by Peter Alan Kasler

COPYRIGHT 1989 - Peter Alan Kasler - All Rights Reserved

This town was her home. She had been born here twenty-nine years ago. Despite a wild youth, including spending most of her teen years heavily involved with biker gangs, she had gotten her life together and had long since settled in to being a responsible single parent. Sure, she still ran into some of the bikers now and then - you couldn't avoid stuff like that in a small town like hers - but she didn't ride with them or even party with them anymore. She had other priorities in her life now. Priorities such as providing a good upbringing for her six year old daughter. Single parenting is a huge responsibility and she is determined to do a good job at it.

It was a typical workday morning. Daughter off to school on the bus, dress for her office manager job, and for the second time that morning walk to the bus stop. But this morning she never made it to the sidewalk.

As she walked down the driveway someone came up behind her. She wasn't especially frightened by this - not even startled - as the old "toughness," although tempered by time, hadn't entirely left her. Besides, she was in her own driveway in a fine neighborhood in her home town. . . what was to worry about? So she just kept walking toward the bus stop.

The man turned out to be her neighbor from across the alley. She didn't really know him, but they'd seen one another over the years. He bobbed along just behind her right shoulder as she strode down the driveway, and said: "I've got to tell you something, but keep walking." She thought the whole thing bizarre but figured "What the hell, he's harmless."

He kept looking around furtively, then finally came out with it. "The guy renting the house next door to you is digging a tunnel underneath your house," he blurted.

He nearly ran into her as she abruptly stopped upon hearing his words. "What are you talking about?" she demanded.

"I'm not kidding," he said. "He's tunneling under your living room."

"Whatever for?"

"Well, at first I thought it was just to get inside sometime when you were gone, to rip you off. But then I found out differently."

She wheeled around, "Listen, buddy, you'd better tell me everything. Right now. And if this is a joke, it isn't very funny." Then she added, "Oh, and by the way, how do you know so much about all this?"

He turned a little sheepish and continued, "Well, ah . .. I was actually helping him dig, intending to go in with him and share in the rip-off. But then last night I found out some things which scared me near out of my mind - I couldn't sleep at all last night - and I just had to tell you."

She was glaring at him now, but beginning to feel little twinges of trepidation. "Go on," she demanded.

"Well," he stammered, "I can't really go into all the details, but it's bad. Very bad! I just had to alert you."

She didn't know whether to be angry or to laugh. "Are you for real?" she asked. "Why should I believe such a weird story?"

"Listen," he said, eyes darting around surreptitiously, "he's gone today. I'll show you; you can see the tunnel for yourself."

She followed him to the common strip of ground between her house and the one next door. He went to a large bush growing against her neighbor's house. As he pulled it back, a crude hole in the ground was revealed. He wriggled his way down into it and disappeared, leaving her standing there feeling foolish.

As she pondered all that had happened in the last few minutes, his head appeared from the depths and he said, "Well, come on. Don't you want to see this?" She did and she didn't. On the one hand she wanted to prove this was all a hoax; on the other hand she was beginning to fear it wasn't. Maybe it was a trick to get her into some compromised position for some ugly reason; or worse. . . his story could be true.

Never being especially timid, and feeling the beginnings of anger amongst the other emotions recently evoked, she shrugged off her purse, dropped her attache case and, expensive ensemble and all, writhed and squirmed her way down the hole.

It was a tunnel after all. And it led directly under her foundation into the dirt basement beneath her living room. Most houses in this area had small dirt basements, hardly tall enough to be used for much of anything, but they could crawl around under there. She followed him as he crawled over to where some tools lay; she saw digging implements, some saws and crowbars, and assorted other items which appeared to support the breaking and entering story. She was fascinated and horrified at the same time. She wanted to sit there in the dirt and hear as much as possible about it, but also she had this overwhelming urge to get away from there as fast as possible.

She suggested they leave; she had more questions for him but didn't care to discuss anything down there. They returned to the common area between houses and she pressed him for more details. He was very reluctant, but did tell her that when he heard what the guy really had in mind, he didn't want any part of it. She said, "You've already told me that much. Now tell me what's so terrible that you're making such a big deal out of it." She wasn't really certain she wanted to know, but some macabre urge couldn't prevent her from asking.

After considerable hesitation he said, "Well, he's planning to break through the living room floor some night when you're there with your daughter and do terrible things to you." He wouldn't say any more, but then he didn't need to.

She forgot about work that day and went back inside her house to phone the police. In a while a uniformed officer arrived in response to her call. He listened to her story, made some notes, went with her into the tunnel, and made some more notes. Before they left the basement beneath her living room he confiscated the implements down there. Shortly after his arrival he left, promising she would be contacted.

