Store clerk who shot, killed armed robber may face charges

[jimtan]

Fundamentally, I believe the person making the attack takes his life into his own hands when he decides to jump another person. And if he does so with a weapon then why would he expect to have any consideration shown for his own life in return? If he survives it is only because he was more skilled in the surprise attack, better armed, or the other person showed him a great deal of human charity. Sometimes I think we are over-civilized in our laws and have lost touch of basic survival responses.

This says it all. If a person makes a choice to rob someone, they should be fair game. Of course common sense should dictate one's actions, but if attacked we should be able to respond with aggression.

[Playboypenguin]

Questionable shooting in my opinion. However, it certainly wouldn't break my heart if the clerk wasn't charge with any thing. Just don't see that happening though.

I agree with this statement.

The shoot was very questionable and the clerk showed some poor judgement...as well as poor marksmanship.

I do not in anyway ever condone shooting anyone as long as there is any other recourse, and I especially do not support shooting s fleeing target, but I would not be upset if the clerk was not charged.

[King Ghidora]

If I was on a jury I doubt I would vote to indict that clerk. Even if the law says otherwise and common decency says otherwise I still wouldn't do it because I know what it feels like to have a gun pointed at you and how helpless it makes you feel and how mad you get because of it. I don't condone what he did but I certainly sympathize with him. Like I said before I was in a very similar situation only worse and I chose not to strike back at a running robber. Sometimes I wish I had though.

Kenny, one answer would be Missouri? I know they have a law to that effect. But the one you're saying would be a surprise is none other than New York.

[OldMarksman]

From B.N. Real:

Criminals need to know to not run ... Those of you who would let a guy that just broke into your house escape need to think of what will happen the next day ... .... If he stops ... I will not shoot him,...If I let him escape ...

(italics mine)

B. N. Real, the item highlighted in the (New York State) law cited by kennybs plbg has to do with the use of force in making a citizen's arrest.

The concept of the citizen's arrest goes back centuries, and all states have some kind of provision for citizen's arrest.

Here's something on the Illinois law:

http://blogs.suburbanchicagonews.com...ns_arrest.html

Note this: "It is important to note that a private person does not have the authority or legal protections that are often applied to the Police. A Private Person is liable under both Civil and Criminal law for the violation of the rights of another. Private Persons are for the most part not trained in arrest techniques .... Excessive force could also result in charges against the person trying to arrest another." (Emphasis mine)


And something else on the subject:

http://law.jrank.org/pages/5981/Deadly-Force.html

Note this: "When police officers are arresting someone for a felony, the courts have given them a little more leeway [than in the case of a misdemeanor]. The police may use all the force that is necessary to overcome resistance, even if that means killing the person they are trying to arrest. However, if it is proved that an officer used more force than was necessary, the officer can be held criminally and civilly liable. In Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985), the Supreme Court ruled that it is a violation of the Fourth Amendment for police officers to use deadly force to stop fleeing felony suspects who are nonviolent and unarmed. The decision, with an opinion written by Justice BYRON R. WHITE, said, in part, "We conclude that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." (Emphasis mine)

"When deadly force is used by a private citizen, the reasonableness rule does not apply. The citizen must be able to prove that a felony occurred or was being attempted, and that the felony threatened death or bodily harm. Mere suspicion of a felony is considered an insufficient ground for a private citizen to use deadly force.

"This was demonstrated in the Michigan case of People v. Couch, 436 Mich. 414, 461 N.W.2d 683 (1990), where the defendant shot and killed a suspected felon who was fleeing the scene of the crime. The Michigan supreme court ruled that Archie L. Couch did not have the right to use deadly force against the suspected felon because the suspect did not pose a threat of injury or death to Couch."

Citizen's arrests are apparently not uncommon, but they do put the citizen at risk. I would be extremely reluctant to attempt one. And I would be a lot more reluctant to use deadly force.

You should probably consult with a qualified attorney before concluding that you are empowered to shoot someone who tries to "run" or "escape"from you.

And you might ask for some guidance on the making of a citizen's arrest, should you think you may ever get involved in one.

[OldMarksman]

From King Ghidora:

If I was on a jury I doubt I would vote to indict that clerk. Even if the law says otherwise and common decency says otherwise I still wouldn't do it

I don't think anyone here knows the facts well enough to make a judgment on that, and we haven't received instructions from the judge ( I presume you were referring to a trial court jury, and you meant to say "convict)."

