Cross Posted at Legal Schnauzer

A Chicago man last week was sentenced to probation for the murder of a neighbor who had allowed his dog to urinate on the man’s lawn.

Charles J. Clements, a 69-year-old great-grandfather, was convicted in October of second-degree murder in the shooting of Joshua Funches, 23. The two men got into a confrontation on May 9 after Funches allowed his fox terrier to take a leak on Clements well manicured lawn.

While stating that a gun never should have been entered into the equation, leading to a fatal shooting, I was somewhat sympathetic toward Clements when we first wrote about this story. As regular readers know, I tend to be supportive of anyone who makes lawful efforts to protect their private-property rights–and early news reports indicated Clements was claiming self defense after Funches had threatened and punched him several times.

More recent news reports, however, give us considerable pause about Clements’ actions. And it’s hard to see how a judge could justify giving such a light sentence for what a jury determined was second-degree murder.

As we stated in our earlier posts, the incident could have been avoided if Funches, when confronted about the placement of his dog’s pee, had simply said “sorry” and kept walking. Clements was within his legal rights to request that the dog, and its urine, stay off his property in the future–even if that request might seem over the top to many people, including me.

Clements, however, moved off solid legal footing when he decided to follow Funches down the street. Here is how the Chicago Tribune reported the story last week, based on trial testimony:

On May 9, Clements took a break from watching a tape of the 1986 Chicago Bears Super Bowl game to escort his wife out to her car, carrying a loaded .45-caliber pistol in his pocket. As he sat on the porch waiting for her to return from the post office, Funches walked past.

Clements testified at trial that Funches looked up at him “with a smug and defiant look on his face” and let the dog urinate on his lawn. He decided to confront Funches because he had been finding “stool deposits in my yard and on the sidewalk.”

“I suspected he might be the person,” Clements said. “I told him, ‘You are supposed to clean up after your animal.'”

Clements said he was hoping to talk with Funches when he left his porch and followed Funches down the street. Instead, the two men argued, and Clements showed Funches the gun he was carrying in his overalls.

In earlier reports, it was unclear exactly where the confrontation and shooting took place–in front of Clements’ house or somewhere down the street. This report makes it clear that Clements followed Funches down the street–and it shows that Funches probably never would have sassed or punched Clements if the older man had not followed him. Reports the Tribune:

The argument escalated after Funches said, “Old man, if you pull a gun on me, you better plan on using it.” Eventually, Funches, who was unarmed, punched Clements once in the face, according to trial testimony.

Funches was standing motionless, Clements testified, when he pulled out his gun and opened fire. Funches was shot once in the abdomen in front of his aunt’s house, on the street where he learned to ride a bike and walked to school as a child.

The father of two stumbled down the street to the sidewalk outside his mother’s old house, which he and his girlfriend had recently fixed up and moved into, while Clements tried to rack another round.

Under this set of circumstances, one can understand why a jury considered this an act of murder. The judge apparently took Clements’ age and clean record into consideration when deciding the sentence:

[Clements] could have faced up to 20 years in prison. Instead, Judge Daniel Rozak, who last year sentenced a spectator to three weeks in jail for loudly yawning in his courtroom, ordered Clements to serve 4 years of probation.

“This is not justice,” said Gail Williams, one of Joshua’s aunts. “It’s unbelievable to know that in this day and age, you can follow a person down the street, pull a gun ” kill a man, get charged with second-degree murder and walk out of a courtroom (with probation). . . . ”

Rozak said the slaying wasn’t about a puppy urinating on Clements’ manicured lawn but “about (Clements’) reaction ” to being yelled at, pushed and punched in the face by a 23-year-old man.”

Prosecutors called Rozak “an excellent judge”–lawyers always say that about judges when it’s for public consumption–and said they will not appeal the sentence. But we think both the judge and the prosecutors are wrong. The sentence should be appealed because the punishment in this case does not fit the crime.

By introducing a gun into the equation and following Funches down the street, Clements committed an offense that deserves quite a bit more than probation.