Firearms Owners Against Crime
Institute for Legal, Legislative and Educational Action
Institute for Legal, Legislative and Educational Action
A Marin County doctor who had charges dismissed against him earlier this month is still facing a grand jury indictment obtained by a prosecutor determined to see him convicted, the San Francisco Chronicle reported Thursday. Dr. James Stephen Simon, a surgeon and occupational medicine and aerospace medicine practitioner with no criminal history, had more than 50 registered firearms, the majority being sporting weapons and collector’s items, and 200 boxes of ammunition, seized by police following a self-defense shooting in 2014. Simon had already been acquitted of” attempted voluntary manslaughter and assault with a firearm” on January 7, when Marin County Judge Kelly Simmons “dismissed charges against [the] 71-year-old doctor accused of shooting a 70-year-old man who followed him to his Corte Madera home in a road-rage confrontation.” The ruling, following a two-day preliminary hearing, appeared to be the end of a “case [that] had been prosecuted personally by Marin County District Attorney Ed Berberian.”
The shooting itself seems understandable, regardless of any “offending” traffic maneuver that precipitated it, which reportedly was pulling his Smart Car around a Mercedes stopped at an intersection when it did not proceed after the light turned green. The doctor, with his wife in the car, was followed home by 69-year-old retired mortgage broker William Osenton, who, after “tailgating and accelerating and driving extraordinarily aggressively,” drove his car so doggedly in pursuit that it was struck by the garage door when Simon tried to close it. Rushing into the house to retrieve a handgun, Simon fired a warning shot, and then fired two shots that struck the trespasser.
The 911 call made immediately after the shooting reveals a distraught Simon telling the operator to “You’ve got to help me. Help him.” It also shows how citizens attempting to do the right thing can make admissions unnecessary to getting emergency assistance that a defense lawyer would advise against.
For his part, this appears personal for DA Berberian, who was able to refile after a preliminary hearing dismissal without running legally afoul of double-jeopardy prohibitions, and submit his case to a grand jury in which the defense is barred from cross-examining prosecution witnesses. But the move has been questioned by a former prosecutor now working as a defense attorney, asking why Berberian is doing it now, and asking if this is a “vindictive prosecution,” or if there is new information.
Noting he is prohibited from commenting on grand jury proceedings, perhaps the DA’s mindset can be gleaned from a statement that is on public record. Berberian had previously maintained the shooting was inappropriate and illegal due to what he called “community standards.” In Marin County, those standards place a political “stigma” on gun ownership, and Berberian’s personal hostility to gun ownership, where he goes so far as to invite citizens to "surrender" their firearms to a "buyback" program, is seen by some as an “unhealthy obsession.”
In the doctor’s case, Berberian revealed the standards he wants imposed when he argued Simon sought a confrontation and should have locked himself in his home (presumably making sure he could safely usher his wife in first). Berberian also criticized the number of firearms Simon owned, alleging that showed the doctor was “hypersensitive,” and prone to using unlawful deadly force due to “a victimization complex.”
A past reliable source tells this column “the arraigning judge that dismissed the case and ordered the return of the guns was incensed and admonished the DA but noted 'It is very difficult to imagine a Marin county grand jury siding with a ... gun owner.'" The source further surmises this will end up as backdoor confiscation of Simon’s collection, and if the prosecution is successful, it may even have wider implications under a new reporting law that allows for gun confiscation when family members, who may have incentives beyond loving concern, allege incapacitation.
The other point illustrated is that until he could get to his home to retrieve a firearm, the doctor and his wife were practically defenseless. California's "may [not] issue" permitting system, currently being contested, means in areas where the political climate embraces Berberian-style "community standards," those without strong local and state government connections are left with calling 911 as their only recognized "legal" option for escalating defensive force to a level necessary to stop a physical threat.
Suggested Links
http://www.examiner.com/article/vindictive-prosecution-subjects-self-defense-to-community-standards