This is obviously speculation about a fictional situation, but I’m trying to get a general idea of what people think is likely to happen if the fictional situation occurred in real life; thus I put this question in General Questions rather than in Café Society. I’m not trying to nail down a definitive answer, but instead looking for some guidance in my searches regarding this scenario:
In The Maltese Falcon, the character Joel Cairo lawfully enters a place of business: the offices of Sam Spade. Cairo pulls out a gun and searches Spade’s office. (There is a lot of byplay with Spade taking the gun from Cairo and then giving it back, but let’s ignore that.)
Neither novel nor movie discuss this, but: let’s assume that Cairo had a valid concealed carry permit for his gun. Let’s assume also that instead of the 1940s, this happened in the present day.
So Cairo doesn’t break in; he has a right to have the gun; he takes nothing; he damages nothing; he does no physical injury to Sam Spade.
However, he has clearly committed assault by holding the gun on Spade.
Is that the crime? “Assault”? I’ve been doing a lot of reading, much of it into tangents such as “duress” and “coercion” (which don’t seem to apply as they relate to defenses for having committed a crime, and in this situation Spade hasn’t committed a crime).
Would Cairo be convicted of “assault” and would he do time? What sort of sentence would be expected or usual in such a case? I realize that specifics will differ by jurisdiction (states in the USA, etc.) and by Cairo’s past criminal history, but…just generally, if Spade reported the crime, for how long could he expect Cairo would be locked up? Or would Cairo (if he had no prior convictions) be locked up at all?
Thanks–I’ll do some reading on “criminal threat”. Attempted robbery should also be an interesting avenue to pursue, since Cairo would have taken away what he was seeking had it been there.
I don’t think either trespass or burglary would work, though, since Cairo had entered a business establishment that accommodated the public, during its operating hours. He was admitted to Spade’s inner office by Spade, before pulling the gun.
Part of the trouble I’m having with finding typical charges, penalties, and sentences, is that it’s apparently not very common to hold a gun on someone in order to search a place without also going further and committing some additional crime (pistol-whipping, or the trespass and/or burglary you mentioned, for instance).
Well, sure. In the actual story, Cairo had a lot of potential charges hanging over him.
I was just wondering about the ‘enter a business lawfully, then pull out a gun and search’ part of his activities. I didn’t even recognize that as “assault” until I started doing some reading. :o
Yes, thanks! --I’ve heard of menacing, but didn’t find that term in my earlier reading. (Finding the right search terms is crucial! …I just spent several minutes looking for the history of the use of the charge, but that will take longer; it’s a tangent from my original search.) Looks as though the charge could range from misdemeanor to felony, and that it apparently came into widespread use in response to domestic violence, stalking, and harassment cases.
Heh. Not a bad case to look at, if ‘brandishing of firearms’ is at issue. (He’s in the news today, having found a new career as a political stump speaker, touring around Nevada. People do love that there brandishing of firearms!)
Oh, and having a restricted firearm outside the place where he was entitled to have it, plus concealed carry, as we don’t have concealed carry permits in Canada, except in the most unusual cases, and I doubt that Cairo would qualify.
Again, sentencing would be impossible to predict, without knowing his record.
One important point of menacing is that there usually doesn’t have to be a genuine threat. You can violate the law by “threatening” somebody with an unloaded gun, a toy gun, or even a pointed finger in your pocket. It just has to be a situation where the other person would reasonably believe you’re threatening them with a real gun.
Did Spade ask him to leave? I was under the impression that the proprietor of a business could ask an unruly customer to leave at any time, and that if the customer didn’t comply, then he/she would be trespassing.
There’s also an offence of unlawful confinement - similar to kidnapping except the accused doesn’t take the other person anywhere. Holding a gun on someone to restrict their movements, even briefly, could qualify.
I haven’t read the story, so I don’t know how Cairo gets Spade to let him in, but most US jurisdictions have broadened burglary (aside from the nighttime requirement) so that “breaking” includes entry by deceit.
Generally no, unless the defendant accesses areas that are off limits to the public or conceals himself so he can remain after closing time. Based on the old Sam Spade film/TV stuff I’ve seen and various knockoffs and parodies, I get the impression Spade’s office was not itself open to the public like, say, a storefront. You had to wait outside while the secretary told Sam you were there and then barge into the door while the secretary said “you can’t go in there, lady!”
In the movie, at least (I don’t have my copy of the book to hand), Cairo entered Spade’s offices which were indeed open to the public, as Spade was a private detective who solicited business with signs on the windows (and possibly newspaper ads for all I know). Spade’s receptionist came into his inner office and stated that Cairo wanted to see him, and Spade said something like ‘send him in.’ So, no burglary or breaking-and-entering or trespassing there.
Interesting suggestion, up-thread, about O.J. I need to look through material on that case. I wouldn’t be surprised, though, if as in most such cases, there are elements other than the 'enter lawfully, have a permit for the gun, don’t break anything or injure anyone, don’t take anything’ situation present that would have contributed to the sentence O.J. got. It’s the “pure case” (in which everything is legal except the holding of a gun on someone) that I’m most curious about—but may not be able to find an example of.
Good suggestion, too, about “unlawful confinement.” I’ll check on that.