I think it's an extremely bad state of affairs when jurors elect to ignore the evidence and judges' instructions on the law and "vote" on the basis of their feelings, as may have occurred in the O. J. Simpson murder trial.

It undermines the whole basis of our legal system.

[King Ghidora]

Actually I was thinking of a grand jury and I meant to say indict. As for jury nullification it's a long standing tradition that goes a long way back before OJ.

In this particular case I would be inclined to give the clerk a break because of the extreme emotional stress caused by having his life threatened. I suppose they would never seat me on a grand jury just because of the fact that I wouldn't vote to indict (based on the story as it's been told here - obviously we don't know all the facts).

Again I know what it's like to have someone point a gun at you and threaten your life. It will make you extremely upset, believe me. I never acted irrationally but the person sitting next to me did in one case. He left me a sitting duck and the cops loved him for it. Screw them. They said he made it possible for the bad guys to be arrested but it's my experience that almost no armed robberies go unsolved in this part of the world anyway. He just put me and my wife in danger for no reason IMO.

I just believe that a lot of people would do things under that kind of pressure that they shouldn't do. It happens to cops who catch people who try to escape by driving 100 mph down city streets. The adrenalin is flowing and they overreact. I wouldn't charge them either. If someone put my kids at risk I'd be ready to shoot them whether they were running away or not. Luckily that never happened or I might be sitting in jail now. It's just how people react to stress like that. I wouldn't indict in this particular case unless the clerk endangered innocent bystanders.

I just remember how much I wanted to run over that guy who knew I was the only witness to his crime. I'd be hard pressed to hold anyone else accountable knowing how it made me react even if I didn't actually do what I wanted to do.

[TheNatureBoy]

When the bad guy ran/walked out of the store the employees life was no longer in danger. Yes I understand the employees life was threatened, he was upset, etc. however, that does not change the fact that he ran after the fool and shot him in the back. I wish I could see it another way but I can't given what happened

[King Ghidora]

FWIW I'm not trying to argue that what I would do is right. I just couldn't do it the way the law says it should be done. No doubt I'd be passed over for a jury just because of that. What the clerk did was wrong IMO. I just couldn't vote to indict him for it. It's a personal thing for me. I'm still ticked 25 years later to be honest. I just know for sure what it's like to be put in that situation and I couldn't convict or indict anyone because of what happened to me. I'm not suggesting that anyone else follow my lead.

[Frank Ettin]

The U. S. Supreme Court in Garner v. Tennessee effectively ruled the the following six criteria must all be satisfied in order to justify using lethal force to stop a fleeing felon:

• Heinous felony against the person (harm to the person: murder; attempted murder; stranger kidnapping; arson of actually occupied building; violent sexual assault)
• You have actually seen it happen
• You are clearly identifiable as the good guy
• The perpetrator’s escape is open ended
• All other means of apprehension have failed or are obviously impossible
• Continued freedom of the perpetrator presents a clear and present danger to innocent human life or limb

The clerk's fate will ultimately be up to the legal system, but if the Garner test applies, he may have some trouble with the first and last criteria.

[OldMarksman]

From Fiddletown (listing one of the prerequisite criteria for lethal force):

Continued freedom of the perpetrator presents a clear and present danger to innocent human life or limb

For those of us who are not schooled in the law, that could probably use some explanation. Would the fact that the suspect has committed dangerous acts in the past and may do so again qualify (I presume not), or would that better describe someone shooting at pedestrians as he drives away?

Again, this is for helping the forum members in the general case, and not to discuss the case at hand.

Thanks in advance.

[Frank Ettin]

Originally Posted by OldMarksman

...For those of us who are not schooled in the law, that could probably use some explanation. Would the fact that the suspect has committed dangerous acts in the past and may do so again qualify (I presume not), or would that better describe someone shooting at pedestrians as he drives away?...

That's a good question and my not have a simple answer. A lot will depend on how the issue has been looked at by various courts, if it's even come up. This is one of those areas in which we will need to ultimately depend on court decisions to clarify what this would mean in real life. And candidly, I'm not planning to do the research.

