Tuesday, April 01, 2008

Arizona legislation rebuilds legal shield for people acting in self-defense

State lawmakers are moving to make it harder for people who are injured while committing crimes, or their survivors if they are killed, to sue their intended victims. A measure approved unanimously Monday by the Senate Judiciary Committee would restore some protection to businesses who want a legal shield when one of their employees seeks to restrain a shoplifter or others who are stealing. The House already has passed HB 2813

Businesses thought they had that protection. And they did, sort of, until the state Court of Appeals ruled two years ago the provision is unconstitutional. Rep. John Kavanagh, R-Fountain Hills, said he believes this new version would withstand any legal challenge. To make sure of that, and try to avoid a gubernatorial veto, he even agreed to water down his measure a bit to satisfy the Arizona Trial Lawyers Association.

A 1993 law said people can't sue if they're injured while committing or attempting to commit a felony. That law provides immunity even if the person who caused the injury was grossly negligent. Three years later, legislators extended the protection to cover misdemeanors. What brought the law to the court's attention was a lawsuit filed by Lorna Hernandez, widow of Frank Hernandez Jr. She filed a complaint against a security guard on duty at a Tucson Safeway store whose actions she said resulted in her husband's death. According to a police report, the guard stopped Hernandez, saying he had stolen a bottle of lotion.

His widow's attorney said the guard restrained Hernandez by wrestling him to the floor, face down, and placing his arm around Hernandez's neck. The lawsuit says that while Hernandez complained he could not breathe, the guard did not release him until he had handcuffed him, with the assistance of two Safeway employees.

The police report says that before police arrived a guard saw Hernandez had stopped breathing and officials called for medical help. He was taken to Kino Community Hospital, where he was pronounced dead on arrival. A medical examiner's report concluded he died of "asphyxia due to neck compression." He also had internal hemorrhaging and suffered blunt-force injuries. Attorneys for the guard, his employer and the store sought to have the lawsuit tossed, citing the law, which prohibits those who are committing crimes from filing suit if they are injured. But appellate Judge Joseph Howard said the state constitution specifically says the question of whether someone contributed to his or her own death or injury is a question of fact that has to be decided by a jury.

The bill approved by the House says juries may choose not to award damages in that situation. The other key change would let jurors refuse to award damages only if they concluded the defendant did not act intentionally.

Kavanagh envisioned a situation where a juvenile was stealing a low-value item - a misdemeanor - and was running from the store. He said he did not want to immunize a security guard who pulled out a gun and "blew him away." That also addresses the other contention of defendants in the 2006 court ruling, who said there is a common-law principle of "shopkeeper's privilege." That, they argued, gives store owners and the people who work for them immunity when detaining criminals.

But Judge Howard said any immunity applies only when someone acts in a reasonable manner. More to the point, he said, the use of force is never justified unless a suspect's actions result in the person having to engage in self-defense.


Oklahoma moving towards guns on campus

One bill in the Oklahoma Legislature might completely change the way Oklahomans define university campus security. House Bill 2513, authored in part by Jason Murphey, R-Edmond, would allow 21-year-old and older students of any public university in Oklahoma to carry a concealed weapon, provided they have a valid Carry and Conceal Weapon permit. "College campuses are unique because they are like huge communities," Murphey said. "Anyone can enter and easily victimize someone, so students need to have this right to protect themselves."

The bill states that students who are authorized to carry the weapons must obtain consent from the university president, but also states that it is not meant to allow colleges to prohibit students from carrying them. Murphey said that if the bill is passed and a university prohibits licensees from carrying guns into any certain place, university officials must then provide metal detectors or another security barrier to ensure students' security without self-defense.

Murphey said he decided to author a Second Amendment bill after he was approached by a constituent about the issue shortly before a college shooting on an Illinois campus. He said after the shooting, he amended the bill to include campuses, and the judiciary committee was in favor of the latter bill.

Rep. Randy McDaniel, R-Edmond, said he supports the bill as well. "This bill is within the scope of the Second Amendment, which affords the right to bear arms," McDaniel said. "It increases the safety of students and allows them the right to defend themselves."

The bill, however, is not without controversy. "While I strongly support the rights of our citizens to keep and bear firearms under the Second Amendment to the Constitution, allowing guns on college campuses would endanger the safety of our students, faculty and staff," said David Boren, University of Oklahoma President. "Every single day, I think about my responsibilities as president of a university for the safety of those on our campus. "We have spent large sums of money to develop rapid communication systems and highly trained law enforcement personnel to take action in emergency situations; [So where were they in recent massacres?] and to allow other people to have guns who have not trained with our police units would create chaos in a crisis situation."

Those members of campus police forces echo Boren's sentiments. The International Association of Campus Law Enforcement Administrators reacted to campus weapon initiatives in a statement on March 19. "IACLEA's Board of Directors believes `concealed carry' initiatives do not make campuses safer," President Raymond Thrower said. "There is no credible evidence to suggest that the presence of students carrying concealed weapons would reduce violence on college campuses."

Thrower said among the concerns with concealed carry laws or policies are the potential for accidental discharge or misuse of firearms at on-campus or off-campus parties where large numbers of students are gathered or at student gatherings where alcohol or drugs are being consumed, as well as the potential for guns to be used as a means to settle disputes between or among students. "There is also a real concern that campus police officers responding to a situation involving an active shooter may not be able to distinguish between the shooter and others with firearms," Thrower said.

Murphey, however, said he does not believe the risk is any higher on a college campus than it would be anywhere else. "About 60,000 Oklahomans today have licenses," Murphey said. "If people are afraid of people carrying guns, I suggest they never go to a movie or any other public place because they will probably run into someone." Murphey said the process to obtain a license includes criminal, mental and background checks. There is also a six-hour course and a written exam. He also pointed out the character of the common shooter. "The people with licenses are your good guys," Murphey said. "No one has been able to point out one case where someone carrying a license caused danger. "Not many campus shooters will go through the extensive process of obtaining a license."

The bill passed the House with a ratio of 2:1 and will be heard in the Senate soon.


Judge Denies Bail for Accused Chicago Teen Gunman

Two Chicago area teens, one 19 and one 17, are being held on first degree murder charges for a Saturday shooting outside Simeon Career Academy. The 19 year old is being held in lieu of a $1million bail, the 17 without bail.

Circuit Judge Adam Bourgeois Jr. set bail at $1 million for 19 year old Ronald Little and denied bail for 17 year old Samuel Hill in the parking lot of Simeon Career Academy shooting this year, which left 18 year old Chavez Clarke dead on Saturday, the 20th this year for Chicago Public Schools. Two other teens were arrested in relation to the shooting but released without charges.
Prosecutors Monday said Little pulled a gun from his waistband after he and his three friends were approached in the parking lot of the school by a large, unarmed crowd. An argument broke out. Hill took the gun from his friend and fired the shot that struck Clarke, officials said.

As Hill and his friends ran off, Hill handed the gun back to Little, prosecutors said. When police responded to reports of shots being fired near the school they saw Little drop the weapon, police said.

Hill's lawyer, Howard Weisman, stated that they shooting was in self-defense, and that the men had been confronted by around 18 people in the parking lot. Both he and Gresham Police Cmdr. Eddie Johnson said that there had been previous altercations between the two men and Clarke.

The incident was captured mostly on the schools surveillance equipment and is being examined. Johnson said that he believed that Saturday was chosen by Hill and Little because they thought that there would be fewer security guards and police in the vicinity. Both teens admitted their involvements in sworn video statements to the police."


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