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Old May 25, 2009, 01:30 AM   #51
txbirddog
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Depending on the jurisdiction thats half the game

"The jury must first determine whether the defendant had the requisite beliefs under section 35.15, that is, whether he believed deadly force was necessary to avert the imminent use of deadly force or the commission of one of the felonies enumerated therein. If the People do not prove beyond a reasonable doubt that he did not have such beliefs, then the jury must also consider whether these beliefs were reasonable. The jury would have to determine, in light of all the "circumstances", as explicated above, if a reasonable person could have had these beliefs"

People v Goetz 68NY296, 115
Yeah, no kidding. What precedent of New York law have to do with a case in Oklahoma? You are also assuming the DA is even going to prosecute. I think you will find that we in the south use a lot of common sense, based on facts, and don't just go to court for the heck of it. In Texas, if it is considered self defense, there is also no civil liability.
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Old May 25, 2009, 02:07 AM   #52
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If he gets in trouble, it's going to be because of the excessive amount of ammo used.

Alaska is right, we don't know everything.

What if the pharmacist shot the kid x amount of times in the chest before attempting to chase the other kid, failed to chase and then shot the 16 year in the head? I'm not calling the pharmacist a liar but I won't rule out the possibility.

I won't be taking sides on this, I will wait for a security tape.

I fear this post will take on more flak than a B-17 over Germany.
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Old May 25, 2009, 02:27 AM   #53
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What precedent of New York law have to do with a case in Oklahoma?
Most lawyers recognize that because of the advanced state of the law and judicial decisions in NY, there is universal applicability, especially in criminal matters.

It doesnt surprise me that Oklahoma decisions mirror the Goetz case cited

"Oklahoma's standard of reasonableness may be gleaned from past decisions of this Court and is set forth in OUJI-CR 743, which reads as follows:

A person is justified in using deadly force in self-defense if that person reasonably believed that use of deadly force was necessary to protect herself from imminent danger of death or great bodily harm. Self-defense is a defense although the danger to life or personal security may not have been real, if a reasonable person, in the circumstances and from the view point of the defendant, would reasonably have believed that she was in imminent danger of death or great bodily harm.

The aforesaid instruction was given in this case. While the instruction explicitly states that the fact finder should assume the viewpoint and circumstances of the defendant in assessing the reasonableness of his or her belief, i.e. subjective, it also requires the defendant's viewpoint to be that of a reasonable person, in similar circumstances and with the same perceptions, i.e., objective. Thus, Oklahoma's standard is a hybrid, combining both the objective and subjective standards. This Court has considered the issue of the clarity of this instruction on several occasions, the latest in Goulsby v. State, 742 P.2d 567 (Okl.Cr. 1987), where the appellant in that case argued that the reference to "if a reasonable person" make it appear to a lay jury that the defendant's viewpoint had to conform to that of a reasonable person. There, we held that the instruction correctly stated the law in Oklahoma and found it to be sufficient. See also Adams v. State, 70 P.2d 821, 827 (Okl.Cr. 1937); Alcorn v. States, 56 Okl.Cr. 156, 35 P.2d 735, 739 (1934); Turner v. State, 4 Okl.Cr. 164, 111 P. 988, 998 (1910); Brantley v. State, 15 Okl.Cr. 6, 175 P. 51 (1918); Baker v. State, 22 Okl.Cr. 224, 210 P. 292 (1922); Jamison v. State, 35 Okl.Cr. 302, 250 P. 548 (1926); Guthrie v. State, 87 Okl.Cr. 112, 194 P.2d 895, 901 (1948); Haines v. State, 275 P.2d 347, 354 (Okl.Cr. 1954)."
BECHTEL v. STATE 1992 OK CR 55

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[I think you will find that we in the south use a lot of common sense, based on facts, and don't just go to court for the heck of it.
Mmmmmm....yes Im sure, perhaps sometime we could compare the court dockets of Houston and NYC

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Old May 25, 2009, 07:43 AM   #54
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if they have anything like GA law, if it is a self defense situation deemed by authorities, the guy is immune to any lawsuit.
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Old May 25, 2009, 07:50 AM   #55
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This whole thread shows what happens when someone can sit back and review a situation over hours and while not being under stress or duress. That is the problem with review boards and such, never can they actually get in a guys shoes at the time of the incident.
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Old May 25, 2009, 08:19 AM   #56
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Really...so a badly wounded robber is attempting to get up. He is not a threat, so you just shoot him anyway?

