Last year a developer built a new subdivision in the once beautiful field adjoining your association’s recreational facility. All of the sudden there are lots of people at your pool who you do not recognize. You’ve asked them nicely to leave, now what?
Every time you walk to your mailbox your next door neighbor opens her door and screams at you claiming that the new bushes you planted are over the property line. You are afraid that she will run out and hurt you. She screams at your children that they’re noisy. She throws rocks at your dog when she thinks you’re not home. The Association tells you it’s a personal problem between the two of you. Now what?
Several of the boys in the neighborhood got their drivers licenses last winter. The first time your mailbox was smashed you thought it had been hit by a meteor, now that it has happened a second time you wonder if there’s a connection. Now what?
All of the behavior described above is prohibited by your Declaration of Protective Covenants, but are there remedies for these problems outside of your Covenants? Of course there are, and this article will address some ways that the criminal justice system may provide a faster and more economical solution to the problem. Of course seeking a warrant for someone’s arrest is not a process that should be entered into lightly. Even the prospect of depriving someone of their liberty and/or having an arrest on their criminal history is something which should be approached with extreme seriousness of purpose and after all other options have been exhausted.
Most of the crimes that are committed in communities such as the situations above, are misdemeanor offenses.1 Misdemeanors in Georgia are punishable by UP TO a sentence of one year in jail and/or UP TO a $1,000 fine. Misdemeanors are distinguishable from felonies, which are more serious crimes. To begin, below is a summary of what I believe are the most common offenses encountered:
Criminal Trespass O.C.G.A. § 16-7-21
There are two types of criminal trespass: Damage to property where the damage is under $500; (When the damage exceeds $500, the felony statute, Criminal Damage to Property O.C.G.A. §16-7-23, would apply.) and the more common offense, entering property after receiving notice that such entry is forbidden, or refusing to leave after having been asked to do so.
Simple Assault O.C.G.A. § 16-5-20
Again, there are two ways this crime can be committed: Attempt to commit a violent injury to the person of another; or commission of an act which places another in reasonable apprehension of immediately receiving a violent injury.
Simple Battery O.C.G.A. §16-5-23
Intentionally making physical contact of an insulting provoking nature with the person of another OR intentionally causes physical harm to another.
Harassing Phone Calls O.C.G.A. § 16-11-39.1
Telephones another person repeatedly, whether or not conversation ensues, for the purpose of annoying, harassing, or molesting another person; uses over the telephone language threatening bodily harm; telephones and intentionally fails to hang up or disengage the connection.
Disorderly conduct O.C.G.A. § 16-11-39
Acts in a violent or tumultuous manner toward another person whereby such person is placed in reasonable fear of the safety of such person’s life, limb, or health; or acts in a violent or tumultuous manner toward another person whereby the property of such person is placed in danger of being damaged or destroyed; or without provocation, uses to or of another person in such other person’s presence, opprobrious or abusive words which by their very utterance tend to incite to an immediate breach of the peace: “fighting words.”
Deposit Account Fraud O.C.G.A. § 16-9-20
A person commits the offense of deposit account fraud when such person makes, draws, utters, executes, or delivers an instrument . . . for present consideration or wages knowing that it will not be honored by the drawee. This is more commonly called “bad check.” I put this crime in here to throw you a curve ball. This offense is not available for checks written for payment of assessments because the services provided by the association are not exchanged at nearly the same point in time.
Simple Stalking O.C.G.A. § 16-5-90
This offense was changed in 1998 when the legislature modified the statute to read: “A person commits the offense of stalking when he or she follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.” It can be a misdemeanor or a felony depending on a variety of circumstances.
Are you still reading? I thought so. Several crimes of a sexual nature constitute misdemeanors, as you can well imagine there are more felony offenses in this category. They include:
Public Indecency O.C.G.A. § 16-6-8
There are several ways this crime can be committed. It is defined as the performance of any of the following acts in public: an act of sexual intercourse; a lewd exposure of the sexual organs; a lewd appearance in a state of partial or complete nudity; or a lewd caress or indecent fondling of the body of another person. Urinating in public may be prosecuted under this statute.
Sexual Battery O.C.G.A. § 16-6-22.1
A person commits the offense of sexual battery when (s)he intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person. If the victim is under 16, this offense is a felony.
It is easy to jump to the conclusion that many of the activities of our neighbors may constitute one or more of these offenses. Remember that the criminal justice system punishes past behavior, which may incidentally deter future bad behavior. Criminal prosecution is a very serious matter and should NEVER be taken lightly. In addition to potentially escalating the situation to a boiling point, which could result in physical harm, there is also exposure for being sued civilly for malicious prosecution. If your intent is “just to make them stop” you may be able to seek a Restraining Order or in some counties, a Peace Bond. Those procedures go beyond the scope of this article. If you conclude, however, that there is no other way to resolve the problem you may want to pursue criminal charges. Procedures vary from county to county in the metropolitan Atlanta area but there are general rules/procedures which should apply everywhere.
- Call the police and have them make a police report. If the police officer did not see a crime occur (s)he generally will not make an arrest without a warrant. Officers are supposed to make a report for every call they respond to, but they get busy and occasionally do not. Emphasize to the officer that you want a report prepared, even if no arrest is made. You will then have to go to the records desk and get a copy of the report, which will be available within a few days. Sometimes having the police come to interview the perpetrator will convince them that you are serious and the behavior will stop.
- Call the magistrate court in the county in which the crime occurred and ask them where to go to apply for a warrant. DO NOT WAIT TO DO THIS UNTIL THE POLICE REPORT IS AVAILABLE. If you apply for a warrant some days or a week after the incident, the court may conclude that the incident was not really very important to you and will deny your application.
- When you get to the magistrate court you will be asked to fill out an application for an arrest warrant. You will have to identify yourself as the prosecutor, list any witnesses to the offense and describe in detail what happened. You may be asked to provide a copy of the police report.
- You will then have an opportunity to speak with a magistrate. Three things may happen: 1) The magistrate may offer to send a letter to the offender informing him/her that an application for an arrest warrant has been made and that so long as the behavior ceases no further action will be taken; 2) In most cases the magistrate will set the matter down for a probable cause hearing to hear evidence from both sides and witnesses in order to determine whether “a reasonable person would believe that a crime had been committed and the defendant is the person who committed the crime.” At the hearing, if the magistrate determines that probable cause exists, and that there is no other way to resolve the matter (and magistrates can be fairly creative here) a warrant will be issued. If the magistrate does not find probable cause, the matter will be dismissed. 3) The magistrate may, under a few set of facts, immediately issue a warrant based on the evidence presented by the victim without setting the matter down for the hearing. If the Judge issues a warrant, either when you first speak to her/him or at the hearing, you may ask the judge for special conditions on the bond. These conditions can require someone to stay off the property or to have no further contact with you or your family.
- If a warrant is issued, you will then be contacted by solicitor’s office with a court date. Be prepared to go to trial to testify.
Hopefully the information contained in this article was informative and helpful, I did not intended to suggest that criminal prosecution is the best possible solution, but to acquaint you with procedures which are available to all citizens and may be appropriate in certain circumstances. Of course seeking advice from legal counsel before undertaking these remedies may be advisable.
1 Ordinance violations will not be addressed in this article.