Suburban couple's night out on the town ends with husband unconscious on bar floor and blood everywhere
That much Edward and Marjan Zaun and the Sidebar on Bromfield Street could agree on, at a Boston Licensing Board hearing today.
Where they differ is why police summoned to the scene simply drove away rather than go in the bar to find out why Edward Zaun was lapsing in and out of consciousness as blood poured out of his split lip.
The Zauns charge that when two officers showed up around 1 a.m. on Feb. 10, bar manager Sebastian Fricia went outside and convinced them nothing was going on and that they could leave, which they then did. "What right does he have to send the police away when he knows someone is inside the facility bleeding?" she asked, adding she had to run outside to flag down the ambulance that was also pulling away.
Fricia acknowledged meeting the arriving cops outside, but said that when he explained how some guy had punched out Zaun and then left, the officers told him that if there was no suspect, there was no point in them coming in and they departed on their own. He said he was the one who got the EMTs to come in and treat Zaun.
Both sides agreed on the basics of how Zaun wound up on the floor. Marjan Zaun said a drunk guy came up to her, put his hand on her shoulder, then looked at her husband and asked "Is this yours?" She said she told her husband they should leave and that, when he got up, the man wound up and punched him, splitting his lip and causing him to fall backward. He hit his head on the edge of the bar and collapsed, unconscious.
Meanwhile, she said, the puncher calmly put on his hat, a rally cap, and simply walked out of the bar - with no attempt by bar workers to stop him.
Marjan Zaun said that when EMTs took her husband to Tufts Medical Center, where he received 14 stitches in and near his mouth.
The licensing board decides Thursday whether to levy any punishment on the bar for the incident.
Comments
bar workers can't stop him.
bar workers can't stop him. That's kidnapping, no?
are you for serious?
of course it isn't.
detention by a private individual of another is clearly allowed under the law when there is probable cause the detainee has committed a felony or has caused actual bodily harm.
What law is that?
and how is it clear?
In MA, no "citizen's arrest" law per se
However, it's widely held by the US legal community that there are historical and constitutional supports for the validity of citizen's arrest. The concept of the posse comitatus is a part of the United States legal tradition that we inherited from English common law.
More explicitly, there are many legal precedents that citizen's arrest is a constitutionally protected right under the Ninth Amendment, following from the individual's natural right to self preservation and the defense of the others. The Second Amendment has also often been called as support for the validity of citizen's arrest.
Specifically in MA, there are a series of cases that specify that a citizen may arrest someone who they believe has committed a felony. Plenty of people have gone to jail after being detained by other citizens at the scene of the crime. However, if the court later decides a felony was not committed, those citizens can be sued for unlawful arrest/imprisonment by the arrested party (ie a civil action, not criminal).
No. That's a citizen's
No.
That's a citizen's arrest.
The bar people should be
The bar people should be thrown in jail for what they did (telling the ambulance to leave). Doesnt matter who started it, who punched who, whatever.
Let me guess, because of the rule that a police visit = a "check" on the bars naughty list, the manager has every incentive to not call for police or medical help?
Telling the ambulance to leave when someone's seriously hurt;
That really is a criminal act, for which the bar proprietors should be punished, either by a prison term, or by having their license pulled by the city for awhile. That was totally uncalled for!
Bingo!
We've had this conversation before. When you run a bar, there is no police department.
Rally cap?
What the hell is a rally cap? Anything like a scally cap?
It didn't sound like he turned EMS away
I read it like he just turned the police away because there was no suspect, and he let EMS in.
As for a bouncer detaining someone, It probably isn't leagal. Citizens have arrest powers for felonies only, and punching someone isn't a felony.
?
Wouldn't the police need to take a statement from the victim and interview witnesses? How does that work? If the suspect leaves there is nothing to see here, move along? That makes no sense. If the guy required the level of medical care mentioned in the story, it was obvious an assault took place. Something stinks here. I'm sure the bar and employees are going to enjoy defending themselves in a lawsuit.
Yes they should have done somthing.
If it happend like it is written out here. They guy could have refused police assistance, or refused medical attention, etc.
Punching somebody with no provacation is an assault.
If that's not a felony, then what is it?
It is a misdemeanor
nt
could be felony assault pending outcome
victim hit his head as a result of the punch. i recall a case in PA where a sucker punch ended up in a bar patron falling badly and dying as a result, ending in a manslaughter conviction.
so w/out all the facts it's difficult to tell the level of the offense, and from the report BPD comes out looking a little deficient in their response. as do the bouncers.
A manslaughter conviction??
The guy throwing the punch, if it was unprovoked, and it resulted in the victim's falling and dying as a result, imho, should've brought at least a second-degree murder conviction, not manslaughter.
it was in
it was in scranton-wilkes/barre in the 80s and i'm pretty sure he pled to the lesser charge.
