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VERDICT in Squatter Shooting Case: Not Guilty

VERDICT in Squatter Shooting Case: Not Guilty

Interesting self-defense narrative

It took the Sparks NV jury fewer than 7 hours last night to find 74-year-old Wayne Burgarello not guilty of all charges in the shooting of two squatters, one of whom died of his injuries, reports the Reno Gazette Journal.  Burgarello had been charged with murder for the death he caused and was also subject to conviction on the lesser included charge of manslaughter; he was also charged with attempted murder for the victim who survived.

Here’s Burgarello leaving the courtroom following the verdict, in the company of his defense lawyer Theresa Ristenpart:

It was uncontested that Burgarello had fired the shots, but he sought at trial to justify that use of force as self-defense. As indicated by the verdict, the jury unanimously agreed that the State prosecutors had failed to disprove self-defense beyond a reasonable doubt (the legal standard in every state except Ohio).

This was something of an unusual successfully argued self-defense case in that arguably the fight did not come to Burgarello, but rather he went to the fight in February 2014.  Alerted to the fact that there were squatters on his property, an otherwise unoccupied apartment, Burgarello armed himself with a 9mm semi-automatic pistol and a .357 Magnum revolver and set out to confront the interlopers.

Burgarello entered the apartment, guns in hand, and called out to the squatters, 34-year-old Cody Devine (male) and 30-year-old Janai Wilson (female), both habitual meth users.  Wilson had so habitually squatted in the apartment that she’d changed her driver’s license to reflect that address and was seeking to obtain outright ownership via “squatter’s rights.”

Devine was shot five times, including once in the head, and died of his injuries; Wilson was shot in her leg, arm, and stomach, and managed to flee the scene.

Prosecutors had sought a first-degree murder conviction because of that fact that Burgarello armed  himself and “went to the fight” arguably to seek a deadly confrontation.  Burgarello owned a number of rental units, some empty for as long as nine years, and many had been subject to repeated vandalism and burglaries.  Witnesses testified at trial that Brugarello had talked of plans to hide inside the units for squatters to enter and then “shoot them,” and thus premeditating the shootings.

Prosecutors argued that Burgarello opened fire without lawful provocation immediately after he awoke the sleeping Devine and Wilson by challenging their presence, a claim based on the testimony of the surviving Wilson.

Burgarello, in contrast, told police that he had perceived Devine pointing a gun-like weapon at him in the darkness (Burgarello did not testify at trial).  Although no weapon was found at the location where the squatters were shot, a black flashlight was recovered from under Devine’s body.  The fact that Devine may not actually have possessed a weapon is, of course, legally irrelevant.  The legal question is whether Devine’s conduct with whatever object he possessed might have been reasonably perceived to have represented an imminent threat of death or grave bodily harm.

Defense Attorney Ristenpart argued to the jury that he had a right to arm himself and check his properties, stating that “Wayne could have had 10 guns that day, and that is still lawful and legal.”  She further claimed that Burgarello first shouted into the dwelling numerous times, asking if anyone was inside and telling them they needed to come out. This narrative was buttressed by the testimony of a retired firefighter who witnessed the events.

Other defense witnesses who owned adjacent rental properties testified about times they had squatters threaten them with knives, after which they had armed themselves with handguns much as had Burgarello.

Ristenpart also argued that it was the squatters, not her client, who:

created the dangerous, threatening situation, trespassing, getting high on meth and being where they shouldn’t be, where they had no right to be. . . . The aggression is against Wayne. . . . Here are two people who broke into your home to use drugs and trash the place. That’s the aggression, and that’s what caused this threatening situation.

Even the prosecution felt obliged to concede:

They had no business being there, but did they deserve to die?

Of course the news story commits a random act of “journalism” and makes a gratuitous reference to “stand-your-ground,” stating:

Nevada’s stand-your-ground law allows deadly force against attackers who pose an imminent threat, regardless of whether they are armed. But it specifies the shooter cannot be the initial aggressor.

