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Murder vs. Self-defense

Some say cops get off easy

By Stephen Dark
Posted // August 23,2011 -

When Steve Strate walked up the stairs from the basement of his mother-in-law’s Orem rambler on Oct. 25, 2009, he put his .380 handgun on the porch and called 911. In a cool tone, he informed the operator he had just killed his brother-in-law, Marvin Sidwell. “He came at me with a damned chair.”

The Utah County Attorney’s Office charged Orem-based contractor Strate with murder. At his preliminary hearing on March 24, 2010, Strate’s attorney, Ron Yengich, pointed out that not only had the enraged 51-year-old Sidwell threatened his neighbor and his sister—Strate’s wife, Linda—he also had methamphetamine in his system, potentially amplifying the aggressiveness of a man his own mother, 79-year-old Lavern Sidwell, in court described as “paranoid.” Lavern Sidwell noted, “Stephen was very good to Marvin, and Marvin was always bragging about Steve.”

Police found Sidwell on his back, with multiple gunshot wounds, and a 6.8 pound steel stool just above his outstretched hands, consistent with Strate’s story, Yengich argued, that he had legally defended himself. Judge James Taylor, however, felt that a jury should decide whether it was self-defense and ordered Strate to stand trial.

That 56-year-old Strate should be prosecuted for what his close friend, attorney and gun-rights activist Brian Greene believes was clearly self-defense, while police officers who have used deadly force in similar circumstances have not faced prosecution, Greene says, is “a colossal double standard.” Attorney Yengich, citing Strate’s pending trial on Aug. 29, declined to comment.

The Utah legal code enshrines the right to self-defense for both peace officers and private citizens as essentially the same, namely, when a person “reasonably believes that the use of deadly force is necessary to prevent death or serious bodily injury.” But, Greene says, while police officers need only say they feared for their or another’s safety, prosecutors faced with members of the public defending themselves “substitute their own theory of what happened over the testimony of the person who used that force,” filing a homicide charge “even without eyewitness testimony to support [the prosecutor’s] theory or contradict” the individual who employed deadly force to save his own life.

Utah County deputy district attorney David Sturgill did not return a call requesting comment, but his colleague, deputy district attorney Craig Johnson, reportedly told journalists after a 4th District Court hearing in Provo that “a stool is not up to the level that Utah law requires for shooting and killing [someone] in their bedroom.” Yengich, however, told Judge Taylor that “a chair is a deadly weapon under our statute.”

Veteran defense attorney Gilbert Athay agrees with Greene that a double standard is at work. When it comes to self-defense, he says, “If you’re a civilian, you’re in trouble. If you’re a cop, you’re OK.” While 9 out of 10 of officer-involved shootings do not result in prosecutions, he says when it comes to the average citizen, “that 9 out of 10 goes the opposite way. The law should apply equally to both.”

Under former Salt Lake County District Attorney Lohra Miller, all of the 48 officer-involved shootings that occurred during her tenure were found by her office to be justified. That led to criticism of rubber-stamping by her office, which typically investigates a shooting alongside investigators from the police department whose officer pulled the trigger, as well as, sometimes, officers from a neighboring jurisdiction. That was the case in the 2009 Wade Pennington shooting by South Jordan Officer Jared Nichols, where South Jordan Police Department, West Jordan Police Department and the Salt Lake County District Attorney’s Office all investigated and deemed justified Nichols’ shooting of an unarmed Pennington while seated in his own patrol car, through his rolled-up window.

A police shooting in September 2010 that both Athay and Greene contrast with Strate’s case followed an Ogden SWAT team in search of drugs serving a no-knock warrant on a Roy house. When six officers led by Sgt. Troy Burnett broke down the door and burst into the house at 9:30 p.m., resident and suspected drug dealer Todd Blair emerged from a hallway some eight feet away, brandishing a golf club. Burnett shot Blair dead, and the shooting was ruled as justified. While Greene says he isn’t “condemning all police shootings,” there is clearly a “minimal standard for cops, while the standard is extremely high for [private citizens].”

Athay argues the close working relationship between prosecutors and police officers can lead to “back scratching,” as prosecutors, fearful of antagonizing law enforcement or earning a reputation for being untrustworthy, are overly sensitive as to “how it would look [to be] charging police officers.” Since Sim Gill’s election as Salt Lake County district attorney in November 2010, his office has ruled seven officer-involved shootings as justified, two as unjustified, although, as yet, no charges have been filed against the two officers.