She tried not to think about it during the weeks that followed but wasn't very successful. She couldn't forget that her next door neighbor allegedly planned to burst through their living room floor, imprison her and her 6-year old daughter in their own home, and do God knows what to them. She couldn't get it out of her mind, but at the same time she found it difficult to believe. On the other hand, she was afraid to not believe it.

When nothing was forthcoming from the police after several long weeks, she phoned and was told no record of her report could be located. The officer in question denied ever visiting and the seized implements apparently never made it to the station. This was getting creepy. She was confused and angry. Why did that cop deny his visit? What was going on? Who could she turn to? Who could she trust?

She went to the District Attorney where an astonished Assistant D.A. listened to her fantastic tale. By checking the police telephone logs he was able to verify that she had indeed called in a complaint. But that's where the paper trail ended. Now he seemed to believe her; it was clear she had reported it but there was no evidence that anyone had responded or that any tools had been confiscated. He decided to look into it further.

Together they walked across the street to the police department. Sitting in the Detective Bureau, once again telling her story, she was interrupted by a uniform officer who was working at a desk across the room. "You must live next door to (name deleted)," he commented. All eyes were on him as she replied, "Yes, how did you know?" He glanced at the Assistant D.A. and the detectives, then blandly declared, "Every cop around here knows him."

A quick check revealed her rather innocuous neighbor had spent more than half of his 52 years in the California prison system. His jacket divulged four separate convictions, the first for homicide and the second and third for lesser violent offenses. But it was the last that made her blood run cold.

Only a few weeks earlier this person living next door completed parole after serving time for a double murder and some grisly acts connected with them. The Assistant District Attorney actually shuddered as he read the description of this guy's last crimes. It seems he dug a tunnel beneath the house of his then next door neighbor - a 26-year old single mother and her 9-year old daughter. He went into their home on a Friday evening and evidently didn't leave until sometime late Sunday night. When he did leave, the young mother and her child were both dead. Some time later, when I was checking out the story, an officer at the police department told me, "He didn't just kill them, he slaughtered them. . . and they were a long time dying." He chose that particular mother and daughter partly because he knew they wouldn't be missed until the mother failed to show up at work on Monday and the daughter failed to appear at school.

There was a long, creepy silence in the Detective Bureau following the reviewing of this monster's jacket. Finally the horrorstruck A.D.A. suggested she may wish to not return home until the matter could be resolved. The cops suggested he be brought in for questioning, but that without more there wasn't much they could do at this point.

Without returning home she retrieved her daughter from school and went clear across town to an unoccupied house owned by a friend, where they intended to stay until something had been done to make things safer. The friend and her brothers moved most of her belongings, being very careful not to be followed. They each loaded a pickup truck and went to their respective homes, where they waited anywhere from several hours to more than a day before driving over to her temporary sanctuary. Everyone strove diligently to keep her whereabouts secret; the phone and utilities were not in her name, she traded cars with yet another friend, and everyone was extra careful not to reveal her location. For a couple of weeks it seemed as if that was it, but then one evening it happened.

She was almost beginning to feel safe again. The nightmares were fewer and farther between, and she didn't feel the need to look over her shoulder - literally and figuratively. She almost found herself relaxing.

Then, one evening just like any other, she was taking out the garbage when she looked up and saw him standing there, less than a dozen feet away across the alley. He didn't speak, just stood there smiling, as if to say, "I can get you whenever I want to."

That was bad; but what followed was worse. The next evening she put her daughter to bed about 9:00 PM, then settled into her favorite living room chair for a little TV. No more than a few minutes had passed when an almost palpable feeling of being watched swept over her. Turning to the big bay window overlooking the busy street, she was horrified to see him looking in at her. As her living room is on the second floor, he had to stand on the top rail of an iron fence and hold onto a light post for balance.

That did it! A few days later she was put in touch with me. After verifying her story by contacting the police, the Assistant District Attorney, and the guy's former parole officer, I visited her at home. By that time I'd seen the heavy paper on our guy, as well as perusing the transcripts of his and his tenants' interviews when the cops had hauled each of them separately down to the station for questioning. Sitting there talking with her I knew she had every reason to feel as frightened as she looked, and then some.

