Posted on 10/12/2004 6:06:03 AM PDT by twas
A service station employee found himself on the wrong side of the law when he allegedly shot a suspected robber and ended up behind bars.
Michael J. Budd, 27, of Amherst Street, who was arrested Monday, is accused of grabbing the gun of Joseph P. Davis, 18, of East Ferry Street, chasing him and then shooting him in the left arm. Police said Davis was trying to hold up an Elmwood Avenue gas station Sunday night while Budd was working.
Davis, who was treated in Erie County Medical Center, was charged with two counts of robbery and criminal possession of a weapon. Budd was charged with second-degree assault.
Davis was being held in Erie County Holding Center on $5,000 bail. Budd also was being held there until he appeared in City Court before Judge Diane Y. Devlin and was released on his own recognizance.
Police on Monday said Budd was arrested because the shooting was unjustified.
"Under the penal law, a citizen has the duty to retreat if he or another person is not in imminent danger of being killed themselves or suffering serious physical injury," said Capt. Mark D. Morgan, commander of the Major Crimes Unit.
"Protecting yourself is one thing, but when there is no immediate threat to your safety, that's another," Detective Sgt. Philip Torre said.
This is not Budd's first brush with the law.
According to records, Budd was arrested Nov. 1, 1994, for holding up the Stop & Go gas station at 4100 Seneca St. in West Seneca.
Budd, then 17, of West Toulon Drive in Cheektowaga, allegedly walked into the gas station Sept. 25, threatened the gas station attendant with a knife and escaped with more than $200. The court outcome of that case could not be determined Monday.
On May 8, 1998, Budd, then 20, and his co-defendant, Aaron Wozniak, then 19, were indicted in the May 31, 1997, fire that caused nearly $1 million damage to a hangar and airplanes at the West Seneca airfield. Budd pleaded guilty to a misdemeanor trespassing charge and was sentenced to additional time in jail.
Police said events began unfolding Sunday about 8:24 p.m., when the robber entered Red Apple Food Mart at 157 Grant St. and pointed a handgun at the clerk. The gunman, wearing a black hooded shirt pulled over his eyes, told the employee, "Give me everything you got and get down," police added.
Police said that when customers began to arrive, the robber left empty-handed.
At 9:25 p.m., Davis entered Joe's Service Center/Sunoco gas, 1602 Elmwood Ave., at Amherst Street, pointed a gun at Budd's neck and demanded money, police said.
"The clerk was able to wrestle the gun away from the defendant, who fled the scene," Morgan said. "The clerk gave chase and fired two shots at Davis, striking him in the left arm with one."
Budd then chased Davis to the 200 block of Bedford Avenue, where Davis collapsed, police said.
When Northwest Officers Anthony McHugh and Shawn Dowell arrived at the scene, Budd handed them a loaded .40-caliber handgun.
Davis was taken to ECMC, where he was arrested. Budd was taken to Police Headquarters and arrested early Monday.
You're not getting it. The law is an ass.
You are right on current law. But the law is an ass, in this area as in many others.
This story shows that this was Davis's SECOND robbery attempt that evening. Budd should get an award for shooting him!
(Buffalo, NY - AP) — A service station worker who took the law into his own hands went too far and is being charged with assault in the shooting of a would-be robber.
Police say 27-year-old Michael Budd is accused of grabbing the robber's gun, chasing him and shooting him in the left arm after a holdup attempt in Buffalo.
Police say the shooting was unjustified because Budd was not in imminent danger of being killed.
After an aborted attempt to rob another service station Sunday night, 18-year-old Joseph Davis entered the station in which Budd was working.
Police say Davis pointed a gun at Budd's neck and demanded money.
Budd wrestled the gun away from Davis, who then fled. Budd ran after him and fired two shots at Davis, striking him once in the arm.
"Let someone stick a gun in your face"
They would quickly become a dead criminal. Unlike the store clerk in this article, I do carry ala CHL.