Replace “stand-your-ground” in that sentence with simply “self-defense,” and it would be far more correct.

I’m a strong advocate of avoiding violent confrontation whenever possible.  I would certainly not encourage anybody to arm themselves to take on some unknown number of potentially armed squatters in a darkened apartment at night for both tactical and legal reasons.

Tactically, it’s a situation likely to result in someone’s death, and there’s no guarantee that it won’t be you bleeding out on the floor, instead of the squatters.  (For some perspective on how fast an armed fight can happen, and not necessarily with a happy ending, see:  VIDEO: How fast does the fight go down? THIS fast.)

Legally, it’s typically far harder to sell a self-defense narrative when you arm yourself and go to the fight, as opposed to a situation in which a fight unavoidably comes to you.  In many states, including Massachusetts where I live and practice law, aggressive conduct of the type engaged in by Burgarello could well result in him being denied a self-defense jury instruction entirely.

That said, this fight happened not in Massachusetts but in Nevada.  Certainly the fact that the victims were habitual users of meth, a particularly vicious scourge in the Southwest, could not have helped the prosecution’s narrative of guilt.  If, as the defense claims, the police were routinely ineffective in responding to complaints of sometimes lethally violent squatters, the community would naturally become more forgiving of property owners arming themselves and resorting to self-help to enforce their rights.

In any case, after hearing both the prosecution’s narrative of guilty and the defense’s narrative of innocence, the jury in this case took merely an afternoon and evening of deliberations to unanimously find Burgarello not guilty for the killing of Devine and wounding of Wilson.

–-Andrew, @LawSelfDefense


NEW! The Law of Self Defense proudly announces the launch of its online, on-demand state-specific Law of Self Defense Online Training.  These are interactive, online versions of the authoritative 5-hour-long state-specific Law of Self Defense Seminars that we give all over the country, but from the convenience of your laptop, tablet, or smartphone, and on your own schedule.  Click over for more information on our state-specific Law of Self Defense Online Training, and get access to the ~30 minute Section 1. Introduction for free.

Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.

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Comments

THAT is a lucky man…!!! He should go to the nearest casino!

    userpen in reply to Ragspierre. | May 30, 2015 at 12:44 pm

    Good luck in renting that apartment!

      Ragspierre in reply to userpen. | May 30, 2015 at 1:03 pm

      A good property is an OCCUPIED property. Even if WAY below market, he could rent to somebody who would assure it was kept up…AND in the right circumstance, enjoy some tax benefits, too.

        MouseTheLuckyDog in reply to Ragspierre. | May 30, 2015 at 3:15 pm

        It seems to be a chicken and egg thing. He can’t rent until he cleans it up. He can’t clean it up until because of the squatters. He can’t keep the squatters out without a tenant.

        Especially if he has several such units.

          No chicken and the egg … just do what every other landlord does, call the police and meet them at the property.

          MouseTheLuckyDog in reply to MouseTheLuckyDog. | May 30, 2015 at 3:38 pm

          Who says the police can do anything: http://money.howstuffworks.com/squatting1.htm

          If the police won’t do anything then go remove them yourself.

          Better to look back on a violent encounter and know that you did everything that you could to avoid the situation than torture and maybe even kill yourself because you can’t live with what you have done. Unless of course you are a sociopath, then … nvm.

          sidebar in reply to MouseTheLuckyDog. | May 30, 2015 at 4:31 pm

          Shane — let me know if you are every going to be out of town for an extended vacation.

          I take it, that you will compliantly rent a hotel room if when you return home to find some crack heads in your house — and the overburdened police say it is a civil matter. You won’t point out to the police that “breaking and entering” is a felony. Removing your property from the house is “burglary”.

          You will just quietly melt away so that the police can enforce the version of the law most convenient for them.

