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Court Overturns Old Law; Appeal Predicted

January 12, 1990

PHOENIX (AP) _ A state appeals court says a legal doctrine that let victims recover stolen property forcibly should be buried with the rest of the Old West’s frontier justice.

But a lawyer whose client was convicted of armed robbery says her client was just doing what police are too busy to do when he grabbed a bicycle he claims had been stolen from him two years before.

″It isn’t the Old West that’s dying here,″ says the attorney, Carol Carrigan. ″It’s common sense.″

The case arose in 1987 when Dale Ira Schaefer, then a 32-year-old landscape worker with a record of petty thefts, burglary and assaults, spotted a bicycle at a convenience store in Phoenix.

Schaefer claimed the bicycle had been stolen from him two years before, displayed a pistol, and took the bicycle from Charles Milton, according to trial testimony.

Milton said the bicycle, originally worth about $200, had been purchased by a relative at a yard sale for $25 about two years earlier.

A jury convicted Schaefer of armed robbery and Judge Armando de Leon sentenced him to 10 1/2 years in prison.

Schaefer appealed, saying de Leon should have instructed the jury on the ″claim of right defense,″ an old doctrine that says the owner of property can take it back by force if it is stolen.

Court of Appeals Judge Rudolph Gerber said Thursday in a decision upholding de Leon that the claim of right defense was recognized ″more that a half- century ago when self-help remedies were an accepted part of Arizona’s frontier history and culture.″

Revisions to the state’s criminal code since then suggest that the doctrine is outdated, Gerber said.

″From a public policy standpoint, the claim of right defense remains anachronistic: it encourages disputants to resolve disputes on the streets through violence instead of through the judicial system,″ he added.

″I just don’t think the authorities are available on a 24-hour, on-call basis for this type of situation,″ Ms. Carrigan replied.

Gerber’s decision ″means you have to find your nearest police officer and hope to heck it (property) hasn’t walked away in the meantime,″ she said. ″As a taxpayer, I find it rather offensive paying $30,000 a year to keep in prison a person, a citizen, who takes back his own property.″

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