Strate and Greene may take some solace from Steven Lovendahl’s case. Attorney Steven Shapiro defended Lovendahl against an August 2007 negligent homicide misdemeanor charge. Lovendahl pleaded guilty to the misdemeanor rather than face a murder trial after he killed a man who was beating Lovendahl’s girlfriend. Despite the guilty plea, at Lovendahl’s sentencing, West Jordan 3rd District Court Judge Robert Adkins said he could not “in conscience” send him to prison. Adkins noted that Lovendahl was between a rock and a hard place, with the choice of either accepting the misdemeanor deal offered by the Salt Lake County District Attorney’s Office or running the risk of a murder trial and possibly spending the rest of his life in prison. “Under the law, not all deaths are homicides,” Adkins said. “There has to be certain conditions met and in certain instances a person is justified in using deadly force.” Adkins sentenced Lovendahl to 36 months probation.

Utah Statewide Association of Public Attorneys’ executive director Paul Boyden represents prosecutors. He argues that while the standard for police and citizens to use deadly force in order to prevent deadly force is essentially the same, it is also different. That’s because police officers “are imposed on an already out-of-control situation, with a duty to bring things under control.” They can have a “split second” to identify who’s good and who’s the bad guy. “It sounds like a technical issue, but it’s a very real issue.” He points out that in the second and a half it can take an officer to draw a weapon, someone from 21 feet away can deliver a mortal blow with a knife or a club. “It does give you an idea of how dangerous it is when somebody with a club or a knife is determined to kill you.”

This arguably underscores Greene’s belief that “the benefit of the doubt ought to go to private citizens who don’t have the training or the back-up,” when confronted by a situation such as Strate was. Why, Greene ultimately wants to know, “should a professional who is entrusted with power be held to a lower standard?” 

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Posted // August 24,2011 at 12:09

Can you imagine, just for a second, shooting at someone that is fairly close range... and missing. Pause right there in that instant for a moment, if you can. Wow! You are now about to be attacked violently. Your gun could now possible be used on you. For that split second eternity I bet you now regret not using that gun like you were trained to..
But anyway, everyone that makes a comment about how a weopon should or shouldnt have been used in a situation is missing the point entirely. Once a gun is employed, if one party isnt extinguished, the gun was used improperly. The point is what happened before the gun was used... AND NONE OF YOU KNOW ANYTHING ABOUT THAT BECAUSE YOU WEREN'T THERE!!


Posted // August 25,2011 at 13:20 - Yeah, yeah. Everybody's an idiot except you, right? Maybe you should actually read all of the comments before blasting off your mouth. This comment board is quickly turning into something you'd read on KSL, and that makes me somewhat nauseous to consider that I was part of creating it. Jesus Christ, am I just a dumb fucking Utahn after all? Bummer. But here's my final opinion, though I'm just an idiot: That dude didn't need to be shot and the guy that shot him is a murderer (he'll spend the rest of his life trying to justify to himself killing his bro-in-law) and there's too many of you freaky Utah gun people out there with your little whatever (Bambi carries a .45! Wow! Impressive!) tucked under your shirt looking for an excuse to waste somebody.


Posted // August 24,2011 at 11:52 I love these naive idiots that suggest to shoot an arm or a leg... Like that is really going to regain control in a situation. If a civilian situation has escalated to a point where a gun is about to be used, I'm sure both parties have a deep-rooted awareness that its beyond a step-by-step process of control.. Shit has hit the fan and its about to be the grand finale for one of you, shooting an appendage would be the RECKLESS thing to do! And yet people make it sound like "playing around" with guns and shooting people as warnings is sound behavior. No, if you're using a gun you better goddamn mean what you're doing. If someone was so unsure about the severity of a situation as to shoot a person in the arm/leg without lethal intent, they are obviously terrible at recongnizing a just cause to be using a gun.


Posted // August 23,2011 at 14:40 Tell Paul Boyden any time he wants to take a run at me with a knife from 21 feet away, I'll match my .45ACP against his attack. We can put money on outcome.


Posted // August 23,2011 at 15:36 - If you were very, very fast, you'd probably shit your pants and miss. Only people that have never experienced violence speak as you have here. 21 feet is less than seven steps for me, and I am pretty fast. I'd probably run you down before you released the safety, and I'd be in your face with my knife before you had the chance to aim. Money won't do you any good after that.


