one of those crimes is committed.http://www.lawserver.com/law/state/wisconsin/wi-laws/wisconsin_laws_939-48
I also think the fact that he was choked to death after hitting the guy kind of supports the theory that the force was unreasonable, IMO, because the guy was probably pretty angry.
 
  • #22
The choice is not between reasonable force and murder. It is between another felony crime and reasonable force. Murder is not even on the table here.

I think, after reading the statutes and case law, that it is not reasonable to tackle a person who has attempted to shoplift. Remember, the young man here did not take the beer. He was apprehended after leaving the beer with the merchant. The law does not allow force to be used at all in such a case.

And this was not a robbery, so the felony murder rule would not apply here and is thus not a good analogy. The theft of beer is a misdemeanor, not a felony. Also, you can't can't use force against someone for an attempted misdemeanor, unless it is your own property, your family's or your employer's property. And you can't arrest someone without a warrant, at all for retail theft, if you're not LE.

Further, choking a suspect out for several minutes while two other men lay atop him is far different from tackling a person who then accidentally hits their head.

I assume he tried to leave after the police were called. Could it be that the crime being prevented was related to that?
 
  • #23
I assume he tried to leave after the police were called. Could it be that the crime being prevented was related to that?

I don't know. I'm unaware of any crime for leaving the scene of an attempted crime. It appears to me that they were just trying to keep a kid who tried to steal from leaving the scene until the police arrived.
 
  • #24
Surely there will be civil suits filed against these men. If no criminal charges are filed what do the civil lawyers have to prove to win their case?

ciao
 
  • #25
I don't know. I'm unaware of any crime for leaving the scene of an attempted crime. It appears to me that they were just trying to keep a kid who tried to steal from leaving the scene until the police arrived.

I'm pretty sure attempted crime is a crime in and of itself. So the charge I'm thinking of would be eluding/flight from law enforcement. I'll have to look tomorrow, but I'm pretty sure that most states have a statute making it a crime to flee/elude and that it's not necessary for the police to be immediately on the scene. That would make the most sense to me since the store had the items he attempted to steal in its possession already and obviously had called LE jmo
 
  • #26
I'm pretty sure attempted crime is a crime in and of itself. So the charge I'm thinking of would be eluding/flight from law enforcement. I'll have to look tomorrow, but I'm pretty sure that most states have a statute making it a crime to flee/elude and that it's not necessary for the police to be immediately on the scene. That would make the most sense to me since the store had the items he attempted to steal in its possession already and obviously had called LE jmo

There is no crime in Wisconsin or anywhere else that I am aware of for fleeing the scene of a crime, except if LE is in actual pursuit. Then you're talking about the crimes of escape, resisting arrest, things like that. Fleeing a store after trying to or committing a crime is not a crime and it is not escape or resisting arrest as defined by the statute. Here's the Wisconsin criminal code: http://docs.legis.wisconsin.gov/statutes/prefaces/toc

However, thinking a bit more about the scenario, the act of placing the beer in his backpack with the intent to take it without paying, is retail theft, even if he didn't succeed in taking it out of the store:
(1m) A person may be penalized as provided in sub. (4) if he or she does any of the following without the merchant's consent and with intent to deprive the merchant permanently of possession or the full purchase price of the merchandise or property:
(a) Intentionally alters indicia of price or value of merchandise held for resale by a merchant or property of a merchant.
(b) Intentionally takes and carries away merchandise held for resale by a merchant or property of a merchant.
(c) Intentionally transfers merchandise held for resale by a merchant or property of a merchant.
(d) Intentionally conceals merchandise held for resale by a merchant or property of a merchant.
(e) Intentionally retains possession of merchandise held for resale by a merchant or property of a merchant.
(f) While anywhere in the merchant's store, intentionally removes a theft detection device from merchandise held for resale by a merchant or property of a merchant.
(g) Uses, or possesses with intent to use, a theft detection shielding device to shield merchandise held for resale by a merchant or property of merchant from being detected by an electronic or magnetic theft alarm sensor.
(h) Uses, or possesses with intent to use, a theft detection device remover to remove a theft detection device from merchandise held for resale by a merchant or property of a merchant. http://docs.legis.wisconsin.gov/statutes/statutes/943/III/50
Nevertheless, that doesn't change things. It doesn't allow the men who intervened to use force or to detain this person.
 
