Missouri Cattle Theft and Defense Laws; Where Does the Auxiliary Fit In?

The question was asked several different ways at the recent Cattlemen's meeting on whether it is lawful to shoot cattle rustlers and was answered by the Barry County Prosecuting Attorney. According to one of our NCOs, this was also discussed at this weekend's CCW training course with Jason Lacey in Mount Vernon. This article will repeat the short answer under Missouri law, address some of the complex side questions, and try to tie in how Auxiliary volunteers fit into the mix. The discussion is targeted both as a review of the issue to Auxiliary volunteers and a more in-depth explanation of how we understand Missouri law for the general public as regards property crimes.This is follow-up to our earlier artticle on Missouri cattle theft and we also cover this question in some depth in our Constitution, Law, and the Auxiliary courses which we periodically offer and which are open to the public.
Disclaimer: I am not a lawyer, and although these issues have been discussed with our inside counsel, she is not your lawyer. This article represents our interpretation of the law, bolstered by opinions from local law enforcement. Please read and understand the law for yourself and consult a qualified attorney for official opinions.
The Short Answer: May you shoot someone who is confronted in the process of stealing your cattle?
As the Barry County Prosecuting Attorney stated at the meeting and Officer Lacey reiterated, no, Missouri law does not support the use of deadly force against someone who is involved solely in a property crime (RsMO 563.041 2.) such as livestock theft. Missouri's protections for self-defense are quite strong, but they apply only to circumstances where force is used to prevent "death or serious physical injury" (RsMO 563.011 (1) "Deadly force") or to prevent a "forcible felony" (RsMO 563.011 (3)) such as rape (RsMO 563.031 2.(1)) . Firing a warning shot, shooting out tires, or even brandishing  a weapon in a threatening manner (RsMO 571.030.1(4)) may be considered by the courts to be use of deadly force. The Vice President's opinion notwithstanding, many localities also have laws against improper discharge of a firearm which may apply penalties to the use of a "warning shot" where it is not done in the defence of life. Please note the distinction made between "physical force" to prevent a property crime and "deadly force" in RsMO 563.041.
What About Castle Doctrine?
Missouri's Stand Your Ground law or Castle Doctrine means that you have no duty to retreat from a deadly threat if the threat occurs in your home or dweling (such as a hotel room), your vehicle (RsMo 563.031 2.(2)) , or, as of recent changes in the law, your owned or rented private property (RsMO 563.031 2.(3)) . In many states, a citizen facing a criminal threat is first required to explore every opportunity for retreat before resorting to deadly force. In those states, if you are faced with a home invader coming in the front door, you may be charged with murder for killing them if retreating out the back door was a "reasonable" alternative. In Missouri, under this law, you are not legally required to retreat (RsMO 563.031 3.) when your dwelling or property is invaded and have significant legal protections against civil or criminal charges (RsMO 563.071). It is presumed that you have a right to be in your home and that someone climbing in your window in the dead of night does not have lawful intentions.
However, Castle Doctrine does not necessarily protect you when you go on the offensive against someone who has not presented a threat and has not themselves had an opportunity to retreat. If you leave your home in the middle of the night, confront cattle rustlers, and open fire without direct provocation, you should expect that you will be arrested and charged or may find yourself at the wrong end of a civil suit (say, for wrongful death). It may be that a judge or jury will find in your favor, but even if you do win, the costs of legal defense may be devastating.
What if rustler's present a threat?
If you have some sign of unauthorized activity on your property or with your livestock, you would presumably go to investigate. As a farmer in a rural area, it would be reasonable to expect that you might be armed for your own protection. On private property which you control, there is no need for a Concealed Carry permit in this case--- you may carry a weapon on your own land, concealed or otherwise--- and there is no need for a permit if you have a firearm in your vehicle, which may be loaded and accessible, and not concealed on your person. If, in the course of investigating or of lawful business on your own land, an intruder presents a violent threat: they threaten you, they refuse to leave after illegally entering, they brandish a weapon, approach threateningly after being ordered to leave, attack or otherwise give you reasonable cause that you or someone in your care is threatened with "serious physical harm or death",  Castle Doctrine kicks in as well as Missouri's self-defense laws generally.
My understanding of Missouri law is that mere display of a weapon you may be carrying (why would you investigate an intrusion or check your stock without being armed?) would be presumed lawful. Presenting a weapon at an unknown threat ("I am armed! Show me your hands! State your business!") or a surprise intrusion almost certainly so (see RsMO 563.031 4. on physical restraint), but actually striking, threatening, or shooting would require justification by an actual or strongly perceived threat. Shooting at a fleeing intruder would be very difficult to legally justify and might result in your facing charges of murder. A judge or jury might also be very interested in whether you had an opportunity to call law enforcement and did not or to hold an intruder for arrival of a deputy. In a rural area, law enforcement response may take some time and we may be forced to deal with a rapidly developing situation on our own, but it is considered very bad form not to call and let them know that trouble is afoot and that you need assistance if you have a reasonable chance to do so.
