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I just came across the following facebook status. I cannot testify to its veracity, although given the SF DA policy not to prosecute quality-of-life crimes it sounds believable. Anyway, this status triggered several questions:

  1. Is a robbery that includes smashing a car window with the driver inside considered a non-violent property crime?

  2. If the police witness such a robbery do they have the duty to intervene?

  3. Is it true that if the victim fights back in such situation and injures the assailant, the robbery victim may be prosecuted for using violence against the robber?

Andrew Bland

Robbery in Golden Gate Park:

On Thursday evening, I was witness to and nearly a victim of an aggressive robbery near the bison paddock on JFK Drive in Golden Gate Park. I was photographing great horned owls. Around 8:10PM, I was packing up equipment and putting it in my car. Another photographer was doing the same further down the road behind me. As this person got in their car, I saw a small white car pull up and abruptly stop right next to it. A masked man jumped out and began smashing in the rear window of the other photographer’s car.

By the time I got my wits about me and managed to get into my car and start the engine - no more than 10 seconds - they had finished robbing the other person and had now pulled up alongside me. The passenger-side door opened and the masked assailant began to step out, ready to smash his way into my car. With only a few seconds to spare, I stepped on the gas and pulled away, fully expecting that they would give up and flee. But they chased me, and pulled up alongside me, either trying to run me off the road or cut me off and stop me. I sped up and got ahead of them.

Probably going 50MPH with the assailants’ car right behind me, we ran through two stop signs and barreled over speed bumps for nearly a mile before they slowed down, made a U-turn, and disappeared out the 33rd Ave gate. (Keep in mind, I bike this road nearly every day and am very respectful of more vulnerable road users when in my car. I gave the few cyclists that happened to be out a wide berth as we passed.)

I circled back and by then the cops were there. I gave a statement, along with the other victim and two witnesses. Nobody saw their faces or license plate. They were fast, prepared, and extremely aggressive.

The officer explained that these smash-and-grabs are merely considered property crimes and are NOT considered violent crimes (yes, you read that correctly) so they don't really pursue them, and if they did hypothetically make an arrest, the judge would just let them go, including repeat offenders. He even said if police were to witness one of these incidents occur, they would NOT chase the culprits. He also informed me that if one were to fight back and injure (or worse) one of these thieves during a robbery, then that person would likely be charged with assault for using violence against a "non-violent" criminal. Unbelievable. So scary and so very frustrating.

So be careful out there. I am finished shooting pictures and video in the park. Way too dangerous, and the police are not going to be there when you need them. And even if they were, they wouldn't help you anyway. I'm sharing this story as a reminder to others to stay in groups, and always be aware of your surroundings.

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  • 2
    Robbery by definition requires either violence or the threat of violence. May 25 at 19:08
  • Please provide a link or citation to the source of the quote. May 26 at 14:04
  • -1 for a few reasons. This post is three separate questions. It’s mostly a wall of undiluted text. How could robbery not be violent? Why would police not have a responsibility to stop robbery and vandalism? Your third question is good but needs refining in my opinion. May 26 at 17:20
  • @gen-ℤreadytoperish The implicit question which the detailed fact pattern elaborates, is whether the police were correct that this was not robbery and instead was a mere property crime. The question is a bit bold in assuming that this was robbery, rather than asking if it was, but that defect is pretty harmless.
    – ohwilleke
    May 26 at 18:57
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  1. Is a robbery that includes smashing a car window with the driver inside considered a non-violent property crime?

Robbery is classified as a violent crime.

Whether or not this fact pattern would count as robbery as opposed to burglary or theft and vandalism would depends upon California's penal statutes. Burglary is sometimes considered a violent crime (e.g. an armed home invasion burglary) and sometimes not considered a violent crime (e.g. an unarmed theft from an unoccupied residence). Theft is generally not considered a violent crime and if small in amount may not even be a felony. So is vandalism (i.e. the malicious destruction of property, rather than the taking of it).

