Woman Charged With Burglary After Seizing Abusive Husband’s Guns

A Florida Woman is being charged with felony burglary after breaking into her estranged husband's apartment to seize his guns and give them to the police.

A Florida woman who broke into her estranged husbands apartment to take his guns, which she intended to turn over to police because she feared he would defy a court order to turn his guns in as part of the couple’s ongoing divorce and related charges of domestic violence, is being charged with armed robbery, a charge which is leading to some understandable controversy:

Days after her estranged husband was arrested for trying to run her over with a car, a Florida woman is now facing felony burglary charges because she turned his firearms over to law enforcement. 

According to the arrest affidavit, 32-year-old Courtney Irby was arrested June 15 and charged with armed burglary of a dwelling and grand theft of a firearm after she entered the apartment of her husband, Joseph Irby, gathered his guns and turned them in to the Lakeland Police Department. 

The guns were previously ordered by a judge to be turned in, but when Courtney Irby dropped them off at the jail, an officer told her she was breaking the law. 

“So are you telling me that you committed an armed burglary?” asked the officer. Irby answered, “Yes, I am, but he wasn’t going to turn them in, so I am doing it,” reports the Lakeland Ledger

Irby had already applied for a temporary injunction against her husband and the two were in the process of a divorce, according to court records. 

“She was actively protecting herself and her family from an estranged husband who had not turned over his firearms to law enforcement, and was arrested for it,” said State Rep. Anna Eskamani today in a statement. “We should be outraged by her arrest, and Irby should not be prosecuted by the local State Attorney’s office.” 

We reached out to State Attorney Brian Hass’ office for comment, and will update this post if and when he gets back to us. 

In the last legislative session, Eskamani and Senator Lori Berman filed SB1206 and HB941 to keep guns away from people convicted of misdemeanor domestic violence offenses, and essentially close loopholes in Florida’s 2018 risk protection order law, which states that only a law enforcement officer or agency can file a petition for a risk protection order and remove firearms from a respondent who “poses a significant danger.” 

Both bills died without a hearing. 

“Federal gun laws already protect women from domestic abusers by prohibiting gun possession for people convicted of a ‘misdemeanor crime of domestic violence’ or subject to a final domestic violence restraining order,” said Eskamani. “But dangerous gaps and weaknesses in the system remain at the state level.” 

Understandably, the reaction to this story on social media and on cable news, where I first heard about it on Saturday morning, has been mostly sympathetic to Ms. Irby. Part of the reason for this is the fact that, if convicted on the charges pending against her, Ms. Irby could theoretically face more time in jail than her estranged husband would for the abuse charges pending against her. Given the fact that these charges included attempting to run her over with his car as well as other domestic violence charges, I can see how it would appear to a lay person that there was an especially grave miscarriage of justice going on here.

That argument may be right on a moral level, but there is also a lesson here about not taking the law into your own hands. As I emphasized in the report above, the court presiding over the domestic violence charges against Mr. Irby had already ordered him to turn over his weapons to the police pending trial. This is common in cases such as this involving domestic violence and restraining orders such as the ones that Ms. Irby had obtained against her husband. It’s worth noting, though, that Irby’s husband was in jail when all of this happened and that the apartment where he was living was not the marital residence since the couple had apparently been separated for some time. Had it been the marital residence then she might have potentially had a defense here since she would have a right of access. In this case, that isn’t the case at all.

Instead of breaking into her estranged husband apartment and taking the guns, Ms. Irby should have informed the police and/or the courts that she was aware that he had guns and that there was a pending court order directing him to turn them over. If Mr. Irby refused to comply with that order, then he would have been in contempt of court and the police and the court would have had the authority to grant a search warrant for his apartment and authority to confiscate the guns. Instead, she chose to break into his apartment and steal the guns. The fact that she apparently intended to turn them over to the police is, at least as far as the law is concerned, not relevant.

All that being said, I have to say that I am at least sympathetic to the position Ms. Irby found herself in. Even though her husband was in jail, there was a chance he could get out prior to trial and she feared for her life if he did. Her intent of denying him access to weapons was understandable under those circumstances. At the same time, though, under the facts that we have before us, there was no immediate threat to her life at the time she committed the burglary and she cannot really make use of a “self-defense” argument to justify what she did. As I suggested above, she had other options that would have been equally as effective in separating her husband from his weapons.