          Did you even bother to read my comments? Do you think you are exempt from the emotions that come from violent confrontation? Do you think that when you go in to confront the crackheads you are going to 100% not be hurt yourself? Or dead? Get over your delusion, you are not Rambo, that shit is a lie. BTW no, I won’t roll over and let someone take my property, but I will certainly have the greater chance of success of enjoying said property than you.

          sidebar in reply to MouseTheLuckyDog. | May 30, 2015 at 8:20 pm

          Your comments make me think that you don’t have the right stuff Shane. Perhaps your tough action will be not defaulting on squatters quiet title action so no one gets hurt.

          Just let me know when you plan to leave town. Everyone likes a freebie. Remember you have a duty to retreat.

      Ragspierre in reply to userpen. | May 30, 2015 at 4:35 pm

      There are people you can hire…legally…who have help you get rid of all forms of pests.

      You don’t have to resort to very risky self-help remedies.

    sequester in reply to Ragspierre. | May 30, 2015 at 1:56 pm

    He is indeed very fortunate. In pre-Obama times I recall the sad case of John White a Black Long Island Homeowner Convicted of Shooting White Teenager after he confronted a group of hostile teenagers on his long.

    The prosecutor argued:

    Instead of trying to calm the unarmed teenagers, or simply locking his doors and waiting for the police, Mr. White grabbed an unlicensed pistol and stormed out of his house to confront the teenagers, [lead prosecutor James] Chalifoux said.

    In Florida, “A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.” Had this black homeowner lived in Long Island the statutes would have permitted him to wage stronger legal defense. White’s sentence was eventually commuted by the Governor of New York.

    In any case Mr. Burgarello is fortunate that the jury gave him the benefit of the doubt. It does not always work out that way.

      dystopia in reply to sequester. | May 30, 2015 at 1:57 pm

      In the New York of today, the surviving white teenagers would have been charged with hate crimes either by the Federal Government or New York. Mr. White would have been hailed as a hero by the US Attorney General.

      Shane in reply to sequester. | May 30, 2015 at 3:29 pm

      The situation that you describe is the same situation that occurred with the white home owner and the drunken black girl that nearly tore his screen door off. And the answer is the same, if you were frightened for your life why on earth did you open the door, or in the case you are describing go outside?

      Gremlin1974 in reply to sequester. | May 30, 2015 at 10:17 pm

      Well since typically you can’t be doing anything illegal and claim self defense this guy was sunk from the beginning, since it was an “Unlicensed” pistol.

        That’s actually not generally true. SOME states have provisions denying self-defense if you are engaged in ANY unlawful conduct, but many do not.

        Thus in the latter states a person who is say, dealing drugs, and who is the subject of an armed robbery attempt CAN legally use force in self-defense.

        Of course, he can still be prosecuted for the drug crimes.

        Lot of variance by state on that one.

        –Andrew, @LawSelfDefense

    JackRussellTerrierist in reply to Ragspierre. | May 31, 2015 at 1:44 am

    Three cheers for ‘self-help’!

    I’m glad he was acquitted. He should never have been charged.

good.
more of this needs to be done.
ya I’m a bloodthirsty racist or something. whatever.

    Shane in reply to dmacleo. | May 30, 2015 at 3:31 pm

    I don’t think that killing crackheads is really racism, but killing someone is really not the solution. Let the police deal with it. The system will do what is necessary, and maybe (I doubt it) but maybe the crack heads will get it.

      depending on city/state the squatters can gain rights if there long enough so police often cannot help.
      if they are dead they don’t have to get it. it won’t matter.

        Shane in reply to dmacleo. | May 30, 2015 at 3:51 pm

        I get that, but do you want to have to deal for the rest of your life with a killing on your hands? When you look back to what happened best to know that you did everything to avoid the fight.

