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Follow up on Wilmette, IL self defense shooting
nononsense
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Wilmette man puts gun ban to novel test
He says ordinance invades privacy
By M. Daniel Gibbard
Tribune staff reporter
Published February 18, 2004
A Wilmette man who was cited for violating the village's handgun ban after he shot
an intruder in his kitchen has invoked U.S. Supreme Court rulings on sodomy and
pornography laws to argue that the gun ban violates his privacy rights, his lawyer
said.
Hale DeMar's attorney has asked a Cook County circuit judge to dismiss his case and order the village to pay
DeMar's legal bills.
"I want the court to say, `The Village of Wilmette cannot
come into his home and take his gun under this
ordinance. They are invading his right to privacy,'" said
Robert Orman, DeMar's attorney.
But legal experts said that although the defense
strategy is original and possibly unprecedented, it is a
long shot, because the courts have wide latitude to
determine what is protected under constitutional
privacy guarantees.
DeMar, 54, of the 0-99 block of Linden Avenue, shot a
Chicago man accused of entering the family's home
twice within 24 hours. DeMar confronted him in his
kitchen Dec. 29 and shot him in the shoulder and calf.
In January Wilmette charged DeMar with
misdemeanors for illegally owning two handguns. He
faces a fine of up to $750 if convicted.
In a counterclaim filed in Cook County Circuit Court, Orman wrote that the village and its gun-ban ordinance
"punish DeMar for protecting himself and his family" and "strip DeMar of his constitutional right to privacy in the
home."
Orman cites two recent Supreme Court rulings that upheld privacy rights within a person's home: a ruling that
overturned Texas' sodomy law last summer and an earlier ruling in a Georgia case that said it was not illegal to
have pornography in the home.
Orman said he is not trying to overturn the gun ban but to put a "judicial gloss" on it that would render it
unenforceable in a self-protection case such as DeMar's.
Tim Frenzer, the village's attorney, said DeMar's defense is "completely lacking in merit."
"The Supreme Court has never extended the right of privacy beyond traditional areas of reproductive freedom
and other personal decisions," Frenzer said. "Local ordinances on handguns have been [upheld] in this state for
decades. Their validity is beyond reasonable debate."
Legal observers said DeMar's defense is unusual and unlikely to succeed.
Dave Hardy, a lawyer in Tucson, Ariz., said that in two decades of working on gun-related cases, he had never
heard of invoking the right to privacy as a defense. Courts have ruled in favor of privacy rights in pornography
cases, but they have rejected the defense for drug-possession offenses, Hardy said.
"The problem is that the right to privacy is extremely vague in its definition," Hardy said. "It tends to come off as
you have the right to do what the court says you have the right to do. It really comes down to whether the court is
sympathetic to what you're doing."
Dan Polsby, a law professor at George Mason University in Fairfax, Va., said: "I understand what the lawyer's
getting at ... [but] that's going nowhere.
"He's got a perfectly good point that this leaves him helpless in that situation. His only alternative is to get a
weapon more dangerous, like a shotgun."
Another expert agreed with Hardy that DeMar's best chance of success rests with a friendly judge.
"You obviously have a sympathetic plaintiff here," said Don Kates, a criminologist and retired law professor from
Washington state. "If a judge were pro-gun control but sophisticated, he would like to get rid of a case like this
and limit the prosecutions" to cases that did not involve self-defense.
The case has been continued until April.
The man DeMar shot, Morio Billings, 31, of the 2100 block of South Trumbull Avenue has recovered from his
injuries and is in custody awaiting trial on two counts of felony residential burglary and one of felony possession
of a stolen vehicle.
Wilmette officials said they will defend the village's gun ban.
"It has widespread support in the community, and village officials feel it has made the village a safer place,"
Frenzer said.
Copyright c 2004, Chicago Tribune
http://www.chicagotribune.com/news/local/chi-0402180336feb18,1,7823786.story?coll=chi-news-hed
You have to log in to use the link.
