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wickedrider
July 16, 2009, 04:22 PM
The prosecutor decided not to prosecute the store owner in Suffolk, VA in a case from June 2009. In his decision not to prosecute can aid in decision making when deciding to shoot or not to shoot.

No charges in fatal shooting at Whaleyville store
Posted to: Crime News Suffolk

http://hamptonroads.com/2009/07/no-charges-fatal-shooting-whaleyville-store

Previous
• Slain robber was carrying knife
• Man in burglary was shot four times

By Dave Forster
The Virginian-Pilot
© July 16, 2009

SUFFOLK

Criminal charges will not be pursued against the store owner who shot and killed a burglar in his business last month, the city announced today.

Police Chief Thomas E. Bennett released a letter from Commonwealth’s Attorney Phil Ferguson announcing the decision in James Durden’s shooting of Ernest Scott Roop.

“Mr. Durden was confronted with a very dangerous situation created by Roop and was legally justified in using deadly force as he genuinely believed that Roop had a firearm and that his own life was in danger,” Ferguson wrote. “In addition, from a practical standpoint, I am convinced that a Suffolk jury would not convict Mr. Durden of criminal misconduct under the facts of this case.”

Durden confronted Roop at about 4 a.m. on June 21 after Durden and his wife were alerted by an alarm to the break-in.

Ferguson released the following account of the confrontation:

“When the Durdens reached the store, they noticed a window had been broken out on the back (east) side of the building and a security bar was pulled away from the window. While looking through a window on the South side of the building, Mr. Durden noticed Roop inside the store at the cash register. Roop turned toward Mr. Durden with something in his hands which Mr. Durden thought was a firearm. Mr. Durden then fired his handgun three times in Roop's direction. Mr. Durden ducked down and when he looked up, he was face to face with Roop at the Southside window as Roop had run around the counter and toward the glass where Mr. Durden was standing. Mr. Durden, still perceiving Roop to be a threat, fired a fourth shot. Roop's body was found lying on the floor directly under the window. It was later determined that Roop did not have a firearm.

“The physical and forensic evidence support Mr. Durden's account of the incident. He has been cooperative with both this Office and the Suffolk Police Department.”

OldMarksman
July 16, 2009, 04:41 PM
Mr. Durden is lucky that he was not shot and killed or maimed, and lucky that the decision has been made to not prosecute.

Or is he? Absent an acquittal, he still has some civil exposure, and a later prosecutor can of course revisit the decision at any time. But--answering my own question, yes, I think.

And without making any kind of a value judgment at all, the fact is that the community is probably just a little safer, not that that justifies the means.

Doesn't mean that he embarked on a very wise mission. He put himself in danger, and he assumed other risks.

The prosecutor's decision here will never aid in a decision of mine. I would have decided to stay out of harms way in the dark of early morning. Had I not so decided, however, any decision to shoot would have been based entirely on situational factors.

Other lucky people in this are Suffolk citizens who were not struck by Durden's fire. Can't assess the likelihood of that risk but the potential consequences are not minor. I try to mitigate that risk by practicing, using hollowpoints, and trying (I surely hope) to avoid being reckless. "Firing three times in Roops' direction"???

Brian Pfleuger
July 16, 2009, 04:45 PM
I second the opinion of the OldMarksman.... bad choices made by (I'm sure) a good man ends well for all concerned.

Wildalaska
July 16, 2009, 04:52 PM
I third the opinion of Old Marksman.

WildsamewavelegnthAlaska ™

Vanya
July 16, 2009, 05:29 PM
I... No, I can't do it. :p

Nnobby45
July 16, 2009, 06:01 PM
Other lucky people in this are Suffolk citizens who were not struck by Durden's fire. Can't assess the likelihood of that risk but the potential consequences are not minor. I try to mitigate that risk by practicing, using hollowpoints, and trying (I surely hope) to avoid being reckless. "Firing three times in Roops' direction"???

Well, let me help you assess the risks that you won't address even though you brought up the subject.

Business district at 4:00AM-----minimal to non existent.

Once again, a critical analysis of the citizen after an extensive investigation by the police showed he acted properly with regards to any shots fired.

I'm in agreement that calling the police would have been the appropriate action but disagree with those who, predictably,feel the citizen is the one who should be prosecuted.