If I'm in a back brace from surgery and this guy just tried to rob me and he's still getting up. Yep, he a threat and I shoot him again.

Also, you're not just asking questions, you're doing what you always like to do in a thread such as this, you like to stir up things.
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Old May 25, 2009, 09:14 AM   #57
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This may clarify things a bit as to the number of times the suspect was shot, apparently 2 in the head and 2 in the chest.
http://newsok.com//article/3370984?custom_click=rss

I found this interesting from Wildalaska...

Quote:
As we dont have all the facts here,...
Quote:
But then again, it seems folk are more concerned with vindicating this guy instead of thinking about the ramifications of this scenario. I would have thought that responsible gun owners would have preferred to analyze the situation in a critical manner, as opposed to screeching yahoo.
No, of course we don't have all the facts here. We have news accounts only. Since we don't have all the facts, then I don't see how we can actually analyze the situation in a critical manner as called for. All that can be analyzed is what has been stated in the news and as noted, that isn't all the facts. So there is something of a Catch-22 here in noting that we don't have all the facts, but that we should be discussing the situation in a critical manner instead of being exuberant for the pharmacist.

Those who current have all the current facts, law enforcement, have not acted against the pharmacist. Until which time they do decide the move against the pharmacist, "yahoo" may be in order. Certainly, if the pharmacist had blatantly acted in an unlawful manner, he would have been arrested. If it appeared he acted in an unlawful manner to the officers on scene, he would have been arrested. So thusfar, indications by law enforcement do not indicate he acted unlawfully. That does not mean he necessarily acted in a lawful manner and some the analysis is ongoing, but there is no indication at the current time that the pharmacist is being considered as a suspect in the death of the would-be robber.

I think many responsible gun owners are perfectly happy with the results so far based on the information given and the fact that Jerome Ersland thusfar hasn't been arrested and that there is no current public indication that he will be arrested.
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Old May 25, 2009, 09:37 AM   #58
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Everything so far has been opinion based on the information available.

TACTICALLY,HOW COULD THE SHOOT SHOULD HAVE GONE DOWN BETTER WITH THE ROBBERS SAME RESPONSE TO BEING SHOT?

1)Robber enters, threatens, then fires and shoots Pharmacist.
2)Pharmacist shoots back and Double taps the head(assume the C of Mass shot unavailable).
3)Pharmacist reassesses after these shots and notes the other assailant leaving.
4)Pharmacist DOES NOT pursue the fleeing suspect with his loaded gun(danger from this perp no longer present)
5)Say the perp who was shot starts moving and getting up.(some brain damaged folk can move purposefully and with coordinated movement, some carry on as before)

You have the perp who shot you getting up/moving after 2 to the head, what do you do?? You have a back injury and are not physically fit and cannot wrestle with him.

You gonna watch him, get physical, or put 2 in the C of Mass? The perp was shot in the chest so he must have been facing the pharmacist--

What is the best tactical response of the pharmacist?
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Old May 25, 2009, 09:55 AM   #59
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well, he said he reached for his judge, and I would say the best response would be to shoot with that gun instead of the .380. But we dont know why he didn't. That story is hilarious, because other stories have already identified everyone
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Old May 25, 2009, 10:05 AM   #60
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Oklahoma does have a law preventing civil action in a case deemed self defense.
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Old May 25, 2009, 10:19 AM   #61
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One key fact to me that I haven't seen commented on was whether the BG while getting up still had his gun in his hand. If he did then all the training I had seen says keep shooting. Seems like if he is getting up with a weapon in his hand that he has already used against the pharmacist that would be grounds to keep on shooting?
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Old May 25, 2009, 10:20 AM   #62
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Most lawyers recognize that because of the advanced state of the law and judicial decisions in NY, there is universal applicability, especially in criminal matters.

