The right to self-defense: Lawyer says robbery victim ‘stepped over the line’

07/13/2013 3:43 PM

07/13/2013 3:43 PM

When the robber came into Uncle Ken’s coin shop, wearing a scarf over his face and pointing what looked like a handgun at Ken Preble, the shop owner had a right to defend himself.

Video cameras in Preble’s Independence shop that January day caught some of the bloody struggle that followed.

When Preble pulled out a .38-caliber handgun, the robber came at him, and the two went to the floor and scuffled. Shots rang out. A bullet shattered a bone in Preble’s forearm, and the man suspected of robbing him took four wounds, by his defense attorney’s count, to his temple, chest, abdomen, thigh. As the wounded robber left the shop – clutching about $2,800 but no longer armed with a BB gun that Preble thought was a 9mm handgun – the robber blurted out something: “You killed me, Ken.”

But what happened next turned Preble from victim to criminal, Wichita defense attorney Mark Schoenhofer argues. Schoenhofer is defending the man suspected of robbing the store, Adam J. Anderson.

The case illustrates how disputes can arise over claims of self-defense. Schoenhofer contends that Preble grabbed another loaded handgun, followed the robber out of the store and shot him in the back as he was fleeing. Schoenhofer said the investigation found that Preble fired again outside his business, and Schoenhofer said he deduced that the last shot is what left the robber with a fifth wound, to his back. Preble had no legal justification for firing that last shot because he was no longer threatened once the robber was fleeing, Schoenhofer said. Schoenhofer said Preble should face a charge himself, aggravated battery at the least. With that last shot, Schoenhofer said, Preble “stepped over the line.”

Schoenhofer said Montgomery County Attorney Larry Markle told him that Preble would not be charged and told him he thought Preble was in “imminent fear” when he continued to fire.

Preble declined to comment. Markle gave this statement by e-mail but otherwise declined to comment: “Shortly after this incident I had the opportunity to review the video tape of the armed robbery, witness statements, and officer’s reports. Nothing in that evidence would support charges of any kind against Mr. Preble. Since that initial review, additional evidence has been submitted by law enforcement, hearings have been held, and the defense has had time to submit any additional evidence they felt was relevant to my charging decision. At this time there remains no evidence that would support charges against Mr. Preble.”

Anderson, 32, has pleaded guilty to robbery and aggravated assault in the Jan. 9 robbery. On Tuesday, a judge in Montgomery County District Court sentenced Anderson to almost 12 years (141 months) in prison. Schoenhofer said he plans to file a motion arguing the sentence was incorrectly imposed. Anderson remains in the Montgomery County Jail.

At the time of the robbery, Anderson was on parole. He had felony drug and contraband trafficking convictions stemming from crimes in 2006 in Montgomery County. He also had a 1999 robbery conviction in Montgomery County.

In online comments posted with news stories about the Jan. 9 robbery, Preble’s actions have been hailed as an example of someone rightly asserting their right to defend themselves. In recent years, use of guns, use of force and self-defense have become major national issues. One example: the closely covered Florida trial of George Zimmerman in the shooting death of Trayvon Martin.

What is Kansas law on self-defense?

It includes a two-part test, said Sedgwick County District Attorney Marc Bennett, stressing that he wasn’t commenting on the Independence case, only on what the law says. The first prong: A person has to believe that force is necessary to defend himself. The second prong: A reasonable person has to objectively agree that use of force was necessary. The law doesn’t spell out specific circumstances because it can’t account for every set of facts, Bennett said.

Kansas law upholds the concept of “no duty to retreat,” Bennett said, meaning that if someone is attacked in a place in which they have a right to be, and they are not breaking the law, they can use justifiable force to defend themselves.

There is a common misconception that someone can’t justifiably use force outside of their dwelling, Bennett said. There is an old saying that if you have to shoot someone, make sure you pull them into your house.

“The truth is, there is no drag-in-the-house rule,” he said.

“Location does not … define what is reasonable. The entire context will determine that,” he said.

“Everybody has a right to defend themselves, so long that it is reasonable.”

Among the facts that can be considered in whether to file charges is how far the person who is perceived to be the threat is from the person who feels threatened. The farther away the perceived threat is, the harder it is to argue that the threat remains, he said.

Wichita defense attorney Richard Ney said that Kansas law seems to be in step with a number of other states that give a fair degree of latitude for self-defense.

Told of the coin shop owner’s actions and Schoenhofer’s contention, Ney said it seems to present “a fairly gray area.”

“It’s probably a case a prosecutor is not going to charge,” Ney said.

The incident

Cameras in the 13-by-26-foot coin shop show part of the robbery. The robber came in with his face covered, brandishing what looked like a black 9mm pistol to Preble, he testified at a hearing. The handgun turned out to be a defective BB gun, Schoenhofer said.

After the robber demanded money, Preble handed over about $2,800. Preble told the robber there was money all over the shop. He testified he was trying to stall enough so he could get a gun to pull on the armed robber to “defend myself.”

Video showed a scuffle breaking out when Preble tried to pull out a .38-caliber handgun. Both men ended up partly out of view, struggling with each other on the floor. The robber’s scarf came off. A bullet struck the robber’s cheek. A bullet hit Preble in his arm. He testified that he knew he had been shot but didn’t know how he got shot.

Independence police Detective Mark Vining testified that Preble told him that the robber got off the floor and that as the robber was leaving the building, he told Preble, “You killed me, Ken.”

The video shows Preble following fairly closely behind the robber as the robber went out the door.

Police arrested Anderson, bleeding in an alley, about a block from the store.

An ‘advocate for guns’

Schoenhofer, an unsuccessful Republican candidate for Sedgwick County district attorney in 2008, said, “I am an advocate for guns. I am a Second Amendment supporter. But they (guns) have to be used responsibly.

“I don’t have any problem with someone defending their life with a gun.”

As a young man, he said, he had been robbed twice while working for KFC stores, once at gunpoint, another time at knifepoint.

In the Independence case, once the robber no longer had a gun and was leaving, Preble “is no longer using reasonable force to defend himself,” Schoenhofer said. The robber is “literally getting out as quick as he can. He’s got the money. He wants to get away.”

“He’s (Preble’s) going after (the robber) after he’s fled, just to shoot him one more time,” Schoenhofer said. If that is justified, he said, it means a resident could shoot someone running from a home with a television.

“If you allow this to happen,” he said, “what’s the next person going to do?”

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