There is a significant issue concerning intruders with vehicles. If you confront an intruder outside their vehicle, it may not be reasonable to let them return to the vehicle where they may have a weapon (and of course, a vehicle, in and of itself, may be a weapon). If you feel threatened by an intruder, do you let them get in their car and go? I have received mixed answers on this as far as Missouri law is concerned (comments by law enforcement welcome). Having had to deal with this situation in the past, my personal solution would be to either a) ask the intruder to remain until a deputy can arrive and escort them off the property, or preferably b) to leave their vehicle behind and leave my property until the Sheriff can resolve the matter. If they want to come back with a deputy to retrieve their vehicle during daylight, that's fine, but I'm not going to argue over the matter standing in a dark pasture in my pajamas and bedroom slippers facing an unknown intruder. I, personally, would consider a failure to comply with those instructions (such as reaching into a vehicle after being told not to) to be threatening conduct.
If an intruder is already in their vehicle, approach with caution as they may have any number of weapons ready to hand and out of your sight.
What constitutes "a threat"?
This is where we leave the area of reasonably clear law and enter troubled waters, morally as well as legally. In many situations, it is not clear what a mythical "reasonable person" might or might not consider a threat by an intruder. If you find an intruder in your stockyard at 3 am, how do you know whether they are armed? Can you reasonably be expected to know what that thing is in their hands by moonlight? Do they have buddies who may be sneaking around behind you as you confront the first intruder? Can you risk letting them get back in their vehicle if they might have a weapon under their seat? Morally, Christians might wish to read and meditate on Exodus 22:1-2. In the first verse, the Bible clearly defines theft of livestock as a property crime (not justifying vigilante violence). The second verse states that a man who confronts and kills a thief by day shall be guilty of bloodshed but when confronted in the dark of night shall not. By my reading, this is not because property crime justifies murder, but because it is not reasonable to expect a home owner surprised in the dead of night to judge between a mere thief and something worse.
Legally, Missouri's Castle Doctrine weighs matters on the side of a home owner in the same manner--- no one not standing in your shoes in a dark pasture can say precisely what you saw and what threat you perceived--- but the further you drift from clear issues, the better the chance you will end up arrested, charged, or sued, even if it eventually comes out in your favor. Taking certain actions, such as, again, shooting a fleeing intruder, or shooting a wounded man on the ground after they ceased to be a threat, are unlikely to be considered self-defense no matter your justification (see, e.g. RsMO 563.031 1.(1)(a)).
Personally, I do not believe that it is right to kill someone over property. I strongly believe such disputes should be mediated by the community and its appointed mechanism for law and justice, but I am going to be much more twitchy --- and reasonably so--- when confronting an intruder at night, confronting multiple intruders when alone, incapacitated, when protecting my child, or in any other situation which puts me at a distinct disadvantage against someone who is not supposed to be there in the first place. If you choose to own or carry weapons, please consider the moral and legal issues, discuss them with your spouse, your pastor, or someone else you respect before you are faced with an intruder and a defense situation.
As a practical consideration, I would also offer the following bits of advice:

• Confronting intruders in the dead of night is dangerous. If you really think someone is out there, call law enforcement first, consider whether it is worth investigating and, if possible, do not confront them alone. If there is more than one intruder, one of them may attack you from behind while you are busy with the other. Someone should know where you are and that they should send help if you do no come back. Living in a rural area, we cannot expect the Sheriff to investigate every disturbance on our farms--- protecting livestock is a full time job--- but there is no reason to be foolhardy.
• If you are going into the barn or pasture to investigate a distubance and are leaving your sleeping family inside, you might want to lock your door behind you so that the intruder does not sneak in while you are outside!
• Training in a 2-way radio or otherwise having a way to communicate with your spouse, your older children, farmhand, or whatnot, is very important. If you get in over your head, you need to be able to call for backup. Anywhere it is applicable, you want to be able to extend this to communication with a neighborhood watch or just an informal group of neighbors.

How does the Sheriff's Auxiliary fit into this?
So far we have outlined what we believe to be the situation regarding common citizens and Missouri law when confronting a thief. How does this change for a Sheriff's Auxiliary volunteer on patrol who discovers a crime or responds to a call for help?
The short answer is "not at all". An Auxiliary volunteer is armed to protect themselves or the lives of others. As with any other citizen, we may act to prevent a forcible felony (rape, assault). Under normal circumstances, we have no authority to arrest, detain, or respond to property crimes. We are not Peace Officers. We are by no means and in no circumstances judge, jury, and executioner whether on or off duty. We have no authority to enter private property without permission to investigate a crime or intrusion.
