Can someone help me understand how a shooting spree ended up a misdemeanor? |

Can someone help me understand how a shooting spree ended up a misdemeanor?

John DiMambro
Editor of the Appeal

Here we go again. Real life’s very own version of law and order. Or should I describe the particular version to which I make reference as unlawful and disorderly? In February, I wrote a column that offered serious thoughts on why David Scott Killen’s BB gun demonstration through the streets of Carson City, South Lake Tahoe and Gardnerville in February should be considered far more dangerous than a misdemeanor, or in this case, a gross misdemeanor for property damage.

In my view, the 23-year-old should face felony charges. He used our streets as a shooting gallery for the brainless, an arcade of anonymous targets. However, the targets were anonymous only to him.

I wasn’t even shot at, and I’m probably angrier than those who were. The “go to your room without supper” punishment administered to Killen is a shameful defacement of the principles on which the law should stand. Relatively speaking, I had worse sentences given to me for talking back to my parents when I was a kid. At least the pain of the penalty was enough for me to give repeated acts much thought and ultimately refrain. To think that Killen escaped a felony charge because the specific weaponry offense for shooting from a vehicle is described as discharge from a firearm, and a BB gun does not meet the definition of a firearm, which is a trajectory propelled by combustion, is of itself a crime. Does gross misdemeanor really mean “grossly missed demeanor?” I think our law has missed the point anyway, while others got the point of Killen’s CO2-powered BB rifle.

According to Nevada state law, we have three primary levels of crimes: misdemeanors, which apply to the first and second offenses of DUI and domestic battery if within seven years of each other, and traffic violations; gross misdemeanor, which is supposed to be the premium-unleaded version of a misdemeanor, but has little or no relation at all to a felony; and then, a felony. Take a look at that list, and know that Killen received a charge that is just one tiny step away from a traffic violation, and a skyscraper staircase away from a felony. Can someone – maybe a 4-year-old – explain this to me? A gross misdemeanor is an in-betweenie – a charge to apply when justice really doesn’t know how to treat a certain crime. To me, the charge should have been a felony. No need for uncertainty. And by the way, Nevada is one of only a handful of states that has such a charge.

I refuse to even try to understand the legal logic applied to the light sentence of up to – let me repeat – up to one year in prison, $2,000 of piggy-bank money for a fine, and an undetermined amount in restitution. Let me save everyone some time here. The restitution pay-out will be about, oh, let’s say, nothing. That charge is like giving someone a lottery ticket for a Christmas gift. It means I think enough of you to give you nothing for a gift. In the case of David Killen, his gift is found in the nothingness of the restitution charges. He’s a kid. A 23-year-old adult who is a kid in terms of wherewithal to pay the dealer. So, once again, who loses at this Blackjack table? You got it, the store owners and the people who could have had their eyes shot out of their skulls, or scared so badly by a BB fired through their car windows that they could have crashed their vehicles into a telephone pole, or into a crowd of pedestrians like crazed bulls.

Felonies have five categories, A through E, with A being the grade for murders, among others. According to state law, substantial bodily harm must be caused to receive a category C felony. Putting out an eye qualifies for the rarely used “Mayhem” charge, which is basically a Category B felony punishable for two to 10 years in prison and a $10,000 fine. So, you see, someone must be injured to the point of not seeing, or having their arm amputated, or their spine broken, for the legal system to administer justice that truly is just.

So, what can we expect from the malicious gunfire salute of citizenship by young Killen when his one-year sentence is over? Maybe he’ll buy a handgun or a shotgun and become more precise in his aim and shooting precision for the next time. And you can bet your last pellet discharge that the son-of-a-BB will not stop at shooting windows or passing cars. He is already a convicted arsonist, having been charged for setting 12 fires in four counties in November 2002, for which his four-year sentence was suspended and reduced to one-year in prison. Only one year. Sound familiar? And being the law-abiding citizen that Killen is and has proved himself to be over the years of his young adult life, he violated his house arrest probation after being released from prison upon serving his one-year term, and was caught off his home-restricted premises totally sauced from drinking. Back to prison he went. And out he came in August 2006, having been so effectively reformed that he waited a full six months to commit his next crime – the trajectory of BB streams aimed at store windows that served as the only shield of protection for people, including children, and passing vehicles.

• John DiMambro is editor of the Appeal. You can reach him at