Anti-Gun Neighbors

[ade06]

Originally Posted by Ahbroody

You need to go read the law on nuisance as well as IIED. This is so far from IIED that I cant even understand how you wrote it. In order for there to even be a possiblility of IIED .... you know what I am not going to turn this into legal 101.

Really… my post was in good fun. It was meant simply to raise a couple of theoretical claims one could potentially raise, because, you couldn't possibly fathom a claim(s) could be brought for posting such a sign in ones yard and survive a 1st Amendment defense. I simply provided two possible claims that someone might raise. While clearly noting the IIED claim would be a stretch, its elements typically require a plaintiff to prove the following:

1. Defendant acted intentionally or recklessly; and
2. Defendant’s conduct was extreme and outrageous; and
3. Defendant’s act is the cause of the distress; and
4. Plaintiff suffers severe emotional distress as a result of defendant’s conduct.

Without providing a through analysis of each element, in the hypothetical picture (with additional facts to the actions surrounding the posting of the sign) one could likely provide a colorable argument for each element. As with all IIED claims, proving severe emotional distress (damages) would probably be the downfall of the claim, not an affirmative defense under the 1st Amendment. I'm sure you remember in your 1L Con Law class that one's right to free speech is not always protected (e.g. one can't yell "fire" in a crowded movie theater (unless there really is a fire), "fighting words", etc.).

Originally Posted by Ahbroody

You mean a private nuisance. This is not a private nuisance as you have the defense of freedom of speech and it is clearly only asthetic and does not affect the neighbors property in any way. A nuisance is something that interfers with someone use and enjoyement of ones property. A sign on my property would not interfere with your private use and enjoyement of your property.

Correct, I was referring to a private nuisance (I didn't realize I needed to be so specific for a post, which was made in jest). Further, as with the IIED claim, I wasn't saying that this claim would be without its faults and would be a slam dunk win, but let's look at the typical elements.

1. Intentional Interference; and
2. Nontrespassory Interference; and
3. Unreasonable Interference; and
4. Substantial Interference; and
5. Interference with Use and Enjoyment of Land

Again, with additional facts and depending on the neighborhood, a colorable argument may be made for each element. There are a lot of creative attorney's out there! As to your specific argument that "it is clearly only astehtic and does not affect the neighbor's property in any way". I disagree; the claim of private nuisance requires interference with the use and enjoyment of the neighbor's property and does not require one to actually trespass on the neighbor's property. One might argue that the neighbor's use and enjoyment of his property was interfered by the fear of robbery or violence, which the sign created. Are both of these claims far reaching? Of course, but, my point was that one could potentially raise them.

Originally Posted by Ahbroody

Also why they may file the suit their attorney could file a motion which would claim the suit was without merit. Any suit on any of the legal grounds put forth to me is without merit. I would seek attorney fees in the case. Saying this is a nusiance is funny

While the neighbor's lawsuit may or may not lose due to a summary judgment motion, it would cost the defendant time and money to defend the action. The neighbor may only seek an injunction to require the defendant to remove the sign and prevent him from replacing it with some other sign. Before even filing the MSJ, defendant's counsel would probably advise defendant to simply remove the sign. Just because you do not believe any claim arising from the sign is without merit, is in itself without merit. You would not be the trier of fact and in your position as a police officer, I'm sure you've seen first hand how unpredictable judges can be. Thinking that our legal system is so black and white that no one could possibly get past a 1st Amendment defense… now that is funny

P.S. the picture is comical, but I would be offended if I saw it posed in real life.

[Don Fernando]

just to make it clear, I don't support the "ban all guns" opinion of the neighbor. I know that a ban isn't possible and it wouldn't work in the USA.

[bobarian]

My butt is starting to itch.

[ade06]

Originally Posted by bobarian

My butt is starting to itch.

Mine too

[Blueface]

Funny how even something funny can have a serious side to debate.

While all the posted about grounds for suit, grounds for summary judgment, etc may be correct, this picture is still comical. If true, clearly a pissed neighbor at another neighbor's statements/opinions. More likely? A photoshop joke.

Can it result in a suit? Why not? We live in a suit happy country where 1/3 of the world's attorneys reside, last I checked. I have read that 70% guesstimate is a myth.

Can't see how suing this person for placing this sign on his personal property would prevail if given to jurors with some common sense (I know, asking a whole lot here.)

[Ahbroody]

Okay I will seriously try to be done after this. I clearly stated I didnt want to turn this into what you just did by cutting and pasting law. Again I am just a dumb cop I dont practice in the area of torts this was not my specialty in school either as I am not a big Tort guy.

To me you are putting the cart before the horse as my instructors used to say. Before you can bring the IIED or negligence claim we must determine if the speech is protected. If the speech is deemed protected you have no basis for the action. How can you bring an action against someone for protected speech? You are asking that the court take away their 1st ammendment right in doing so.

So before you do your IIED or nusiance analysis shouldnt you do a 1st ammentdment analysis? Without this you are pissing in the wind or atleast I think you are. As you are asking the court to violate someones right to free speech. Now as to the freedom of speech argument you slipped in at the end and non protected speech. Which again before we can touch your IIED argument we must clear this hurdle.

