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Hazards mostly outweigh legal right

Editor's note: This is the second of two stories that deal with the use of deadly force by civilians.

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On Christmas Eve, a customer at an Amherst bank followed an armed robber into the parking lot and fired as many as six shots at the fleeing gunman.

It was one of three high-profile local cases of civilians using deadly force in confrontations with suspected criminals.

Last March, an Amherst homeowner fatally shot an Albany teacher who entered the man's home in error and didn't leave after the homeowner warned him that he had a gun.

And last January, a Royalton man fired 15 rounds at the radiator, engine block and tires of a car that had pulled into his driveway in a burglary attempt.

The three cases raise the questions of whether, or under what circumstances, members of the public have the right to use deadly force.

Experts say the law is complicated and depends on a number of factors, including whether people feel threatened with physical harm or whether they're in position to stop a violent felony.

For lawyers, law enforcement officials and firearms instructors, there is another issue: Even if a civilian has the legal right to fire a weapon, should someone who doesn't have the training and experience in handling these high-stress situations do so?

"New York is not telling their citizens you can't get involved; they're just saying you better be right," said Thomas H. Burton, a lawyer who defends Buffalo police officers who have fired a weapon and who represented the Amherst homeowner.

These cases differ in several key ways but are tied together because all involve an average citizen using deadly force.

In the incident a year ago in Niagara County, Dennis F. Cherry was waiting at 11 a.m. Jan. 21 when a car pulled into his garage. Cherry told police he believed that the occupants planned to rob him -- for the second time in three days.

Cherry told The Buffalo News in April that he wasn't trying to hit the driver, Anibal R. Cordero, who stayed in the car during the shooting, or his stepdaughter, Jenna M. Zsebhazy, who got out after the car pulled inside.

"If I wanted to hit [Cordero], I could have hit him," said Cherry, a hunter.

Cordero was sentenced to a year in jail on his guilty plea to attempted criminal possession of a weapon, while Zsebhazy will be sentenced this month on her guilty plea to attempted burglary.

Cherry initially was charged with two felonies -- reckless endangerment and criminal mischief -- before prosecutors reduced them to misdemeanors. The case against him was dismissed in April on condition that he stay out of trouble for the next six months.

Edward V. Qualey, chairman of the criminal justice and crime scene investigation departments at Hilbert College, said that it was appropriate to charge Cherry in this case and that he questioned Cherry's contention that he could safely control where he was firing his weapon.

"When you let them fly like that, I don't care who you are; you don't know where they're going," said Qualey, a retired State Police sergeant.

In the second case, grand jurors decided not to charge Amherst resident David D'Amico in the March 28 shooting death of David W. Park, a decision supported by Qualey and Harold W. "Budd" Schroeder, a Lancaster resident and member of the board of directors of the National Rifle Association who teaches courses on firearms safety and personal protection.

Park, who was in town to attend a party at a home next door to D'Amico's Millbrook Court dwelling, walked into D'Amico's home through an unlocked rear door at about 1 a.m.

D'Amico shot Park once as the homeowner stood on the second floor and the Albany teacher stood at the bottom of a stairway about 12 feet away.

After hearing noises in his home, D'Amico went to check on them and told his wife, Julie, to call 911. D'Amico said he had warned Park that he was armed and yelled at him to leave.

It is not known why Park entered the home. His blood-alcohol level was measured at 0.18 percent, more than twice the state's legal limit for drivers.

A grand jury cleared David D'Amico, but Burton said that it has taken a lot of family and pastoral support for the D'Amicos to recover from the shooting.

"They're both back to work," he said. "The raw edges of that evening have settled down."

The Christmas Eve robbery in Amherst took place just before 9:15 a.m. at the Citizens Bank branch at 3180 Sheridan Drive, near Bailey Avenue.

The robber wore a blue bandanna as a mask and displayed a gun as he told the 10 or so people inside the bank to raise their hands and demanded money from the tellers, police said.

He ran out the door and behind the bank before a customer fired between four and six shots that didn't hit anyone.

The robber hasn't been found. Police briefly handcuffed the customer and took him into custody, thinking he was the robber, before releasing him.

The customer has cooperated with police and told investigators he did yell at the robber to stop before he started shooting. Amherst Police Capt. Enzio G. Villalta, chief of detectives, declined to comment when asked whether the customer, before using his gun, said he had checked if anyone else was nearby.

Police are not releasing the name of the 63-year-old Amherst man. He has a pistol permit that grants him the right to carry his handgun in public, even if it is concealed, including into the bank, Villalta said.

Citizens Bank spokeswoman Christy Calicchia said that, as a matter of policy, the bank does not comment on security matters.

Amherst police decided not to charge the customer.

"He followed the law, as far as we were concerned," Villalta said. "The law allows that. When he's fleeing a felony, armed, you can still use force against them."

But this month, police turned over their file to the Erie County District Attorney's Office. Prosecutors are considering whether to charge the bank customer or give the case to a grand jury.

In New York, the law on the use of deadly force is complicated and depends on several factors, District Attorney Frank A. Sedita III said.

Generally speaking, people have the right to use weapons to defend themselves if they reasonably believe that someone else is about to use deadly force against them.

They also may use deadly force if they believe that someone is committing or trying to commit any of a select number of felonies, including robbery, or a burglary of a dwelling under the person's control.

However, the law states that if someone has the ability to safely back away, the person must do so, unless that person is at home or acting at the direction of a law enforcement officer.

"We'd rather have people retreating than shooting it out like the Gunfight at the O.K. Corral," Burton said.

Another provision of the New York State Penal Code says a private citizen may use deadly force to "effect the arrest" of someone who has committed a violent felony, including robbery, "and who is in immediate flight therefrom."

Does this mean that the bank customer acted legally in shooting at the fleeing robber?

"That's a good legal question. I don't know. You have to look at all the facts," Sedita said. "Generally speaking, you cannot shoot a fleeing felon. It depends on all the facts and circumstances."

For Burton, Qualey and others, even when members of the public have the legal right to fire a weapon, it is not always an appropriate action.

"There are so many variables that I tell my [students], 'If you don't have to do it, then don't,' " the NRA's Schroeder said.

Unlike police officers, these civilians don't have the training or experience to deal with highly stressful encounters that don't allow for coolheaded analysis.

Moreover, shooters must worry about the prospect of hitting an innocent bystander, no matter how skilled they are with their weapons, experts say. For that reason, Schroeder said he believes that the Citizens Bank customer was "foolish" to fire at the robber.

Qualey agrees. "Legally, I think he looked fine," he said. "Should he have done it? That's another question."

e-mail: swatson@buffnews.com

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