Is It Self-Defense? : Legal Gray Area Clouds Shootings

Donald Hoover and Peter Atanasov were Southern California homeowners with guns who had to make quick decisions.

Hoover shot and wounded a man he confronted at the side of his Glendale house in September after the suspect made a move to grab Hoover’s gun.

Atanasov, running after a man he believed was trying to burglarize his home in Woodland Hills in June, shot and killed the suspect.

Authorities arrested Hoover on suspicion of attempted murder and held him in jail until the district attorney decided that no crime had been committed.

File Murder Charge

In Atanasov’s case, however, prosecutors decided that he had fired after his victim had stopped fleeing--a shooting that could not be justified, they said. Prosecutors filed a murder charge against Atanasov, who is now awaiting trial.

The two cases illustrate the complexities surrounding an often misunderstood area of the law: the right of a homeowner or shopkeeper to use a gun or other deadly force against a burglar or robber.

The question of where justifiable homicide ends and the crime of manslaughter begins received widespread attention two years ago in the celebrated case of Bernhard H. Goetz, who shot four young men on a New York subway train after they allegedly menaced him. Goetz’ action brought an outcry of support from the crime-weary, but he was later charged with attempted murder--firing without sufficient cause.

Such confrontations are common in California but usually receive little attention because the shooting is found to be legal.

464 Dead in 6 Years

During the last six years, citizens killed 464 persons in incidents that were determined to be justifiable homicides resulting from the commission of a felony by the shooting victim, according to the state Department of Criminal Statistics.

It is rare that a situation in which a citizen claims self-defense is found to, in fact, be a case of manslaughter or murder, said Los Angeles County Deputy Dist. Atty. Stephen Kay, head of the district attorney’s central complaint division.

Among Southern California incidents that police regarded as cut-and-dried cases in the last year involved a 75-year-old man who shot two knife-wielding robbers near his downtown home, a teen-ager who shot one of two burglars who broke into his family’s Arcadia estate, a Hollywood jewelry store owner who shot a would-be robber and a Sunland bar owner who shot a man who had threatened patrons with a handgun.

However, many other cases fall into a gray area of the law, and police often refer them to the district attorney for review. While the district attorney’s office is likely to affirm a citizen’s version of events in such cases, the stress of waiting can be painful.

Donald Hoover found that out two months ago.

Hoover, 41, has been a private security guard for 20 years. He is fingerprint chairman of his local PTA and block commander of his local Neighborhood Watch.

But on the night of Sept. 16, he was sitting in Glendale City Jail, booked by police for attempted murder, after shooting and wounding an unarmed man he thought was prowling outside his home. Newspapers and television carried the story.

Hoover said he had just come home from work about 11 p.m. on the evening of the shooting when he heard a noise outside his house. Still wearing his uniform and armed, he found a man identified by police as Gustavo Adolpho Barrera, 24, at the side of his home.

Hoover, who said he thought Barrera had been looking through a window, raised his gun when he saw Barrera’s hands moving under a towel. Meanwhile, he said, his wife was telephoning police.

He ordered Barrera to lie on the ground and tried to put handcuffs on him, he said, but Barrera rolled over and jumped up.

‘I Had No Choice’

“I backed away a little. He grabbed my arm and started to grab the gun. At that point, I had no choice.”

He fired into Barrera’s chest.

“In 20 years of security work, I’d never had to shoot anybody,” he said.

“I never expected it at home. I take a lot of precautions. I have a lot of extra locks on doors and windows. I expected it to happen at work some day, but never at home.”

Officers of the Glendale Police Department came. Hoover had put down the gun so that the police would not be spooked.

From his job, he knew several of the officers. It didn’t matter. They handcuffed him, put paper bags on his hands to protect them for tests that can confirm that a gun has been fired. They told him that he was being “detained for investigation” and took him to jail.

Paper Coveralls

There he was fingerprinted and tested for drugs and alcohol. Police took his clothes, handed him paper coveralls and put him into a cell.

“I was scared to death,” he said.

At one point, he saw a fingerprint card on which someone had written “murder”--not “attempted murder”--in the space reserved for the suspected crime.

“That scared the hell out of me,” he said. No one had told him whether the man he shot was alive or dead. (In fact, Barrera was alive in a hospital.)

Hoover expected to be sent home that night. He wasn’t.

In jail, he worried about himself.

“I knew supposedly the system works, but I knew sometimes it doesn’t, too.”

He worried about his family.

No Chance to Help Wife

“My wife was at the window when the gun went off. For the first few seconds, she didn’t even know who got shot. I had no chance to talk to her, no chance to help her calm down.”

After more than 40 hours in custody, he was told that the district attorney’s office had decided that the shooting was a matter of self-defense. He could go home.

Except for one thing. His clothes. They had been kept as evidence. They were not available just now.

“I ended up getting released in those paper coveralls and had to walk out the back door of the jail, around the street and sit down in front of the police station, waiting for my wife to pick me up. It’s embarrassing. Plus, then I’m driven home and get out of the car and go into the house in paper coveralls.”

Hoover said he and his family remain emotionally wounded by the incident.

Daughter Confused

His 6-year-old daughter had to see a psychologist, he said, and she is still confused about why members of the police fraternity, of which she considers her dad a member, took him away.

Hoover is angry that no charges have been filed against Barrera. (A spokesman for the Glendale Police Department said Barrera’s presence on Hoover’s property is still under investigation and that no recommendation has been made to the district attorney.)

Hoover is still trying to figure out how things got out of hand in front of his house that night.

