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Vigilantes, Victims and Deadly Force : 'Old West' California Gives More Latitude Than New York

January 10, 1985|LEE DEMBART | Lee Dembart is a Times editorial writer

A 37-year-old man is accosted on a New York subway train by four teen-agers who demand $5; he pulls a gun, shoots all four and is now charged with attempted murder. An 81-year-old man and his 81-year-old wife, going to a New Year's Eve party in a Beverly Hills apartment building, are stopped by a thug who demands their money and jewelry while holding his hand in his pocket as if he had a gun; the elderly man draws his own pistol and slays the robber, but will face no charges for the shooting.

While the two incidents clearly are different, they also have many important similarities, and they both raise the fundamental questions: When is it appropriate to use deadly force against an assailant? When is it reasonable to be so fearful during an assault that the law will allow you to kill your attacker? The answers say much about the two cases, the different laws that apply in New York and California, and society's broad concern with the menace of crime and the inability of the police to protect law-abiding citizens.

Much about the New York subway case is unclear and must await full explication in court. Did Bernhard Hugo Goetz, who has admitted the shooting, go into the subway illegally armed, hoping that someone would attack him so that he could avenge an earlier mugging--a reenactment of Charles Bronson's role in the movie "Death Wish"? "There are statements that he made that could be construed as premeditation," said a prosecutor in New Hampshire, where Goetz surrendered to the police. The shape of the case is likely to rest on Goetz's state of mind.

Premeditation aside, considering the scene of the subway shooting makes it seem more justified. Here is a man--sitting alone, minding his own business--suddenly confronted by four hooligans (all had arrest records) who try to intimidate him into handing over some money. According to witnesses, no weapons were threatened or produced, but sharpened screwdrivers were found in the youths' possession.

But weapons or no, wouldn't a reasonable person be in fear, if only because of the number of assailants and the inability to escape from a moving subway train? Do you have to wait until you see a weapon? Isn't it, then, too late to respond?

The subway case "looks like a robbery to me," said Donald R. Wager, the lawyer representing Thomas C. Korshak, the man who killed his assailant in Beverly Hills last week. That was a clear case of robbery, according to the victims. As told in the police report, this is what happened:

"Mrs. Korshak was slightly ahead of Mr. Korshak in the hall and pushed the elevator button. At that moment Mr. and Mrs. Korshak heard a soft voice demand, 'Give me your money and jewelry. Drop it. Be quick.' Then they looked and saw the suspect, a large male black with his hand in his jacket pocket as if pointing a gun at them.

"Mr. Korshak, thinking that the suspect meant for him to drop the bottle of liquor he was carrying to the party and not wanting to break the bottle, began to set it down on the floor. The suspect then raised his voice and said, 'I told you to hurry up, ------. Give me your ------ money and jewelry now.'

"Mr. Korshak states that at that moment he felt certain that after he gave the suspect his money and jewelry the suspect would strike or beat them, and that if the suspect went through his pockets and found the gun he was carrying the suspect would use it on them.

"The suspect was now nearly yelling for the Korshaks to give him their money and jewelry, and advanced on Mr. Korshak threateningly to a distance of no more than two or three feet. Mr. Korshak stated that he was very fearful for his safety and even more so for his wife's safety, and he reached into his overcoat pocket, drew the gun and fired."

The robber, as it turned out, was not armed.

According to Kenneth C. Wullschleger, the deputy assistant district attorney handling the case, Korshak's action was fully consistent with California law, which allows the use of deadly force to prevent the commission of a felony, such as a robbery, or to prevent someone from doing "great bodily injury." He says that Korshak reasonably believed that he and his wife were threatened with great bodily injury.

"I don't see any way in a criminal court that we could convict Mr. Korshak of misconduct as far as the shooting is concerned," Wullschleger said. "I don't think you could find anybody who would vote him guilty." (Korshak does face two misdemeanor weapon charges for carrying a loaded gun without a permit, to which he has pleaded not guilty.)

The law in New York is different and much tougher on self-defense claims. For one thing, deadly force may be used only when deadly force is threatened or is about to be threatened. And deadly force may not be used if the victim can avoid it by retreating.

"That's a classic view, but it's not the Old West view," said Wager, Korshak's lawyer. "In California you don't have to retreat. You can even pursue the guy."

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