Taking the law into one’s own hands ((Part I)

Taking the law into one's hands really amounts to two kinds of possible actions—protecting one's self because the police can't and seeking revenge because the courts won't. This article deals with protecting one’s self and property.

A good example of the former is the well-publicized Bernhard Goetz case. It was an unusually warm December 22, 1984 when this mild-mannered electronics engineer boarded a subway car in Manhattan and headed for the Wall Street district. Before the subway had reached the next station, one of a group of four 19 and 18-year-old black youths demanded five dollars from him.

Goetz had had enough. He had been mugged in 1981 and the suspects in that mugging were released from police custody even before the police were finished with their questioning of Goetz. He then purchased a hand gun after that mugging and several months before the attempted robbery in the subway, two youths in Harlem tried to rob him and he pulled out his gun. One ran away and the other cried out, "Oh, my God!" and collapsed to the sidewalk. Goetz let him go. On another occasion, a woman was being mugged by a robber and when Goetz came to the woman's assistance, he pulled out his gun again, and the mugger fled the scene.

After his 1981 mugging, Goetz felt that the city government was inept and incompetent. The city was not giving him the protection he and other innocent citizens needed. He felt that the criminals were running wild in the streets and that the system was more on their side than that of the victims. He was right of course. For example, in the first 10 months of 1984, there were 12,000 reported crimes in New York's subway system of which 4,992 were robberies. In the following year, there were 1,384 murders in New York City.

It was a well-known fact that if you commit a crime in that city, the odds of being arrested were one in ten and the chances of being sent to prison were one in fifty. Victimization in the United States is a way of life. One in five American families has been touched by a serious crime and as much as 56% of those victims are not satisfied with the response from the police.

For Goetz, it was time to take the law into his own hands. He stood up, pulled out his chrome-plated .38 revolver with the dum-dum bullets, and began firing, not just at the punk who was demanding the money, but the three other blacks who were with the thug. After the four blacks fell, he bent over each of them to check on them and when it appeared that one of them wasn't injured, he remarked, "You don't look so bad. Here's another." then fired his revolver again. This time, he missed. His missing that particular black was academic at that stage. The black youth, Darrel Cabey, had been shot the first time and is now permanently brain damaged and paralyzed from the waist down. The reaction of the public was what might be expected when the citizens have had enough of being mugged. Even a poll of the black community which is fed up with other blacks robbing and murdering them, was supporting Goetz 52 to 49 percent. Thousands of people were flooding the switchboards of the police and newspapers, congratulating the actions of the subway vigilante.

Lt. William Taylor of the New York Police Department said that more than 1000 calls came in and as much as 99.9 % approved what Goetz had done to the four would-be
muggers.

A telephone systems technician offered his life savings of $50,000 as bail money for Goetz. The New York State Republican Committee chairman, George Clark, offered to donate $5000 to Goetz. He said, "In a way, he was defending New York society. I think he acted rather dramatically, but if I had a bat, I'd make sure I protected myself too.

The citizens and visitors in New York City had been living in a state of fear. Bands of youths would wade through the subway cars, lifting women's skirts, breaking glasses and in the terror they created. In off peak hours, subway commuters would go to specific stations where they could huddle for protection against the roaming thugs.

However, the thorny issue of taking the law into his own hands couldn't escape anyone apprised of this shooting. Everyone aware of the shooting were later to become apprised of the uncomfortable fact that Goetz shot two of the blacks in their backs, and that he had stated that he would have murdered them if he could. Mayor Edward Koch condemned the shooting as bloodthirsty as did the city newspapers.

It must be kept in mind however that these four blacks were not the creme de societe. In fact, that cream had gone rancid. All of them had criminal records and were on their way to steal money from an arcade when they approached Goetz for his money. Further, they admitted that they were going to rob Goetz if he didn't give them the $5. Three of them were carrying sharpened screwdrivers in their pockets. One of the shooting victims, Troy Canty had been previously arrested for threatening one woman and mugging another and when he was 12 years of age, he had been sent to the Bronx Psychiatric Day School in 1977 because of his assaultive and hostile behavour, and also because he assaulted a school teacher. Barry Allen was later convicted of stealing a gold chain from a citizen's neck in October 1984 and later, after being shot by Goetz, he was sentenced to four years in prison. After the shooting, James

Ramseur, another of Goetz's victims, was arrested and charged with raping an 18-year-old girl the previous May.