My advice to Ms. Irby, then, is to get herself a good lawyer who can perhaps convince a prosecutor that the circumstances of this case, while they meet the legal definition of burglary, do not call for her being tried on those charges. Barring that, they can perhaps negotiate a plea deal that doesn’t result in her serving jail time or, if necessary, take the case to trial. Based on the facts we know, I’d say there’s a good chance that a jury would refuse to convict her.

FILED UNDER: Crime, Guns and Gun Control, Law and the Courts
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. CSK says:

    I suppose she could additionally argue that when her husband was out of jail, she was justifiably afraid to go near his apartment, given that he already tried to mow her down.

  2. gVOR08 says:

    Armed robbery? She was stealing the guns, not threatening anyone with them. And she seems to have been unaware of the law. Shouldn’t she be as entitled to an ignorance of the law defense as Mueller granted Trump jr over the Trump Tower meeting? Absence of criminal intent seems much clearer in her case.

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  3. mattbernius says:

    Without getting into the facts here, I just want to point out that if she is convicted on the current charges she will be categorized as having commit a “violent crime” even though no one was present during the burglary.

    This is an example of how that category of crime has greatly expanded over the years and why we are not going to be able to address the topic of mass incarceration without addressing the issue of violent crimes (and the moral stigma that accompanies it).

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  4. Gustopher says:

    I would not vote to convict, and if asked any obvious screening questions during the jury selection process, I would lie about that.

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  5. James Joyner says:

    @gVOR08: She’s not being charged with armed robbery but burglary.

  6. Just nutha ignint cracker says:

    I’m sure that there’s some kind of a Florida joke that goes here…

  7. gVOR08 says:

    @James Joyner: First paragraph.

  8. mattbernius says:

    @James Joyner & @gVOR08:
    In Florida, first degree felony burglary is essentially “armed robbery.” The reason she’s charged with “armed robbery” is part of the statute’s definition:

    Is or becomes armed within the dwelling, structure, or conveyance, with explosives or a dangerous weapon; […]

    source: http://www.husseinandwebber.com/crimes/property-crimes/burglary/

    In a strict interpretation, the act of taking the guns was in fact arming herself. Which elevates this to first degree (“armed burglary”). Hence why this is considered a violent crime.

    Welcome to the American CJ system.

  9. mattbernius says:

    @mattbernius:
    The page I linked to is a little unclear. Here’s the actual statute:

    c. To commit or attempt to commit a forcible felony, as defined in s. 776.08.
    (2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender:
    (a) Makes an assault or battery upon any person; or
    (b) Is or becomes armed within the dwelling, structure, or conveyance, with explosives or a dangerous weapon;
    or […]

    http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0800-0899/0810/Sections/0810.02.html

    The moment she took the guns she became armed and this became first degree felony burglary.

  10. Blue Galangal says:

    Forgive me, but your privilege is showing.

    That argument may be right on a moral level, but there is also a lesson here about not taking the law into your own hands. As I emphasized in the report above, the court presiding over the domestic violence charges against Mr. Irby had already ordered him to turn over his weapons to the police pending trial.

    However, there is no way to enforce him turning his weapons over to law enforcement. The police literally shrugged when asked how to enforce it; it’s entirely dependent on him volunteering to turn them in. They will not go ask for them or confiscate them unless and until he shoots her. That was in several of the local news articles I read about this case. The police admit that the requirement is toothless.

    So he already tried to kill her once. The message you, and police, are giving her is the same message women hear every day: “Sorry, can’t do anything until he kills you.” In this case he already tried to kill her. Why were his weapons not confiscated at that point?

    Moreover, he told them – from jail – to press charges against her. That they did is on them; did no one say, “Um, wait a minute, what’s he in jail for?”

    I cannot begin to enumerate how many women across numerous states have been told that there was nothing the law could do, only for those women to end up dead the next time around.

    So her choice is: be dead. Or be in jail for trying not to be dead. That is life in the patriarchy for women.

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  11. Gromitt Gunn says:

    There is no way in hell that I would vote to convict this woman. She did the least harmful thing under the circumstances to try to protect herself from someone who already tried to murder her once.

  12. EddieInCA says:

    @Gustopher:

    Like you, I would lie to get on the case in order to vote “Not Guilty” on all counts.

