LAW

Fear, arms and a verdict

MALCOLM GRAY July 6 1987
LAW

Fear, arms and a verdict

MALCOLM GRAY July 6 1987

Fear, arms and a verdict

LAW

Steven Kesler was back behind the counter of his IDA drugstore on Calgary’s 33rd Avenue S.W. late last week—only a few metres from the spot where, on Nov. 8, he killed would-be robber Timothy Smith. On June 25 an Alberta Court of Queen’s Bench jury of 10 men and two women found the 41-year-old storekeeper not guilty of a second-degree murder charge—after spending 12 hours deliberating his fate. An elated Kesler reacted to the decision by thrusting a clenched fist into the air; then he turned to embrace his daughters Marlene, 13, and Patricia, 11. They and his wife, Mary, were present in the store during the armed robbery attempt. And in summing up the case, defence lawyer James Ogle successfully argued that the slightly built Yugoslav immigrant had fired the shotgun blast in an attempt to arrest the robber and that he had not intended to kill Smith. Declared Ogle: “He is not some vigilante or Rambo. He is rather a decent man who loves his family very much.”

Calgary residents who raised more than $37,000 to pay his legal expenses clearly share that view. But some police officials have expressed concern that other store owners might emulate Kesler and take the law into their own hands. Declared Calgary Police Supt. Leonard Esler: “If one person arms himself, then the next one will, and pretty soon you will end up with

an armed community.” Added Donald Smith, the brother of the 27-year-old victim: “I don’t think they realize that what they’ve done is to give store owners the right to start shooting at people—and one of these days the store owner is going to shoot an innocent bystander.”

Ogle, for one, rejects that view— and he added that there was no comparison between his client’s situation and a case that focused on the use and limit of deadly force in self-defence. On June 16, while the 14-day Calgary trial was still in progress, a New York City jury acquitted Bernhard Goetz of attempted murder. Police laid that charge after a December, 1984, shooting incident in which the 39-year-old electrical engineer wounded four young black men on a crowded subway car after they had approached him and asked for $5.

In contrast, Ogle noted that the Calgary shooting had occurred during the third armed robbery attempt on Kesler’s store in less than seven months. Declared Ogle: “It’s the facts of this case that the jury heard, and they send no message except that this man was justified in what he did.” But as he regained his freedom, Kesler refused to answer the key question that remained after his trial: whether he would still keep a gun in his store.

MALCOLM GRAY

JOHN HOWSE