Miranda Rights and the Castle Bill

[miknwv]

What is the name of your state (only U.S. law)? West Virginia (Please read the WV Castle Bill to assist in your answer)

The other night my brother in law was arrested because he walked down to his brother's house (his brother is his neighbor doesn't own the property, my brother in law's mother does) and a verbal argument ensued. My brother in law then turned around and walked back to his house. They then followed my brother in law up to his house onto his own property and began physically assaulting him and my 7 month pregnant sister (who has bruises on her body from the assault). My brother in law, standing on his porch, fired a shot straight into the air to run them off of his property and then called 911 and advised them of what happened and that the gun was secure, unloaded and put away.

The police showed up and immediately cuffed my brother in law and kicked him to the ground. My sister was so upset she couldn't stop crying, so the officer looked at her and said if she didn't stop crying that he was going to take her to jail too. She called me and I showed up to help comfort her.

I asked the police if they read my brother in law his Miranda rights and they said "no, we don't have time." The cruiser window was open so I looked in the window and told him that he had the right to remain silent and that it would be a good idea not to say a word without legal counsel present. When I told him that, they threatened to throw me in jail too but didn't say why.

They told him it would just be a misdemeanor charge if he admitted to what he did, so he admitted it. Then after they read him his Miranda rights they said they were going to pursue felony charges that can carry up to 5 years in prison. They're begging him to plea and that indicates to me that they don't have sufficient evidence and want him to self-incriminate. Would it be a good idea not to plea and have him fight it?

Are they required to read his Miranda rights at the time they arrest him? Also, since they apparently didn't read his Miranda rights until they were at the police station, is anything that he said before that inadmissible in court?

Here's the kicker: The police AND the magistrate refused to let my sister file a restraining order or any type of protective order, and the person who assaulted them has a long and predictable history of shooting guns directly at other neighbors during conflicts. The police officers said they "didn't have time" to file it and the magistrate said the officers would have to be the ones to press charges against the assaulting party and she refused

 

[OHRoadwarrior]

The Castle Doctrine does not give you the right to pull and discharge a firearm under any circumstances on your property. The obvious thing would have been to go into the house and lock the door. Police are not required to give Miranda after an individual is formally arrested. Any statements he made before the formal arrest are not addressed by Miranda. You ruined his spilling of the facts. Though not illegal, had you pushed it further, you could have been interfering with police business.

 

[racer72]

Read about a similar thing in another forum the other day. The poster fired a gun into the air to chase off a couple of people. The police were called the the shooter was arrested and charged with 2 counts of reckless endangerment. The advice for your BIL is the same for that guy, hire an attorney asap.

 

[tranquility]

The Government hates people other than themselves owning firearms. Especially this executive. All that is going on here is problematical. I suggest no one talks to anyone but their own attorney. Sure, there are things that affect all and a jury could have a problem with them. But, that is a long way from today. Shut up. Speak to no one. Get an attorney. Once you GET AN ATTORNEY, speak only to him.

 

[cbg]

Are they required to read his Miranda rights at the time they arrest him?

Contrary to what you see on Law and Order, no. Life is not a TV script.

 

[dave33]

It is not what you say happen or your bro' in law, it's what is contained within the police report.

The officer became angry with you when you suggested an attorney to your bro' because any attorney would tell him not to make a statement. That is the exact opposite of what they want. He wants him to incriminate himself, that makes his job much easier.

In a perfect world anything he said before he was read his rights would not be able to be used to bring charges (admissible). Again, it depends what the report says. I can assure you of one thing, if the officer is using his statement as evidence, than he was read his rights first. This is the officers job and they know how to word reports to make charges "stick". In my opinion, the reports contain more fiction than not.

You indicated that he already "admitted" to whatever it was. It will basically depend on his statement as to whether a felony will be pursued. Like so many other cases, all he had to do was not make a comment and this may have never been an issue.

As to taking a plea, that's the dilemma that everyone faces. In a large number of cases, people plea because of the expense more than anything.

I have not read the castle doctrine, it's unlikely it will get to the point whre he is using that for a defense at court. Anyway, good luck to you both.

 

[justalayman]

it is STUPID to fire a gun into the air. The slug does come down somewhere. That alone is enough to arrest a person. Careless use of a firearm is illegal.

the castle doctrine does not allow you to fire warning shots into the air. It allows you to defend yourself. Firing a gun into the air is not defending yourself.

Miranda is really irrelevant here anyway. Remember, he called the police and told them what happened.

 

[CdwJava]

I asked the police if they read my brother in law his Miranda rights and they said "no, we don't have time."