I'm also a little tired of those who want to tell us what they would have done after plenty of time to second guess the actions of those who were there, and who had only seconds to assess and act.

Some people are sick and tired of having their livelyhoods and ability to support their families threatened by repeat offenders, perhaps after having their business robbed on more than one occasion without the police being able to prevent it after being called.:cool:

americanworkmule
July 16, 2009, 06:26 PM
I second the opinion of the Nnobby45.

csmsss
July 16, 2009, 06:35 PM
I have zero problems with the store owner, and zero problems with anyone who elects to defend his property within the constraints of the laws of his/her state.

James K
July 16, 2009, 06:36 PM
One thing is sure. Had the police been called, they would have come up with blue lights flashing and sirens screaming; the burglar would have left with whatever he could carry, and would have been free to steal again.

Oh, and since when does having a knife constitute being "unarmed"? What does it take to be "armed"? A 240mm SP gun, maybe?

Jim

Wildalaska
July 16, 2009, 06:42 PM
Had the police been called, they would have come up with blue lights flashing and sirens screaming;

Havent seen it ever being SOP for the cops to siren on a Burg in Progress call

I'm in agreement that calling the police would have been the appropriate action but disagree with those who, predictably,feel the citizen is the one who should be prosecuted.

Who ever felt the shooter should be prosecuted?

WildillleaveouttherestofmycommentsinordertokeeppeaceAlaska ™

sakeneko
July 16, 2009, 07:03 PM
Had the police been called, they would have come up with blue lights flashing and sirens screaming;
Havent seen it ever being SOP for the cops to siren on a Burg in Progress call

Nor have I. And, while I'm not and never have been a police officer myself, I've worked for a county sheriff and have two brothers-in-law and several friends who are or were police officers, two of them detectives. SOP for burglaries is to approach without sirens or lights and, in some cases, to park a block or so away and approach on foot to avoid spooking the perp. When the police respond to a burglary-in-progress call, they want to *catch* the perp rather than necessarily stop the crime immediately.

A burglar, after all, isn't normally threatening someone's life or health, so stopping the crime immediately is less important and catching the burglar more important.

I'm in agreement that calling the police would have been the appropriate action but disagree with those who, predictably,feel the citizen is the one who should be prosecuted.
Who ever felt the shooter should be prosecuted?

I doubt anyone on this forum feels that the shop owner should be prosecuted. Unfortunately there was (at least IMHO) a real chance that he would (as opposed to should) be prosecuted. In cases like this, where a shop owner/homeowner/citizen kills an unarmed or "less armed" criminal, if there is any real question whether the shooting was justified or not, often the DA will figure that a jury should decide and prosecute. (I overheard a discussion in a DA's office on a similar situation once, when I was working for the sheriff.)

I'm glad the DA decided against it in this case. In my opinion, the shop owner might have acted unwisely, but he obviously had no criminal intent and the killing was mostly due to the burglar's own actions.

WildillleaveouttherestofmycommentsinordertokeeppeaceAlaska ™

IMHO, WildisshowingsomesignsofhavingsenseAlaska. :p

63chuck
July 16, 2009, 07:19 PM
Shop owner clearly at fault. He should have hit burgle with first shot!

Nnobby45
July 16, 2009, 07:37 PM
Havent seen it ever being SOP for the cops to siren on a Burg in Progress call


Oh yeah? Tell dispatch to hurry 'cause the burglars is about to get shot.:D

Sportdog
July 16, 2009, 07:55 PM
BG B&E's owners store. Store owner catches BG in the act. Store owner shoots and kills BG. One less BG to B&E someone else. Sounds like a winner to me! Everything else is just "know it all's talking to gratify themselves". Woulda Coulda Shoulda never amounted to anything.

Ricky B
July 17, 2009, 12:24 AM
Doesn't mean that he embarked on a very wise mission. He put himself in danger, and he assumed other risks.


From the news article that is linked in the OP:

The store owner, James H. Durden Jr., had a blood alcohol concentration of about 0.10 when police arrived – high enough to be charged with driving under the influence had he been operating a vehicle.

So it is not entirely surprising that he assumed risk. And it makes it more likely he could have misperceived all sorts of things (and perhaps did).