It doesnt surprise me that Oklahoma decisions mirror the Goetz case cited

"Oklahoma's standard of reasonableness may be gleaned from past decisions of this Court and is set forth in OUJI-CR 743, which reads as follows:
Yes but how much weight does it hold with the jurors of Oklahoma.

A little more recent law is the one signed by Governor Henry in 2006.

http://www.gov.ok.gov/display_articl...article_type=1

I would bet the DA puts more weight on their laws than those of NY.
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Old May 25, 2009, 12:49 PM   #63
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One key fact to me that I haven't seen commented on was whether the BG while getting up still had his gun in his hand. If he did then all the training I had seen says keep shooting. Seems like if he is getting up with a weapon in his hand that he has already used against the pharmacist that would be grounds to keep on shooting?
Those are the two key facts IMHO:

1. Was the gun in his hand or in easy reach
2. The angle of the shots

Quote:
Also, you're not just asking questions, you're doing what you always like to do in a thread such as this, you like to stir up things.
If you call forcing my fellow responsible gun owners to think and confront unpleasant questions "stirring", then of course I'm guilty.

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What is the best tactical response of the pharmacist?
We dont know yet do we. The whole issue involves the capabilites of the dead guy (before he was dead) and the objectively reasonable need to shoot again.

Quote:
Certainly, if the pharmacist had blatantly acted in an unlawful manner, he would have been arrested. If it appeared he acted in an unlawful manner to the officers on scene, he would have been arrested. So thusfar, indications by law enforcement do not indicate he acted unlawfully. That does not mean he necessarily acted in a lawful manner and some the analysis is ongoing, but there is no indication at the current time that the pharmacist is being considered as a suspect in the death of the would-be robber.
Well he hanst been cleared yet, has he. And in a high profile case like this, I am sure it will be a while

And folks in Oklahoma should shut up:

"A man whose wife and adult daughter were in the store at the time of the shooting said the pharmacy owner was robbed about three years ago and had said nothing like that was going to happen again. The man did not want to be named."

Animus? Vigilanteism? To an ambitious DA confronted with the race card? Possible execution?

First Lesson when you shoot someone: DONT TALK TO THE PRESS! AND TELL OTHER FOLKS TO SHUT UP TOO

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I would bet the DA puts more weight on their laws than those of NY.
You miss the point, but thread drift anyway

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Old May 25, 2009, 01:33 PM   #64
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But as he started to chase after the second robber he looked back to see the 16-year-old he had shot in the head getting up again. Ersland said he then emptied the Kel-Tec .380 into the boy’s chest."
We don't know enough, and never really will (probably).

The "emptied" haunts me. Isn't there a syndrom where a fearful shooter (an otherwise reasonable person - under great stress), may, after the first shot, continue to pull the trigger, ever after the gun is empty?

This is my only nightmare when I consider my use of self/household defense - that I would act beyond the defense, and react from fear and stress and become almost a willful executioner. I'm not talking about:

1) two to the chest and one to head (or even more) - reasonable to me if I'm threatened by an armed shooter;

2) shooting a bg, who is down, again if there are other threats still around - not unreasonable if I can't deal with the downed bg because of other threats;

3) shooting the downed bg again if I truly believed he was a threat; I believe that this could be considered a second "first shot".

I'm talking about loss of reason because of adrenolin AND frustration that would make me turn it all out on the one guy when I took the second "first shot", or just because.

I worry that it could happen to me, and even if "no charges are filed", I would still know what I did. I could accept it if someone else "got away with it", because I think that it could happen to anyone, even someone much more highly trained than me. But if it happened to me, I could/would accept God's forgiveness but it would still haunt me till the day I died.
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Old May 25, 2009, 01:56 PM   #65
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You are assuming the mag was full and a round in the chamber. I only had 5 HP's in mine as it fed better that way.
Despite that, he still unloaded on a downed man.