        Also I don’t get the whole police may not be able to do anything, I am sure that though this is true in some situations it is an outlier, and that said, how is sound strategy based on outlieing possibilities?

          if someone was stealing my property (which squatters are doing) and endangering others due to drug use I would have no issues.
          if it was legal I would hunt them to shoot them.
          thats why I live in rural area, I cannot be around crowds.

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

          The disseisor must openly occupy the property exclusively, keeping out others, and use it as if it were his own. Some jurisdictions permit accidental adverse possession as might occur with a surveying error. Generally, the openly hostile possession must be continual (although not necessarily continuous or constant) without challenge or permission from the lawful owner, for a fixed statutory period to acquire title.

          so keep others out for a time and its yours. many times actual owner unaware of squatter and has to fight in court for right to return to property.
          all this while they, usually, are also paying the taxes on it.
          after the timeframe cops cannot do anything. the law makes it happen that way.
          its not an outlier its just an issue many choose to ignore.
          if its under 30 days in most jurisdictions (as far as I can tell) its not too hard to evict but it still costs you.
          Over 30 days and they start gaining rights to be there.
          so yeah, shooting them is what needs to be done.

          Ragspierre in reply to Shane. | May 30, 2015 at 6:31 pm

          No, no, no. You’re trying to turn a very sensible provision in law into some nightmare scenario.

          I know, having fought the literal nightmare scenario.

          Adverse possession is a very old concept, and it makes a lot of sense. The laws of property…and especially property TAXES…LIKE for owners to be known, engaged, and responsible.

          Real property that lies fallow and without any apparent interest being taken is often a source for mischief. It’s also not a good source of tax revenue, and it won’t sit more than a year or two before being executed on for back taxes (where real property is taxed).

          Where you have real adverse possession (I’m doing a case right now), the adverse possessor has paid property taxes on the land for twenty-five years or better (depending), and holds the land under a claim of title (i.e., they bought the land, but the recorded title was lost in a flood in Galveston County). So, they are allowed to clear title via adverse possession, and the statute of limitations in Texas forestalls anyone from challenging their claim.

          if I want to leave my property vacant with its taxes being paid then its nobodies damn business and anyone who advocates that for being a reason to take is acting like an idiot.
          if someone is doing mischief/unlawful stuff on my property w/o my knowledge punish them not me.
          adverse possession is the weaker bastard child of eminent domain.
          it also seems to be a wet dream for many otherwise intelligent lawyers.

          JackRussellTerrierist in reply to Shane. | May 31, 2015 at 1:49 am

          There some things with which the cops can’t be much help.

          You find squatters on your property. You tell them to leave.

          They don’t leave. You call the cops. The cops tell them to leave. They leave and come back two days later.

          Third time’s the charm. 🙂

          Ragspierre in reply to Shane. | May 31, 2015 at 9:57 am

          Telling an adverse possessor to leave in most jurisdictions cuts off their running period for the adverse possession.

          dmacleo has decided to do his “old man shouts at sky” impression of Grandpa Simpson…dagnabbit…!!!

          While it sure is not a requirement legally, getting around to your property once a year…or having your agent do it…seems like a mighty common-sense practice. Disputes over land can involve good-faith claims, as well as hostile trespassers, and dealing with them timely is good sense.

MouseTheLuckyDog | May 30, 2015 at 3:09 pm

I was pointed to an interesting site. ( No this is not spam ), One of the principle things it does is store videos related to popular cases, There I found three videos yesterday: Apperson modification of bond hearing where he was forced to wear a monitoring device, ( Judge Nelson seems a lot calmer when West is not in the room), Apperson post hearing media blow off, and the reading of the Brelo verdict.

The site does not have it’s own search so I use google advanced search. The site is: http://www.courtchatter.com/

Back to our regularly scheduled broadcast,

Untill today I had not heard of this case.

Wonder how many of his rental units he will have to sell off to pay his legal bills.

Those who say, “Call the police,” are quite naive. In most cases of squatting on vacant property, the police put no priority on it at all, so they only even respond to such a call after all other duties on their shift. Be prepared to wait outside your property for hours if they show up at all.

