Self-Defense vs.Municipal Gun Bans

When Hale DeMar shot an intruder in his house, he may well have saved his children's lives. So why was he charged with a crime?

Robert VerBruggen from the June 2005 issue

(Page 2 of 4)

Carpenter argues that DeMar should have stayed upstairs with his son and his 8-year-old daughter, Madeline, instead of seeking a confrontation. "Our culture seems to define the family protector's role as seeking out the enemy, or the intruder," he says. "What we tell people is: You're the last line of defense. Don't leave your family."

DeMar explains his actions this way: "I suppose some would have grabbed their children and cowered in their bedroom...praying that the police would get there in time to stop the criminal from climbing the stairs and confronting the family in a bedroom, trembling, dreading the sound of the door being kicked in. That's not the fear I wanted my children to experience, and it is not the cowardly act that I want my children to remember me by."

Another issue was a missing bullet, as police reports accounted for only three of the four rounds. Investigators found two holes in window panes, the third in a wall. Bernard Michna, a Wilmette trustee (the town's equivalent of a city councilman), cites the bullet holes and the stray round to bolster his support for the handgun ban and the fine imposed on DeMar. "We need to set the example that we're trying to protect our citizens," he says. "He's endangering innocent civilians."

Local Gun Bans

It's a matter of contention whether there are more defensive gun uses or criminal misuses in the United States, but it's clear that armed self-defense occurs on a regular basis. Florida State University criminologist Gary Kleck has concluded, based on national telephone surveys, that up to 2.5 million defensive incidents occur each year. This figure compares favorably to the roughly 350,000 firearm-related murders, robberies, and aggravated assaults the FBI reports yearly. In the vast majority of defensive uses, the victim simply brandishes the gun and the offender leaves--which is why one rarely hears about such incidents, Kleck argues.

Using different methods, other scholars have come up with much lower numbers. In Gun Violence: The Real Costs (2000), Philip J. Cook of Duke University and Jens Ludwig of Georgetown University report, based on data from the National Crime Victimization Survey (NCVS), that only 100,000 defensive gun uses occur each year. (The NCVS, which is sponsored by the Bureau of Justice Statistics, uses interviewers who visit people's homes and ask them to describe their personal experiences with crime.) In Evaluating Gun Policy: Effects on Crime and Violence (2003), Cook and Ludwig consider in-home incidents of armed self-defense, suggesting a range of 32,000 (based on an NCVS analysis by Cook) to 503,000 (based on a DataStat telephone survey commissioned by the federal government).

The NCVS consistently elicits fewer claims of defensive gun use than do telephone surveys. Critics have questioned the accuracy of telephone interviews, noting that gun owners may perceive threats that aren't real. But the results of victimization surveys are debatable as well: They don't always ask directly about defensive gun use, and people who scare off would-be assailants might not consider themselves crime victims.

It is rare for an American to get into legal trouble after using a gun defensively, but it has happened before. In 1986 prosecutors charged Oak Park, Illinois, gas station owner Donald Bennett with violating the village's handgun ban after he shot at armed robbers. A jury acquitted him later that year despite his obvious guilt. In 2003 Brooklyn computer engineer Ronald Dixon spent three days in jail after shooting a home invader. Dixon's handgun permit had not yet been approved.

Strict gun laws got a boost after the Chicago suburb of Morton Grove successfully defended its handgun ban, which was passed in 1981 and immediately challenged in state and federal court. The lawyers who filed the suits tried a variety of arguments, citing privacy, the Second Amendment, and a similar provision in the Illinois Constitution's Bill of Rights ("Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed").

In the 1982 decision Quilici v. Village of Morton Grove, a panel of the U.S. Court of Appeals for the 7th Circuit rejected these arguments by a 2-to-1 vote. The Illinois Supreme Court followed suit, by a 4-to-3 margin, in the 1984 ruling Kalodimos v. Village of Morton Grove. The U.S. Supreme Court declined to hear an appeal of Quilici.

To gun control advocates, the Morton Grove decisions proved there was nothing unconstitutional about banning specific categories of weapons. Several municipalities followed in Morton Grove's footsteps, including Chicago; its suburbs Evanston, Oak Park, Winnetka, and Wilmette; and Washington, D.C. But the decisions also provoked a backlash in state legislatures. By 1991, according to the pro�gun control Violence Policy Center, 38 states had passed laws pre-empting local handgun bans, in addition to three that had done so before Morton Grove passed its prohibition.

Defense of Self-Defense

The Wilmette Board of Trustees got a taste of the backlash against gun bans after Hale DeMar was fined. "None of the trustees had asked that the ordinance be changed," says Trustee George M. Pearce. Gun rights supporters nevertheless crowded the board's January 13, 2004, meeting to discuss the case. "Probably half of them were from outside of Wilmette," says Pearce.

To this day no trustee has proposed amending the handgun ban. Both Pearce and Bernard Michna, another trustee, say most Wilmette residents support it. Opponents are "a small but vocal minority," Michna says.

State Sen. Edward Petka (R-Plainfield) and state Rep. John Bradley (D-Marion) decided to take action. Within two days of the Wilmette trustees' meeting, both had filed bills creating a defense for people in DeMar's situation. "A village can still file a charge, but the person who is charged can assert an affirmative defense and state that he violated the ordinance in defending himself," Petka explains. "If it's believed by judge or jury, it would constitute a defense to the charge." The legislation applies only on a person's land or in his or her "abode" or "fixed place of business."

Comments

|10.7.09 @ 6:14PM|#

this man did the exact right thing and saved his family from a crazy crack seeking burgler