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.”

Illustration only: not an actual photo of Reid, who was described as “nearly naked.”

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.

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.

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. 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.

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10 Comments on “016: Dead Burglar Gets to Keep the Loot

  1. When my wife was going through her divorce, her ex hired a mean lawyer, who went out of his way to refer my wife as “the pampered princess.” During the proceeding, my wife detailed what she was doing to raise their four kids, with precious little help from her ex. On conclusion, the elderly judge said to the ex, “You need to thank your wife for how much she has done raising your kids.” There was barely a nod of acknowledgment from the ex. The judge said, “No, I am telling you that you need to say ‘thank you’ right now!” My wife did get a petulant, “thank you”, and for the ex the proceeding kinda was all downhill from there. And she can endorse your opinion, Randy, to hire the smart lawyer, not the mean one. Nobody likes a bully.

    Wonderful example. -rc

    Reply
  2. Arbitrators are crooks. Pure and simple. They are all lawyers or retired judges, and their primary motivation is to encourage lawsuits — frivolous or otherwise — so as to keep their profession in business.

    There is no other way that i can conceive to explain the stupidity of the results that come from them. I was also stuck in an arbitration, where there was a clear cut one-side-is-Right case.

    Indeed, the arbitrator (in my case) said the $15,000 suit was not justified, and instead awarded $100. He THEN said that, because $100 was awarded, that the other guy “won” and I had to pay his lawyers fees. Those fees just happened to total $15,000 — and his “lawyer” was also his brother. IOW, the arbitrator realized the suit was nonsense, but wanted to make sure that the plaintiff got all the money he wanted anyway.

    If anyone wonders why I HATE lawyers — of all stripes — I’ve got some other tales to tell too. NONE of them good.

    Reply
    • Not sure how an arbitrator is able to preside in a case involving a relative. Seems like clear cut conflict of interest and highly unethical.

      Reply
      • I seem to recall Burt commenting about his case previously, and that the plaintiff’s lawyer was the plaintiff’s brother, not the arbitrator’s brother.

        Who “his” refers to is ambiguous. I hope Burt will circle back and clarify. -rc

        Reply
          • I see that Burt first told us his story in the comments of episode 8. Turns out his comment there is also ambiguous, so I guess I, too, read my own interpretation into it. It *would* be nice to hear back from Burt now!

            I’ve sent him a ping. 🙂 -rc

        • You are correct. The lawyer was the brother of the plaintiff that brought suit against me. Sorry I was not more clear in the way I stated that.

          I believe the plaintiff should have been punished for bringing a frivolous suit, by having the pay any lawyer fees out of his pocket. (Of course, his brother would have probably done it for free if he lost). As is, the mediator made it so that the plaintiff came out without losing a cent — and because the lawyer was his brother, I am guessing he probably split the winnings with the plaintiff.

          The US legal system is really nothing but a lottery. You can buy a ticket at the gas station for one type of lottery, or hire a lawyer to get your chance for the winnings in court.

          Reply
  3. Regarding “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.” from your 2020 thoughts on the case.

    In this case, I absolutely agree about the DA’s opinion about lack of criminality, particularly considering his original comments about occasional shootings.

    But, the laws sometimes tie the DA’s hands. Our DA had to not press charges recently in a fatal shooting because the language of the statute was not favorable. He made it clear he would have pressed charges if he could and at the same time he advocated for a change to the statutes. While that may make a difference in the future, the current victim’s family gets no relief.

    In addition to clients not being greedy, lawyers policing themselves, and arbitration reform, we need to press our elected representatives to improve the laws in an equitable and just way to protect victims and enable prosecutors while not creating more problems with already innumerable statutes. Innocent until proven guilty and prosecutorial overreach require a fine balance that we may never achieve but we clearly have much room to improve.

    Reply
  4. My ex-wife sued me because I wanted full custody of our daughter. At the time we had been divorced seven years and at the divorce had agreed on shared custody. As I saw how neglected my daughter was at her mothers’ place (she let our daughter stay away from school), I wanted full custody to get my daughter to pull her act together.

    I represented myself at court while my wife came with a very aggressive lawyer, who began painting a picture of me as a very bad father. I did not respond, but asked if it was correct, that as my daughter was 13 she would be asked to choose where she wanted to live. When the judge said that this was correct, I waived my claim, as I would not let my daughter in the predicament to choose between her parents. No matter whether she would choose me or her mother. That choice might later weigh hard on her conscience.

    I then discovered that my ex-wifes’ lawyer was actually not that aggressive, because she came up to me and said: I think I had the wrong client in this case.

    Reply

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