LOS ANGELES, January 17, 2007 - Two men arrested in connection with a stray shot that killed a 9-year-old girl in Angelino Heights were released without being charged after authorities determined the bullet that killed the girl was fired in self-defense, it was reported Wednesday.1
What?!
This case started out reasonably, though tragically. On December 22, 2006 the Los Angeles Police Department announced the arrest of “two key suspects [Cesar Zamora and Steven Castanon] connected with the shooting” of a 9-year-old girl, and their bail was set at $500,000 each. At the time, the girl was hospitalized in critical condition.2
Less than a month later, the Los Angeles district attorney’s office explained why they declined to bring charges against the alleged killers. (The girl died six days after being shot.) It came down to insufficient testimony from the three witnesses, with one witness initially claiming he saw Zamora shoot back at a man who got out of a car and shot first, but on two subsequent interviews claimed he never saw Zamora shoot. The DA continued:
Even if the third witness was willing to admit to his earlier statement to police, he gives a factual scenario that may give rise to a valid claim of self-defense for Zamora and Castanon; thus, it may be that the man who exited the car and attempted to fire at Zamora and Castanon provoked them into responding.3
Police were convinced this shooting was “gang-related,” but also believed Zamora and Castanon were justified because they were shot at first. Robert Pugsley, criminal law professor at Southwestern Law School in Los Angeles, stated: “A person has a right of self-defense, and third-party damage, as sad as it may be, is considered an unintended consequence.” Peter Keane, professor of law and Golden Gate Law School in San Francisco, agreed. Prosecutors and police mentioned that both Zamora and Castanon were already experienced criminals when they said: “they could still charge Zamora and Castanon with a lesser crime — such as a weapons or probation violation.” There was also indication that the scene of the shooting was a “gathering point for gang associates” and the DA had “taken initial steps to have the residence declared a nuisance property” as a result.4
How?!Perusing California law on justifiable homicide, one sees why two California law professors reached the same conclusion. California Penal Code states that homicide is justifiable: “When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person.” It makes no specification that this force is justified only against the attacker.5 Thus, two law professors concluded that since the bullet that killed the girl was shot in self-defense against attempted murder, the shooters cannot be prosecuted for murder.
California’s gun laws receive strong approbation from the Brady Campaign to Prevent Gun Violence, having received a grade of A- on Brady’s latest report card, the highest grade awarded.6
Not Shocked Yet? Then Try This.This case also started reasonable enough. On November 11, 2005, the San Diego Union-Tribune reported:
LOS ANGELES – The boyfriend of a former Burbank city councilwoman faces a maximum life sentence after pleading guilty to a charge related to his trading two handguns to a gang member in exchange for cocaine, authorities said.7
Scott Schaffer pleaded guilty to “using a handgun to further a drug trafficking crime” and faced “at least five years in prison,” according to the Burbank Police Department.
However, a February 2007 report noted that the defendant was sentenced to 13 months in prison. He expressed remorse and told the judge he did not know he was trading guns to gang members.8 Another report noted that this sentence “fell eight months shy of government prosecutors’ recommendation of 21 months in prison.”
Schaffer’s lesser sentence was due, in part, to an outpouring of letters submitted to the court on Schaffer's behalf… One letter in particular, from former Burbank Police Department Lt. Don Brown, described Schaffer in “glowing” terms…
Current members of Burbank PD were “outraged” because Schaffer “supplied guns to a member of the same gang implicated in the shooting death of Officer Matthew Pavelka in November 2003.”9
Why?!Considering the California legislature is a full-time body, reviewing about 2,500 bills each year, it seems reasonable that this loophole in self-defense law could have been addressed.10 But remember that California is home to the Ninth Circuit Court of Appeals, which found that a felon’s possession of a machine gun was not illegal while at the same time concluding the Second Amendment “was not adopted in order to afford rights to individuals with respect to private gun ownership or possession.” (At least the latter conclusion gave them reason to uphold his ‘felon in possession’ conviction.)11
So consider this: If you were an anti-gun politician looking for a way to get public support, how would you do it? You could:
· Create self-defense law that is intentionally vague, neglecting to include language that specifically justifies defensive use of lethal force only against the attacker.
· Promote a judicial system that is lenient towards felons, declaring that in an enlightened society, these folk need to be understood and appreciated as victims of materialism; disadvantaged socially and economically.
· Condemn incarceration for the same reason.
· Create and strictly enforce gun laws only against heretofore law-abiding citizens, e.g.: require registration (Handgun Safety Certificate12) and then classify guns as “assault weapons”13 thus clearing a path for government-approved confiscation.