Simple assualt is considered
Simple assualt is considered a misdemeanor...but add unprovoked Battery to the assualt...especially sucker punching someone in the face which results in further head injury resulting from the Battery can and most likely would be considered a Felony by any prosecutor. In this case, because the guy was so wanton in his attack they would probably go so far as to also charge the guy with simple assault against the wife for just putting his hands on her. I'd be willing to bet a guy who pulls something like that also has a criminal past. FYI...a bouncer can detain someone for police/perform a citzens arrest just like any other citizen if they witness a crime.
Assault
Assault is a misdemeanor. Assault and battery is a misdemeanor. "Unprovoked battery" is in idea, but no law even defines it much less makes it a felony.
Aggravated assault and battery is a felony. It requires permanent disfigurement, impairment of bodily function, or substantial risk of death.
Second degree murder is an intentional, unjustified killing without premeditation or atrocity. It can be charged when an unintended death follows an act that carries a plain and strong likelihood of death. It can't be charged for punching someone in the face, no matter what happens next.
I didn't imply "Unprovoked
I didn't imply "Unprovoked Battery" was a charge in and of itself...I was simply saying the "Battery" was unprovoked which may cause a person to be charged with Felony A&B by police. From what I understand you can be charged with Felony A&B in Mass. Any real lawyers, police care to answer this question please.
I've seen this happen thousands of times in Massachusetts
Not once have I ever seen this charge rise to a felony.
Sure if the guy is punched in the back of the head and he falls over and dies, the manslaughter charge would fit because a reasonalbe person might expect this to happen if you were to punch someone in the back of the head without them knowing.
That isn't what sounds like happened here.
And no, kiddnapping charges would probably not hold here, but any person that puts their hands on anyone else needs a good reason to do it. If a bouncer breaks a guys arm restraining him after the guy just got into a fight and the bouncer wanted to hold him for the police who would be at fault? Not really black and white.
Pete, your statement "I've
Pete, your statement "I've seen this happen 1000 times in Massachusetts and have never seen it rise to a felony" leads me to ask...are you a lawyer or law enforcement officer? Just curious where you gained this experience. Serious question.
law enforcement
nt
There is a big difference in
There is a big difference in the way bar employees/bouncers should react to what seems to have happened here and the frequently seen scenario of the drunken bar fight that bouncers deal with regularly, especially in the eyes of the court. If a bouncer/doorman/bar employee witnesses a malicious, unprovoked, wanton assault and battering of an innocent, non threatening patron in there establishment, they can legally stop the attack even if it requires force & they can legally detain that person for police, under the same law that makes citizens arrest legal. Once the police arrive it's up to them if it's a felony or misdemeanor or if an arrest will be made. Any citizens witnessing a violent crime in the street can intervene & detain the suspect for police. If the criminal then tries to assault the detainees they have every right to protect themselves and others around them. In most scenario's where a suspect gets hurt as a direct result of citizens getting involved in stopping a violent crime in progress, the chances of the citizens being charged by police are quite slim, and if they were...it would never hold up in court. Just sayin'
Pete. If you are in law
Pete.
If you are in law enforcement I suppose you know what you are talking about. Please clear this up for me.
Is there ever ANY scenario where a person can be charged with Felony Assault and Battery (not aggrevated and not with a deadly weapon)?
When researching it seems to be a gray area.
Also...am I correct in the simplest terms that a citizen witnessing a violent crime has the legal right to intervene, to stop it and detain the perpetrator for police (ala citizens arrest)
This is what I've always been led to believe.
Thanks
Yes there is
I actually forgot there was such a law since it is rarely used. Jake links to the statute below, but in bar fights like this, someone would need to be basically disfugured for the felony charge to stand. Usually violent offenses like this come with other crimes that carry bigger punishments, or they usually involve a weapon (robbery, rape, attempted murder).
Many of the horrible domestic violent incidents I've investigated can have an attempted murder charge tacked on (choking, pinning to the floor and slaming the head against it, etc), and people are rarely disfigured or in fear of death by someones hand.
So yea, you have to cause serious bodily injury to add the felony charge. The two cases I have in my book involve someone who broke his jaw and used a feeding tube for 2 months, and another case where the victim had broken bones in their face and lost sight in one eye.
Mayhem you would need a weapon.
As for the legal right to intervene, I don't think that is written anywhere, but I do know that in the US anyone can make an "arrest" for a felony basically. It would depend on the circumstance if you watned to detain someone. All depends on your intent too since citizens aren't expected to know what makes each law a felony. Basically you wouldn't see anyone charged criminally if they held someone for police that just punched someone. But if that person got hurt while you restrained him, who knows what might happen in a civil suit.
JP Peter
Can you show me or name that law which you are talking about that deals with people being able to detain others if they see a crime?
Im just curious.
