Media would be 13th juror in fatal self-defense cases
May 1, 2010

by Joseph P. Tartaro
Executive Editor

When you are forced to use a firearm to defend your life, your family and your home in what my good friend Massad Ayoob has labeled “the gravest extreme,” your actions will be subject to scrutiny by more than police and prosecutors. The public, of course, will have its own perspective on the facts of the case, but those views may be malleable, depending of the media.

Newspapers, radio and television stations, and, of late, Internet sources will help shape the public perception of those facts. This became abundantly clear following a March 28 incident in Amherst, NY, a mostly affluent northern suburb of Buffalo.

Here are some basic facts.

A homeowner was awakened in the early hours of that Sunday morning by sounds of an intruder (or intruders) in the lower part of his home. His wife called 911 while he got a shotgun he used for occasional hunting and went to the top of a second floor stairway landing.

He could see a figure in the dark below and shouted that he was armed and that the person or persons below should leave his house immediately. He further shouted that his wife had already called the police.

After repeated warnings with no response or reaction from whoever was at the bottom of the stairway, he fired. The intruder went down.

When police arrived, it appeared to be a cut and dried case of a homeowner defending his property. It did not seem that the police would bring charges against the homeowner.

No one disputes the facts which I have recounted, but that’s not the end of the story, which was first given standard police blotter type news reportage.

However, it was soon learned that the intruder, who died from that shotgun blast, apparently was not your run of the mill burglar or home invader. He was identified as a 31-year-old teacher from Albany, NY, who had been attending a “diaper party” at the home of friends in the immediate neighborhood.

Reports indicated that he had left the party to walk around the neighborhood, for reasons unknown, and also for reasons unknown entered a stranger’s home, possibly through a rear door that might or might not have been left unlocked.

At this revelation, the media began to worry the story like a dog does a bone, adding lots of conjecture. Most of my quotes will be from the principle print news source, The Buffalo News, but the tone of that newspaper’s handling of the story was followed pretty closely by local radio and television coverage.

On March 29, all news reports were mostly based on known facts as reported by the Amherst police. But by March 30, the headlines and treatment had shifted. The front page of that day’s News featured the headline “Violent death of teacher rife with ‘whys.’ ’’

The leading paragraphs set the tone:

“In Albany, educators and students are mourning the shooting death of a popular, award-winning elementary school teacher.

“In Amherst, police are trying to determine how and why it happened.

“In a bizarre case that has touched off debate about using guns for home protection, 31-year-old David A. Park was fatally shot Sunday after he entered a stranger’s home at about 1 a.m.”

The story then quoted Amherst police sources, relatives and friends of Park, the attorney for the homeowner identified as David D’Amico, representatives of some pro-gun organizations, and Peter Hamm, a Washington, DC, spokesman for the Brady Campaign to Prevent Gun Violence. Hamm avoided a direct comment on the facts in this case, but did shroud it in fog as he plied the anti-gun platform, noting, “We see cases like this several times a year, sometimes involving people who accidentally shoot their own spouse, their son or daughter.”

The next day’s news reports dumped the story in the Erie County District Attorney’s lap. Amherst Assistant Police Chief Timothy M. Green was quoted as saying “I don’t anticipate any charges being filed by us, with the DA’s involvement.”

The DA’s office was quoted as saying that no decision would be made regarding charges or presentation of the case to a grand jury pending results of toxicology tests on the dead man to determine if he was drunk or on drugs.

In follow-up reports by print and electronic media, the DA’s office said that speed was requested for the toxicology tests which normally take several weeks.

Curiously, the News headline for that story said, “DA weighs charges in killing of teacher.” It would seem that some in the media had made the intruder into the victim, possibly of a crime.

With that kind of media setting for the story, it was not surprising to see Donn Esmonde’s column in the April 2 Buffalo News headlined with “Having a gun in the house isn’t worth it.”

“I do not think it is worth it. List all of the things that could go wrong with having a gun in the house. Weigh them against the remote possibility of needing the weapon as a last line of defense. To me, the potential risk outweighs the possible reward,” Esmonde began.

“Gun or no gun? Like it or not, the question just got thrown in all of our faces, in the worst way, for the worst reason.

“What happened last weekend in Amherst is, to me, another argument against owning a gun, another brick in the not-in-my-house wall,” Esmonde wrote.

“Only later did D’Amico find out that the intruder was not a criminal or a killer. He was, by all indications, a law-abiding guy who just walked into the wrong house.

“If that is what happened, D’Amico will likely be cleared. The law says that if you feel threatened in your home, you have the right to use deadly force. I have no problem with that. But this case is about more than what happens in the courts….

“Some people think they need a gun for protection. Fine. My sense—backed up by several independent studies cited by the Brady Campaign to Prevent Gun Violence—is it is more likely that the gun will be used in a flash of anger on a spouse; or picked up in a moment of despair to commit suicide; or messed with—tragically—by an unsupervised child; or used by a troubled teen against teachers and classmates. Or, well, picked up to shoot an innocent intruder.”

How an intruder in your home became innocent may be a question only in Esmonde’s mind. “A gun in the house? No way. Not where I live,” Esmonde concluded.

Esmonde’s column didn’t go unnoticed for The News’ readers. Reaction was uniformly unfavorable in letters to the editor published by the newspaper on April. 11.

This is not the first time that Esmonde’s opinions failed to gain the approval of his readers, and it probably won’t be the last time he writes something out of sync with the general public. But he did hit a nerve pulsing in the veins of the body politic. Even before his column appeared, there had been letters of support for the homeowner and his right to defend his home and family with arms against intruders, no matter what their intentions.

A major AM radio station in the market, WBEN, had run a morning poll to gauge the public’s views of the shooting. The results I heard announce were 92% in favor of the right of homeowners to use firearms in defending their property and its residents.

The facts in the case are fairly straightforward. A homeowner awakened in the middle of the night defends his home. He doesn’t know the intruder or his intensions. The media can paint it anyway they want. But it appears that the police and the DA are being very careful about this case.
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