“I’ve arrested a lot of burglars in the middle of the night, confronted as many as five of them. I felt I could handle the situation. I followed procedures I had followed for years. This is the first man who came up knowing he was coming up against a gun. I didn’t understand why. I still don’t.”

And he is still not sure that if he had it to do over again he would wait for the police to arrive or try to handle the job himself.

Don’t Confront Him

“If he’s (a criminal) outside that house and you’re not really threatened, get yourself in a corner where’s he’s going to have to come to you,” rather than walk outside and confront him, Hoover said in an interview this week.

A few hours later, he telephoned the reporter and said he was having second thoughts about that answer.

“Would I do it again? Yes, I’ll protect my family again if I have to. I’d rather not. I’ve always, over 20 years, been at least as scared as the man I’m pointing a gun at.

“From the treatment you get (being arrested) it always leaves that little thought in the back of your head, ‘Can I do this again, knowing what I’m going to go through?’

“I’ll call 911 if I have the time. If I don’t, I’ll do it again. I’ll defend my family.”

On its surface, the state law sanctioning such killings appears to be fairly clear.

Any person can take the life of someone who is trying to commit murder or any other felony, including breaking into a home or trying to do “great bodily harm.”

Deadly Force Allowed

Deadly force is also permitted--by any person, not just a policeman--if it is necessary to “apprehend any person for any felony.”

However, in each of these situations a citizen must also have what the law calls a “sufficiency of fear” that his life is in danger--not simply that his property will be damaged. He can take action if the circumstances are dangerous enough “to excite the fears of a reasonable person.”

“It doesn’t matter whether the individual thinks he is being threatened, if a reasonable person in that situation would not have believed himself threatened,” said Julian Eule, a UCLA law professor.

In an attempt to make the law more favorable to anyone who confronts an intruder in his home, California in 1984 enacted a law stating that anyone who kills or tries to kill an intruder “shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury” to himself or his family.

The law is most likely to come into play in cases where a resident shoots an intruder who appears to pose less than a deadly threat.

Shot 11-Year-Old

For example, Eule explained, even in the case of a homeowner ordered to stand trial for shooting an unarmed 11-year-old stealing silverware, prosecutors will have the burden in court of presenting enough evidence to overturn California’s now-standing presumption that the resident was within his rights.

(By contrast, a much stronger 1985 law in Colorado, known as the “Make My Day” law, flatly grants immunity from prosecution to a resident who injures or kills someone who has entered his dwelling unlawfully.)

In cases that appear to fall into the gray area of justifiable homicide, the shooter’s state of mind becomes a critical variable.

Take the 1984 case of Mitchell Thomas, a 23-year-old owner of an East San Fernando Valley movie theater who shot and killed an early-morning intruder who was trying to break into the theater’s rooftop apartment, where Thomas lived.

The suspect, a 20-year-old transient, was trying to force his way through a small wall vent. Thomas ran to the opening, pushed the barrel of his shotgun through and fired a single blast into the man’s face, police said. The suspect died soon after.

In Fear of His Life

Despite his contention that he acted in fear of his life, Thomas was arrested on suspicion of murder and held without bail. He was released several days later when the district attorney’s office decided that it needed more time to consider whether to file charges.

Against Thomas were the facts that the transient was unarmed and that the vent he was trying to penetrate had an area of only one square foot. He could not possibly have fit through it.

In Thomas’ favor were the facts that he was sleepy from being awakened, that he had only one shell in the firing chamber and thus could not fire a warning shot, and that two weeks earlier he had fired at a pair of fleeing burglars and now feared that one of them had returned for revenge.

After two weeks of evaluating the case, prosecutors decided not to charge Thomas.

The decision made police uneasy.

“I hope people are not misled that if you shoot a burglar the D.A. will not file,” one police lieutenant said at the time. “There are so many misconceptions (about justifiable homicide). I’m afraid we’ll end up with a citizen who ends up in state prison.”

Shopkeeper’s Case

The Orange County Grand Jury is currently faced with an equally complex case: whether to bring charges against the owner of a Costa Mesa auto shop who shot and killed a 15-year-old boy as he and another youth allegedly fled from an attempted theft.

The Oct. 29 shooting occurred as the suspects were trying to drive away after removing lug nuts from the wheel of a Porsche that was parked outside the shop, police said.

The shop’s owner, Eric Vincent Holt, told police that he shot one of the boys unintentionally. The shop’s manager said Holt ran to the boys’ car and banged a shotgun on the windshield, shouting for them to stop. As the car moved, the car window post struck the shotgun and it fired, the manager said.

Theoretically, the grand jury has several options: justifiable homicide, (if Holt had sufficient fear for his safety to justify using deadly force), excusable homicide (a lawful act that, by accident, went awry) or manslaughter.

Law professor Eule said he doubts that most people who buy guns to protect their homes or businesses have much concern about such legal specifics.

Motivating Factor

“I would think that the motivating factor--the possible harm to oneself--exceeds the legal deterrent,” he said. “You may decide having a gun in these situations is unwise legally, but if you’re concerned for your safety, concern for the law may not adequately restrain you.”

Theater owner Thomas said he has spent more than $10,000 defending himself against a lawsuit by the family of the young man he killed.

“I have changed my ways,” he said in his native Arkansas twang. “When I first went out to buy shells for that damned shotgun, I knew I was buying them to protect myself against other people. I had always bought hunting shells--hunting in Arkansas is like surfing in California. But this was different. I only bought five--I didn’t want to buy shells to shoot at people. It bugged me.

“Now I own a box of 50 shells. This way I’ll never be caught with just one shell in my life.”