Legal experts: Waukegan clerk was wrong to shoot robber

While prosecutors investigate whether to file charges against a Waukegan convenience store clerk who gunned down a robber, legal experts say Monday's shooting didn't sound like self-defense.

"It's retaliation and he should absolutely be charged," said John Decker, a professor at the DePaul University College of Law. "This is basically taking the law into his own hands and retaliating after the threat had left."

Brandon Starks, 20, of North Chicago was shot to death Monday night after police said he robbed People's Market, 901 8th St.

As Starks, a convicted felon who was armed with a pistol, rode away from the store on a bicycle, the store clerk went outside with a gun and shot Starks, police said.

Starks was hit once in the back and once in a leg, Lake County Coroner Richard Keller said. The deadly shot hit Starks' heart before exiting his chest, Keller said.

Waukegan police haven't identified the clerk and won't until charges are filed, if they are filed at all, Cmdr. Wayne Walles said.

Walles originally said the clerk did have the required paperwork to obtain and carry a firearm, but later confirmed the gun belonged to the store owner, who had a valid firearm owners identification card. He said the clerk did not possess a FOID card and was not legally allowed to use the gun.

Officials could decide whether to charge the clerk by early next week, said Lake County Assistant State's Attorney Steve Scheller, head of the felony review division.

Leonard L. Cavise, a professor at DePaul's law school, said the definition of self-defense is the same across the country.

"You have to be in imminent fear of great bodily harm in order to respond with grievous force," said Cavise, who specializes in criminal law, criminal procedure and evidence.

Although people have a right to defend themselves, it doesn't seem the store clerk was doing that in this case, said Doug Pennington, spokesman for the Washington-based Brady Campaign to Prevent Gun Violence.

"It's hard to show that you were defending yourself by shooting someone in the back while they were riding away from you on a bicycle," Pennington said.

The clerk may have been justified if he felt threatened again when Starks passed the store on the bicycle before riding away, Decker said.

"Was he brandishing his gun, or was he returning to take a shot at the clerk in a 'leave no witnesses' situation?" Decker said. "That's the real question. This will all come down to whether the clerk felt subjectively and objectively threatened at the time he fired the gun."

Even if Starks threatened the clerk outside the store after the robbery, "he should've stayed in the store in the first place," Cavise said.

Police are searching for a second suspect who did not enter the store but aided Starks before the shooting. That suspect is in his late teens or early 20s, tall, and thin, police said. He was last seen wearing a long-sleeved red shirt, black shorts and black and red tennis shoes.

While experts might believe the shooting was not warranted, most anonymous bloggers on the Daily Herald Web site felt the clerk was justified to shoot Starks.

"I'm so pleased, the clerk is a hero," one person wrote.

Others believed charges should be filed against the clerk.

"What if in the process of shooting the fleeing robber, the clerk mis-aimed and shot some kid in the back seat of mommy's car?" one reader wrote.

DePaul's Cavise criticized the anonymous Internet posters who backed the clerk. People who support vigilantism, he said, are anti-law.

"He turned himself into judge, jury and executioner," Cavise said. "If the guy is just riding away, you don't have the right to take the law into your own hands."

<div class="infoBox"> <h1>More Coverage</h1> <div class="infoBoxContent"> <div class="infoArea"> <h2>Stories</h2> <ul class="links"> <li><a href="/story/?id=242609&src=116">Waukegan store clerk fatally shoots robber, may face criminal charges <span class="date">[10/14/08]</span></a></li> </ul> </div> </div> </div>