With the info available, mainly the account of shooter, I would say he will have a real tough time defending his actions in court. If the downed attacker still had the gun in his hand or near him, well thats another story. His actions leading up the unloading into the boys chest do not stand well for him. He chased the other guy out the door, on his way he shot the boy. I would have to be pretty confident to be chasing after an attacker who was fleeing my response. Doesn't that mean the threat was subdued? In both cases? Until more info is available, I wont defend his actions.
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Old May 25, 2009, 02:26 PM   #66
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Folks - a warning - wander into your views of race and you will be gone.

I said it once and just deleted such a post from a new member.

This is Tactics and Training - not Rantics and Raving.

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Old May 25, 2009, 02:52 PM   #67
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But as he started to chase after the second robber he looked back to see the 16-year-old he had shot in the head getting up again.
This is from the original post.

Please show me the "downed" position when he shot the guy.

Quote:
Despite that, he still unloaded on a downed man.

With the info available, mainly the account of shooter, I would say he will have a real tough time defending his actions in court. If the downed attacker still had the gun in his hand or near him, well thats another story. His actions leading up the unloading into the boys chest do not stand well for him. He chased the other guy out the door, on his way he shot the boy. I would have to be pretty confident to be chasing after an attacker who was fleeing my response. Doesn't that mean the threat was subdued? In both cases? Until more info is available, I wont defend his actions.
I also don't see where, "He chased the other guy out the door". Are you reading another account that is different from the OP?

Wildalaska,
Quote:
You miss the point, but thread drift anyway
Quote:
Depending on the jurisdiction thats half the game

"The jury must first determine whether the defendant had the requisite beliefs under section 35.15, that is, whether he believed deadly force was necessary to avert the imminent use of deadly force or the commission of one of the felonies enumerated therein. If the People do not prove beyond a reasonable doubt that he did not have such beliefs, then the jury must also consider whether these beliefs were reasonable. The jury would have to determine, in light of all the "circumstances", as explicated above, if a reasonable person could have had these beliefs"

People v Goetz 68NY296, 115
If you read the circumstances of the OP, then the Goetz case holds no weght. Ergo:
Quote:
About 10 minutes before 6 p.m. two robbers wearing ski masks waited for someone to leave the pharmacy and then grabbed the open door and threw down a board to stop the door from closing. The robbers came in cursing and yelling, ordering employees to give them money and drugs, Ersland said.
I would think that ANY REASONABLE PERSON could have the belief of using deadly force to stop the imminent danger. Don't you?

I guess I AM missing the point, from the get go you have been coming down on the shooter as he was WRONG. Neither of us have first-hand complete knowledge, but I am giving him the benfit of the doubt UNTIL the DA files charges. My point to you is trying to show you that NY or Houston cases, don't hold as much weight as OK or US law. I was also trying to point out that if it is found a "self defense" shoot, then there will also be no civil standing. Based upon the info given, I would have acted the same way.

BTW, if I don't fall lockstep with your ideas, does that make me an "irresponsible" gun owner?

Last edited by txbirddog; May 25, 2009 at 02:59 PM. Reason: punctuation
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Old May 25, 2009, 03:06 PM   #68
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I have been a bit surprised by the vehemence of the opinions expressed on this thread. If this was a question on a med school exam, the only correct answer would be "Not enough information to reach a diagnosis." That is the point that WildAlaska and those in concurrence with him have tried to make, and it is a point well made

Reading back over the thread for the umpteenth time I do not really see anyone calling this a bad shoot from the start. I don't think anyone but the most virulent anti-gunner would say that the pharmacist had no right to return fire given the initial situation. But there is a legitimate question of whether he should have continued shooting into a down assailant. Look back at all the sentences regarding the actions and intent of the robber. They all end in question marks - Did he? Would he? Could he? The point that several have made is that we don't know enough to be certain of a position; that is not abandoning a fellow believer in the right to self defense, it is being honest about what we know.