If the clerk had fired (with his own weapon) during the time the perp was posing a deadly threat, he would have been completely justified in doing so.
I agree, but until then you risk jail time your self for doing so in most cases. Specially shooting an unarmed person. Even the police catch hell if they shoot someone they have disarmed. They don't just shoot people just because they are trying to run away regardless of the previous circumstances.
I agree with your post. I don't believe that some pigs are more equal than others.
I really wonder if the reporter transposed the names.
The perp is lucky he wasn't in Texas.
The clerk could have shot him dead and been perfectly legal. It is legal to use deadly force to stop someone fleeing the scene of a felony - and armed robbery is certainly a felony.
If you mean someone who has been detained and searched, yes. I bet you can't find a story about a cop who shot a fleeing suspect that turned out to be unarmed who was disciplined for doing so, let alone charged criminally.
Excuse me, but a perp running away because he lost control of one gun isn't "disarmed." To disarm someone, you have to search him. Cops routinely carry three or four guns ... at least the ones I have spoken to on the matter. The openly carried handgun, one or two more in waistband or underarm conceal carry holsters, and then a five shot revolver or a .22 tip-up semiauto in the ankle holster.
"The clerk could have shot him dead and been perfectly legal. It is legal to use deadly force to
stop someone fleeing the scene of a felony - and armed robbery is certainly a felony."
Do you have a reference for this? I can only find statutes in which this applies to LEOs or someone in the LEO's presence acting on their behalf.
Given that tid-bit, it doesn't apply to this situation.
Also, recall the "must retreat" clause in the article? Texas is quite different:
"...There is no duty to retreat before using deadly force..."
It still stands that deadly force is only to be used as a last resort. The attempted robbery effectively ended when the perp ran away. So at that point it could've been said that the situation was under control. The idiot should've never given chase.
Also, the story doesn't give any indication that the perp had another weapon. As long as we are playing "what if"; what if the perp had an armed accomplice the situation could've turned out a lot differently. It is never a good idea to give chase, unless it is to prevent harm to a hostage.
Under TN law, you have the right to make a citizens arrest and use "necessary" force to bring the person to justice.
If the thief was fleeing, and you warned the thief that you were going to shoot. It's my understanding in TN that you can shoot.
"a citizen has the duty to retreat" is terrible policy.
~ (b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:
~ ~ (1) the actor reasonably believes the other had no claim of right when he dispossessed the actor;
or ~ ~ (2) the other accomplished the dispossession by using force, threat, or fraud against the actor.
Sec. 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property:
~ ~ (1) if he would be justified in using force against the other under Section 9.41; and
~ ~ (2) when and to the degree he reasonably believes the deadly force is immediately necessary:
~ ~ ~ (A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or
~ ~ ~ (B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and
~ ~ (3) he reasonably believes that:
~ ~ ~ (A) the land or property cannot be protected or recovered by any other means; or
~ ~ ~ (B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.
The 9.42.2.b argument has been used when a car owner pursued a would be car jacker on foot and shot him dead.
jimt, thanks! That may come in handy some day.
However, pertaining to this article:
"Sec. 9.42. DEADLY FORCE TO PROTECT PROPERTY"
Did the perp get the clerk's rolex?
I read it that the clerk got the perp's weapon.
As such, my argument holds. The clerk was unjustified in using deadly force.
You must be very quick on the draw then. Once you're looking at the wrong end of his gun I think you'd find he could pull the trigger before you even got your hand on your piece. Once you realized he had the drop on you and you elected to give him your wallet, you'd be in a similar position as Mr. Budd, either chasing your wallet down the street and firing at a fleeing felon or dialing 911 to have an officer drop by to fill out some forms. If you chose the latter course the bad guy would then be spending your money while planning his next 'job.'
Regardless of what the law says, I believe Mr. Budd should be sentenced to two days a week at the firing range, suspended when he can exhibit better proficiency than he did in this case.
Which is a good thing. A LEO is necessarily held to a higher standard than an ordinary guy holding off a thug.
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