NH law allows use of force in defense


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TearsOfRage
January 1, 2003, 04:17 AM
Oh man, I love this state.
From the largest newspaper in NH:

NH law allows use of force in defense
By : Nancy Meersman
Union Leader Staff

September 3, 2002
When Hyung Kang, a 21-year-old clerk at Heaven’s Express, recently slammed a baseball bat down on the arm of an alleged knife-wielding robber, authorities were quick to call the act self-defense.
New Hampshire law allows the use of deadly force to defend one’s life. But recent history shows that less than clear-cut cases of self-defense can result in unpleasant legal consequences, such as civil suits and possible prosecutions. Whether Kang was still in fear for his life after the thief had run out of the 35 Dutton St. convenience store could be debated, and it is also possible the store clerk could be seen as having endangered himself by taking up a bat on impulse and running after a robber armed with a knife.

Some people cheered Kang for his plucky reaction to being robbed and for holding the alleged culprit until police got there.

Last summer, neighbors hailed Robert Baroody as a hero after the storekeeper in his 70s fired a .38-caliber gun over the head of a gunman running out the door of Baroody’s Market, on 392 Massabesic St.

The robber, who escaped, had pointed a loaded gun at Baroody’s wife and sister. Police immediately concluded Robert Baroody was defending his family and hadn’t broken the law.

One investigator predicted that the neighborhood would be quiet for several months.

Indeed, it was. In fact, nobody has bothered Baroody’s Market since. “Not yet,” Baroody confirmed, declining to discuss the event further.

The law, RSA 627:4, allows people to use deadly force in certain circumstances, such as when another person is about to use deadly force against them or against a third person; or when a burglar is likely to use deadly force against a person; or when someone is likely to use deadly force to commit a felony in one’s home.

Deadly force is not justified if the person who is threatened can safely retreat from the encounter — unless the encounter takes place in the person’s home.

When two men broke into a Bedford home after midnight on March 7, 1986, law enforcement authorities concluded the homeowner was justified in shooting them. No charges were ever brought against the homeowner, Donald Squires, a man then in his 50s.

One of the intruders, Kevin Cote, 28, was killed and the other, John Surette, 42, was wounded. “It was deemed a justifiable homicide. It occurred right after midnight; there were two burglars in a bedroom. If you use deadly force, it’s justifiable if you face deadly force by someone else,” said Bedford Police Chief David Bailey.

Bailey said people have a right to defend themselves in their homes, but they had better be sure they don’t accidentally shoot a family member who has come home unexpectedly or some other innocent party.

He said once you ascertain the person is an intruder, “I don’t think you have to ask too many questions.”

Bailey said, “You tell them to freeze, and if they kept making a move toward you and it looks like they have a weapon, I would fire.”

Police and prosecutors say the decision to defend life and property can be a tricky one.

Multiple legal complications beset Dr. Robert A. Desmarais, a retired physician, after he fired two shots on Oct. 5, 1994, and killed a suspected burglar who had broken into a Wilson Street flower shop owned by Desmarais’ daughter.

Police said the place had already been burglarized 15 times in the previous five years and Desmarais had a private alarm that rang at his home near the Smyth Road school.

Desmarais told police he called out, “Stop, or I’ll shoot,” but the intruder “came right at me, so I shot.”

Prosecutors did not see that as a problem, since it appeared the doctor was defending himself. Desmarais, however, fired again, and that was a problem.

According to the autopsy report, Steven M. Zajaceskowski, 34, was first struck with a fatal shot to the liver. He was stung by a second slug in the buttocks as he ran from the scene. He was found dead in an alley about a half-mile away. A Hillsborough County grand jury indicted Desmarais on a charge of second-degree assault for firing the second shot at Zajaceskowski, the one that hit him once he was about 30 feet from the flower shop.

Desmarais eventually pleaded guilty to a misdemeanor charge of reckless conduct — for endangering residents by firing the gun on the street. He served no jail time.

Michael D. Ramsdell, a Concord attorney and then a prosecutor in the Attorney General’s Office, presented the case to the grand jury. He explained why the first shot was permitted under the law but the second one wasn’t.

“It is my recollection that he (Desmarais) chased after him and shot him. We did not believe that was a use of justifiable force because he wasn’t in any imminent danger at that point,” Ramsdell said.

“It’s a much cleaner case of self-defense when a person is in a store and holding a knife. If you have to chase them some distance . . . you are no longer in danger and it makes a much more difficult self-defense case.

“At the point the robber left the premises . . . no one is in danger, and that makes it a much murkier situation,” Ramsdell said.

His advice? Contact the police.

“I don’t think most people ought to be in a hurry to chase someone who’s carrying a deadly weapon. More often than not, you place yourself in danger. Again,” Ramsdell said.

“But that doesn’t mean prosecutors or police would be in a hurry to prosecute. Nor are jurors going to be in a hurry to find the person guilty of an assault after he’d been robbed. My guess is, they would just as soon the whole thing went away.”

Desmarais’ encounter with the judicial system didn’t end with the criminal case.

The deceased’s former wife and administrator of his estate, Linda Zajaceskowski, filed a civil lawsuit against the retired doctor, demanding $100,000. The case was eventually settled, and the terms were undisclosed.

Lawyers say anyone can sue. But they are confident the alleged burglar Kang walloped with the baseball bat probably couldn’t get a jury to compensate him for his broken arm. That is, if he could get a lawyer to take the case.

Several lawyers who take personal injury cases said it’s not likely an attorney would want to file a lawsuit against Kang, who refused to discuss his encounter with a reporter. At least they wouldn’t do it.

“You’d have to be a pretty desperate lawyer to want to take that case,” said Charles G. Douglas III of Concord. “As far as I’m concerned, I would have done the same thing,” he said, meaning he would have gone after the robber.

Douglas said Kang’s actions were taken in defense of his property and his store. “It seemed reasonable to him to coral in a citizen arrest the perpetrator of the crime. . . . If everyone who was robbed had the same response, there’d probably be a lot fewer robberies going on.” Manchester attorney James J. Tenn said the law allows a person to use reasonable, non-deadly force to defend himself. The court would have to decide whether the degree of force used was excessive.

“Based on what I’ve read, I wouldn’t take a case like that,” Tenn said.

“I wouldn’t take that case, and I don’t think any jury would have much sympathy for the robber,” said attorney Peter M. Solomon of Londonderry. “I don’t think any jury in New Hampshire would award him 10 cents.”

“You’d have to convince 12 jurors, and there’s no way on God’s green earth that you’d win,” said Manchester lawyer Richard E. Fradette. “I would never take that case.”

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fivepaknh
January 1, 2003, 06:10 AM
Great post. God I love this state, and with Shaheen out the door it can only get better. Bummer about Bob Smith though.

I'm an ex-M@$$hole and you couldn't drag me back to that state.

David Scott
January 1, 2003, 12:35 PM
This just stresses the importance of knowing the law in your state. The guy who fired the second shot at the flower-shop burglar took an awful chance. If the first shot wasn't fatal, but the second was, the charge might have been murder.

80fl
January 1, 2003, 02:04 PM
Five:

I'm an ex-M@$$hole and you couldn't drag me back to that state.

Although we might paint any and all ex-mass people with the same brush; ie m*********, if you are a freedom loving, anti tax, pro gun, american, you are welcome in NH!:)

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