I have to say that I cringed when I read that the pharmacist stated publicly that he chased the fleeing suspect and then emptied the magazine into the down robber. There are legitimate reasons for a wounded person to move - pain, difficulty breathing, attempting to staunch his own blood flow, etc. If his position is that he was defending the other employees and himself from lethal assault, he gave up that position by pursuing a fleeing robber. It would seem to me that the best survival tactic would be to let the fleeing robber flee and to kick out the board that they used to prop the door open, thus securing the building against any ill-advised attempt by his assailants or their comrades to re-enter the building and re-engage. He may then have been in a better position to defend his employees from the down man, to assess the threat that the down man made when he began moving around, and may have been in a better legal position as well.

That said, the post that pointed out that he had seconds to make the decisions that we have been beating around for a couple of days is well taken, as well.

The pharmacist's biggest mistake may have been talking too much. Telling reporters that he emptied a magazine makes it sound like he only quit shooting because he ran out of ammo, implying that he was not assessing the situation and making it too easy for him to be portrayed as vengeful and aggressive. Giving chase to the fleeing criminal makes it appear, similarly, that his demeanor and purpose changed from defense to offense. I am not saying he shouldn't have taken those actions necessarily, although they can be questioned (questioned, not condemned - see first paragraph) - I am saying he may have been wise not to have talked about them so freely. If he had said no more than, perhaps, "It is regrettable that I was forced to defend myself. I am sure you will understand that law enforcement agencies and my lawyer would both prefer that I not discuss this publicly until the investigation is complete," neither the protesters outside his store nor those of us blessed with the opportunity of discussing such things in this forum would have had nearly as much to talk about.

Last edited by TailGator; May 25, 2009 at 03:13 PM.
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Old May 25, 2009, 03:33 PM   #69
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No, of course we don't have all the facts here. We have news accounts only. Since we don't have all the facts, then I don't see how we can actually analyze the situation in a critical manner as called for. All that can be analyzed is what has been stated in the news and as noted, that isn't all the facts.
Well, I can say this is a fact. If you had all the news agencies in the entire US reporting on the exact same story, and they were beaming all their findings into your receiver at the same time, and your receiver AND your brain were able to process all said findings, You still wouldn't have all the facts. Of that, I have complete confidence.
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Old May 25, 2009, 05:27 PM   #70
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Give TailGator an "A"

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Old May 25, 2009, 07:20 PM   #71
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really? So whenever a police officer is forced to shoot a person, he should then walk over to the downed person and fire one last shot into the perp to make sure they are dead?

For what its worth,I was taught in my police academy class, ( thirty five years ago ), in a gun fight, after you downed the perp with a shot, you empty your sidearm into him. Too many officers have died from a downed suspect. No walking over and executing the guy, just a continuation of a gun fight. I have had the unpleasant experience of being in a gun fight on the job. I and others have had the same eperience as the druggist. Unless you have been there, and done that, its kind of like child birth, you can talk about it all you want but you never have experienced it. So most of this Monday Night quarterbacking is just a lot of hot air
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Old May 25, 2009, 07:29 PM   #72
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For what its worth,I was taught in my police academy class, ( thirty five years ago ), in a gun fight, after you downed the perp with a shot, you empty your sidearm into him.
I call BS...tell us what Department would train that way

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Old May 25, 2009, 07:35 PM   #73
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Not sure if this has relevance, but from the videos I have watched that are made by Tactical Response, and Valhala, and Paladin Press, gunsite, and even books I have read, all of them explain that you shoot until the threat is gone. Just because the threat is down doesn't mean he isn't a threat anymore. Getting back up is pretty much asking to be shot if you are a robber.
Yes, the guy talked too much, but lets not forget that he was getting robbed by 2 idiots. They started it on his property. He had every right imo
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Old May 25, 2009, 07:55 PM   #74
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Quote:
I also don't see where, "He chased the other guy out the door". Are you reading another account that is different from the OP?
Same thing you are reading, buddy.


Quote:
But as he started to chase after the second robber he looked back to see the 16-year-old he had shot in the head getting up again. Ersland said he then emptied the Kel-Tec .380 into the boy’s chest."

"I went after the other guy, but he was real fast and I’m crippled,” Ersland said.
Chase being the key word here, in order for there to be a chase one must be fleeing and the other in pursuit.
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Old May 25, 2009, 07:56 PM   #75
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Sure is a lot of typing.

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