Posted // August 23,2011 at 13:18 Sigh, I used exsanguinate because it popped into my head and was accurate. Why use two $.25 words when one $50 word will do :-).
I read the article, but have not followed the story because it was mined by an automatic google search I have looking for "self defense" stories. I was commenting only on the feasibility of "shooting to wound" (without that simplistic Hollywood solution I would have read the story and moved on). I simply lack the information to evaluate whether or not retreat would have been a better option.
That being said, in my opinion, the cost v benefit ratio of shooting to wound instead of "shooting to stop" regardless of my confidence in my abilities clearly eliminates the former as an option.
But, you know, if/when the SHTF in your own life, I won't be there to judge, in fact, chances are, I won't even hear about it and I certainly wouldn't know it was you so good day and God Bless.


Posted // August 23,2011 at 15:28 - I was only being half-sarcastic about your choice of words. I like "exsanguinate" a load better than "bleed out". I am with you and think that, if you intend to shoot somebody, you'd better intend to kill them. I'd never shoot without trying to kill, so, hopefully, I'll never have to shoot. I'm a total misanthrope but I don't want to kill. The shit has hit my own fan many times and I've handled it differently on most occasions. I told you that I have guns and that's true. I also told you that I had the chance to kill/maim a burglar in my home and that's true, too. What I did not tell you is that I actually held my burglar at bay with my ten inch chef's knife and the thought of burying it in his guts made me sick to consider. But I'd have done it if necessary. After I produced the knife, his attitude changed and he was not so aggressive. So, eventually, my knife went back to its place on the magnetic rack instead of into his belly. He left my home, the cops didn't do shit (morons for the most part), as usual, and, after eating some eggs, I got into my vehicle and found the prick casing houses in another neighborhood - took me less than half an hour to find him. I chased the bastard for an hour (don't have a cell phone) before somebody else offered to help and called the police. They actually decided to look for the bastard this time and found him hiding underneath a shed. And now he's in prison, yet again, for doing the same damn thing he's been doing for years. Hell, he'd only been out for two months (burglary) when I came home one Saturday morning and found him hiding in a back room, waiting for who-knows-what. It was creepy, man, real creepy. I was paranoid for months afterward, but always glad that I didn't ruin the new floor I had recently laid with his dripping guts. Incidentally, the cops that responded to my call and, later, the prosecuting attorney stated that I should have killed the guy. I thought that was odd.


Posted // August 23,2011 at 11:01 Citizens should be held to a lower standard than police. That second and a half is the same whether cop or citizen, but the cops have the training.


Posted // August 23,2011 at 13:01 - Yes, of course you're right, Ryan. But I'm not living in movie land. I own several guns and know how to use them. If I really needed to, considering that the guy was my bro in law and familiar to me, I would have attempted to shoot him in the calf or shoulder, not multiple times in the torso. Even if I had missed, the shot itself would have scared the shit out of him and possibly stopped his action. In fact, I'd have simply left the room and not shot at all. It does not sound to me like the guy needed to be shot. To shoot him multiple times was ridiculous, even if he was on meth. I love your use of the word, exsanguinate. Makes you sound very smart. Why say "bleed out" or "bleed to death" when you can say "exsanguinate"? Anyway, I don't much care, either way. There are too many people on this planet as it is and one less meth-head is fine by me.


Posted // August 23,2011 at 12:27 - Anonymous. Shooting someone in the arm or leg sounds good in the movies. In real life, not so much. The reason is twofold: a handgun, even at close range simply can't be aimed that accurately at a moving target. Everyone, (by this I mean both concealed carry permit holders and police officers) is taught to shoot center of mass for this reason. A shot aimed at an appendage is likely to either hit the torso anyway or miss entirely (endangering anyone beyond the target). Second, use of a gun is considered lethal force regardless of what part of the body is aimed at for the simple reason that the effect of a bullet cannot be anticipated. The bullet might ricochet off a bone and strike the person in the head or torso; it might sever the brachial or femoral artery causing the person to exsanguinate before aid can be given, or worse of all in a self defense situation: it might pass entirely through the muscle tissue of the arm or leg in question doing minimal damage but causing considerable pain. In short, making an enraged, drug-crazed lunatic even more angry and determined to harm you.


Posted // August 23,2011 at 12:03 - P.S. I had the chance to kill a burglar that I surprised in my home. I chose not to. He's serving 2 - 5 right now.


Posted // August 23,2011 at 12:00 - From the first paragraph or two, it's pretty apparent that Steve did not need to kill Marvin and could have shot him in the shoulder or leg, if he needed to shoot him at all. Multiple gunshot wounds? Probably not necessary.