Appeal filed in case of man who shot during citizen's arrest

The Carson City District Attorney's Office filed the final brief this week in a Nevada Supreme Court appeal aimed at prosecuting a man it believes unlawfully took the law into his own hands.

Challenging a September 1998 dismissal by District Judge Michael Fondi, District Attorney Noel Waters is hoping charges will be reinstated against defendant Rolland Weddell.

Weddell was charged in October 1997 with assault with a deadly weapon and discharging a firearm in a public place. He maintained that firing at James Bustamonte during a failed attempt at a citizen's arrest was within his rights.

Fondi agreed with Weddell's assertion and dismissed the charge.

Monday's brief was requested as a supplement to the fast-track appeal process. Because fast track briefs are limited to ten pages, it is common for the court to ask for supplemental material to aide in its deliberation.

Several points from Fondi's decision are being challenged in the document prepared by Chief Deputy District Attorney Anne Langer:

- a law referenced by Fondi was no longer in effect.

- as a "fleeing felon" Bustamonte had to be proven guilty.

- a jury should have had final determination on the reasonableness of Weddell's actions.

Weddell has said that he went to Bustamonte's home to arrest him for alleged crimes against his employee. He has said Bustamonte was a passenger in a car that ran the man down. The assault was related to a drug-addled relationship between his daughter and Bustamonte, he said.

Though accounts of the details differ, the criminal charges stemmed from Weddell's unsuccessful attempt to shoot Bustamonte several times when Bustamonte fled the scene of the citizen's arrest.

Since that day, Weddell has made repeated efforts to have Bustamonte prosecuted in the alleged hit and run. So far no charges have been filed.

Weddell was out of town on business Tuesday and had not seen the latest filing. He referred legal questions to attorney Fred Atcheson, who also said he has not seen the filing. He said he will have time to review the case when he returns from an Alaska fishing trip.

In the document, which challenges Fondi's decision, Langer wrote that the right to use force against a fleeing felon was removed from Nevada law in 1993. In his decision Fondi said though the wording was removed, the law remained in effect in common law.

In determining that Bustamonte was a fleeing felon, Fondi erred by not allowing due process to determine Bustamonte's guilt, Langer wrote. She even argues that some evidence suggests that Bustamonte may not have been a passenger in the hit-and-run car.

She also asserts that evidence that Bustamonte admitted the crime to a probation officer is "patently untrue."

The reasonableness of Weddell's actions could best be called into question in front of a jury, Langer continued.

"A moment's reflection reveals that, unlike the common law where every felony warranted the death penalty, many present-day felonies do not warrant killing the suspects," She wrote.

Langer said she could not publicly comment on the pending case.