016: Dead Burglar Gets to Keep the Loot

Stella Case No. 016, Originally Published: 6 November 2002

In 1994, Frank Lucisano thought he heard someone breaking into a shed behind his Tullytown, Penn., home. He grabbed his shotgun and confronted the burglar: Howard Reid, 29.

A scuffle broke out and Lucisano shot Reid, killing him. District Attorney Alan Rubenstein declared the shooting justified — after all, Lucisano was physically attacked by a man committing a felony. In fact, Rubenstein said at the time, “If you want to deter burglars, an occasional shooting may have a wonderful effect.”

But that didn’t stop the burglar’s mother, Dorothy Reid, from suing Lucisano in 1996, claiming her son was shot “without provocation” — despite the DA’s findings. After years of legal wrangling both sides agreed to binding arbitration. The arbitrator, attorney Barbara Lyons, held that the shooting was a “purposeful deed” and awarded the burglar’s family $50,000.

If you want to encourage burglars, there’s nothing like the ability to sue if the victim catches you in the act. Why submit to lawful arrest when you can get big money if you attack your victim instead?

Crime has always been a “high-risk” occupation. Is it really in society’s best interests to reduce that risk, thus encouraging more crime?

Even though the case was heard by arbitration (with an attorney as the arbitrator), the elapsed time from incident to resolution still took eight years.

Sources

• “Burglar’s Family Awarded $50,000,” Bucks County Courier Times, 13 October 2002

Case Status

Outrageously, Lucisano was on the hook for $50,000 for defending himself against an intruder. Since both sides agreed to arbitration, I don’t think Lucisano had the ability to appeal.

My 2020 Thoughts on the Case

A couple of other facts came out between the shooting and the conclusion to flesh out some details. When Lucisano confronted the burglar, at some point he fired at Reid, and apparently only wounded him slightly. Reid “broke through a fence” and “Lucisano followed him.”

That’s certainly the crux of the case. The source story I had didn’t discuss the nature of “following.” If Lucisano had chased down the guy and shot him in the back in anger of breaking the shed door, yeah: that isn’t self-defense, and a lawsuit would absolutely be justified, not a Stella Awards case. But I think it was more likely Lucisano was trying to find out where Reid was going, and/or get a more detailed description of the burglar for police. Either way, the source continues, “a fight broke out and Lucisano fired again,” this time fatally injuring Reid.

So, why do I think that Lucisano wasn’t firing in anger over the burglary, making it manslaughter? Because the District Attorney investigated and concluded Lucisano had not committed any crime. Simply, Lucisano wasn’t protecting his shed, he was protecting himself from an attacking felon.

Letters

A law student wrote regarding the continuing dialogue about how lawyers should police their own profession:

Dan in Massachusetts: “The Federal Rules of Civil Procedure already has a provision designed to discourage frivolous lawsuits. Those who read ‘A Civil Action’ by Jonathan Harr (or saw the movie starring John Travolta) may remember the early motion made by the defense attorneys under ‘Rule 11’. Basically, Rule 11(b) states that by submitting a pleading or motion to a court, an attorney certifies that it is not frivolous and that the facts asserted are supported by evidence. Rule 11(c) provides for sanctions against lawyers who violate 11(b). Unfortunately, the application of Rule 11 is not as simple as we might like. First, this rule only applies to federal courts. Some states have similar provisions, but not all of them. Second, ‘Rule 11 motions’ which ask the court to impose sanctions on the opposing attorney are often considered as frivolous as the pleadings that the rule was designed to prevent. Often, the attorney being attacked will file a counter-motion arguing that the first Rule 11 motion was so frivolous that it deserves to be sanctioned under Rule 11. Then the first attorney returns fire with a counter-counter-Rule 11 motion! The ethical tango goes round and round.”

Anyone who is surprised to hear this raise your hand. Anyone? Anyone at all? Oh well.

Last week an attorney wrote to say the reason lawyers are so “mean” is because people want mean lawyers to fight for them. I replied that, having hired many attorneys in my time, I hire the smart ones, not the mean ones, since a good argument based on fact is much more effective than an angry or malicious approach. A reader agrees:

Greg in Connecticut: “After my divorce, my ex hired a ‘mean’ lawyer to represent her when I sued for custody of my two kids. I went for the ‘nice’ (i.e., smart) lawyer — and won. It’s nearly impossible for a father to win custody of kids, but I was in the right and took the high road. The ‘mean’ lawyer tried all the dirty tricks she could, but wasn’t able to fight against my legitimate [arguments]. I’ll continue to use the smart lawyer over the ones who sling mud (or worse). There really are good lawyers out there. You just have to interview them to know what they stand for.”

Paul, a lawyer in California: “I, like many of my colleagues, have given the issues raised in your newsletter a lot of thought. Obviously there is no easy answer. Less obviously, there is not just one issue. Many cases are brought by ‘creative’ lawyers who devote substantial time and energy trying to push a novel theory. Many of these cases are deserving of a Stella Award, but are not in my experience the most abusive. Moreover, there are policy reasons for permitting such suits to continue (it is one of the ways the law evolves). The truly abusive cases in my opinion are those brought by the ‘bottom feeders’ in our profession who file a lawsuit with no intention of devoting any time or attention to the matter, and without any regard for the merits of the suit, because they know they can generally get a ‘nuisance value’ settlement for $5,000 or $10,000 from a defendant or insurance company with little or no work. This is caused by the fact that from a ‘business decision’ standpoint it is often cheaper to settle a frivolous suit quickly to avoid incurring costs of defense. The solution I have seen work in the past is for ‘frequent defendants’ (especially insurance companies and large corporations) to adopt a policy against such settlements. Once the plaintiffs’ bar learns that a particular defendant is willing to incur the costs of making them prove their cases, they become much more reluctant to accept baseless cases targeting that defendant. If an attorney is forced to spend time on a case they can’t realistically expect to win it will cost them money instead of making them money, and discourage them from bring such suits in the future. The problem with this solution, of course, is that it costs the defendant more money in the short term. However, [one of my clients] who adopted this approach believe it has saved them money in the long. I believe the client who permits an unethical attorney to bring such a suit on their behalf is equally culpable, and an unfortunate reflection of the ‘fast buck’ mentality of many of our citizens.”

Paul raises some excellent points. Insurance companies often whine that they have to raise premiums because of the growing load of lawsuits they have to pay out for. Yet they encourage frivolous claims and suits by rolling over and tossing tens of thousands of dollars to people with meritless claims just to make them go away. What a short-sighted idea.

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