This speech is protected lets look at why. To me its not black and white argument its just basic review of the 1st ammendment. You slip in the comment on yelling fire. You did not make a complete analysis as to why those statements are not allowed. It goes to the argument of emminent incitement of lawlessness/ illegal activity. You can yell fire in a theater and have nothing happen to you. It has happened in fact. I will not analyze the fighting words portion of your argument as it has no logical application.

What I find funny is you are quoting holmes "fire in a crowded theater" argument which was later overturned. The Brandenburg case which is the controlling case on this and overturned the holmes decision says the action must be one that is likely to result in emminent lawless action. So my dumb cop brain says you need to make an argument that the sign will create emminent lawless activity. Atleast based on what you have given me to work with to this point.

You may find my views funny. I find it funny you took all that time to write out that reply cutting and pasting in law and left things out and quoted one of the most discussed cases ever showing an error by one who is considered a great justice. Further you are discussing bringing an action on something that you have not even verified is unprotected speech yet.

Please show me first that this is unprotected speech and then we can discuss the possible remedies that can be brought. Again I am just a dumb cop so maybe I am way off on this one. I just thought you had to first determine if the speech was not protected before you could seek a remedy for it.

So where is the 1st ammendment violation

[markem]

This thread is funnier than the picture. Seriously.

I forwarded the picture and a summary of some of the arguments to four friends who are very experienced lawyers. One is faculty at the law school at Lewis and Clark College (highly respected place) and one is faculty at the law school at Willamette University (another highly respected place).

All four more or less stated the same thing: context is everything. The picture in question, sans context, is meaningless when discussing the merits of a suit.

One responded that all that can result is an online argument where each side gets further and further entrenched based on more and more suppositions.

Looks like this is what is happening.

[ade06]

Originally Posted by Blueface

Funny how even something funny can have a serious side to debate.

I realize that the OP probably didn't intend for all the side debate... I couldn't help myself.

Originally Posted by Blueface

Can't see how suing this person for placing this sign on his personal property would prevail if given to jurors with some common sense (I know, asking a whole lot here.)

You would be supprised by some of the jury verdicts reached in our Country. Jury's are even more unpredictable than judges.

[JE3146]

Originally Posted by Don Fernando

I base the lawsuit on the sign, which advertises that the neighbor is an easy target, increasing the chance that burglars or robbers take action, and therefore being partially guilty. It will be hard to prove though.

Read up. You would lose the lawsuit and probably get counter-sued for the grief.

The same constitution that allows us to keep guns, allows people to voice their opinion against them and ironically also allows those of us with guns to voice our opinion against those people.

[Don Fernando]

I read up Jordan, and still think that, after something happened to the unarmed neighbor, a lawsuit can be won.

[ade06]

Originally Posted by markem

All four more or less stated the same thing: context is everything. The picture in question, sans context, is meaningless when discussing the merits of a suit.

In a nutshell that is what I was trying to convey. All I was saying is that a lawsuit arising from the picture could lead to a lawsuit. Not would, but could.

Originally Posted by Ahbroody

Okay I will seriously try to be done after this. I clearly stated I didnt want to turn this into what you just did by cutting and pasting law. Again I am just a dumb cop I dont practice in the area of torts this was not my specialty in school either as I am not a big Tort guy.

To me you are putting the cart before the horse as my instructors used to say. Before you can bring the IIED or negligence claim we must determine if the speech is protected. If the speech is deemed protected you have no basis for the action. How can you bring an action against someone for protected speech? You are asking that the court take away their 1st ammendment right in doing so.

So before you do your IIED or nusiance analysis shouldnt you do a 1st ammentdment analysis? Without this you are pissing in the wind or atleast I think you are. As you are asking the court to violate someones right to free speech. Now as to the freedom of speech argument you slipped in at the end and non protected speech. Which again before we can touch your IIED argument we must clear this hurdle.

This speech is protected lets look at why. To me its not black and white argument its just basic review of the 1st ammendment. You slip in the comment on yelling fire. You did not make a complete analysis as to why those statements are not allowed. It goes to the argument of emminent incitement of lawlessness/ illegal activity. You can yell fire in a theater and have nothing happen to you. It has happened in fact. I will not analyze the fighting words portion of your argument as it has no logical application.

What I find funny is you are quoting holmes "fire in a crowded theater" argument which was later overturned. The Brandenburg case which is the controlling case on this and overturned the holmes decision says the action must be one that is likely to result in emminent lawless action. So my dumb cop brain says you need to make an argument that the sign will create emminent lawless activity. Atleast based on what you have given me to work with to this point.

You may find my views funny. I find it funny you took all that time to write out that reply cutting and pasting in law and left things out and quoted one of the most discussed cases ever showing an error by one who is considered a great justice. Further you are discussing bringing an action on something that you have not even verified is unprotected speech yet.

Please show me first that this is unprotected speech and then we can discuss the possible remedies that can be brought. Again I am just a dumb cop so maybe I am way off on this one. I just thought you had to first determine if the speech was not protected before you could seek a remedy for it.