Robbery is defined in California Penal Code § 211 as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." There is a very solid argument that this fact pattern constitutes robbery, a violent crime, under California law, but it could be argued either way. The close issues would be "immediate presence" and "by means of force or fear" (which by implication mean force or fear directed at persons rather than things).

The OP fact pattern is probably not burglary under California Penal Code § 459 because while theft from a car can be burglary when someone is living in the car, this does not appear to be the case here.

So, if a jury did not find that this constituted robbery, it would probably be the crime of theft (for the things taken) and vandalism (for the damage to the car windows), both of which are property crime misdemeanors. If the cars were unoccupied, this would clearly be merely theft.

  1. If the police witnesses such a robbery does it have the duty to intervene?

No.

The leading case for U.S. Constitutional law is Castle Rock v. Gonzales, 545 U.S. 748 (2005). I am not aware of any California law to the contrary.

Failure to intervene might be grounds for the chief of police to fire them, but it is not a crime and not a basis for a lawsuit against anyone. The police have effectively absolute discretion to refrain from enforcing the law.

  1. Is it true that if the victim fights back in such situation and injures the assailant the robbery victim may be prosecuted for using violence against the robber?

No.

A victim may use reasonably necessary force in self-defense, so long as the situation continues to be a self-defense situation. Usually, deadly force would be justified in self-defense or defense of others from a violent robbery, although a jury would have to determine that the use of force was actually necessary or that the threatened crime was actually a genuine threat, according to the statutory standard for self-defense and defense of others. The relevant statutes include California Penal Code § 197 which provides in pertinent part that:

(1) When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person.

(2) When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous, or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein.

(3) When committed in the lawful defense of such person, or of a spouse, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he or she was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed.

But, the circumstances under which force can be used to arrest or stop a fleeing criminal are much more narrow, particularly in the case of a citizen's arrest as opposed to an arrest made by law enforcement. The U.S. Supreme Court case of Tennessee v. Garner, 471 U.S. 1 (1985) narrows the scope of the lawful use of force in these circumstances beyond what California's statutes authorize on their face.

For example, suppose the robber threatens you with a knife unless you give him his wallet. You or a bystander could probably lawfully shoot him at that point to prevent the robbery.

But, suppose that at that point, the robber tosses the knife on the sidewalk and runs away. If someone shot the robber in the back to stop him from fleeing (unaware of any other crimes that the robber may have committed and unaware of any other weapons that the robber may have), the person shooting the robber would be guilty of aggravated assault if the robber lived, and of manslaughter or murder, if the robber died.

The facts in this case are a bit muddy on whether self-defense should have been available or not, and different hypothetical uses of force could come out different ways within this fact pattern.

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It depends on who is doing the defining. The FBI reports crime statistics and has a category of violent crime. They say that under the

Uniform Crime Reporting (UCR) Program, violent crime is composed of four offenses: murder and nonnegligent manslaughter, rape, robbery, and aggravated assault. Violent crimes are defined in the UCR Program as those offenses that involve force or threat of force

Note that robbery is specifically included. They also define property crime which

includes the offenses of burglary, larceny-theft, motor vehicle theft, and arson. The object of the theft-type offenses is the taking of money or property, but there is no force or threat of force against the victims. The property crime category includes arson because the offense involves the destruction of property; however, arson victims may be subjected to force.

There is no legal duty for the police, except when actually mandated by law, i.e. a law passed saying that an officer must get involved when.... This could include a departmental policy that says such a thing. In Washington there is now a law that obligates an officer to prevent another officer from using excessive force. I would be surprised if there is a law that mandates that an officer must arrest a suspect when they witness a violent crime.

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  • There was a judgment in a German court where a judge decided "Arson is attempted murder unless the arsonist personally makes sure that no person is put into danger".
    – gnasher729
    May 26 at 0:45

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