I’ve previously discussed how robbery is a violent crime against the victims person, and that this violence makes robbery far more serious than theft. A couple weeks ago, I discussed the fact that Oak Park’s handgun ban doesn’t stop armed robbers from having a gun, but instead only ensures that law abiding Oak Park residents are deprived of the right to own a handgun for self defense. I mentioned that Oak Park’s citizens had suffered 2 armed robberies in just three days, at the hands of gun-ban-ignoring criminal. I also discussed how the Wednesday Journal article which reported the robberies incorrectly called the crime a “theft” rather than a “robbery.”
This is not the first time that I’ve disagreed with Bill Dwyer, the reporter who wrote the Wednesday Journal article in question, on matters relating to word choice. Back in September of 2008, Mr. Dwyer left a comment on this website in which he expressed his disagreement with the fact that I paraphrased, rather than directly quoted, facts from a Oak Park crime story which he wrote. I replied, stating that I saw no need to directly quote, that I felt I was on firmer copyright law footing when I paraphrased, and that I always provided links to the original story for those who wished to read it. I also considered bringing up the fact that I disagreed with the words he uses to describe the crimes in Oak Park, but decided not to for the sake of brevity. Now, more than a year later, that issue arose again.
Yesterday, Bill Dwyer sent me the following email in which expressed his disagreement with my statements regarding theft and robbery:
Nice try, pal, but I know what I’m talking about here. You’re the one who needs to get a clue about the law.
An armed robber is also a thief. It’s called a “lesser and included offense,” a legal concept recognized in American jurisprudence, and in criminal codes across the country.
According to Answers.com, a lesser but included offense is “a lesser crime whose elements are encompassed by a greater crime. A lesser included offense shares some, but not all, of the elements of a greater criminal offense. Therefore, the greater offense cannot be committed without also committing the lesser offense.”
An Ohio court ruled “If under any reasonable view of the evidence it is possible for the trier of fact to find the defendant not guilty of the greater offense and guilty of the lesser offense, the instruction on the lesser offense must be given.”
In an appeal ruling on the case of a guy convicted of both robbery and theft for a single incident– People v. Villa, no. B195363 (Cal.Ct.App. (2nd Dist., Div. 8 ) filed 12/17/07—a California appeals court threw out the conviction based on “lesser and included.”
Referring to the “lesser and included offense,” Division Eight of the Second California District Court of Appeal reversed the petty theft conviction because it was a lesser included offense of the robbery count. noted that “robbery cannot be committed without necessarily committing petty theft.”
“A jury convicted a criminal defendant of one count of second degree robbery in violation of California Penal Code (PC) section 211 and one count of petty theft with a prior theft-related conviction in violation of PC section 666. Both counts arose out of a single incident. The alleged victim of the robbery charge was a store employee, and the alleged victim of the petty theft count was the store itself.
I’ll check in to see if you have the honesty and strength of character to put reply this on your website.
Thanks for the email. I’ve posted your comment (and my response) at the following URL: https://www.learnaboutguns.com/2009/11/20/oak-park-il-armed-robberies-continue-despite-the-handgun-ban/comment-page-1/#comment-6172
While you’re certainly welcome to email me directly, you can also post your comment directly on my website in the future. With that said, here is my response:
As I discussed in the post above, the distinction between theft and robbery is that robbery involves violence. That violence makes robbery a more dangerous crime, which is punished more severely than theft. Go speak to just about any armed robbery victim, and they will tell you that the violence and fear for their lives that they suffered was the real harm, rather than the (generally minor) financial loss.
Your statements regarding lesser included offenses actually reinforce my point that robbery is more than theft, and that referring to a robbery as a mere “theft” is inaccurate. The ability to convict a person of theft when they have committed robbery is just a recognition that robbery is theft + violence (and also of the fact that the prosecution may be able to prove the theft element while failing to prove the violence element). The following example will help illustrate that point:
Imagine a criminal goes up to a victim, brandishes a 12” knife, then fatally stabs the victim. That criminal has committed quite a few offenses, including disorderly conduct, unlawful use of a weapon, assault, battery, and murder. When reporting that crime, it would be technically true to say that the criminal committed disorderly conduct – however that would be grossly misleading, since the real newsworthy issue is the stabbing murder.
The same is true when you called the armed robbery a theft. The fact that the victim was battered then placed in fear of their life at gunpoint is the real issue – not the $92 that was taken from the victim’s wallet. If you’re going to just call that theft, then you might as well just call it disorderly conduct instead, since either of those lesser included offenses pales in comparison to the true crime that occurred.
While I’m not going to engage in the rudeness that you find appropriate, as an Attorney at Law, I do have a suggestion that may help you in your future attempts at debating the law: You may wish to cite to statutes and cases from IL when discussing an IL legal matter. This is because laws vary between the states, and you really can’t prove up an IL legal mater by citing to a CA case/statute.
In response, Mr. Dwyer then submitted the following comment himself:
Well, if you made it through law school, it would be a fair assumption you know how to read.
So tell me, counselor, just what part of “On consecutive nights from Monday, Nov. 2, through Wednesday, Nov. 4, Oak Park police reported three armed robberies, two of which involved handguns,” don’t you understand?
The lead paragraph clearly indicates they were armed robberies, and the fact they used fire arms was also noted, both prior to referring to them as thieves- which, in fact, they are.
As for citing Illinois case law, I’m not your legal researcher. The concept of “lesser included” as I noted, is accepted nationally.
I then left the following comment in response:
I never disputed that you had at one point in the article used the correct term to refer to the robberies. Instead, I stated that you incorrectly referred to the robber as a thief when discussing a particular armed robbery. The fact that you got it right at one point doesn’t negate your subsequent error.
The reason I noted that you should cite to IL cases and statutes is because lesser included offenses vary by state. That means that while CA may include theft as a lesser included offense in robbery, it doesn’t necessarily follow that all other states will do so as well. That means that when you’re trying to argue an IL law matter (e.g. the armed robberies in Oak Park) you need to focus on IL law, since it is IL law that determines whether theft is a lesser included offense. The fact that the broader legal doctrine of lesser include offenses (sort of) comes into play doesn’t change that fact.
Moreover, as I discussed at length in my last comment, the doctrine of lesser included offenses really isn’t the issue. We’re in agreement that theft is a lesser included offense of robbery – just as disorderly conduct can be a lesser included offense of murder. But with either the robbery or murder example, reporting the crime as a lesser included offense is grossly misleading.
I found the above discussion to be interesting and informative enough to make into a separate post – especially since Mr. Dwyer urged me to bring his comments to the attention of this website’s readers. The robbery versus theft discussion also made for a great real-life example, since I had previously discussed the nature of robbery in a more abstract manner. Indeed, I’ve found debates with anti gun writers such as Bill Dwyer, David Rosman, and Mike Stanfill to be some of the more interesting article to write.
I also found this to be good practice at responding to inflammatory remarks without allowing myself to stray off the topic at hand. As I’ve stated before, making inflammatory statements doesn’t help advance one’s viewpoint, and the issue of gun rights is just too important for debates to be allowed to devolve into childish insult matches. As such, it is good for me (and anyone else who debates gun rights) to have plenty of practice at ignoring those inflammatory remarks and responding to the substantive statements in a polite manner. I also find this practice comes in handy for work, since as as an attorney I need to remain appropriately detached from my work so as not to allow emotion to overcome reason and cloud my judgment.
I would like to encourage Mr. Dwyer to reply again if he wishes to further debate armed robbery or other gun-related matters.
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