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  13. An Interested Party says:

    This is hardly surprising considering this is the state where George Zimmerman was allowed to get away with the murder of Trayvon Martin…

  14. Matt says:

    @Blue Galangal:

    I cannot begin to enumerate how many women across numerous states have been told that there was nothing the law could do, only for those women to end up dead the next time around.

    It’s absolutely fking ridiculous that this is how it is here in this country.

    The guy has shown he clearly can’t be trusted to control himself. FORCED forfeiture of his firearms should be a no brainer at this point. Maybe years from now he might be in proper control of himself and can be trusted with firearms again but that’s definitely not a given.

  15. James Joyner says:

    @gVOR08: Ah. That’s a typo from Doug. The headline and quoted article clearly say it’s “armed burglary,” not “armed robbery.”

    @mattbernius: That makes sense. I’m not sure I have a problem with the statute. Burglary is distinguished from robbery primarily because the latter is inherently violent—the use of force to steal from another—whereas the former usually isn’t. But if a burglar is armed, it’s an indicator that he intends to use deadly force to escape in the event he’s caught.

    What’s happened here, it seems to me, is a classic case of over-charging. It’s clear that her intent is merely theft, not violence. Usually, over-charging is used to force a plea bargain to the legitimate charge. But not always.

    @Blue Galangal: In the abstract, our criminal justice system is supposed to prevent the harassment of those not yet convicted of a crime by state authorities. And police have a lot of good reasons not to want to interfere in domestic violence cases, which are exceedingly volatile and dangerous on response and frequently wind up with the victim dropping the charges because they’re emotionally and/or financially dependent on the abuser. But the outcome is quite often horrible.

  16. OzarkHillbilly says:

    Doug, you obviously have little to no experience in this area so as a service to you I am going to correct this paragraph for you:

    Instead of breaking into her estranged husband apartment and taking the guns, Ms. Irby could have informed the police and/or the courts that she was aware that he had guns and that there was a pending court order directing him to turn them over. If Mr. Irby refused to comply with that order, then he would have been in contempt of court and the police and the court would have had the authority to grant a search warrant for his apartment and authority to confiscate the guns. But they wouldn’t do any of the above. They wouldn’t do a damn thing. So, given no choice other than death, she chose to break into his apartment and steal the guns, so that she might live. The fact that she apparently intended to turn them over to the police is, at least as far as the law is concerned, not relevant.

    Proving once again that the law is an ass.

    I’ve been there. I got a protective order between my sons and their step father, removed them from the home, and after one visit from DFS (to ensure they were living in a decent place and safe from their step father’s violent temper) I was on my own. The Cops didn’t do shit except release him from jail, the courts granted me the order time and again but beyond that did nothing and he continued to carry a pistol wherever he went, including during several completely unhinged public confrontations with me. I was subjected to anonymous death threats for years, reporting them to police only so I could have a record of them. I never did get a restraining order between me and him because I wanted him to go over the line with me. At least I could defend myself.

    I could go on. I could talk about my wife’s situation with her ex in which, yes he did try to run her over.

    I could tell you about the years long odyssey of stalking my business rep went thru that ended with Jim and his wife shot and the stalker dead because the cops would not do a damn thing, up to and including not arresting the asshole on active warrants when they were told where he was at.

    None of these stories are unique. Is it any wonder that people will step into the void left by our criminal justice system?

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  17. SKI says:

    If the prosecutor moves forward, two words: jury nullification.

  18. Just nutha ignint cracker says:

    @Blue Galangal: Indeed! Well stated!

    What’s happened here, it seems to me, is a classic case of over-charging.

    Not based on what the statute reads. (See @mattbernius)

  19. grumpy realist says:

    @mattbernius: I suggest you look up the common law definition of burglary (“breaking and entering a dwelling of another in the night with the intent to commit a crime therein”). If you want to blame anyone for how this turned out, blame the English jurist who defined it in 1641.

  20. Gustopher says:

    @SKI: Jury nullification is the entire point of trial by jury — it’s a check on the power of the state.

    I would heartily approve of it, and given the option, implement such a thing.

    Laws are big and broad and don’t cover every possible case. I think people have to ask about whether justice is being served.

    Nullification got a bad rep when it was used to not convict white folks of killing black folks, but it’s a bedrock principle of our government/governed balance.

