‘I’ll Take It Under Advisement’
by Bruce McEwen, December 30, 2010
Have the Hatfields come to Mendo?
There used to be the Hatfields and the McCoys.
In Mendocino County there's the Petersons and the Carrs.
The week of the winter solstice, the week of a full eclipse of the moon, the week before Santa Claus and 2011 rode in over the ridgetops, the Petersons and the Carrs were cross-claiming each other in Judge Behnke’s court.
The Petersons and Carrs have been feuding for years, and the bad blood had finally spilled into court. It had almost spilled in the hills.
“There was a lot of shooting, yelling, calling me a thief, a rip-off and — ‘Come on over and get some of this!’and Bang bang bang.”
“Where were you standing at the time?”
Gary Peterson was being examined by his lawyer, David Riemenschneider.
“Which time? It’s been going on for years!” Peterson exclaimed. “Which time d’you mean?”
The bad blood goes back to 1997-98 when Mendocino County Supervisor John Pinches sold two parcels of deep outback land in the "northeast quadrant of the County," as law enforcement refers to the wilds north and east of Laytonville. Pinches sold the land to two women, Ms. Carolyn Peterson and Ms. Susan Carr. The two women subsequently married a couple of back country agriculturists named Gary Peterson and Ricky Pagan.
The two silver-haired women sat behind their lawyers, demure and mute, as the men, who'd done the fighting, now did the talking.
Riemenschneider asked Peterson about an incident in October of 2007.
“Yes, that’s right. It went on for two days that time, over and over.”
“It was between you and Ricky Pagan?”
“How far apart were you?”
“A hundred feet. He had a gun, a revolver, firing in my direction.”
“Were you yelling at him?”
“Yes, I believe I was.”
“I can’t recall. I believe it was the next day I said we had an easement.”
“Did you have a gun?”
“Ever cross onto the Carr property?”
“Can you estimate how many shots were fired?”
“Well, he had to reload, maybe twice.”
“Were you hit?”
“No, not that time.”
“Were you in fear for your safety?”
“Yes. This was going on for years. Their pot gardens got ripped off and they were blaming it on us.”
“We’d been living in fear for years, since 2002 or ’03, almost every time we accessed that part of the property.”
Ms. Carr’s lawyer, former Mendo Superior Court Judge James King, now in private practice out of Willits, rose to cross.
“So again, Gary, what behavior by Ricky put you in fear in ’07?”
“He was on the boundary line firing the gun.”
“Now, you’ve raised assault — is it money you’re seeking?”
“No, I just want it to stop, a court order or whatever it takes. I don’t want to be shot at anymore.”
“Has it stopped since this lawsuit began?”
“Yes, it has.”
King, said, “If he’s not seeking money, I move to strike all this testimony. It’s irrelevant, judge.”
Judge Behnke said, “The declaratory relief refers to the easement claim. I prefer you to complete your cross.”
“Mr. Peterson," King resumed, "I want to direct your attention to the eastern portion of the property.”
Gary Peterson rose from the witness stand and stepped over to some maps pinned to the wall. Peterson's a big guy who looks a little like the Big Lebowski. He wears his long gray hair in a ponytail.
King said, “From Grapevine Creek to the landing it’s pretty steep, isn’t it?”
“Yes," Peterson answered.
“So there’s no possibility of building a structure or a house in this area, is there?”
“In my opinion there is. One of my kids wants to put a house up there, and that may be my intention.”
Mr. King produced a document and presented it to Mr. Peterson. After Peterson read the paper, King said, “You basically gave up any interest in that section of the property when you bought the property—”
“Objection,” Riemenschneider said.
“Sustained,” Behnke agreed.
“You assisted Carolyn in purchasing the property? … And neither of you or John Pinches was using the access — in fact he never said anything to you about that, did he?”
“No, we never discussed it.”
“But you’ve been on the Carr property in the past?”
“And you were showed the log landing?”
“There’s a road that goes north, isn’t there?”
“Yes, a nice road.”
“You’re not claiming an easement across that road, are you?”
“I have a right to use it! That’s what we’re here for!”
“So you’re asking for both?”
“It’s in the deed — my interpretation of the deed—”
“Objection,” King said. “Move to strike.”