The longer answer is that it depends on the authority we are acting under. There are two cases where Auxiliary volunteers may end up exercising authority delegated to them by a licensed Peace Officer. The first is when we are called up and following the orders of a licensed Peace Officer under whose supervision we are acting. When "lawfully summoned in the aid of the civil power" (Article I Section 23 of the Missouri Constitution) we act under the authority of that civil power to the extent that we are faithfully executing our duty as assigned. For example, when a volunteer is assisting and following the orders of a licensed Peace Officer, exceptions about where we may or may not carry weapons come into play (RsMO 571.030 2.(1): pertaining to "...any person summoned by such officers to assist in making arrests or preserving the peace while actually engaged in assisting such officer..."; see also RsMO 563.021 2.(2) and 563.051). Teams of volunteers coordinated by deputies serve as a legal and practical force-multiplier for the Sheriff to the extent that they are lawfully following the orders of the deputies (and believe that the deputy's orders are themselves lawful).
The second case is when Auxiliary volunteers are actually deputized for the duration of an emergency. The Sheriff has statutory and common law authority to create temporary special deputies to assist him (or her) in an emergency. Persons deputized may exercise whatever authority is delegated to them by the Sheriff and may be paid up to a whopping two dollars per day while so engaged (RsMO 57.119). The creation of special deputies is considered an extraordinary act, but one of the reasons for the existance of the Auxiliary is to provide a pool of volunteers who the Sheriff has pre-screened and can trust with that responsibility should it become necessary.
The posse is a traditional manifestation of this power of the county sheriff (RsMO 544.120 "... and all others which shall thereto be required by any such officers..." and 544.230) but is not one which is used often in modern times. One of the reasons Sheriff's tend to be very reserved in the delegation of their authority is something which many people do not appreciate: the Sheriff, as a condition of his (or her) office, puts up a personal bond which they may forfeit if they are found to misuse their office (RsMO 57.020). When a Sheriff delegates authority to a volunteer in either of these two manners, he is placing himself and his family at risk of financial ruin.When this is understood, it quickly becomes clear why the Sheriff must be certain that anyone acting in his name is worthy of the trust and why the Auxiliary has a tremendous responsibility in properly vetting and approving candidates.
So then, what does the Auxiliary bring to the table?
If Auxiliary volunteers are not Peace Officers and possess no special power of detention or arrest, if they cannot leap to the defence of the cattleman to combat rustlers, why have an Auxiliary? Why not have every owner of livestock for themselves?
There are two places where the Auxiliary becomes indispensible as a means for combatting property crime, one of which has been already discussed: acting as a pool of volunteers on which authority may be selectively conferred if and when needed. But the other is that the Auxiliary becomes a mechanism whereby the citizenry can coordinate and communicate effectively with law enforcement in protecting the community. By bringing more manpower to the tasks which do not require a licensed Peace Officer, the pool of deputies may be used more effectively. The Auxiliary is trained in radio communication and is tasked with assisting in the organization of rural watches. Auxiliary volunteers with appropriate training are authorized to use the Public Service radio systems used by law enforcement and emergency services. We have implemented a team management system to coordinate and call up volunteers, to track qualifications, and to store instructions for activating required community resources. We are building a repository of quality maps and community contacts, are developing relationships with community organizations, and serve as a community intelligence function. On other side, by implementing what I call locals-in-the-loop law enforcement, we act as a vehicle to engage the community on what their Sheriff's Office and their Sheriff's Auxiliary is up to.
In both of these manners, the Auxiliary acts as a force multiplier to make the best possible use of limited resources. The cattle rustlers are already organized. If the community organizes, from the level of rural watches on up, if we have well organized community patrols using the Sheriff's Auxiliary as a conduit to law enforcement, we can more quickly identify suspicious activity, communicate with area cattlemen to determine if the activity is lawful, and bring law enforcement down on an incident. With more eyes on the problem, we maximize our chances of devoloping intelligence which can be turned into arrests and convictions. We raise the cost of doing business for the thieves and we strongly encourage them to go elsewhere. In a disaster we become a capable civil defense force for helping maintain law and order, securing the rights of property owners, and contributing to emergency response.
All of this requires training, resources, and commitment. As a community and by utilizing volunteers, we have an alternative to raising taxes in a bad economy to provide the protection the community needs. Even if money were not an issue and we had an infinite supply of well-paid, well-trained deputies, they still could not do their jobs without community involvement. A deputy seeing cattle moved at night still has to know who to call to find out if the movement is lawful. The Sheriff still has to have the relationships with cattlemen and property owners to be able to respond quickly, effectively, and with the best knowledge of the situation available. No Peace Officer likes to respond to an incident in the middle of the night where they don't know what is going on and who started it. As a property owner, I don't like walking into my pasture at night to investigate a disturbance without knowing that someone can come to my aid quickly if I need it. The Sheriff's Auxiliary, connected to organized rural watches and reliable communications, makes the job easier and keeps the community safer.
References:

• Missouri Revised Statutes, Chapter 563 (RsMO 563) "Defense of Justification";
• Missouri Revised Statutes, Chapter 571 (RsMO 571) "Weapon Offenses"; 
• Missouri Revised Statutes, Chapter 57 (RsMO 57) "Sheriffs";
• CLA I&II: The Constitution, Law, and the Auxiliary course;
• Missouri Cattle Theft; Working Toward Prevention