However, if one is tempted to shoot at a fleeing felon, he might want to ask himself if he can articulate why he concluded that "continued freedom of the perpetrator presents a clear and present danger to innocent human life or limb." For example, if, as you suggest, the perpetrator showed an intention to use lethal force to effect his escape, that might perhaps be sufficient.

The point, at least in part, is that it can be difficult to lay a factual foundation to support the use of lethal force to stop a fleeing felon. All the factors being present with sufficient clarity to justify the use of lethal force to stop a fleeing felon is probably a rare event.

[jcims]

Don't know if this was already posted, but here is an interview with Mayor Richard Hyde of Waukegan on this matter. He seems a little frustrated with all the attention it's getting:

http://www.wlsam.com/Article.asp?id=935712&spid=17424

[rogertc1]

Thanks for the link. Nice to see the Mayor supports the clerk.

[Jmacinnis1]

It seems everyone who opposes what happened feel the "boy" shouldn't have been shot because he was retreating; but the article doesn’t say whether or not he was fleeing with the “honest” intent of fleeing the scene. How do we know that the “boy” didn’t aim his “firearm” back at the victim as he was leaving or that he didn’t yell “I’ll be back for you later!”? First and foremost, you never get the entire story from any media source (It’s always slanted or presented in a way to be beneficial to a certain party or make you feel a certain way about any given event). You never know truly what happened or what was said by the people’s recollection of an incident. Video and audio evidence are not subject to intimidation and video “memory” is not affected by traumatic experiences and adrenaline. As stated in the article, the video footage has not yet been released, so you cannot go solely on one’s article because information can and does get recorded incorrectly, and can be presented in a way that isn’t necessarily true. Wait until the video is released before jumping to conclusions as to whether or not the victim should be charged.

[john in jax]

According to the article:
According to the law, a person can use deadly force if he or she reasonably believes they are in danger of great bodily harm or death to themselves or another person. There is also a provision that you can use force to prevent the commission of a forcible felony, which includes armed robbery.

The "armed" robber was still on the property, just when in the process/commission of a felony (armed robbery) does it end? It could be argued that since the BG had not left the property, the robbery was NOT over yet. While I haven't seen crime scene sketches or photos it sounds to be like the BG was shot right outside the door to the shop from the doorway of said shop - - it wasn't like the clerk chased the robber down the street or anything - - or am I missing something.

I hope no charges are brought against the clerk, and if they are I pray a good attorney gets him off.

[OldMarksman]

From John in jax:

There is also a provision that you can use force to prevent the commission of a forcible felony, which includes armed robbery....The "armed" robber was still on the property, just when in the process/commission of a felony (armed robbery) does it end?

(emphasis mine)

No one here has any more than the newspaper artcile, in which the fllowing is related:

Waukegan Police Comdr. Wayne Walles said the clerk of People's Market grocery store,... used the store owner's gun... to shoot seven times at Starks from the doorway of the store as Starks got onto a bicycle to make his escape.

(emphasis mine)

I wouldn't want to base anything on that. What other facts there may be are unknown to me.

But within the scenario as set forth here, to the extent that getting "onto a bicycle to make his escape" constitutes fleeing, we have been told in post 59 the criteria, all of which must be met, for using deadly force.

[Willie D]

When you SHOOT SOMEONE IN THE BACK it becomes difficult to prove self defense.

Wasn't that called "cowardly" in the old days?

[OldMarksman]

This one was the subject of a lot of discussion shortly after the incident occurred. The news reports at the time seem to indicate that a store clerk had allegedly shot and killed a person who was fleeing after a robbery.

It has been resolved in favor of the shooter.

According to this later article, videotapes, diagrams, and testimony indicated to the Grand Jury that it was a self defense shooting. The clerk testified that the robber was actually "riding by him" on the bicycle and appeared to still be armed.

http://www.dailyherald.com/story/?id=262804

[APGHunter]

Right or wrong this store clerk is screwed, I think the courts will make an example out of him. This is just the sort of thing the press uses to make gun owners in general look bad. JMO though

[Mike Irwin]

"Right or wrong this store clerk is screwed, I think the courts will make an example out of him."





APG, did you read the linked article Old Marksman posted?

The clerk has been cleared and will not face trial.