· Declare that your hands are tied and that the only way to get guns out of the hands of felons is to ban them completely.
If a 9-year-old and a cop get murdered in the process, well…it’s for the greater good.
About the Author
Howard Nemerov is an investigative analyst for NRA News. He can be reached at HNemerov [at sign] Netvista.net.
Endnotes[1] Two Men Arrested in Fatal Shooting Released, ABC-7, January 17, 2007. http://abclocal.go.com/kabc/story?section=local&id=4945904
2 Two Arrested in Shooting of 9 Year Old, Los Angeles Police Department, December 22, 2006. http://www.lapdonline.org/newsroom/news_view/34244
3 DA Explains Release Of Suspects In Girl’s Shooting Death, NBC-4, January 17, 2007. http://www.nbc4.tv/news/10777764/detail.html?rss=la&psp=news
4 Richard Winton and Tami Abdollah, 2 men freed in L.A. girl’s killing, Los Angeles Times, January 17, 2007. http://www.latimes.com/wireless/avantgo/la-me-selfdefense17jan17,0,520022.story
5 California Penal Code, Title 8–Of Crimes Against the Person, Chapter 1–Homicide, Penal Code 187-199, Official California Legislative Information. http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=187-199
6 Brady Campaign State Report Cards Show State Legislatures Are Failing to Protect Kids from the Dangers of Illegal Guns, The Brady Campaign to Prevent Gun Violence, April 2006. http://www.bradycampaign.org/bradyreport/2006/april/reportcards/ (Use drop-down list to select each state’s 2005 grade.)
7 Associated Press, Boyfriend of ex-Burbank councilwoman pleads guilty to gun charge, San Diego Union-Tribune, November 11, 2005. http://www.signonsandiego.com/news/state/20051111-0414-ca-councilwomansboyfriend.html
8 53-Year-Old Scott Schaffer Expressed Remorse, KFWB News 980, February 13, 2007. http://kfwb.com/pages/233520.php?contentType=4&contentId=325089
9 Chris Wiebe, Businessman is sentenced, Glendale News Press, February 13, 2007. http://www.glendalenewspress.com/articles/2007/02/14/publicsafety/gnp-schaffer13.txt
10 About Legislative Government, California State Government Guide, League of Women Voters of California, August 22, 2005. http://www.smartvoter.org/gtg/ca/state/overview/legislative.html
11 United States v. Stewart, No. 02-10318, November 13, 2003, page 16078. http://caselaw.lp.findlaw.com/data2/circs/9th/0210318p.pdf
12 Handgun Safety Certificate Program, Office of the Attorney General, State of California. http://ag.ca.gov/firearms/hscinfo.php
13 2007 Dangerous Weapons Control Law, Office of the Attorney General, State of California. http://caag.state.ca.us/firearms/dwcl/12275.htm
Editor at Large
Comments Policy
Howard, you are usually right
February 21, 2007 - 21:16 ET by MikeBHoward, you are usually right on in your anti-anti-gun posts, but I think you are over-reaching on this one.
Please check California law. Is it not a felony for a felon to be in possession of a firearm? In many, if not most states, a death that occurs during the commission of a felony is considered first degree murder. Therefore, Zamora and Castenon can (and should) be charged with murder, even if they were shooting in self-defense. The other person involved can also be charged with the girl's murder if he discharged a weapon toward Zamora and/or Castenon.
"A communist is someone who reads Marx. An anti-communist is someone who understands Marx." Ronald Reagan
Read the references
February 21, 2007 - 22:17 ET by Howard NemerovMike - Two California university law professors are on record that this was an unfortunate consequence of a legal self-defense claim. Zamora and Castenon were released without being charged for the murder. I cited California law. Check the citation in my endnotes.
On the other hand, I agree with you that they should be charged. California law is so vague that this is what happened. It should be changed to read that self-defense can only be claimed against the attacker; shoot non-participants and all the regular felony law applies. But this is not how it is under current CA law.
I believe one of them has been charged now with felon-in-possession, but they are not bringing up the murder. And yes, the initial attacker, if found, may be charged with the murder, because he set this all in motion. Nice, but it doesn't change the fact that CA law needs on overhaul.
I would agree that the law ne
February 21, 2007 - 22:57 ET by MikeBI would agree that the law needs an overhaul, but not the one you advocate. For example, say, Zamora attempts to assault me, a law-abiding citizen. I am in fear of my life, I pull a gun and shoot at him, but miss (it happens occasionally). I hit a 9 year-old girl. Yes, I shot at my attacker, but instead hit the innocent girl. Should I be charged? No. The law should be either clarified or changed to any death that occurs resulting from the commission of a felony is murder. That way, the person who attacked me is guilty of murder, even though they did not fire the shot that killed the innocent party. In this case, all three of the persons involved need to be charged: the unknown because he started the whole concatenation of events, Zamora and buddy because of a felon in possession.
