The Exception That Proves The Rule

There are situations where a private citizen does use a firearm in a justified shootings of someone in the act of committing a crime.  I explore one such recent incident at length from all available directions, because of the importance of these incidents to wider policy debates.

A recent incident in Aurora, Colorado, where a man moving into his newly purchased condominium with the help of a couple of friends at 11 pm. last Friday was being robbed at gunpoint by three juveniles appears to be such an incident. (Aurora Sentinel coverage here; Fox 31 KDVR television coverage here).  The men were interviewed and the case is being investigated, but they were not charged with any crimes.  According to the Denver Post, in the first link above:

Authorities in Arapahoe County have identified a 15-year-old boy slain when he allegedly tried to rob, along with two other juveniles, a group moving into an Aurora condominium late Friday. The county coroner's office on Tuesday identified the teen as Dewayne Lamonte Quenvell Brown, who died after being rushed to a hospital. 

Authorities say he died from two gunshot wounds and his manner of death has been classified as homicide. Brown's two alleged accomplices were also shot and wounded during the confrontation. One was listed in serious condition on Saturday while the other was treated after walking into a hospital and later arrested on unrelated charges. 

Aurora police say three men were moving boxes into a three-story condominium building on the 400 block of South Kalispell Way when the three juveniles allegedly approached them. One of the juveniles threatened the movers with a gun, officials say, and as two of the men began to take out their money the third man produced a handgun and shot at the trio.  

If the facts are as claimed, and the story seems plausible enough on its face, then this incident would involve a legally justified shooting by a civilian.  Incidentally, this happened very near one of the men's home on property belonging to his homeowner's association in which he had an interest, possibly triggering the expanded right of self-defense under the "make my day" self-defense law, although the fact that the shooter was not himself a property owner might complicate that analysis.

Notably, the shooting itself could not be prosecuted as a homicide even if the person using the gun didn't have a concealed weapons permit, a circumstance not clarified by any of the media reports.  But, if the person with the handgun was prohibited from owning one because he had a felony record, that would have been serious felony punishable by a minimum ten year federal prison term, even if the use of the firearm was justified.

Also importantly, we don't know precisely why the friend helping with the move had a loaded handgun on his person.  It might have been something he carried all of the time, or it could have been the case that he was carrying it because he felt a heightened risk in that location on that day.  One of the cultural facts that is a hidden subtext in many gun control debates is that the number of civilians outside the security professionals who carry handguns with them on a day to day basis is very small, even though a large minority of Americans own handguns, probably 25%-40% (there is great regional variation in this, however), but mostly they keep them in their homes rather than carrying them with them unless they anticipate heightened danger on a particular occasion.  Gun ownership has been falling steadily for almost 40 years (from about 50% to about 30% nationwide) but much of this trend reflects the decreasing popularity of hunting with long arms (in part, a side effect of an increasingly urban population), and doesn't necessarily reflect steep drops in the ownership of handguns for self-defense.  The U.S. at 88 guns per 100 people has the greatest number of privately owned guns per capita in the world (twice as high a rate as Switzerland with its large mandatory militia), but to a significant extent that is a product of affluence that reflects more gun owning households who own multiple guns, rather than more gun owning households.

I see I case like this in the Denver metropolitan area roughly once every year or two, reading the newspaper and scanning the 9News television news website most weekdays.

Of course, if none of the men had had a gun, and they had complied with the armed juveniles demands, the juveniles probably would have taken the money the men had on their persons (probably less than a couple of hundred dollars), and no one would be dead or injured at that point.  The men would have probably have been shaken and bitter, but would probably have gotten over it in a couple of weeks.  Anything taken other than cash, and maybe even the cash itself, probably would have been replaced if an insurance claim was made by the men.

The juveniles probably would have escaped and not been caught in that case.  (An incident like that is part of the origin story for the Spider Man comic book hero, and an armed robbery leading to deaths is also part of the origin story for the Batman comic book hero, a point worth mentioning because it goes to just how deeply criminal incidents just like these are woven into our popular culture.).  Indeed, they would likely have gone on to commit further armed robberies, particularly given the fact that one of the juveniles already had an outstanding arrest warrant from another incident, possibly eventually killing or seriously injuring someone in the process in a future crime.