“Ms. Carr purchased the property in ’07. Did you know her at that time?”
“I could have.”
“Ms. Nardy asked you to look after the garden?”
“Basically, Ms. Nardy went away and asked me to look out for it.”
Everyone seemed to know who Ms. Nardy was.
“When did you first become aware Ms. Carr had become the owner of the property?”
“I believe in was in ’98.”
“You knew about the boundary line adjustment — you never walked the boundary with Mr. Pinches, did you?”
“No, I never walked it with John at all.”
“So you didn’t know where the boundary was, did you?”
“You’ve done extensive road work since Carolyn purchased it, haven’t you?”
“Was Ricky running along the boundary firing a gun?”
“At which time?”
“Since October of ’07 there have been no further incidents with a firearm, isn’t that true?”
“Lars, your son Lars, and some other men, were working in his garden at the time, and you said in your deposition that Rick was firing over these men’s head.”
“He was firing at me! Calling my name.”
Mr. King directed Gary Peterson’s attention to page 77 of his deposition and had him read a passage wherein Peterson had stated that Ricky fired over the men’s heads.
Then King asked, “Where were you when this happened?”
“Well, I left. So I was probably 200 feet away.”
“When he was running down the boundary line you were 200 feet away?”
“Which direction was the gun pointed?”
“I’d have to say in the air.”
King pointed to a place on the map and said, “The men were working over here, and the way they took it, he was firing over their heads — was he firing at you?”
“Did he threaten you with the gun?”
“But that was the next day — is that your recollection?”
“Yes, that would be about right.”
“How far were you from your son Lars at the time?”
“About 200 feet.”
“Do you recall being present at Lars’ deposition?”
“And don’t you recall Lars saying you weren’t there when this happened?”
“Well, maybe he didn’t know I was there.”
“In fact, you didn’t know this had happened until Lars told you about it—”
“What are you saying? That I’m a liar!? This guy’s shot thousands of rounds at me.”
“Objection, non-responsive, move to strike.”
“Your Honor, this guy’s trying to let him keep firing at me; he wants everything I say stricken.”
You might say a certain informality had crept into the proceedings.
“The objection was sustained, Mr. Peterson,” Judge Behnke said.
King resumed his cross: “In October of ’07 you knew exactly where the boundary was because Ms. Carr’s surveyor had come out and staked the line.”
“Nobody told us the surveyor was coming.”
King produced a photograph. “Ever see this before?” he asked the witness.
“Never,” Peterson said.
“You see the flagging in the photo? Is that on or near the boundary?”
“Do you know what happened to that flagging and the survey stakes?”
“In September of that year did you and Ms. Carr have a disagreement about where the boundary was?”
“I don’t recall, uh, any words I had with Ms. Carr.”
“In fact, Mr. Pagan never pointed a gun at you, did he?”
“I don’t know what you’re trying to do. I can’t believe what you’re doing, going in and trying to get testimony taken off the record.”
King read from Peterson’s deposition: “Did he point the gun at you?’ Answer, ‘No.’
Is that your testimony?”
“He couldn’t be shooting without knowing he was shooting at me and my men. He fired over a dozen shots that day.”
“In fact Mr. Pagan didn’t know you were there that day, did he? In fact you were hiding!”
“There’s lots of ways to talk when you’re hiding. I don’t know what he knew.”
“I’d like to return to the photo. It shows some lines on it. At that time did your son Lars have a camp near where it happened?”
“Yes. He has a permit for his plants.”
“You testified previously about other incidents. Did you report any of these to the Sheriff’s office?”
“Nothing would have been done.”
Rick Pagan, the husband of Susan Carr, was called. If Peterson resembles Lebowski, Pagan looks a little like Snuffy Smith.
Mr. Pagan said he and Ms. Carr had lived together for many years before they were married in ’08. Mr. King asked him if he remembered having the boundary line adjusted. Pagan said he did. He also remembered the survey stakes being torn up and the flagging torn down, but Peterson’s lawyer, Mr. Reimenschneider, objected and the remark was stricken.
“Do you own any guns?”
“Six or seven.”