Then, the most they will usually do is tell the squatters to leave – but if they refuse, the cops won’t force them.

– –

They consider it an eviction, and a civil matter – which can be a nightmare for property owners. A recent California case of a live-in maid who was fired and refused to leave illustrates the problem. The owners were prohibited from changing their locks, removing her stuff from “her” room when she was out, or doing anything to reclaim their own house while the case wound its way through the courts and appeals. Two years later, she is still in the house.

Leftists have twisted property laws to skew them in favor of “tenants” – even those illegally present who never pay a dime.

    MouseTheLuckyDog in reply to Estragon. | May 30, 2015 at 5:43 pm

    Those who say, “Call the police,” are quite naive. You mean they are morons who have probably spent the last twenty years living in a shack in the woods “Ted Kosinski” style.

    I wonder what would happen, if a person was outside their home, called the police, and said ” There are some people on my property. I’m about to go in and confront them. Can you send some police to arrest them? Hmmm. This is a bad neighborhood. I better not leave my gun in the glove compartment, it might get stolen.”

    Ragspierre in reply to Estragon. | May 30, 2015 at 6:14 pm

    http://latino.foxnews.com/latino/news/2014/06/28/fired-live-in-nanny-who-refused-to-leave-employer-home-camps-out-at-police/

    Please, don’t carry fables here. Some of the posters are confused enough already. (I AM looking at you, Mouse.)

    Trust me, there are VERY simple ways to rid yourself of trespassers, and most never involve any prospect of violence.

up here (maine) for squatters its 20 years and they dropped the maine rule back in early 70’s. that required the squatter knew he was trespassing in order to remove from what lawyers have told me.
really that type of squatter is easier to get rid of than a renter who stops paying rent.
up here if they are on section 8 housing you pay a lot for court costs or you continue to give them a free place to live.
if they are section 8 and purposely destroy stuff thats not good enough reason to evict either.
we finally got rid of them when next door neighbor to them murdered and then we had to put 5K of water hoses and faucets back in. as well as thousands in wallboard.

welfare rats get a lot off leeway up here.

GO, Burgarello..!!!!

Shameless Admission: Wish I could’da watched. Just sayin’…

“They had no business being there, but did they deserve to die?”

Whether the victim of a self-defense action deserved to die is a frequently posed question, but irrelevant. I’ll stipulate that we all deserve to live forever, but people should know that when they adopt outlaw behavior that decision has adult consequences. One such consequence is a dramatic reduction of one’s lifespan. Trayvon could have chosen not to stalk and attack Zimmerman. The Gentle Giant could have chosen not to attack and charge Officer Wilson. The big guy on Staten Island could have chosen not to illegally sell cigarettes and to not resist arrest.

BrokeGopher | May 31, 2015 at 1:22 am

Just wait for them to go out and then change the locks. Are meth heads going to challenge an eviction?

    MouseTheLuckyDog in reply to BrokeGopher. | May 31, 2015 at 1:57 am

    No. Their public aid, college and liberal supported social justice lawyers will. You know the ones that have to make amends for their “white privilege” and do so by representing these people instead of some poor 80 year old woman who has been swindled by a siding company.

      Ragspierre in reply to MouseTheLuckyDog. | May 31, 2015 at 9:42 am

      Wow, Mouse, you have a really bent imagination.

      Gopher is exactly right. You PEACEABLY re-occupy your property and take whatever steps you need to to exclude trespassers.

      That CAN include installing your own guard(s).

