Parachuting off the Freedom Tower and Burglary overcharging?

On September 30, 2013, three individuals climbed up the Freedom Tower in New York City and jumped off of it. They landed safely to the ground. After a longterm investigation, they were arrested a few weeks ago. They were arraigned on March 24, 2014. What is interesting to me is aside from the fact that these individuals engaged in incredibly dangerous behavior, there is an underside to this story that is equally fascinating from a criminal law perspective. And that story is, why are these people being charged with burglary?

Burglary is a very serious crime that has historically been designated as one of the most serious felonies a person can commit. Under the common-law, Burglary has been defined as “the breaking and entering the house of another at night, with the intent to commit a felony therein, whether the felony be actually committed or not.” Burglary has historically been punishable by death. When legal analysts think about burglary, they think about home invasions and other similar acts of tremendous violence.

The problem is that because burglary has historically been so precisely defined, many exceptions have been found to exist in which a person was found to be not guilty of burglary even though his actions were consistent with the spirit of burglary. Because this topic can be complex, it almost always serves as a place where bar examiners can have some fun.

For example, what happens in a situation in which the person broke into a home during the daytime with the intent to commit an unknown horrific felony, but they were foiled in their attempt and no one was hurt? Under the common-law, that person is not guilty of burglary because it occurred during the day. And because the person was apprehended before he committed the felony he wanted to commit, he can’t be found guilty of that crime either? Moreover, only he knows what that felony was going to be, so good luck convicting him of an attempt to commit that felony.

What happens when the person climbs through an open window in the middle of a hot summer night and steals a very expensive watch? He didn’t “break in” so he can’t be guilty of common-law burglary here either.

What if the person breaks and enters into a home, but he is very drunk and mistakenly thinks it’s his own home (his keys weren’t working so he had to break in). Once inside, he realizes that he isn’t in his home at all, but he also notices a really nice television and decides to take it? Here, he is also not guilty of common-law burglary because he didn’t break and enter with the intent to commit a felony. He broke in innocently, but then formulated the intent to commit the felony once inside.

What if the person breaks and enters into a home at night, but with the intent to commit a misdemeanor. No burglary here either.

I can go on, but you probably get the point.

In an effort to fix these deficiencies, legislatures in the United States have statutorily redefined burglary to avoid these technicalities.

For example, in New York, Penal Law Section 140.20 states that a person is guilty of Burglary in the Third Degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein.

This is the lowest form of burglary that exists in New York. If you take this lowest level of burglary and add aggravating factors, then you up the degree of burglary. For example, if the burglary occurs in a dwelling where someone sleeps at night, then you get Burglary in the Second Degree. If the Burglary occurs in a dwelling and a non-participant in the crime suffers “physical injury,” then you get Burglary in the First Degree.

But take a look at Burglary in the Third Degree and notice how it differs from the common-law definition listed at the beginning of this post. To commit a burglary in New York, one need not comply with the stringent requirements of the original law. The burglary doesn’t need to have to happen at night; you no longer need to “break in;” the place where you enter no longer needs to be a “house;” and you don’t even have to enter with the intent to commit felony anymore-any crime will do.

These changes were made to stop clever defense attorneys from getting their clients off on “technicalities.” However, as a direct result of these changes, you now have situations in which a few knuckleheads trespass onto property and engage in some incredibly dangerous fun where no one is ultimately hurt and the government says they’re “burglars.”

The problem is that the conduct of these individuals is already illegal without burglary. The problem for the government though is they are only guilty of misdemeanors. Rather than just letting these people face the proverbial music with appropriate charges, the government has inexplicably decided to overcharge them with a crime of serious historical consequence.

What exactly is the crime that these people intended to commit when they knowingly and unlawfully entered into the Freedom Tower? I’m interested to see how this plays out, but I’d be surprised if any of these people are ultimately convicted of burglary.