The guy, like most every other habitual, knew the system in side and out. It was apparent reading the transcript of his interview that he knew they didn't have enough to really do anything to him, and he was cocky as hell about it. He deliberately waited until his parole was completed before beginning this latest escapade; he knew it would have been easy to jerk him back inside had he done something like this while still on parole. He also knew that the mere presence of tools in her dirt basement which might or might not be traceable to his house wasn't sufficient to link him to the situation. It could have been any of the other three adults living in his house, and they were stonewalling it just like he was. Anyway, he knew full well they didn't even have the tools anymore.

What had happened to those tools, anyway? Why was no report of that cop's visit ever filed with his department? The best we can figure comes from something she looked into prior to contacting the District Attorney's Office.

Calling on some friends from long ago - her Hell's Angels connections - she asked for some help in dealing with this guy. It seemed to her that they could visit this monster next door and persuade him to leave her and her daughter alone. At first her old friends seemed eager to help, but that soon changed. It was less than a week when they got back to her with the bad news: they couldn't touch the guy.

Apparently many years earlier he had been somehow connected with the Angels. In fact, word was that the first prison term he served for murder was in connection with a job he had done for the biker gang and as a result they couldn't lay a finger on him. This information quickly led to the intelligence that the cop who had responded to her initial call was himself connected with the local chapter of the Angels. You can fill in the rest.

I went directly to her "safe house" following my day-long investigation to verify her story. It wasn't that I didn't believe the people who had alerted me about her, or her herself when she related the facts to me over the phone. I'll admit it was a little fantastic, but that's nothing new in my line of work. It's just that I must ascertain beyond a shadow of a doubt that new clients aren't, for one reason or another, manufacturing some or all of the facts of their particular plight. She understood.

We began by thoroughly identifying what it was we were really dealing with, what it was she wished to accomplish, and how she envisioned accomplishing it. Following that we explored some of the fundamentals of general threat management, which rather quickly evolved into discussion of more focused matters.

She had virtually no knowledge of firearms, so we carefully studied her lifestyle generally and the present threat specifically, and soon identified two handguns which were appropriate. Using those, she was put through a comprehensive program and soon became proficient in defensive handgun usage and personal protection techniques as they related to her immediate situation.

Once that portion of her threat management package was in place, we turned our attention to other facets. Many things were thoroughly considered, including various types of alarm and security systems, strategic lighting, locks and other physical deterrents, and specially- trained dogs, to name a few. Some were rejected and some were included in her package, along with a few less-lethal and weaponless protection techniques.

She was beginning to feel somewhat better. It wasn't that her actual fear was lessening, rather that her dignity was returning. She didn't feel quite so loathsome; her self-respect was gradually returning. She didn't know exactly why, but when the full magnitude of this thing came to be known, she began to experience strange feelings about herself - feelings of humiliation and disgust which grew especially intense as she contemplated leaving the town in which she had been born and reared.

In connection with the counseling and training I provide clients such as her, it often becomes apparent that they require psychological support of a type I am unqualified to provide. In such instances I put my clients in touch with an appropriately qualified therapist who can work as part of the team to support and rehabilitate the client. In her case, mostly due to her remarkable strength of character, our joint efforts worked quite well indeed.

Clients who have been assaulted or attacked in one manner or another usually progress through a predictable range of emotions, not unlike those who experience grave trauma in other ways. In this case, however, her anger seemed significantly stronger than usual.

We mutually decided that it must have related to her daughter's involvement. She told me if it had been her alone, she would have resisted her friends' and relatives' constant advice to leave the area without a second thought. She was determined to not allow this creep to turn her into a frightened wimp who ran away. If she permitted that, she told me, she would forever despise herself for being weak. "Why should I let that bastard make me into someone I couldn't possibly respect?" she would cry to me during our frequent discussions.

But the deep-seated emotional dichotomy was centered around her daughter. Was she placing this innocent six-year old in grave danger because she was angry and didn't want to allow this man to push her around? Did she have the right to endanger her little girl like that? Was she wagering with her daughter's life merely to assert her own principles and convictions? No one, least of all me, could answer such questions for her. But we all could offer moral support to make whatever decisions she felt she must.

Soon she felt stronger, more self-assured. She could stand up for herself and her daughter, this monster was no longer able to make her think thoughts of running away. She was no less afraid of him, but she was confident that if he forced her to, she could defend herself and her child.

I was gratified that my training and counseling had provided her with such strength and good feelings about herself, to say nothing of having helped her to attain the knowledge and skills to truly be effective in defending against such assaults as he might advance. I didn't want to mitigate her good feelings, but I was deeply concerned about something else.

