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Shooter strikes law's gray area

Man tried to stop shoplifting suspect

By Andi Atwater
June 1, 2005 - Authorities still don't know whether they will charge a Fort Myers man for shooting his gun in public Sunday to stop a suspected shoplifter who was driving recklessly.

Off-duty security guard Donald Biggs, a congenial man with gun training and concealed weapons permits, said he fired his 9 mm handgun at the suspect's tires after the man hit a parked car, ran over a store employee's foot and was turning in circles with another employee hanging out of the vehicle. At least 30 bystanders stood gaping nearby.

"It was bedlam," said Biggs, 69, of Fort Myers. "I stood there for a minute and I thought, this guy's going to hurt somebody bad. This guy's got a truck and he's running into people. That's his weapon. I was going to take out both rear tires."

The bullets hit the wheels instead, Biggs said, and the suspect drove away. No one was injured by the gunfire, but a store manager was bruised after she was struck by the shoplifter, and an 18-year-old store employee suffered foot injuries.

The shoplifting suspect, Matthew DePalma, 38, of Cape Coral, was picked up at his home later after he was tracked through his license plate — the way it should have been done in the first place, authorities said.

DePalma faces multiple charges: hit and run with injuries, hit and run with property damage, shoplifting and three counts of resisting the recovery of property belonging to a merchant.

"I'm thankful no one was seriously injured," said Maj. Doug Baker, of the Fort Myers Police Department. "That was a stroke of luck. This sort of thing really scares us."

Police are wary of condoning Biggs' behavior, although legally Biggs may have been justified.

Florida statutes allow for discharging a firearm in public provided the person is defending his life or the lives of others who are in imminent danger.

"He said the magic words, words to the effect the guy was coming around again, trying to run somebody over," said felony Supervisor Scott Cupp with the state attorney's office, which will be reviewing the case.

"Then, arguably, he could be justified. Obviously we don't want people whipping out guns in public ... but in isolated situations where somebody is having their life threatened — an immediate threat — the law recognizes the ability to then defend yourself or others. It will be looked into."

It's a gray area, police say. An event that involved a misdemeanor shoplifting crime shouldn't have escalated into the use of a deadly weapon.

The store employees — including one who was fighting with the suspect inside the getaway vehicle while being dragged around the parking lot — shouldn't have been involved, either, police said.

"Always dial 911 to ensure your safety, your family's safety and others around you. Get the information: a suspect description, a vehicle description and let the police handle it," Baker said.

Police are reviewing the case and considering whether Biggs broke the law when he fired his gun inside city limits, a misdemeanor charge.

"When you take matters into your own hands, whether with physical force or firearms, there's no way can you ensure ... that it goes the way you want it to," Baker said. "You want to do the right thing, and that's admirable, but it's a liability issue. You could be wrong. We would rather not people take that approach."

Biggs said he takes his weapons very seriously and wouldn't have used his handgun had the situation not felt life-threatening.

In fact, in the five years he has carried guns here, Sunday was only the second time he'd ever pulled his gun out of the holster, Biggs said.

Unfortunately, the involvement of the Publix employees and the crowd in the parking lot escalated the crime into a dangerous situation, he said.

"Shoot somebody for stealing groceries? Not in my line of business," Biggs said. "The Publix employees shouldn't have gotten involved. They should have just observed, taken the license plate numbers and called the police. They would have picked him up and we wouldn't have had this mess."

• Fort Myers resident, Donald Biggs, 69, displays a 9 mm pistol he used to try and stop a shoplifting suspect in the parking lot of a Publix at 3255 Cleveland Ave.


On discharging a firearm in public (FLORIDA STATUTE 790.15):
"Any person who knowingly discharges a firearm in any public place or on the right-of-way of any paved public road, highway, or street ... is guilty of a misdemeanor of the first degree. This does not apply to a person lawfully defending life or property or performing official duties requiring the discharge of a firearm..."

On justifiable use of force (FLORIDA STATUTE 776.012):
"A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against such other's imminent use of unlawful force.
"However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony."

To read in more detail the Florida statutes that govern weapons and firearms, visit online:


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