Daily Press, 7/1/2009
Wherever you stand on gun rights, if some jerk breaks into your home and threatens you or your family, chances are you'd support the right to blow him out of the water.
The higher the caliber, the better.
State law backs you up.
"Home, you're protecting your loved ones," explains Newport News
criminal defense attorney Tim Clancy.
Where the law gets fuzzy is when the danger is not so imminent. Or when it's not a home, but a business. And it's not people at risk, but property.
All this and more is in play as investigators in Suffolk examine Sunday's shooting death in which a business owner standing outside his convenience store pumped four bullets through a window and into a burglar inside.
Owner James Howard Durden Jr., 46, told police he was roused around 4 a.m.
by a security device alerting him to a break-in at his nearby store.
Someone called police while Durden took off to investigate, toting a .45-caliber handgun. Minutes later, police say, the caller said shots were fired and a stranger was dead.
Durden told police the stranger pointed what looked like a gun at him first.
Police didn't find a gun on 38-year-old Ernest "Scotty" Roop. A tire iron lay on the floor
, but nowhere near the body. Roop did have a knife and sheath, but police haven't said if he was holding it.
They're still sorting through evidence, and the commonwealth's attorney will decide if the shooting was justified or if Durden will face such charges as murder or manslaughter.
"The general rule," said Suffolk Commonwealth's Attorney C. Phillips Ferguson, speaking hypothetically, "is that if the person is without fault in bringing on the difficulty, and that person believed or reasonably believed under the circumstances as they appeared to him that he was in danger of being killed, or in danger of great bodily harm, then the killing is justified."
The general rule gives a lot of leeway, understandably. Civilians aren't drilled in life-or-death. For us, training doesn't kick in, but fight-or-flight.
And this is why we have police officers: To assess risk and act proportionately.
Had an officer arrived on the scene first, would Roop still be alive? Depends. Be somewhere you shouldn't, point so much as a pinkie at an armed officer and you could end up in a morgue.
On the other hand, if an armed officer ordered you to drop and hug the dirt, chances are you'd take him more seriously. Chances are, you'd still be hugging the dirt for dear life, not six feet under it.
Virginia also imposes on a victim a legal duty to retreat, which varies by state.
In gun-rights Arizona, for instance, you still aren't allowed to shoot an intruder — even in your own home — if you have a safe way out.
I once interviewed a man who shot and killed an intruder who lay in wait in a closet, then jumped out and attacked him. The intruder had a history of violence. The homeowner, in my mind, was a hero.
The homeowner didn't see it that way. He was devastated.
A friend of Durden's said in one news report that Durden is devastated, too.
"If anybody thinks he went up there like John Wayne
and started shooting through the window like a damn fool," Mike Fowler said, "they're crazy."
But he did go up there packing heat. He did shoot through a window. He did kill a guy who did not have a gun. And, had Durden in fact been right about the gun, it might have been he who ended up dead — all over mere property.
And even law-and-order Virginia doesn't impose a death sentence for stealing.
It's likely the system will be lenient with Durden. Gun rights absolutists will be pleased — though police say Durden had alcohol in his system that night, and responsible gun owners know firearms and firewater don't mix.
Still, it's tough to punish a hardworking businessman who mistakenly believed a stranger — making an even bigger mistake — was a threat to his life.
Who looked through his store window one bleary-eyed morning and saw a burglar — not the tough-luck father of a young girl, a drug user and the son of parents who, even if criminal charges aren't filed, could theoretically file a wrongful death suit in civil court.
And this is one more sound reason why — with every bullet you fire — you'd better be sure not only of your target, but of what lies beyond.