[Housezealot]

That link lead me to an error, i would like to read the story if any one has a good link, from what it sounds like though it is ridiculious that the powers that be will enforce a law protecting criminals while they will publicly disparage the open carry laws.:barf:
http://www.fox8.com/wjw-news-gun-owner,0,3525816.story
Proving once again that common sense is slipping away from us, sometimes i feel sick when i wonder what kind of crap my sons are going to have to deal with when they are adults.

[OuTcAsT]

It has been resolved in favor of the shooter.

What? You cannot be serious. After the "Experts" here had been so sure that they knew "The Law" and were certain that this was a bad shoot?

How was the "boy" a threat when he was riding away on his bike, and the store clerk took seven shots?

So a man is shot in the back running away from the crime location. This action accomplished;

A. Stopped actions that could be articulated as LIFE THREATENING, no the immediate threat was gone.

B. Prevented a "taking" with the use of a deadly weapon, no the "taking" had already occured.

According to my lay understanding, the clerk would have been justified in using deadly force if he were reasonably in fear of imminent , serious bodily harm, but he cannot properly shoot someone who is running away. I think the same would apply to an Illinois State Trooper.

he was wrong to be in possession of a firearm without a FOID card which is still a felony on his part.

Common law never gave people the right to shoot fleeing criminals as I understand Blackstone. You can't assume someone who is running away is a threat to you. So if you shoot that person, unless you happen to be an actor in a Hollywood western, you're going to jail.

We even touched on the evils of jury nullification. Where are the experts now? Sometimes I wonder who's side 'We" are on.

[Mike Irwin]

Uhm...

Let's not revisit those arguments in that manner.

The justic system has spoken, so we have final resolution.

It could EASILY have gone another way entirely.

[OldMarksman]

What? You cannot be serious. After the "Experts" here had been so sure that they knew "The Law" and were certain that this was a bad shoot?

Just to make sure there is no misunderstanding of why the shooter was not charged, and not to revisit the argument but to help forum members better understand, facts later emerged that differed from those described in the earlier published report, and it's pretty clear that they made all the difference in the outcome.

From the original news report: The perp was said to be riding away on his bike after the robbery. Under that scenario: he was running away, no longer a threat, after having committed a crime that did not result in serious injury or death; that would almost certainly have been determined to have been a bad shoot.

From the later report on the Grand Jury testimony and outcome: the perp was riding past the clerk, holding in his hand what he had represented as a lethal weapon. Under that scenario, according to the Grand Jury: self defense, therefore justified.

What I posted then:

No one here has any more than the newspaper article, in which the fllowing is related:

"Waukegan Police Comdr. Wayne Walles said the clerk of People's Market grocery store,... used the store owner's gun... to shoot seven times at Starks from the doorway of the store as Starks got onto a bicycle to make his escape." (emphasis mine)

I wouldn't want to base anything on that. What other facts there may be are unknown to me.

But within the scenario as set forth here, to the extent that getting "onto a bicycle to make his escape" constitutes fleeing, we have been told in post 59 the criteria, all of which must be met, for using deadly force.

What the later article says:

Starks got on his bicycle and rode past the door of the store, police said, directly in front of the clerk who was still holding his gun.

The clerk told police he saw what he believed to be the gun in Starks' right hand, and opened fire because he believed Starks was going to shoot him.
(Emphasis mine)

That paints a completely different picture.

The differences are critical. No one reading the report of the Grand Jury finding should conclude that the finding means that it is permissible to shoot at someone who is fleeing after committing a robbery.

This was finally resolved (assuming that no new evidence emerges) as a case of self defense. The Grand Jury reviewed testimony, tapes, and diagrams and the results of an exhaustive investigation, and as Mike Irwin says, it could easily have gone another way.

[Shorts]

http://www.dailyherald.com/story/?id=262804

Good to see this resolved.



This is probably the second or third shooting that comes to mind in recent years that forum members who have discussed it felt the shoot was "bad" or at least on the fence at minimum. I was one of them.

Then the case goes through the system and ends up with the accused not facing trial, not convicted, 'no billed', etc.

I don't want to say it is a trend, because there's been plenty of bad things going around to discredit gun owners. I guess I am pleasantly surprised these cases have gone the way they have.


Edited to add: Saw the post above and I echo the sentiments about (not)knowing the details. That does change things drastically. I know we all know that when we read these kinds of threads, that we don't know what the jurors or the people in the court will know. We can only speculate the assumptions.