It has happened in other cases that a woman was charged with a crime for shooting the individual who victimized her. Possibly the perpetrator had been abusing her for an extended period of time, perhaps her assailant had a history of threatening her repeatedly. I don't know of such a case with facts exactly like this one, but I do know of several with sufficient similarity to give me pause.

I would hate to see my client surmount overwhelming odds if forced to defend herself against this monster, only to later be charged with a crime for doing so. It is not inconceivable, knowing what I know about the criminal justice system - how it operates vis-a-vis the political and emotional pressures society burdens it with - that such a charge might be forthcoming, even in the face of facts indicating a righteous shooting. It wasn't difficult to imagine a scenario which included melodramatic media coverage bringing about such speculation as "she over-reacted be cause he had been pursuing her for so long; when he finally came a little closer to her she panicked and shot him. . . sure, it's understandable that she would react hysterically, but someone in control wouldn't have shot him."

And my fears didn't end there. In times such as these, and especially in places such as California, it is frequently the case that one who successfully defends herself against a lethal attack, sustains a civil action for wrongful death (if her assailant dies) or personal injury (if her assailant survives). And this can occur if there was an acquittal of the criminal charges, or even if none were ever filed.

So, we began again. Only this time we weren't discussing her defense options relative to this madman's pursuance. We were not arming her with devices and skills with which to defend herself against his attack. All that had been done. No, this time we were framing a strategy comprising layers of insulation against a possible challenge which would attempt to attach legal liability for using those devices and skills if he forced her to do so.

It's an interesting juxtaposition, the personal defense strategy against an expected physical assault versus the legal defense strategy against a possible liability attack. Regarding the former, one simply determines the scope of the threat, then establishes appropriate defense mechanisms for the client based upon available intelligence and adroitness. The latter, on the other hand, always seems so much more ethereal.

What can be done to insulate against a charge of liability for excess force in the face of an attack? Well, my view on this isn't any different for a woman in the situation described here than for any of us who are willing to defend ourselves against an attack should one occur. In formal classes and in private training alike, I recommend a three-pronged approach: awareness, education, and documentation.

One must be aware of the problem; remember, the problem here is not the general threat of attack or a specific pursuit such as the subject woman is burdened with. No, here the problem is dealing with the possible liability exposure and implications thereof which may well follow the successful outcome of such a confrontation. Awareness is a great beginning; many people blithely go about the business of acquiring a firearm for defense without so much as realizing they could, and likely will, suffer a second, and in some ways possibly more devastating - assault several months after they survive the first.

Education is vital. In today's society it is no longer sufficient to purchase your firearm and a little ammunition, get a brief familiarization from the salesperson, read a couple of booklets about gun safety, and snap off a few rounds at the local range. It wasn't so long ago that those of us who sought out and enrolled in an afternoon gun safety class were considered downright fanatical. With today's advanced level of social consciousness, awareness of duty to fellow citizens, sophisticated weaponry, and complex legal system, it is clear that considerably more education is necessary just to fulfill a modicum of societal obligation - the bare "duty of due care," as it were. Reading all available publications relating to the responsible useof firearms for defense, and taking as many defense-oriented training courses as possible are excellent ways to build layers of insulation against future charges of irresponsibility, overreaction, use of excessive force, etc.

Those who truly know our system of jurisprudence fully realize that right and wrong have little to do with the outcome of any particular case. So as to avoid a scathing indictment of all aspects of the system, let's confine our focus here to matters evidentiary. Simply put, it matters not one whit that some fact of great importance to your successful defense happens to be true. What really matters, and will weigh in the balance for or against you, is whether or not you can prove such a fact to be true. In the case of education, and specifically whether or not certain things impacted on your state of mind at the time of the shooting (where you defended yourself), the more thorough the documentation the greater chance you'll be allowed to introduce facts and materials into evidence in your own defense. What bitter irony to survive a physical assault, only to lose a subsequent legal onslaught arising from the same situation because your diligence and responsible efforts long before that creep attacked you and forced you to defend yourself cannot be adequately demonstrated in court.

In my client's case, we worked together to build many layers of insulation in the event criminal or civil charges should arise following an affirmative defense if this man made his move on her and/or her young daughter. Just as actual defense skills are first learned and later maintained, so is it necessary to implement and then maintain those layers of insulation against potential liability claims.

Today, she remains in the town of her birth, refusing to be driven out by the ogre who continues to let her know he's there. Until he actually attacks her and/or her daughter, no one can say with certainty that he will. His history and the similarity of recent behavior suggest an intent to repeat his evil doings, and all she can do is what she's done. Some of us believe - and all of us hope - that it's sufficient.

Peter Kasler is a lawyer and author in California.

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