The tactical moral here could be that if you're too drunk to drive, don't pick up a firearm and start investigating. Life-threatening stress and alcohol don't mix well with guns. Lucky for Mr. Durden he did not have a worse outcome.

And as an irrelevant aside, 0.10 BAC at 4 in the morning??? What must it have been when he went to bed? :eek:

curt.45
July 17, 2009, 03:29 AM
And as an irrelevant aside, 0.10 BAC at 4 in the morning??? What must it have been when he went to bed?


bars close at 3am.



WildisshowingsomesignsofhavingsenseAlaska.


whaaaaaaaaaaaaat?

PT111
July 17, 2009, 06:11 AM
Mr. Durden is extremely lucky in many ways here. He made several mistakes but got a away with them. Mr. Roop on the other hand made several mistakes and paid for them with his life. I think the prosecutor made the right call but it would have been easy to make a different one. There are lots of lessons to be learned here so pay attention.

Ricky B
July 17, 2009, 10:34 AM
bars close at 3am.

2 AM in Virginia

Nnobby45
July 17, 2009, 05:49 PM
Quote:
bars close at 3am.

2 AM in Virginia



Burglars in Nevada assume even more risk, since the bars don't close.:p

wickedrider
July 17, 2009, 05:56 PM
The bars in one's home never close either.:D There aren't any public bars out there I don't believe.

B.N.Real
July 19, 2009, 03:15 PM
"Slain burgular was carrying a knife."

And committed suicide advancing on a legally armed and scared to death property owner.

Roop should have surrendered immediately once confronted.

He did not.

He advanced at the armed property owner and died.

jg0001
July 20, 2009, 01:08 PM
3'rd on Nnobby's opinion. Bleh to OM & WA who always seem to lean on the anti side a bit too much. At least give the benefit of the doubt to the victim -- that being the storeowner, in case you couldn't figure it out.

OldMarksman
July 20, 2009, 02:10 PM
Bleh to OM & WA

Am I to assume that you do not consider Mr. Durden to have been lucky? He was not shot, he was not charged, he didn't kill himself or anyone in his family will handling a loaded gun under the influence, and he didn't hit anyone while firing shots in "Roop's direction" --as previously stated, I think he was lucky.

I'll predict that he is not successfully sued, either.

There were a lot of comments on the on-line news article to the effect that Durden should have been prosecuted, but I am not of that mind, and I haven't seen any such comments in this string.

But he sure could have been, and legally, he still may be.

Sportdog
July 20, 2009, 02:29 PM
Nuff said.:rolleyes:

jg0001
July 20, 2009, 02:32 PM
Am I to assume that you do not consider Mr. Durden to have been lucky? He was not shot, he was not charged, he didn't kill himself or anyone in his family will handling a loaded gun under the influence, and he didn't hit anyone while firing shots in "Roop's direction" --as previously stated, I think he was lucky.

I'll predict that he is not successfully sued, either.

Lucky, you betcha! But I would rather lean heavily in favor of giving him the benefit of the doubt and the blame for much of what happens (including collateral damage) to the perp, every bit as much as if Durden was a cop himself.

It's very easy to cast doubt & Monday morning quarterback but all that does is give prosecution more to work with the next time around -- and a stronger belief that the sentiment of the public at large is to dissect & punish the victim rather than the BG.

I've yet to meet a prosecutor interested in the facts; they are only interested in what they can make 'fit' their desired story. Don't help them.

OldMarksman
July 20, 2009, 03:01 PM
Lucky, you betcha! But I would rather lean heavily in favor of giving him the benefit of the doubt and the blame for much of what happens (including collateral damage) to the perp, every bit as much as if Durden was a cop himself.

Agree!

And any criminal responsibility for collateral damage would accrue to the perp.

It's very easy to cast doubt & Monday morning quarterback but all that does is give prosecution more to work with the next time around --

I'm afraid I can't agree. They don't need help and reasonable discussion won't help them. They already have the law, the case law, the investigative reports, and all of their professional education. They know that one cannot use deadly force to defend property in Virginia, and they know that handling a gun with alcohol in the bloodstream is not a good idea.

In this case they apparently concluded that Durden reasonably believed that he had to defend his life, and they believed they would have difficulty getting a conviction. And at the risk of making a value judgment, that is, in my humble opinion, a good thing.