But, then, this is California we're talking about. I don't anticipate common sense breaking out any time soon.
"A communist is someone who reads Marx. An anti-communist is someone who understands Marx." Ronald Reagan
Need for Castle Doctrine
February 22, 2007 - 00:21 ET by Howard NemerovMike - Actually this proves the need for Castle Doctrine. Our proposal here in Texas specifically enumerates the forcible felonies against which deadly force is justified. Florida does the same, referring to existing law to enumerate the forcible felonies. However, in both cases, the shooter is responsible for his bullets. In Florida, two felons in possession shot their attacker and missed, killing a 9-year-old girl. They are both up on 2nd degree murder charges, as well as illegal possession. The girl was a non-participant and was not fair game.
I consulted with NRA attorneys before finishing an unpublished research report going into my manuscript, so I know whereof I speak. If a defender is not held responsible for shooting non-attackers, this opens up Pandora's Box. The defender could take out his ex-girlfriend or somebody he doesn't like during an otherwise-justified defensive shooting and get away with 1st degree murder. All he would have to do is have a buddy shoot at him and miss. He shoots back and hits those he wants to hit. No go. You should and will be charged.
Ok, Howard, then in that case
February 24, 2007 - 00:50 ET by MikeBOk, Howard, then in that case, in every police shoot out where an innocent bystander gets killed, every cop involved needs to be brought up on murder charges. That doesn't make sense. Do the research, cops are lousy shots, in spite of their having to qualify, what, twice a year. Your argument is the same argument that the anti-second amendment people used to argue against Oklahoma's "Make My Day" law, and against the Castle doctrine law: it'll allow criminals to get away with murder by being able to claim self-defense when killing people they are mad at. Criminals have tried to use that defense, but forensic evidence exposed them for what they are, and their defense failed.
"A communist is someone who reads Marx. An anti-communist is someone who understands Marx." Ronald Reagan
Castle Doctrine Prohibits Excuses
February 24, 2007 - 15:04 ET by Howard NemerovMike,
When you read the actual text of Castle Doctrine, they invariably deny any affirmative defense if you were doing something illegal to begin with, like being a felon in possession. The anti-rights people may have claimed this as their reason, but as usual they hijack the truth when in fact they want criminals to shoot innocent bystanders so they can justify civilian disarmament.
In Florida, two felons in possession were charged with 2nd degree murder plus other violations, such as felon in possession. If the anti-rights people were right, these indictments never would have happened. On the other hand, the shooters in CA were the same types of characters, the victim was also a 9-year-old girl, and the CA shooters were released, in keeping with the claims of the anti-rights groups. On major problem here: CA has no Castle Doctrine!
Therefore, it's really a lot simpler than having to rely on forensic evidence. Castle Doctrine is not affirmative defense until after the DA declines to indict or fails to make his case in court. If the latter, it is the failure of the justice system, not Castle Doctrine.
We do agree on one point: everybody who shoots an innocent bystander should be prosecuted. The fact this does not happen in some LEO shootings only underscores the need to maintain the 2AM.
"A person with a sense of humor is someone who watches the Marx brothers."
Howard, we do not agree on th
February 24, 2007 - 23:22 ET by MikeBHoward, we do not agree on that point. If I, in an attempt to defend myself from a felonious assault, accidently kill an innocent bystander, it is the assailant, not I who should be prosecuted for murder. It is the criminal act of the assailant that is the proximate cause of the death of the innocent bystander. In the case you mention, we are in agreement, because the two hoods were committing a felony by being in possession of a firearm after having been convicted of a felony. A death occurred as a result of their committing a felony so, yes, they should be charged with murder. That California law won't allow this is a travesty. But, someone refusing to be a victim is not committing a felony. That is why neither cops or common citizens should be prosecuted for murder if an innocent bystander dies as a result of their self defense. For that matter, neither cops or common citizens whose self-defense results in an innocent bystander being killed should be liable in a civil suit, either. The person who committed the felonious assault or attempted murder is the one who should be held criminally and civilly liable.
The Castle Doctrine protects a civilian from liability from the estate and survivors of a felon killed in self defense, and that is right and just. But, they should also be protected in the instance in which they accidently kill an innocent.
"A communist is someone who reads Marx. An anti-communist is someone who understands Marx." Ronald Reagan