When is it legal to shoot? 

In Sherwood, questions about gun use against trespassers.

click to enlarge WHERE THE BODY WAS FOUND:

The shooting death of Bryant Cross, 18, has raised questions about the right of property owners to use force against trespassers.

Although a bill passed in the state legislature in February expands the space in which a homeowner can legally shoot an intruder, the new statute may not apply to Larry Staley, who says he accidentally shot Cross as he fled from what Staley believed was an attempted theft at Staley's Sherwood home. A police investigation into the incident is ongoing and Sherwood police are saying very little about what they've found.

Although the Sherwood police refused to release a report or talk about the shooting, Staley has given an account. In the early hours of Oct. 23, the police responded to a telephone report of two people on Staley's property. Officers searched the premises — Staley has a house and a separate shed on a large lot — but found no suspects.

Twelve hours later, however, Staley reported that he had found Cross's corpse in a creek bed at the edge of his property, about 40 yards from his house. In an interview with KTHV, Staley said he fired five shots from a Browning .22 pistol into a grove of pine trees as a warning. He then unloaded the rest of the magazine toward the creek, away from the fleeing intruder. He said he feared these shots killed Cross.

What actually happened remains murky. Although the warning shots were fired in the dark, and although Staley reported them as random, Cross's body had two entrance wounds, one in the arm and one in the mid-section.

Staley's remarks about the case have been inconsistent. Contrary to what he told KHTV, he told the Arkansas Times that Cross's body was found near the area where he fired. About a week after telling KHTV that he was pleased with the Sherwood police, he told the Times that he was upset with the officer who responded to the initial theft call and wished that he hadn't come at all. He added that he had no problems with the investigative team looking into Cross's death.

In the KTHV interview, Staley said that two men were involved in the robbery. He said he saw a white man standing by his daughter's window as a hooded man of indeterminate race went to a shed where Staley keeps four-wheelers. Although he didn't get a good look at Cross until he found his body, Staley told KTHV that he was certain that Cross, who is black, was the man trying to steal the four-wheelers.

But on Oct. 24, Sherwood police arrested another black man, Lamarcus Dunn, 18, on theft and trespassing charges connected to the case. A Sherwood police spokesman said Dunn was arrested at Arkansas Children's Hospital, which he had entered on Oct. 23, the day of the reported theft attempt.

Last Friday, Staley told the Times that he now believes Cross and the man trying to steal the four-wheelers were two different people, and that there must have been at least four robbers on the job: Cross, Dunn, the white man who he saw by his daughter's window, and the hooded man who went for the four-wheelers. He said he saw neither Cross nor Dunn in the course of the theft.

Staley told the Times that even though the police know the identities of the two men he saw on the property, they have refused to make further arrests. Asked how he can be certain, Staley said, “Everyone at [my son's school] knows who they are.”

In the KTHV interview, Staley reported that his son had been threatened by a gang with whom the would-be thieves were purportedly involved. The school's principal sent Staley's son home out of concern for his safety. Staley told the Times that his son will not be returning to that school. Cross was a student at the school, and Dunn graduated from it last year.

This is not the first time that Staley has used a gun to fend off trespassers. Last July, Sherwood police arrested a man who fled Staley's property after Staley and his wife fired warning shots. In the KTHV interview, Staley said that last month's theft attempt was the sixth such incident on his property in the past two years. He said that he had been robbed of property valued at $20,000, including three four-wheelers and $11,000 worth of saltwater fishing tackle.

Since Cross's death, there has been some confusion about when a property owner has the right to shoot intruders. The law sets limits and it does not allow, as one Arkansas Democrat-Gazette article reported, use of guns to protect property.

Use of a gun has always been legal in self-defense, though a person was obligated to retreat if possible before using a weapon. Before last spring's legislative session, a homeowner could only legally shoot an intruder if the intruder entered the house. Act 111, which the state legislature passed in February, added some land around the house to the space in which a homeowner — if threatened — may shoot without retreat. The legal term for this space is “curtilage.” According to Act 111's definition, curtilage is “land adjoining a dwelling that is … habitually used for family purposes, but not necessarily enclosed, and includes an outbuilding that is directly and intimately connected with the dwelling.” It might include a deck or a separate garage. Depending on architecture and design, curtilage is different for different properties. On a large holding, it generally does not extend to the boundaries of the property.

Act 111 was a part of a larger bill, several provisions of which failed in the Senate Judiciary Committee. The full bill would have made it legal to shoot in any public area — such as a park or a city street — where a person threatened with deadly force has no safe retreat. Sen. Jerry Taylor, who sponsored Act 111, said he would try to pass that measure again in the next session.

But Taylor also pointed out that there are limits to when you can fire at an intruder. “I wouldn't support a bill where you could shoot somebody just wandering around on your property,” he said.

While Act 111 expands the territory in which a property owner can confront an intruder with force, it doesn't set guidelines as to when shooting is appropriate. That has to be determined on a case-by-case-basis.

“This law is strictly to say that you have the right to defend yourself on your property without having to run away,” said Rep. Shirley Walters, another sponsor of Act 111. “There has to be some kind of danger there.”

If there is not an obvious threat of deadly force against a person, then it becomes more difficult to argue that a homeowner is within his rights to shoot. For example, Act 111 would not apply to a case in which someone shot a trespasser on his yard if the shooter didn't believe his life was in danger. It might not even justify shooting a thief if the thief could be stopped without violence and posed no deadly harm to the homeowner.

The law gives a homeowner broad discretion in determining whether he's in danger, however. If an intruder has a weapon or is wearing a mask, that could be a clear indication of intended force. But more nuanced factors — such as the presence of multiple trespassers or a history of theft at the property — might also serve as a defense for a homeowner with an itchy trigger finger.

Jeff Rosenzweig, a criminal defense lawyer in Little Rock, stressed that it's the homeowner's perception, not the intruder's intent, that matters in the eye of the law. “The question is not what someone was doing [to you], or threatening to do — the question is what did you reasonably believe,” Rosenzweig said. He also noted that if an investigation finds a shooter was reckless in the belief that he was threatened, he might end up charged with manslaughter or negligent homicide.

Staley's culpability will remain unclear until the Sherwood police complete their investigation. The shooting may not have been accidental, and it is not even certain that Staley was the gunman, despite his belief to the contrary. (Staley told the Arkansas Times he was sure his warning shots killed Cross.) The Pulaski County prosecutor's office will make the final decision about charges in the shooting. There is no timetable for when that might happen.


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