Goetz was charged with multiple counts of attempted murder and assault and in July of 1987, he was acquitted after a seven week trial. As an interesting aside, of the jury of eight men and four women, six of them had been crime victims before Goetz shot the four youths. One would think that a prosecutor would exercise his right to pre-empt some of the jurors because they had been victims but it is unlikely that he could have found a jury that comprised entirely of citizens who had never been victimized at one time or another. He had to settle for six out of twelve.

Bernard Goetz was wrong in what he did for a number of reasons, the first and most important reason being that he was not in peril of his life. He should have turned away and walked to the other end of the subway car. If they followed him, then he would have been justified in pulling out his gun and threatening to shoot the punk making the demand. But unless that punk or any of the other three actively did something that would lead him to believe that his life was in danger or that he would be physically harmed, he wouldn't be justified in shooting them with the purpose of killing them. As it turned out, he presumed that they were going to rob him (and he was right on that presumption) and shot to kill. When he shot two of the punks in the back, it was a clear indication that he wanted to murder them. Murdering three punks because a fourth makes a demand for five dollars, is hardly justifiable homicide. He got away with it in New York when the jury accepted his defence of self defence, but it's unlikely he would have got away with it in any city in Canada.

Section 34(2) of the Criminal Code of Canada states that every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling that assault is justified in doing so if he is under reasonable apprehension that he is going to be killed or suffer grievous bodily harm from the assault. He must believe on reasonable and probable grounds that he cannot otherwise save his life or prevent someone from causing him grievous bodily harm.

Of course, to use deadly force against someone who intends to kill him or cause him serious injury, especially in his own home, a victim of an unprovoked assault does not have to flee from his own home as an alternative to killing his attacker.

In 1982, the State of Massachusetts passed a law that a homeowner or apartment dweller has the right to shoot and kill an intruder if there is a reason to believe that the intruder will kill or cause serious bodily harm to anyone in the home. Before the law came into effect, many people believed that they were required by law to retreat from their home if an intruder entered it. Goetz would not have had to flee from the four thugs if they began chasing him all over the subway car. He could have turned on them and shot them point blank. If they died as a result of being shot, so be it.

A similar incident took place in February 1985 when Andy Fredrick, 24, saw two men buying sweets from a vendor on a Manhattan subway platform. The two men decided to steal some of the candy. Fredrick saw what was happening and told the men to cease and desist. One of the two men hit Fredrick on the head with a beer bottle and when the other thief, Felix McCord, 28, began to attack Fredrick, the latter stabbed him to death with a pocket knife. He was charged with second-degree murder.

He had done no wrong. He was being attacked by two men, both who had criminal records, and as such, was quite right to defend himself with his pocket knife.

What is interesting about the Goetz case and how the laws of New York State compare with the laws of Canada is that the jury in the Goetz case accepted his defence that he acted in self defence because he feared that the youths were going to rob him.

There is nothing in the Criminal Code of Canada that actually states that any one may kill another because he's going to be robbed, notwithstanding the right of bank and armoured car employees to kill robbers. And yet, robbers are killed in Canada by their robbery victims occasionally and in some cases, the people who do the killing are not even charged, let alone brought to trial. A number of years ago, a robber held up a gas station in Toronto and after he was fleeing with the money, the gas station attendant picked up a rifle and shot the fleeing bandit in the back and mortally wounded him. The attendant was not charged with any crime.

In Hamilton, a young teenage punk had broken into a house and was seen by the next door neighbour climbing out of the basement window. The neighbour grabbed his rifle and shot the youth as he was climbing over the fence. He wasn't charged with any crime either.

In both of these cases, the victims of the shootings were actually fleeing the scenes of their crimes and yet, both shooters had taken the law into their own hands and killed the criminals.

Since neither of the shooters were actually in peril of their lives or defending themselves against grievious bodily harm, what was their justification in shooting the criminals? They said that they were apprehending the criminals. The fact that both criminals died, is unfortunate but that's the price of crime.

That seems to run counter to the concept that the conduct which the shooter believes to be necessary to avoid an evil to himself or to another is justifiable, providing that the evil sought to be avoided by such conduct is greater than that sought to be prevented. In simple layman's's language, is the cost of a man's life worth less than the goods or monies he steals?

A simplistic answer to that is, no, it isn't. But then, the two men who shot the two aformentioned criminals didn't say that they were trying to kill the criminals--they were only attempting to apprehend them. The fact that the criminals died is unfortunate but that's the risk they took. Unless the two shooters admitted that they intended to kill the criminals, (such as what happened in the Goetz case) the courts would have to presume that both shooters were simply bad marksmen.