But: the comment in the original post was "the decision not to prosecute can aid in decision making when deciding to shoot or not to shoot".

Had the decision been illustrative of a matter of law (and I don't see how anything sort of an appellate court decision could be), that might be true.

However, it is apparent that Durden was just plain lucky. For me, the decision would not even embolden me to go into harms way on the point in the dark of the pre-dawn hours even if I were stone sober, rather than letting the police--trained, in coordination with other officers, and paid to do so--handle it.

Ricky B
July 20, 2009, 05:09 PM
I've yet to meet a prosecutor interested in the facts; they are only interested in what they can make 'fit' their desired story.

Just out of curiosity, how many prosecutors have you actually discussed cases with?

Sportdog
July 20, 2009, 05:45 PM
An ethical prosecutor will not discuss cases with individuals not connnected to the case. A prosecutors job is to prosecute cases of law violation. He also has a budget to work with and it is in counties best interest that he not take on cases that he feels there is not enough clear evidence to convict. The OJ Simpson trial was a good case in point. The prosecutor cost the citizens of the county millions of dollars in a case that he clearly could not win. Was he guilty? I think so. But what I think or what you think does not matter. The only thing that matters is what the jury thinks. And yes, I have discussed this type of situation with both prosecutors and defense attorneys, not the outhouse lawyers on this forum.

PT111
July 20, 2009, 06:00 PM
I have had prosecurtors discuss a case with me but after the jury had reached a verdict and only how the law was applied and what could or couldn't be introduced as evidence. The budget as well as public opinion (see the Duke LAX case) can influence a decision to prosecute and a case such as this which was very questionable and would fall under that public opinion battle was one that was not worth going through with. I hate to inject reace into this but since I have not heard of Jessie Jackson, Al Sharpton and company being involved I am assuming that that were of the same race.

All of these thiings come into play, Most prosecutors are ethical but they are not immune to outside influences including budget.

Ricky B
July 20, 2009, 09:00 PM
An ethical prosecutor will not discuss cases with individuals not connnected to the case.

Which is one reason I asked the question of jg0001, who said "I've yet to meet a prosecutor interested in the facts; they are only interested in what they can make 'fit' their desired story." I was wondering if there was a factual basis for that claim.

The OJ Simpson trial was a good case in point. The prosecutor cost the citizens of the county millions of dollars in a case that he clearly could not win.

Um, you must not have watched the trial. The case was a winner for the prosecution. It was a case of jury nullification.

Sportdog
July 20, 2009, 09:14 PM
Did you not read in my post where I stated that it doesn't matter what you or I think? The only thing that counts is what the jury thinks and that case was a loser all the way. What counts is can the case be won and at what cost. That is the decision of the local prosecutor, not TFL Forums. The case was NOT a winner for the prosecution. FACT: OJ aquitted FACT: woulda, coulda, shoulda, never amounts to anything.:p

jg0001
July 20, 2009, 09:54 PM
How do you know I haven't had my own case(s) to contend with? Sharing anymore than that is a bit much for a public board.

Ricky B
July 20, 2009, 11:18 PM
Did you not read in my post where I stated that it doesn't matter what you or I think?

Did you not read your own post! Apparently not.

What you said, what I quoted, and what I quote again in part now is "a case that he clearly could not win."

When you say something like "a case that he clearly could not win" you are offering your opinion. Now maybe you don't think before you offer an opinion, but I am certainly willing to give you the benefit of the doubt and say that you do. And you told the board, including me, what you thought.

If you feel free to offer your opinion, I feel free to offer mine. And I certainly don't appreciate being chastised for it, particularly when you started the discussion by saying that the prosecutor brought "a case that he clearly could not win."

Now as to the point you were making, namely, "The prosecutor cost the citizens of the county millions of dollars in a case that he clearly could not win," you are cockeyed to imply the prosecutor was wrong to bring the case. The prosecutor had a duty to bring the case since the evidence against OJ was overwhelming. It didn't overwhelm the jury, for sure, but any fair-minded person had no doubt who the culprit was. The fact that the jury was closed-minded has no bearing on the merits of the case.

As for your contention that "The only thing that counts is what the jury thinks," that is your standard. Whether the prosecutor in fact wins or loses is up to the jury, but the standard for bringing a case is not your standard.