  • #27
City of Waukesha v. Gorz, (1991)*

Is actually the court affirming the right of a police officer to arrest an intoxicated driver, while out of jurisdiction, under the citizens arrest common law.
 
  • #28
When coupled with assault or battery, theft becomes felonious.( When he reached over the counter to take back his card from the vendor) Assault and/or battery is certainly a breach of the peace.
 
  • #29
There is no crime in Wisconsin or anywhere else that I am aware of for fleeing the scene of a crime, except if LE is in actual pursuit. Then you're talking about the crimes of escape, resisting arrest, things like that. Fleeing a store after trying to or committing a crime is not a crime and it is not escape or resisting arrest as defined by the statute. Here's the Wisconsin criminal code: http://docs.legis.wisconsin.gov/statutes/prefaces/toc

However, thinking a bit more about the scenario, the act of placing the beer in his backpack with the intent to take it without paying, is retail theft, even if he didn't succeed in taking it out of the store: Nevertheless, that doesn't change things. It doesn't allow the men who intervened to use force or to detain this person.

So it's not a crime anywhere to run from the scene of an attempted crime so long as the police aren't there already? Serious question.
 
  • #30
Hit and run?
 
  • #31
So it's not a crime anywhere to run from the scene of an attempted crime so long as the police aren't there already? Serious question.

No. You can't leave the scene of a car accident without stopping and exchanging info but accidents don't necessarily involve a crime.
 
  • #32
When coupled with assault or battery, theft becomes felonious.( When he reached over the counter to take back his card from the vendor) Assault and/or battery is certainly a breach of the peace.

Hon, that's not assault.
 
  • #33
Hon, that's not assault.

Assault in Wisconsin is an action that causes someone to fear bodily harm. (No contact necessary) Physical contact was made when he reached over the counter toward the cash register and we do not know what was being said at that time. We do know the cashier had just caught him stealing and it is reasonable that the cashier was in fear of bodily harm when the suspect reached over the counter.
 
  • #34
City of Waukesha v. Gorz, (1991)*

Is actually the court affirming the right of a police officer to arrest an intoxicated driver, while out of jurisdiction, under the citizens arrest common law.

Case law can be confusing. While it is true that the Gorz case held that an officer is allowed to arrest someone out of jurisdiction as a citizen, that is not the only thing the case discusses.

In case law, cases will have various case law headers, or different issues of law that are resolved by a case. So let's take the Miranda case everyone is familiar with . We know it establishes Miranda warning rights but there are other things it establishes as well.

City of Waukesha, coupled with earlier case law, shows that shoplifting is not a breach of the peace in Wisconsin and thus citizens cannot arrest a person for it:
[FONT=Verdana, Arial, Helvetica, sans-serif]Citizens’ common law right to make an arrest for crimes that occur in their presence is alternately stated in two ways: if the crime is a felony or a breach of the peace; or if the crime is a felony or a misdemeanor that involves breach of the peace (i.e., violence or threat of violence). 5 Am.Jur. (2d) Arrest, pps. 708-709, secs. 56 & 57.[/FONT]
[FONT=Verdana, Arial, Helvetica, sans-serif]The leading Wisconsin case discussing citizens’ arrest holds that citizens’ arrest rights for misdemeanors are limited to those involving violence or the threat of violence, applying the modern day interpretation of “breach of the peace.” Radloff v. National Foods Stores, Inc., 20 Wis.2d 224, 123 N.W.2d 570 (1963).[/FONT]
[FONT=Verdana, Arial, Helvetica, sans-serif]In Radloff, a store was sued for injuries incurred when employees attempted to arrest a shoplifter. The Supreme Court held that shoplifting, a misdemeanor, did not involve a breach of the peace, and therefore, the store could be held liable.[/FONT]
[FONT=Verdana, Arial, Helvetica, sans-serif]The decision was partially overturned by the legislature via sec. 943.50, which authorizes merchants to detain suspected shoplifters, and gives them immunity from civil or criminal liability for such acts taken in good faith.[/FONT]
[FONT=Verdana, Arial, Helvetica, sans-serif]Nevertheless, the gist of Radloff remains the law — citizens have no authority to make arrests for misdemeanors not involving violence or the threat of it. Most recently, the court of appeals applied the modern definition to hold that driving while intoxicated was a crime involving a breach of the peace, and a citizens’ arrest was lawful. City of Waukesha v. Gorz, 166 Wis.2d 243, 479 N.W.2d 221 (Ct.App.1991). http://wislawjournal.com/2002/11/06/immunity/[/FONT]
Assault in Wisconsin is an action that causes someone to fear bodily harm. (No contact necessary) Physical contact was made when he reached over the counter toward the cash register and we do not know what was being said at that time. We do know the cashier had just caught him stealing and it is reasonable that the cashier was in fear of bodily harm when the suspect reached over the counter.