But then, where a shooter is reckless or negligent in bringing about a situation requiring a choice of evils or in appraising the necessity for his conduct, the justification afforded to him is unavailable to him if he is prosecuted for his actions. In simple laymen's terms, does the shooting of two fleeing criminals amount to apprehension by excessive force?

Section 27 of the Criminal Code states that every one is justified in using as much force as is reasonably necessary to prevent the commission of an offence, (providing that the person committing the offence could be arrested without a warrant for that offence) and that the offence being committed is likely to cause immediate and serious injury to the person or property.

This defence is not applicable where the two shooters killed the aforementioned criminals who were fleeing from their crimes. Shooting them after they had committed their crimes of robbery and break and entry, really comes under the act of shooting them for the purpose of apprehension.

The question that begs to be answered is, "Is it legally right to shoot a fleeing criminal whose crime is robbery or theft? There is nothing in the Criminal Code that offers any kind of defence to ordinary citizens who privately apprehend fleeing criminals by shooting them.

According to the Criminal Code, that defence is available only to police officers and citizens assisting police officers. I refer to Section 25(4) of the Criminal Code which states;

"A peace officer (all police officers are peace officers) who is proceeding lawfully to arrest, with or without warrant, any person for an offence for which that person can be arrested without a warrant, (robbery and break and enter are two such offences) and every one lawfully assisting the police officer, is justified if the person to be arrested takes flight to avoid arrest, in using as much force as is necessary to prevent the flight, unless the escape can be prevented by reasonable means in a less violent manner."

Although a police officer is authorized to use such force as may be necessary in effecting an arrest, it is only in cases of extreme necessity is he allowed to use even a billy and even then, he must use it with discretion and prudence. Surely this must mean that police officers cannot shoot unarmed criminals. There have been cases in Canada where police officers have been found civilly liable for shooting unarmed criminals fleeing the scenes of their crimes, notwithstanding the fact that these officers were not criminally charged.

The right to use force must in each case depend upon the surrounding circumstances which must be considered to determine how they might be expected to act upon the mind and judgement of the officer or the person assisting the officer.This will apply even in cases where private citizens apprehend fleeing criminals.

With reference to a defence being available to police officers for shooting an unarmed criminal, a police officer is justified in shooting an unarmed criminal who is fleeing the scene of a serious crime such as robbery, rape, or break and enter providing there is no other means available to him in which he can effect an arrest. For example, if the suspect is climbing into a vehicle with the intentions of fleeing the scene of his crime and the officer cannot reach the vehicle in time to pull the suspect out of the vehicle, then he may shoot the suspect providing that he only intends to wound him.

As mentioned earlier, there is nothing in statute law that permits ordinary citizens from shooting at fleeing unarmed criminals for the purpose of apprehending them but at common law, (decisions made by the courts) this appears to be not only acceptable, but quite commonplace.

In the case of the robber fleeing with the day's receipts, I think that the gas station attendant was quite justified in shooting the robber who was fleeing. The robber had a gun and for the attendant to attempt to apprehend him in any other way, would have been foolhardy and probably fatal to him.

With reference to the neighbour shooting the youth who was unarmed and was fleeing from the scene of a break and enter, he used excessive force considering the circumstances surrounding the incident and I think he should have been charged with manslaughter.

It is open game for robbers in North America who are stupid enough to try robbing a store keeper who fights back. In November 1982, a 34-year-old woman jewelry store manager in Montreal shot and killed an armed robber. A week earlier, another robber in Montreal was shot and seriously wounded by a 40-year-old owner of a variety store. Neither woman was charged. In April 1988, a 20-year-old punk pistol-whipped the manager of a restuarant because the manager refused to open a safe. An employee who heard the commotion, grabbed a kitchen knife and stabbed the robber in the stomach. He died. The employee wasn't charged.

Drug store owner Steven Kesler told a Calgary police detective that he would kill the next person who robbed his shop. He made this statement five days after being robbed for the third time in five months. A month later, a 27-year-old robber entered Kesler's store to rob it and got what Kesler promised the next one would get a shotgun blast from a very irate store owner.

This shooting wasn't like the one done by the manager of the jewelry shop in Montreal who fired at the robber while he was pointing his gun at her. Kesler chased after the robber and killed him in the street. The police charged him with second- degree murder.

The ingredients for that charge were there. He had told the police he would kill the next person that robbed him. He also purchased a gun and kept it in his store. He followed the fleeing robber out of the store and shot him to death.

It's obvious that committing crimes is fraught with danger and yet still the thugs are willing to risk being killed.