  21. mattbernius says:

    @James Joyner:

    What’s happened here, it seems to me, is a classic case of over-charging. It’s clear that her intent is merely theft, not violence. Usually, over-charging is used to force a plea bargain to the legitimate charge. But not always.

    I’m not sure this is actually overcharging based on the letter of the law. This is also why prosecutorial discretion is such an important factor.

    The challenge is that — as in many states — FL’s criminal statutes are written in such a “tough on crime” way that they lead to situations like this.

  22. Blue Galangal says:

    @James Joyner:

    In the abstract, our criminal justice system is supposed to prevent the harassment of those not yet convicted of a crime by state authorities. And police have a lot of good reasons not to want to interfere in domestic violence cases, which are exceedingly volatile and dangerous on response and frequently wind up with the victim dropping the charges because they’re emotionally and/or financially dependent on the abuser. But the outcome is quite often horrible.

    I’m not quite sure I understand what you’re saying here. That it’s okay for police to opt not to try to protect women because they’ve seen the futility of it when a woman drops charges and goes back to her abuser? How does that square with, “The law is the law,” and “trust the law, it’s there to protect you/don’t take the law into your own hands”? So the police can opt not to enforce the law because women are silly creatures who don’t know their own minds and the police’s hard work of arresting abusive partners and protecting their victims (almost always men and women, respectively) will just be wasted so why not… go eat a doughnut?

    Women go back to abusive men because they often don’t have a choice and because they know that police won’t do anything. It’s a vicious cycle and it sounds like you’re blaming the victims for being unable to break out of it instead of the people whose job it is to enforce the law, protect citizens, and, yes, break the cycle.

    If you are a woman in an abusive relationship, in particular if you have children – which Ms. Irby does – you step as carefully as possible. He ran her off the road after a court hearing and spent one whole day in jail. She confiscated his weapons, which at that point he was illegally in possession of, and spent four days in jail. The fact that she went to the extreme to confiscate those weapons showed that she was more scared of dying than she was of jail.

    And she was right to be. I won’t bore you with statistics, but it’s about one woman every 20 hours if memory serves who’s killed by an abusive partner. You certainly won’t be empowered to leave leave your abusive partner, on whom you may well be financially dependent, if the police opt time and again to do absolutely nothing when there is a credible threat against you. Instead you bide your time, perhaps for years, walking on eggshells and treading as carefully as you can while making plans to leave. Sometimes you get out. Sometimes you don’t.

    But please – let the police continue to enjoy their doughnut days because it’s just too tough to try to enforce the law or protect women from abusers. Everyone knows women are silly, volatile creatures who are probably just trying to ruin a good man’s life. So what if he had a little to drink and punched her in the face? We’ve all been there, amirite? So what if he got mad after that court appearance and ran her off the road? That’s really stressful, you know? He’s out there trying to make money to support that bloodsucker, after all, you can’t expect him to be perfect, and then he had to take time off work to go listen to a judge tell him what he could and couldn’t do and maybe even tell him he had to turn over his guns. What! Isn’t this America?!?

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  23. James Joyner says:

    @Blue Galangal: I’m just arguing this is a major problem with no easy solutions. It’s been known for decades that domestic disturbances are the types of calls police are most loathe to respond. I’m sure there are all manner of gendered reasons baked in. But it’s simply true that they’re among the most liable to be dangerous. That the women, not just the men, are more likely to assault police. They’re just inherently emotional situations in a way that other crimes aren’t. And, for reasons you state, the victims are much less likely to press charges.

    I gather some (many?) jurisdictions have changed the law such that it’s no longer required to press charges—that it’s now considered a crime against society rather than against an individual. But it still requires cooperation from the victim and spouses can’t be compelled to testify against one another.

  24. DrDaveT says:

    @James Joyner:

    It’s been known for decades that domestic disturbances are the types of calls police are most loathe to respond.

    Yes, but… it’s their job.

    As for the problem of failure to press charges or testify, it seems to me that once you get to the point of already having a restraining order, that particular concern is not relevant…

  25. bookdragon says:

    @James Joyner:

    But it’s simply true that they’re among the most liable to be dangerous.

    Well, gee, maybe if the police could be bothered to remove guns from violent abusers, who by federal law should *not* have them, the danger might go down even if the victim goes back and there’s a next call.