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Old July 16, 2009, 04:22 PM   #1
wickedrider
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The Prosecutor's Decision NOT to prosecute the thread Store Owner Shoots Burglar

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-c...leyville-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.”
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Old July 16, 2009, 04:41 PM   #2
OldMarksman
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Good Outcome, IMHO

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"???
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Old July 16, 2009, 04:45 PM   #3
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I second the opinion of the OldMarksman.... bad choices made by (I'm sure) a good man ends well for all concerned.
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Old July 16, 2009, 04:52 PM   #4
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I third the opinion of Old Marksman.

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Old July 16, 2009, 05:29 PM   #5
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Old July 16, 2009, 06:01 PM   #6
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Quote:
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.
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Old July 16, 2009, 06:26 PM   #7
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I second the opinion of the Nnobby45.
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Old July 16, 2009, 06:35 PM   #8
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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.
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Old July 16, 2009, 06:36 PM   #9
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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?

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Old July 16, 2009, 06:42 PM   #10
Wildalaska
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Quote:
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

Quote:
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?

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Old July 16, 2009, 07:03 PM   #11
sakeneko
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Quote:
Originally Posted by WildAlaska
Quote:
Originally Posted by Jim Keenan
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.

Quote:
Quote:
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.

Quote:
WildillleaveouttherestofmycommentsinordertokeeppeaceAlaska ™
IMHO, WildisshowingsomesignsofhavingsenseAlaska.
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Old July 16, 2009, 07:19 PM   #12
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Shop owner clearly at fault. He should have hit burgle with first shot!
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Old July 16, 2009, 07:37 PM   #13
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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.
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Old July 16, 2009, 07:55 PM   #14
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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.
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Old July 17, 2009, 12:24 AM   #15
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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?
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Old July 17, 2009, 03:29 AM   #16
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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.



Quote:
WildisshowingsomesignsofhavingsenseAlaska.

whaaaaaaaaaaaaat?
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Old July 17, 2009, 06:11 AM   #17
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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.
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Old July 17, 2009, 10:34 AM   #18
Ricky B
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bars close at 3am.
2 AM in Virginia
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Old July 17, 2009, 05:49 PM   #19
Nnobby45
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Quote:
Quote:
bars close at 3am.

2 AM in Virginia
Burglars in Nevada assume even more risk, since the bars don't close.
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Old July 17, 2009, 05:56 PM   #20
wickedrider
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The bars in one's home never close either. There aren't any public bars out there I don't believe.
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Old July 19, 2009, 03:15 PM   #21
B.N.Real
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"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.
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Old July 20, 2009, 01:08 PM   #22
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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.
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Old July 20, 2009, 02:10 PM   #23
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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.
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Old July 20, 2009, 02:29 PM   #24
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See Post #14

Nuff said.
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Old July 20, 2009, 02:32 PM   #25
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Quote:
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.
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