At this point a demographic observation might be helpful. The north and east of Laytonville on into Trinity County is wild country with people to match. In the old days the people were called mountain men. They were tough, resourceful and prone to violence. With the back to the land movement of the late 1960s, powder keg Vietnam Vets and what you might call bush hippies, the workingclass long hairs who thought peace and love was a huge load of bullshit, and who were also prone to violence as the most efficient route to problem solving, occupied these remote hills, growing dope and occasionally disappearing irksome neighbors.
Their grandchildren are out there now.
“At some point you became angry with Gary?”
“Because you thought he was stealing?”
“Yes, a number of things.”
“So you thought Gary or one of the people working for him were stealing?”
“I didn’t think it was stolen, I knew it was.”
“At some point you started yelling at Gary?”
“I don’t recall using Gary’s name. It would be more like I said ‘Hey, you there with the milkshake…”
“Well, in the context of these utterances, ‘thief, rip-off…’?
“At the time were you referring to Gary?”
“No — whoever was guilty.”
“And you also discharged firearms?”
“Well, yes. I thought I heard Gary’s voice, but I didn’t see him.”
“When you were shouting and shooting… How many times did this happen?”
Mr. Riemenschneider commented: “This is demonstrably bad conduct, if you will.”
If you will or you won't, I think we could get a consensus it was.
King resumed: “On at least one of the seven occasions did you use a shotgun?”
“Did you yell at Gary Peterson while discharging a firearm?”
“No. I never said Gary’s name; Gary just says I said his name.”
Mr. Riemenschneider said, “Well, do you remember saying ‘rip-off’ while firing a firearm?”
Pagan replied, “Well, it was a test question.”
“What do you mean?”
“I would yell ‘Shut up, you rip-offs’ and they would shut up. So it was a test to see if they were rip-offs, and then I would fire.”
“Now, isn’t it true that Susan Carr was nearby on at least some of these seven occasions?”
Pagan couldn’t remember, but a reading from Pagan's deposition confirmed that his wife was nearby.
“Do you recall her asking you to refrain from doing the shooting?”
“It’s likely she did,” Pagan admitted. “On account of the dog; the dog doesn’t like gunfire.”
“Did she ever tell you to stop shooting and shouting?”
“She may have voiced her opinion that she didn’t think it was a good idea,” Pagan said, fidgeting.
“Well, what did you do?”
“I, uh, I took it under advisement.”
“So that didn’t stop you, did it?”
“Yes,” Pagan said meaning No.
Mr. King had some questions: “Did you hear Gary testify that you yelled at him and called him by name?”
“What did you do?”
“I walked up there and heard some people, so I shot my gun a couple of times.”
“What kind of a gun?”
“A Colt .45.”
“Did you see Gary?”
“If you were going to do this again, would you do it the same way?”
“No, not at all. It was an inappropriate use of a firearm.”
“Ever fire a gun in Mr. Peterson’s direction at any time?”
“Who was surveying?”
“Dylan Colston of Colston Surveying.”
“What happened to the markings?”
“They were all torn up.”
“What did you do?”
“I had him do it over, and Gary’s men threatened to sue them (the Petersons) so they left. Then the surveyor asked us to notify the neighbors, so we made this sign — there was no way they could miss it and the workers came down with six or eight dogs to disrupt the surveyors.”
“Did you ever use the words ‘Come on over and get some of this’?”
Riemenschneider had more questions: “Why were you shooting in the first place?”
“It was an expression of my property rights.”
“So you’re shooting a gun as an expression of property rights?”
“And you’ve done this on other occasions?”
“Can you explain why you thought this was expressing property rights?”
“I had a feeling the Petersons were taking over and I knew Gary didn’t like gunfire. I knew it was annoying. In the past we had neighbors who fired a lot of guns and I knew it was annoying. It’s annoying when someone else is doing it, but not when you’re doing it yourself.”
Judge Behnke said, “I think it was responsive. But I don’t think the evidence has met all the elements for assault, and Mr. King’s contention is that you cannot get an easement by implication. I haven’t made my decision yet, but I’ve tipped my hand as to which way I’m leaning. If you want to write this up and re-submit it I’ll be happy to look at it.”
The lawyers went back to their offices behind the Courthouse to spend the holidays rewriting their arguments for their respective clients.
They had it all under advisement, you could say.