Mr. Rags may know of a quick solution to a squatter issue, my experience is that it takes months. A home I wanted to buy became occupied by a squatter that somehow got access to a realtor’s lock box. The absentee owner, did everything they could, but it seems that the law favored the squatter at every step. I was patient, it was a lovely little house in a nice neighborhood, but when the sheriff finally came to do an eviction, the squatter filed for bankruptcy, and the whole mess went back to court. As an admittedly confused poster, I really have to side with Mr. Burgarello. I was relieved that he was acquitted, legal issues notwithstanding. My whole sad story had nothing to do with adverse possession (which I just looked up) but still, our legal system just seems geared to protect the rights of (criminal) squatters. I never did buy that house.

    Ragspierre in reply to amwick. | May 31, 2015 at 9:38 am

    What state was this home in?

      amwick in reply to Ragspierre. | May 31, 2015 at 5:25 pm

      It was in a small town on Long Island, Northport. Very desirable place to live and finding a home in my lower end price range was almost impossible. If I recall it was back somewhere mid ‘1990s maybe 1996? I ended up buying another really amazing home, so there was a happy ending for me, but not the seller who was living in California.

        Ragspierre in reply to amwick. | May 31, 2015 at 9:25 pm

        I somehow figured New York, since they do have some screwy laws there.

        I’d be real interested in some details here, as it sounds as if the occupation began with a criminal trespass or a outright breaking and entering.

        I also think this suggests a lazy, stupid lawyer the California owner should never have hired, or kept. But I dunno…

    Gremlin1974 in reply to amwick. | May 31, 2015 at 3:36 pm

    I really think it depends on the state. Here in Arkansas there are no squatters rights, period. Call the cops and they go to jail for trespassing.

IANAL. Does the Castle Doctrine apply to property you own or only to property where you reside?

    Gremlin1974 in reply to clintack. | May 31, 2015 at 3:51 pm

    Once again it depends on the laws of the state. Some states include “Curtilage, Car, and owned property, some only Curtilage and Car, or any variation there of.

    Now “Case law” can of course change that. Here in my sate I don’t think the law actually says that your car is included, though I know of one carjacking case that ended with the CCW holder not being charged even though it happened when a guy tried to get into his car at a red light. So the varies wildly.

Matthew Carberry | May 31, 2015 at 1:01 pm

clintack, Castle Doctrine is a legal concept, not a law per se. How it is applied varies by state. You’d need to check a given state’s use of force statutes and case law.

    Ragspierre in reply to Matthew Carberry. | May 31, 2015 at 1:45 pm

    Exactly right.

    Every state has SOME version of the Castle Doctrine, but their particular flavor can vary on multiple dimensions. Here’s two:

    What constitutes the “Castle”? Just inside four walls of your actual home (as in MA)? Include curtilage around your home (and what’s the scope of curtilage in your state for this purpose)? Does “Castle” also include your place of business? Your occupied vehicle? A temporary “Castle” such as a hotel room, motor home, camping tent?

    Against whom can “Castle Doctrine” be claimed? Against a true intruder (stranger unknown to you), sure. What about a workman or guest invited to the property? What about a co-dweller (spouse, apartment-mate)?

    Etc., etc., etc. 🙂

    As an aside, I’ve never seen a case where “Castle Doctrine” privileges were claimed by a property owner over a rental property currently occupied by a tenant. In that case the property is the “castle” of the TENANT, not the OWNER–it is the tenant who has right of possession, and who has no greater place of safety than that property as his home.

    How this might apply to long-term squatters is, I think, a novel area of the law.

    Certainly I’ve seen cases where homeless people who have long lived under a specific bridge were successful in claiming “Castle Doctrine” privileges for their hovel under the bridge–for THEM, that hovel under the bridge WAS their “castle.”

    –Andrew, @LawSelfDefense

It is possible that someone may arm himself, go looking for a fight, intend to kill someone, yet still find himself in a legitimate self-defense situation. Sometimes a person carrying a gun for the wrong reasons can find himself using it for the right reasons.

The prosecution in this case was unable to demonstrate that there was a direct connection between the defendant’s intent and the results of the incident. That is, the jury was unconvinced that there wasn’t a disconnect between the two elements.

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