He says ordinance invades privacy
By M. Daniel Gibbard
Tribune staff reporter
Published February 18, 2004
A Wilmette man who was cited for violating the village's handgun ban after he shot
an intruder in his kitchen has invoked U.S. Supreme Court rulings on sodomy and
pornography laws to argue that the gun ban violates his privacy rights, his lawyer
said.
Hale DeMar's attorney has asked a Cook County circuit judge to dismiss his case and order the village to pay
DeMar's legal bills.
"I want the court to say, `The Village of Wilmette cannot
come into his home and take his gun under this
ordinance. They are invading his right to privacy,'" said
Robert Orman, DeMar's attorney.
But legal experts said that although the defense
strategy is original and possibly unprecedented, it is a
long shot, because the courts have wide latitude to
determine what is protected under constitutional
privacy guarantees.
DeMar, 54, of the 0-99 block of Linden Avenue, shot a
Chicago man accused of entering the family's home
twice within 24 hours. DeMar confronted him in his
kitchen Dec. 29 and shot him in the shoulder and calf.
In January Wilmette charged DeMar with
misdemeanors for illegally owning two handguns. He
faces a fine of up to $750 if convicted.
In a counterclaim filed in Cook County Circuit Court, Orman wrote that the village and its gun-ban ordinance
"punish DeMar for protecting himself and his family" and "strip DeMar of his constitutional right to privacy in the
home."
Orman cites two recent Supreme Court rulings that upheld privacy rights within a person's home: a ruling that
overturned Texas' sodomy law last summer and an earlier ruling in a Georgia case that said it was not illegal to
have pornography in the home.
Orman said he is not trying to overturn the gun ban but to put a "judicial gloss" on it that would render it
unenforceable in a self-protection case such as DeMar's.
Tim Frenzer, the village's attorney, said DeMar's defense is "completely lacking in merit."
"The Supreme Court has never extended the right of privacy beyond traditional areas of reproductive freedom
and other personal decisions," Frenzer said. "Local ordinances on handguns have been [upheld] in this state for
decades. Their validity is beyond reasonable debate."
Legal observers said DeMar's defense is unusual and unlikely to succeed.
Dave Hardy, a lawyer in Tucson, Ariz., said that in two decades of working on gun-related cases, he had never
heard of invoking the right to privacy as a defense. Courts have ruled in favor of privacy rights in pornography
cases, but they have rejected the defense for drug-possession offenses, Hardy said.
"The problem is that the right to privacy is extremely vague in its definition," Hardy said. "It tends to come off as
you have the right to do what the court says you have the right to do. It really comes down to whether the court is
sympathetic to what you're doing."
Dan Polsby, a law professor at George Mason University in Fairfax, Va., said: "I understand what the lawyer's
getting at ... [but] that's going nowhere.
"He's got a perfectly good point that this leaves him helpless in that situation. His only alternative is to get a
weapon more dangerous, like a shotgun."
Another expert agreed with Hardy that DeMar's best chance of success rests with a friendly judge.
"You obviously have a sympathetic plaintiff here," said Don Kates, a criminologist and retired law professor from
Washington state. "If a judge were pro-gun control but sophisticated, he would like to get rid of a case like this
and limit the prosecutions" to cases that did not involve self-defense.
The case has been continued until April.
The man DeMar shot, Morio Billings, 31, of the 2100 block of South Trumbull Avenue has recovered from his
injuries and is in custody awaiting trial on two counts of felony residential burglary and one of felony possession
of a stolen vehicle.
Wilmette officials said they will defend the village's gun ban.
"It has widespread support in the community, and village officials feel it has made the village a safer place,"
Frenzer said.
Copyright c 2004, Chicago Tribune
http://www.chicagotribune.com/news/local/chi-0402180336feb18,1,7823786.story?coll=chi-news-hed
You have to log in to use the link.
Comments
Personally, I wouldn't live in a city that outlawed handguns.
Bruce