So where is the 1st ammendment violation

We get it, you're a self proclaimed "dumb cop" (which I think it's safe to say that we all know is not true). Due to the lack of facts surrounding the picture (which is most likely photo shopped, so we're arguing about picture without context), I'm done arguing a hypothetical without details. As stated above, my entire point of providing two potential cause of actions was that a potential for a lawsuit was plausible, even in the face of a 1st Amendment defense. The 1st Amendment defense is not an absolute defense. That's all, nothing else!

If McDonalds can get sued for serving hot coffee, it would seem anything is fair game these days...

[BigCat]

I'm a practicing attorney. Of course, I'll probably have to find a new board to call home after that revelation. In any event, I think the sign is funny as hell, but from a legal standpoint (and I'm mostly a defense attorney), I would have no problem putting together a legitimate lawsuit if the neighbor were to be harmed by someone coming into the house. It is a straight-forward negligence case. You have a duty to your neighbor not to increase his risk of being robbed, harmed, killed, etc. By posting this sign, you have breached that duty. If he is harmed by someone entering his home because of your sign, you caused it. And if he is harmed, he has been damaged. The elements of negligence are (1) duty, (2) breach, (3) causation, and (4) damage. You've got all four here. It isn't going to be a viable defense that you breached that duty by speaking - speech can be an action as well as an expression. You can't go into a bad neighborhood and post a notice that your neighbor is on vacation for a week and doens't have an alarm and then claim free speech protection when he gets robbed. Just sayin...

[icantbejon]

Wow....this is the worst joke thread ever.

[ade06]

Originally Posted by BigCat

I'm a practicing attorney. Of course, I'll probably have to find a new board to call home after that revelation. In any event, I think the sign is funny as hell, but from a legal standpoint (and I'm mostly a defense attorney), I would have no problem putting together a legitimate lawsuit if the neighbor were to be harmed by someone coming into the house. It is a straight-forward negligence case. You have a duty to your neighbor not to increase his risk of being robbed, harmed, killed, etc. By posting this sign, you have breached that duty. If he is harmed by someone entering his home because of your sign, you caused it. And if he is harmed, he has been damaged. The elements of negligence are (1) duty, (2) breach, (3) causation, and (4) damage. You've got all four here. It isn't going to be a viable defense that you breached that duty by speaking - speech can be an action as well as an expression. You can't go into a bad neighborhood and post a notice that your neighbor is on vacation for a week and doens't have an alarm and then claim free speech protection when he gets robbed. Just sayin...

Please no more legal analysis This will only lead to responses of how there wasn't actual or factual causation or there was some intervening act, which broke the chain of causation, etc.

Isn't it great how legal backgrounds can mess-up a joke thread.

[BigCat]

Originally Posted by ade06

Please no more legal analysis This will only lead to responses of how there wasn't actual or factual causation or there was some intervening act, which broke the chain of causation, etc.

Isn't it great how legal backgrounds can mess-up a joke thread.

ok, ok, I just thought I'd lend some support to my fellow brother of the law I will refrain from further comment.

[Ahbroody]

Thank you Colin I was hoping someone who practices would chime in. I can see your points to a certain extent provided someone actually robs the house. There is defiently an argument that can be made, would it fly dont know but its there. Up to and until that point do you see anyway to bring a cause of action?

I am in no way trying to be a smartass, I have thought about this today and just dont see one if nothing is done. That has been my argument through this thread that just the sign equals no cause of action. It is likely photoshoped and if its not the guy is a clown, but I see no legal cause of action for removing the sign.

Originally Posted by ade06

Please no more legal analysis This will only lead to responses of how there wasn't actual or factual causation or there was some intervening act, which broke the chain of causation, etc.

Isn't it great how legal backgrounds can mess-up a joke thread.

hhahahahahahahahahahha seriously. My wife hates when I watch crime shows or law shows and ruin everything

[ade06]

Originally Posted by BigCat

ok, ok, I just thought I'd lend some support to my fellow brother of the law I will refrain from further comment.

Man, I was just joking!!! But, I wasn't even thinking about negligence. I'm sure a plaintiff attorney could come up with some other claims too. I practice transactional and securities law, so what do I know about litigation. LoL.

[BigCat]

Originally Posted by ade06

Man, I was just joking!!! But, I wasn't even thinking about negligence. I'm sure a plaintiff attorney could come up with some other claims too. I practice transaction law, so what do I know about litigation. LoL.

I know you were just joking...I thought I conveyed that in my response. Thus the "" It's all good in the hood either way

As for an action before damage is done, that would be difficult, as damage is an essential element of a tort suit. You'd probably have a hard time showing the emotional distress damages to prevail there. Frankly, I haven't dealt with nuisance since law school, so I can't comment intelligently on that point. My best guess would that it would have to be something based in equity, such as an injunction - arguing that the risk of home invasion or death isn't compensable with money damages and that once that bell is rung, it can't be unrung. It is certainly not as straight forward, but I think it is at least a colorable claim that isn't going to get anyone sanctioned for bringing it. Just my

[bobarian]

I got a rock.