I linked to the entire Wisconsin criminal code. Would you be so kind as to cite to the code section that criminalizes causing someone to fear bodily harm, or "assault"? I did not see that.
 
  • #35
Thank you Gitania1 for your expertise in this matter. I think that this is a clear case (IMVHO) of vigilantism. These men had no business interfering in this matter. This was a child.

Gitania, this may sound like a stupid question but can abuse of a child come into play here?

I am saddened but not surprised that there are some who feel this kid got what he deserved. SMH.

"Hey, if he wasn't stealing beer, he wouldn't be dead." attitude.

Really?

How would they feel if this was their child? J/S

I highly doubt they would feel the same!
 
  • #36
Thank you Gitania1 for your expertise in this matter. I think that this is a clear case (IMVHO) of vigilantism. These men had no business interfering in this matter. This was a child.

Gitania, this may sound like a stupid question but can abuse of a child come into play here?

I am saddened but not surprised that there are some who feel this kid got what he deserved. SMH.

"Hey, if he wasn't stealing beer, he wouldn't be dead." attitude.

Really?

How would they feel if this was their child? J/S

I highly doubt they would feel the same!

A simple click of the thanks button was not enough. So thank you so much and I agree. Anyone would be outraged if 3 grown men killed their child. To me, there's not justification.

Sent from my Nexus 5 using Tapatalk
 
  • #37
  • #38
Well, I watched that whole half hour video and it's heartbreaking to hear the father's story.

Still, though, I wouldn't have charged the 3 men either. What little video you can see. Corey is pretty effectively battling all three of them - it takes all three to subdue him.

I don't know all the legal ins and outs but I certainly was raised with the belief that a citizen can affect a "citizen's arrest" and can forcibly detain someone who he believes has committed a crime for the time it takes cops to get there. I don't know if there is some small loophole and this doesn't pertain in this instance, but it's clear to me the men thought they were doing their civic duty (one even said being a Good Samaritan) in detaining this boy who was clearly attempting theft.

Looks like "positional asphyxia" may have been his cause of death - something that even experienced cops have happen when a combatant is detained.

Sad all around.
 
  • #39
OMW! I just spent nearly 40 min typing out a response, and then, I wasn't logged in and lost it!

Par for the course of my day!

WTH?:banghead::banghead::banghead:

I'll have more time tommorrow (hopefully).

I certainly want to address this!

In the meantime, PLEASE take a look at the history of racial disparity/segregation in Milw. Co.

It was voted one of the most racially segregated places to live.

WI. was voted, the worst place to raise a black child, because of the prejudice.

I will provide links to back this up ASAP, if you just don't feel like doing the research.

I heard nothing but vigilantism and good ole boy talk in the tapes!

"We got the perp..."

"We're holding him down..."

"...me and some other good Samaritans"....

Who says that?!?

I'll tell you who...GZ and all his supporters!!

That's who.

No justice - No peace!!
 
  • #40
Civic Duty????

To asphyxiate a 17 year old who was fighting for his life against 3 grown men for stealing some beer (wine coolers)!!

REALLY?

This was an ABSOLUTELY AVOIDABLE DEATH!!!
 

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