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Incident at JCPenney

Billings Police Department investigates an incident outside JCPenney at Rimrock Mall on Feb. 25. 

The video starts on James Newman standing behind a vehicle in the Rimrock Mall parking lot, confronting two suspected shoplifters as they sit in their vehicle.

Boxed into a parking space but wanting to escape, the suspect yells to Newman from the driver's seat. Newman responds with a warning.

"If you hit me now, I will f------ open fire," he yells back. He's legally and openly carrying a handgun.

There are onlookers at the scene, including a young girl, who move back and forth through the video frame at times. Then the car lurches backward. Newman, who's off to the rear driver's side but close, steps back as the car lurches back again.

The first shot comes as the Buick moves forward a couple feet. It appears to stop at the first "POP" of Newman's gun. He's aiming downward at the tires.

Newman fires three more times as the Buick takes off forward again, this time to leave the lot. The last bullet kicks up a small snowbank as the Buick rounds a corner onto the main stretch of road in the lot, spilling items from the open rear hatch.

After police arrive, Newman is questioned and released at the scene.

A week-and-a-half after that Feb. 25 incident, police and the Yellowstone County Attorney's Office are still investigating the incident. It's up to them to determine whether Newman was justified to open fire, or whether he will be charged for what he saw as a good Samaritan act.

The legal questions at play are not only statutory. The case could also shed light on a more social view of firearm use and its limits.

"Do we want to use a gun to prevent a misdemeanor?" said Andrew King-Ries, associate dean and law professor at the University of Montana.

Citizen's arrest, self defense or both?

At its core, the situation looks like an attempted citizen's arrest. Montana has a law for that, but it's brief. A private person may arrest someone when there's "probable cause" of a crime and that "the existing circumstances require the person's immediate arrest."

The citizen may use "reasonable force" to detain the suspect, so long as the citizen notifies law enforcement. Reports indicate that Newman contacted Billings police and complied without issue.

The law's lack of language specifying what kind of force may be used leaves it up to the justice system.

"Do we want people, who may be licensed or in other words be responsible gun owners, but are not trained in law enforcement — do you want them to be using a gun in that situation?" said King-Ries, who focuses on criminal law, among other things, at UM's Alexander Blewett III School of Law.

Newman told KULR-8 television in an interview that he'd been through firearms training as part of a military career with the Marines. He also said he pulled his weapon because he and the onlookers could have been in danger from the moving vehicle.

That's where more legal questions arise. Not only does the justice system have to determine firing a gun is reasonable in this citizen's arrest scenario, but also whether it was reasonable in a self-defense situation.

"A lot of law that guides us as far as reasonableness is sort of couched in self-defense," said Yellowstone County Attorney Scott Twito.

Montana's use-of-force statute allows for deadly force only if the person believes he or she is under serious threat. A moving vehicle can be considered a deadly weapon, King-Ries said. 

But there are other factors in the case. The car was moving away from Newman when he fired his first shot. The last shot pierced the snowbank as the car was clearly leaving. 

King-Ries said the immediacy of the threat disappeared when the car began leaving. If Newman was charged and the case reaches trial, this might play a large role in determining a self-defense claim.

Others agreed with that assessment of the threat to Newman. Frank Odermann, a former Navy SEAL and firearms instructor, said this was not a victim in need of self-defense.

"Responding to someone who's placing you in danger, I think, is very different than pursuing someone who is not placing you in danger," Odermann said. 

That could involve another Montana statute, which limits the use of force by someone who's deemed an "aggressor" in a situation.

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Incident at JCPenney

Billings Police Department investigates an incident outside JCPenney at Rimrock Mall on Feb. 25. 

Finding reasonable force

Those factors might explain why the investigation continues into both the suspected shoplifting and Newman's actions. Lt. Neil Lawrence of the Billings Police Department declined to comment on the ongoing case.

Twito said that his office is trying to get all the information possible, including witness statements, videos and photos. He even mentioned an inquiry into "ricochet factors." It's what he called "the totality of circumstances."

"Really the test is reasonable force used to deter the threat," Twito said.

There are other use-of-force cases, but every one has its own set of circumstances.

A man was not charged in a 2009 incident under the "castle doctrine" after he shot another man in the head during a fight. Another man was charged with a felony in 2016 for allegedly firing his gun straight up into the air while intoxicated.

There have been multiple citizen's arrests that involved firearms as well. The Montana Supreme Court ruled in 2014 that an off-duty police officer used reasonable force to detain a suspected DUI driver.

In its ruling, the court judged the officer's actions on the citizen's arrest statute because he wasn't on the job. The officer threatened to use his gun but didn't.

"(The officer) did not draw his weapon and we are not confronted with a scenario where a citizen has elected to '(take) the law into his own hands,'" the court's opinion stated.

In at least two cases since October, citizens have used, but not fired, guns to apprehend suspects prior to law enforcement's arrival.

On Feb. 7, a road rage incident in Billings Heights ended with the driver of a commercial truck running over another man twice after a confrontation. A passenger in the victim's pickup then held the commercial driver at gunpoint until police arrived. The driver was detained, and at the time police said the man with the gun appeared to be the legal owner of the firearm and the circumstances would allow for his actions.

In an October incident downtown, a volunteer firefighter held a man who ran from a rollover crash at gunpoint until law enforcement arrived. A Montana Highway Patrol sergeant at the time said the help from citizens in the arrest was "greatly appreciated."

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General Assignment Reporter

Reporter for The Billings Gazette.