Ricky B
July 20, 2009, 11:21 PM
How do you know I haven't had my own case(s) to contend with? Sharing anymore than that is a bit much for a public board.

I have no way at all of knowing what your experience with prosecutors is. That's why I asked.

If, as you imply, you have been a defendant in cases that you thought were unfairly prosecuted, you will, I hope, forgive me if I consider you to be a biased source and discount your claim that "I've yet to meet a prosecutor interested in the facts; they are only interested in what they can make 'fit' their desired story."

Sportdog
July 20, 2009, 11:51 PM
It's too bad that you got your knickers in a twist because I proved you wrong. All the rationalizing in the world will not change the facts. FACT: OJ Aquitted FACT: The prosecutor wasted millions of dollars when any fool knew that due to many reasons that I will not post on here, he would be aquitted. Maybe you think that that is good value for the taxpayer but I don't. I hate to bust your bubble Alice but every day all across this country there are criminals that are not prosecuted because the case cannot be won, not because they are not guilty. Getting back to the OP. Did you ever consider the fact that the prosecutor did not wish to pursue the store owner because he felt that the jury would be sympathetic to him? The bottom line is that these things get beat to death on here for what? For NOTHING. 99.9999% of the back and forth on here is a mute point because the general public is not aware of all aspects of these cases so it becomes a woulda, coulda, shoulda excercise in futility. There is a lot of good information to be had on this site but these case studies are a joke. A bad joke at that. And that my friend is all that I have to say about this subject unless you feel the need to escalate the rhetoric.:barf:

Ricky B
July 21, 2009, 12:05 AM
I proved you wrong.

Who knew you were a comedian? :D

Sportdog
July 21, 2009, 12:23 AM
I not only knew that I was a comedian but I also knew you were an a**hole.;)

Ricky B
July 21, 2009, 12:27 AM
Since you have degenerated into nastiness and foul language, I won't discuss matters further with you. That's not to say I won't point out matters of agreement or disagreement in future posts, but I won't waste my time explaining myself to you.

Sportdog
July 21, 2009, 12:40 AM
Good. I tried to tell you in post #35 that I was done with it unless you chose to escalate the rhetoric. You couldn't leave it alone so I responded in kind, which I will in the future if you decide to harass my postings. Good night. (Maybe);)

OldMarksman
July 21, 2009, 06:49 AM
FACT: OJ Aquitted FACT: The prosecutor wasted millions of dollars when any fool knew that due to many reasons that I will not post on here, he would be aquitted. Maybe you think that that is good value for the taxpayer but I don't. I hate to bust your bubble Alice but every day all across this country there are criminals that are not prosecuted because the case cannot be won, not because they are not guilty.

Is this a suggestion that the state should not have pursued charges against Simpson?

Getting back to the OP. Did you ever consider the fact that the prosecutor did not wish to pursue the store owner because he felt that the jury would be sympathetic to him?

Commonwealh's Attorney Ferguson is quoted in the article as having said the following:

“Mr. Durden was confronted with a very dangerous situation created by Roop and was legally justified in using deadly force as he genuinely believed that Roop had a firearm and that his own life was in danger,” Ferguson wrote.
....

“The physical and forensic evidence support Mr. Durden's account of the incident.”

And...

“In addition, from a practical standpoint, I am convinced that a Suffolk jury would not convict Mr. Durden of criminal misconduct under the facts of this case.”

Is not the phrase "under the facts of the case" rather important here? Is there any indication that Mr. Durden was guilty of criminal misconduct? Risky and probably unwise behavior, no doubt, but criminal misconduct?

...the general public is not aware of all aspects of these cases...


That's largely true here, also.

...so it becomes a woulda, coulda, shoulda excercise in futility.

That depends, I think, on the objective of the discussion. The OP suggested that the decision could aid in decisions whether to shoot. But the Commonwealth's Attorney's decision offered nothing on what a man should have done, and what could happen is always a key part of decision making. For those reasons, I don't thing the decision helps in any other situation. However, the few reported facts do indicate to me that Durden's actions that morning were not the wisest available to him.

pax
July 21, 2009, 07:38 AM
*sigh*

How in the world we got from "Store Owner Shoots Burglar" to "OJ Simpson Trial," I'll never know.

Closed for puerile bickering and thread drift. PMs inbound!

pax