But if they were caught after this incident if the men had cooperated, of course, none of the juveniles would have faced the death penalty or even a life prison sentence, for this incident.  On the other hand, if after cooperating in this incident, the men called the police and they responded rapidly to an armed robbery, one or more of the juveniles might very well have been shot by law enforcement attempting to arrest them because law enforcement would be likely to shoot suspects known to be armed.  There would also have been, if police sought out suspects, a greater risk that innocent juveniles with a similar description might have been shot or wrongfully arrested due to mistaken identity.

To be clear, I am not saying that an individual should have a legal duty to comply with the demands of someone carrying out an armed robbery.  But, if the men had been unarmed and that had happened, the event would have been far less tragic.

The report also doesn't say if the gun used by the juvenile was loaded, although that wouldn't be legally relevant because the juvenile acted in a manner consistent with it being loaded by threatening the men with it, and the men would have been reasonable in relying on the assumption that it was loaded.

The two juveniles who were shot but not killed will probably face juvenile felony charges for attempted robbery, although the District Attorney for the 18th District could attempt to try the accomplices as adults.

The story doesn't say so expressly, but it is a fair guess all three of the juveniles were probably black and male teenagers, given the location of the incident and the name of one of the juveniles who died.  It is harder to make an inference about the races of the men involved who have not been identified.  If the races of the victims and perpetrators were reversed, there is a good chance that the police would have handled the incident differently, but that doesn't mean that the way that it did play out was not in accordance with the law.

The two bedroom, two bath 984 square foot condominium unit in question disclosed in the TV news account (431 Kalispell Way, #104, about a mile from the Aurora Town Center Mall that was home to the Aurora movie theater shooting) was sold on May 20, 2013 for $70,000 according to Zillow.  The condo was the subject of three successive foreclosures in 2005 (the first of which was about four years after it was last purchased in a commercial sale in 1999 for $87,500) and another in 2013.  This would likely have been a fix and flip sale by someone who bought a few months after the foreclosure from the bank and waited two years to sell it in order to make the transaction tax free.

I mention this because it goes to the issues of social class involved.  The man moving into the condominium he just bought, was probably middle class, or securely working class, but probably not upper middle class, rich, or poor.  He (and his friends) were almost certainly not in the 1% or even the 5% or the 20% that "run things".  This isn't a ghetto, but it isn't a high rent district either.  The multiple foreclosures in this unit probably weren't unique to the complex, which may have been troubled by many foreclosures of working class and lower middle class owners just on the brink of the stability and respectability of home ownership, who frequently stumble in their effort to join the ranks of property owners.

The juveniles were almost surely either in or near poverty.  A shoe that hasn't yet dropped is the question of whether these these boys were their own tiny gang, or whether they were part of a larger street gang.  If they were "unconnected" to a larger gang, the matter is probably over and done with except for the criminal prosecutions of the accomplices in juvenile court, which most likely will be resolved by plea bargains.  If, however, they were part of a larger street gang, the men may be at serious risk of retaliation from the juvenile's gangs, possibly placing the men at great risk of future death or bodily injury and at a minimum requiring them to remain vigilant against a retaliatory gang attack for a long time afterwards.  It isn't clear (to me at least) the extent to which a gang is likely to retaliate for the justified shooting of their own members if the person doing it doesn't belong to a rival gang (which we have no obvious reason to suspect here).

The secrecy afforded to juvenile proceedings makes it almost impossible for members of the general public to evaluate that risk, or to know what justice ultimately will be meted out to the two boys who weren't killed.  Members of the general public will also have know way of knowing the threat that those two boys pose when they encounter them in the future, perhaps at school or as co-workers or potential romantic companions.

This also seems to have been a stranger crime incident and not one involving acquaintances of any kind.  The juveniles were out looking for someone to rob with a gun they brought for the purpose, and then found someone, only to be unpleasantly surprised.  They were looking for trouble, their marks were not.

Given that incidents like this do happen, the question is whether, as a matter of policy, this outcome is superior to the likely alternatives in a society where guns were far harder to get a hold of due to gun control laws with real bite (perhaps an impossibility, given the U.S. Supreme Court's recent Second Amendment jurisprudence).  The intended personal self-defense purpose of the Second Amendment does come into play sometimes, but the question is whether it happens enough and makes enough of a positive difference when it does come into play, to justify widespread, minimally regulated private firearm ownership.