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When is killing justified?

Originally ran here as:
"When is killing justified?"
by Tim Hrenchir
The Capital-Journal
February 23, 2002

As she prepared to give birth this week, Pepper Hamilton thought about the father her child would never know.

Anthony Hamilton Sr., 28, was shot to death a month ago in Topeka. Authorities ruled the shooting justifiable, saying he was killed trying to rob an elderly man in his hotel room.

On Wednesday evening, less than 48 hours before she would deliver their child, Pepper Hamilton thought about the day when that youngster would ask about the father.

"What am I supposed to say?" she asked.

Pepper Hamilton isn't alone in being close to someone recently killed in Topeka by a person authorities think acted in self-defense.

Police say the killings of three people during the past three months, including Anthony Hamilton Sr., appear to have been justifiable. The district attorney's office has yet to reach conclusions regarding two of those cases.

Also, after a blow to her chest killed a Topeka woman in January 2001, Shawnee County District Attorney Robert Hecht ruled no crime had committed.

When people kill in Shawnee County, Hecht's office generally decides if the homicide was justified. That question seems to come up more now than in years past.

"One of the problems we have in our society today is a substantially increased level of violence and an increased readiness to respond with deadly force," he said.

After a homicide has been committed, Hecht said he examines the actions of the person who was responsible.

According to state law, Hecht said, a homicide can be justified when committed by someone who uses force to the extent he or she believes is necessary -- and that a reasonable, objective person would believe necessary -- to defend himself or another against an aggressor's "imminent use of unlawful force."

Hecht stressed that "imminent" doesn't mean the same thing as "immediate."

"The distinction that the law tries to draw is that 'immediate' means 'right now,'" he said, bringing his fist down upon his desk for emphasis. " 'Imminent' may mean 'right now,' or it may mean imminent in the sense that it is a conclusion rapidly approaching as a result of a continuous course of conduct."

For example, Hecht cited the "battered-woman's syndrome defense," used by women who kill men who abused them.

"There is no such defense to a homicide as the battered-woman's syndrome," Hecht said. "That is a label that has been put on justifiable homicide. To assert that defense, it must be shown that there is an imminent threat or confrontational circumstances that's evolving over a period of time."

Hecht also said there are times when citizens have a duty to not use deadly force against an aggressor or intruder, but to flee or avoid that person. That isn't the case, however, when a person is in his or her home.

"The law says that you have no duty to retreat on your 'home ground,'" Hecht said. He said "home ground" could be a person's home, vehicle or anywhere else he or she has a right to be.

Hecht said a person defending his or her dwelling may use as much force as he or she believes -- and that a reasonable person would believe -- is necessary to keep someone from illegally entering, remaining in or damaging the dwelling.

"I'm sure there are a lot of arguments that can be made regarding what constitutes your dwelling," he said, adding that people may contend they are in their dwelling if they are visiting friends or relatives, or staying in a hotel room.

Authorities say Bobby T. Davis, a 73-year-old Oklahoma man who was in Topeka to visit a son who has cancer, was in his hotel room in south Topeka on Jan. 20 when Anthony Hamilton Sr. knocked on the door and asked to use the telephone. Davis, who is licensed in Oklahoma to carry a concealed weapon, went to the door carrying a small-caliber handgun.

Police say Davis refused entry to Anthony Hamilton, who then forced his way in, grabbed Davis by the throat, tried to rob him of money and was about to strike him when Davis shot him once in the chest.

A month later, Anthony Hamilton's wife isn't willing to accept the official account of her husband's death.

Pepper Hamilton was married last March to Anthony Hamilton, whom she said was survived by eight children and stepchildren. The couple lived in Ottawa, where Pepper Hamilton gave birth Friday morning to a healthy baby girl. She said the infant was the only child they had together.

In a telephone interview Wednesday evening from her Ottawa home, Pepper Hamilton said she thought detectives hadn't looked close enough at her husband's slaying.

"I've heard so many stories from people calling other people in the family, and there's just a lot of things that don't add up," she said.

For example, she said, she heard that her husband had gone to the room with a woman to collect a legitimate debt that the woman was owed, and that others overheard an argument before the shooting. But Pepper Hamilton said she doesn't know the woman, and police couldn't locate her.

Also, Pepper Hamilton said, Anthony Hamilton's side of the story isn't being heard because he is no longer alive.

But police say they believe Davis told the truth. Detectives concluded he acted justifiably in killing Anthony Hamilton, who had a past conviction in Shawnee County for attempted robbery and was awaiting trial for five Topeka business burglaries and the possession of a crack pipe.

Hecht agrees with the police department's conclusion, saying the case "fit the law neatly" as a justifiable homicide.

Hecht said that when someone commits homicide in the defense of property other than a dwelling, the law differs from situations in which a dwelling is being protected. In such cases, he said, someone is justified in protecting his or her property using the amount of force that a reasonable person would consider necessary under existing circumstances.

To decide what a reasonable person would think, Hecht said, a prosecutor needs to consider whether the community at large would find the acts of the person who committed the homicide to be reasonable.

"I think you and I might agree that deadly force would not be appropriate to prevent somebody from stealing your child's bicycle," he said. "But from stealing a medical instrument necessary for your child's survival, it may very well be."

Hecht stressed that someone committing a felony or escaping after doing so is never justified in injuring or killing someone.

He also said the law prohibits someone from provoking an attack on himself or herself with the intention of using it to justify hurting or killing the other person.

After someone initially uses force against another, Hecht said there are only two situations in which the aggressor is justified in subsequently using force:

"When the aggressor has backed off and made it clear he or she has backed off, but the other person continues or resumes using force.

"When the aggressor "becomes the victim" and uses all reasonable means to escape other than use of force, but the other person won't allow the escape.

Tim Hrenchir can be reached at (785) 295-1184

Recent cases

Topeka police say the following homicides since January 2001 appear to have been justifiable. In two cases, however, rulings haven't been made:

Feb. 12 -- James E. Collins, 33, was killed at about 9 a.m. after he broke into his former girlfriend's home in southeast Topeka and pulled a knife on Braulio Diazcastro, 24, who was staying there. Diazcastro shot Collins several times. District Attorney Robert Hecht is expected to decide whether to file criminal charges.

Jan. 20 -- Anthony Hamilton Sr., 28, was killed at about 8 p.m. by a man who was staying in a room at a south Topeka hotel. Police concluded that Bobby T. Davis, 73, of Hominy, Okla., acted justifiably and in self-defense when he shot Hamilton after Hamilton forced entry and tried to rob him of money. Hecht, who was present during the investigation, agreed.

Nov. 24 -- Mark Henry, 48, was beaten to death at about 2:30 a.m. at his estranged wife's apartment in southwest Topeka. Police said that after his wife returned home with Donald Lawson, 43, Henry forced them into the apartment at gunpoint, made threats, restrained Lawson with duct tape and was trying to restrain his wife when Lawson got free, fought with Henry, took the gun away and struck Henry several times on the head with a club. Hecht is expected to decide whether to file charges.

Jan. 4, 2001 -- Toni Miotke, 27, died after being struck on the chest by James Carnoali, then 46, shortly before 9 p.m. at the apartment they shared in central Topeka. Hecht concluded no crime was committed. He said Miotke was biting Carnoali on the upper right arm during a "mutual affray" when he struck a blow to her chest that "did not constitute excessive force under the circumstances." The blow caused a disruption of the electrical impulses to Miotke's heart.

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