Pete Nice...I've long been
Pete Nice...I've long been led to believe that a citizen can detain a criminal comitting or having commited a crime. Not based on one particular document but whenever I've researched it online it seems to be a gray area...the one thing I noticed is it has to be a felony crime but how does the average citizen know what is a misdemeanor vs a felony. Whenever I do a search on it alot of stuff comes up...cases such as the following for instance.
Commonwealth v. Harris, 11 Mass. App. Ct. 165 (1981). Citizen's Arrest. "In Massachusetts a private person may lawfully arrest someone who has in fact committed a felony... The stricter requirement for a citizen's arrest -- that the person arrested be shown in fact to have committed a felony -- is designed to discourage such arrests and to prevent "the dangers of uncontrolled vigilantism and anarchistic actions." ...Generally, the person arrested must be convicted of a felony before the "in fact committed" element is satisfied and the arrest validated. If the citizen is in error in making the arrest, he may be liable in tort for false arrest or false imprisonment."
Regarding bouncers...it would seem common sense to me that a person hired to protect an establishment and it's patrons, who wintesses a blatant, reckless attack such as splitting someones face open for no apparent should be within there right to detain the attacker until police arrive even though they don't personally know at that moment if the crime is a felony or a misdemeanor. And it seems irresponsible to me of the bar to simply let the attacker go on there way. They should at least be concerned, if not for the victim, that this person may return some other time and might be in there best interest to get police involved.
Anyways...thanks for the information.
Question...What would you have done as a responding officer:
Would you have at least gone inside and investigated?
If you arrived, observed a semi concious, battered & bloody victim & bouncers were detaing the attacker. Would it ever cross your mind to charge the bouncers with anything?
Yea good question
Even police officers do not have the right to arrest for most misdemeanors. In fact, if they showed up to this bar scene, and one person punched the other person in the face and the cops didn't actually see the punch, they wouldn't have the right to arrest that person, only summons him.
I just don't think its written anywhere that someone can physically hold someone for a crime like this. I don't think the cops would charge anyone criminally for holding someone, but like I said, civil suits can go many different ways. So to answer your last question, no, it would never cross my mind to charge the bouncers with anything. But being a former bouncer myself, you usually want to get the fighters/drunks/criminals out on the street as soon as possible. Maybe follow him on your cell phone for a while and keep in contact with the police.
What the what now?
I recently served on a jury for a case where two fellows were being charged with multiple counts, including felony A&B (might have been AA&B), for an alleged fight with another guy that left him with a busted lip and some dental issues that he only had dealt with some days after the fact. No weapons involved in alleged fight but fists.
No such thing as felony A&B in Mass
Mayhem is a crime where one can be charged with a crime of disfiguring someone but that statute and the case laws after it are pretty cut and dry.
Here's the
Here's the statute:
http://www.malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter265/Section13a
Straight A&B is a misdemeanor, while aggravated A&B is a five-year felony. The aggravating factors include serious bodily injury, pregnant victim, or having a restraining order in effect at the time of the incident.
I know you mention only fists and not feet, but shoes count as a dangerous weapon under assault and battery with a dangerous weapon, which is a felony.
Jake
Section 13a looks like a misdemeanor to me. And the third element would amount to mayhem from the way I read it. What am I missing with this charge? I assume you can add it on to a regular A&B if the woman is pregnant or the victim has the restraining order element?
EDIT: Never mind, I saw it at the end of the third part there. More often than not you can charge someone with attempted mayhem or murder if you had the elements to use the aggravated A&B charge.
sounds like the Boston Police
sounds like the Boston Police officers were in a big
hurry to get back to Dunkin Donuts for their free coffee
and donuts....you know what this the reason there are so many
innocent people in jail because the B.P. officers believe
the first story they are told and run with it. they dont bother
to get both sides of a story.
Kind of like what you are doing reading an internet blurb?
No, of course not. The cops must be at fault here.
Completely at fault?
No. But if the description of the hearing above is accurate, both the couple's and the manager's testimony indicate that the police officers failed to investigate a violent crime. Was the attack the officers' fault? Of course not. However, is it reasonable for Bostonians to expect better followup by public safety officers in situations like this? I think everyone except those holding water for the police would say yes.
Just doesn't sound right to me
And wouldn't those holding water for the police say yes more than those who didnt?
You're right Pete
The phrase I was looking for was "carrying water" for the police.
Another Option
The manager lied to the police.
Or the couple lied at the
Or the couple lied at the hearing.
Any impartial witnesses?
I've been to the Sidebar and it's no bucket of blood.
Maybe hubby got hammered and socked for his trouble and the couple aren't happy about it and/or looking for a little lawsuit.
OMG! So funny!
A cop and donut joke?! You should do stand-up!! SO funny and original!! The next Jerry Seinfeld right here.
Sidebar
Regardless of who is at fault the premise/bar still gets the violation under the doctrine of Dram Shop Liability per 1983.