About 9 out of 10 arrests will not require Miranda. In fact, no ARREST requires Miranda at all! Miranda is generally only required when both custody and interrogation exist.

The cruiser window was open so I looked in the window and told him that he had the right to remain silent and that it would be a good idea not to say a word without legal counsel present. When I told him that, they threatened to throw me in jail too but didn't say why.

Probably for communicating with a prisoner or some manner of obstructing or delaying a peace officer. But, they didn't arrest you, so it's a moot point.

They told him it would just be a misdemeanor charge if he admitted to what he did, so he admitted it. Then after they read him his Miranda rights they said they were going to pursue felony charges that can carry up to 5 years in prison. They're begging him to plea and that indicates to me that they don't have sufficient evidence and want him to self-incriminate. Would it be a good idea not to plea and have him fight it?

He should speak with a criminal defense attorney ASAP. He should not plead guilty to anything without the advice of legal counsel. Firing a gun into the air can be a dangerous act ... and criminal.

Apparently he managed to break away, make it inside his house, and then head out and fire a gun off. Perhaps the victims are saying he discharged it at them or threatened to kill them, who knows? But, if he was free and able to go fetch a firearm, any argumenbt for self defense might be greatly diminished. He will have to explain WHY he went back out to confront them and discharge the weapon and why he did not simply lock the door and dial 9-1-1. He might have a valid argument ... he might not. His attorney will be able to evaluate the situation.

Are they required to read his Miranda rights at the time they arrest him?

No.

Also, since they apparently didn't read his Miranda rights until they were at the police station, is anything that he said before that inadmissible in court?

Maybe ... maybe not. If he admitted to anything as a result of the officers' prodding or questioning, it might be able to be suppressed. But, if they were simply riding along and he blurted stuff out without the officers' encouragement, then it can likely be used. He will have to talk this over with his attorney.

 

[CdwJava]

Are they required to read his Miranda rights at the time they arrest him?

Contrary to what you see on Law and Order, no. Life is not a TV script.

In defense of Law & Order, it is the policy and practice in a number of agencies - including NYPD - that when one is arrested their rights are read to them. I used to work for such an agency as well ... though we simply read them their rights and affirmed that they understood them. Asking whether they wanted to speak or not was only done by the investigating officer which might be a detective, or the arresting officer (for lesser offenses).

 

[Shannongiles16]

If the assault was continuing on his pregnant wife while he was headed to the house to retrieve the firearm.... My castle doctrine states I only need to be in fear of serious bodily injury. So's I inquired as to what serious bodily injury was. As it turns out it is a fear that I will receive and injury that takes longer than 6 weeks to heal. I wonder if an assault induced miscarriage applies. The fine print gets tricky when its an unborn fetus.

 

[Proserpina]

unborn fetus.

(Not to completely hijack, but ... )

That's a tad redundant.

 

[OHRoadwarrior]

I won't waste my time attempting to explain how wrong you are on different levels. Read this and attempt to educate yourself with the Castle Doctrine as it applies in the real world. There are state specific variations, embodying the principle. A few of the key concepts are " a verbal argument ensued" and "onto his own property".

http://en.wikipedia.org/wiki/Castle_doctrine

If the assault was continuing on his pregnant wife while he was headed to the house to retrieve the firearm.... My castle doctrine states I only need to be in fear of serious bodily injury. So's I inquired as to what serious bodily injury was. As it turns out it is a fear that I will receive and injury that takes longer than 6 weeks to heal. I wonder if an assault induced miscarriage applies. The fine print gets tricky when its an unborn fetus.

 

[cbg]

In defense of Law & Order, it is the policy and practice in a number of agencies - including NYPD - that when one is arrested their rights are read to them. I used to work for such an agency as well ... though we simply read them their rights and affirmed that they understood them. Asking whether they wanted to speak or not was only done by the investigating officer which might be a detective, or the arresting officer (for lesser offenses).

Understood, Carl, but the fact remains that it is not REQUIRED and the fact that it was not done does not invalidate the arrest.

 

[TheGeekess]

If the assault was continuing on his pregnant wife while he was headed to the house to retrieve the firearm.... My castle doctrine states I only need to be in fear of serious bodily injury. So's I inquired as to what serious bodily injury was. As it turns out it is a fear that I will receive and injury that takes longer than 6 weeks to heal. I wonder if an assault induced miscarriage applies. The fine print gets tricky when its an unborn fetus.

"Hey, honey, you take that beating while I run home to get my popgun."

 

[CdwJava]

Understood, Carl, but the fact remains that it is not REQUIRED and the fact that it was not done does not invalidate the arrest.

Which is what I had written initially.