Ohio Clerk Who Stops Armed Robbery Indicted For Manslaughter

[Bartholomew Roberts]

http://www.wtol.com/story/17007425/c...hooting-robber

This is a case out of Ohio. Two men came into the Express Carryout where the clerk works and attempted to rob it, prompting a gunfight between the clerk and the two men. Initially, the case looked like a fairly clear cut case of self-defense; but forensics evidence has since shown that the time between the first shot, which disabled one of the robbers, and the second shot and subsequent shots, was long enough that the second shot showed almost no blood flow. As a result, prosecutors have hypothesized that the later shots were fired at a disabled robber after the clerk returned from chasing the second robber down the street.

If true, the facts in this case are similar to the Jerome Ersland case, minus the ego-pumping lies and the video evidence. If convicted, the clerk may face 3 to 10 years in prison.

[ScottRiqui]

I guess I'll be the first to throw out the obvious comments:

1) The clerk shouldn't have chased Hunter down the street while shooting at him. If he hadn't missed Hunter, the clerk might be looking at two manslaughter counts.

2) If he did go back inside the store and put three more rounds into a robber that was truly "out of the fight", then I feel that a manslaughter charge is appropriate.

[Overhill]

1) The clerk shouldn't have chased Hunter down the street while shooting at him. If he hadn't missed Hunter, the clerk might be looking at two manslaughter counts.

2) If he did go back inside the store and put three more rounds into a robber that was truly "out of the fight", then I feel that a manslaughter charge is appropriate.



Unfortunatley, very true.

[WeedWacker]

prosecutors have hypothesized that the later shots were fired at a disabled robber after the clerk returned from chasing the second robber down the street.

Without conclusive evidence to this fact, the case will not proceed. I would need more information to say "bad shoot" on this one. Another possibility is that the robber he shot bled out or his heart stopped while the clerk was behind cover. The clerk, not sure whether or not the threat was neutralized, fired again. They make it sound as if the man pulled a "pharmacist" and came back to make sure the guy was dead even though they don't bring forth any physical evidence of the happening.

[Tom Servo]

If he hadn't missed Hunter, the clerk might be looking at two manslaughter counts.

Actually, it's illegal to shoot at someone who's not posing an immediate threat, regardless of whether or not the shots connect. That could also present problems for Abu-Karsh's defense.

Then there's the civil stuff that's likely to follow. Far too many people fail to understand the gravity of lethal force.

[ScottRiqui]

Another possibility is that the robber he shot bled out or his heart stopped while the clerk was behind cover. The clerk, not sure whether or not the threat was neutralized, fired again.

Supposedly, the first shot into Allen came before the clerk ran outside to chase Hunter, while the last three came *after* the clerk returned to the store.

I agree that it would be nice to have more details, but I suspect that the prosecutors have at least enough evidence to establish that the last three shots came after the clerk's return to the store, which would make your scenario unlikely.

[Armorer-at-Law]

Actually, it's illegal to shoot at someone who's not posing an immediate threat, regardless of whether or not the shots connect. That could also present problems for Abu-Karsh's defense.

True, but just because the person is running away doesn't mean they are no longer an immediate threat.

A co-worker of mine was accosted in the entry to his appartment building last summer. He pushed the assailant away and as he (the bad guy) was fleeing he reaches around and fired twice back at my co-worker, hitting him in the arm. Four inches over and it could have hit his heart.

Not enough facts in the present case to know for sure.

[johnbt]

Enough facts to convince the grand jury. Sounds as if his heart had already stopped beating before the final shot or shots.


"...but just because the person is running away doesn't mean they are no longer an immediate threat."

They aren't an immediate threat until they turn around or reach back or do something other than run away. Good luck if you shoot them in the back.

John

[Armorer-at-Law]

Sounds as if his heart had already stopped beating before the final shot or shots.

Not enough information to say for sure. But if so, then shouldn't the charge be no more than "abuse of a corpse"?

[Double Naught Spy]

But if so, then shouldn't the charge be no more than "abuse of a corpse"?

Right. If subsequent shots indicate that the heart had stop beating, then manslaughter isn't warranted. The robber would have died as a result of the wounding he receieved during the holdup when it was legal for the clerk to use lethal force in self defense.

Still, stupid move on behalf of the clerk, especially if the guy was actually still alive. I seem to recall back around 2000 a homeowner shooting a naked intruder (who later turned out to be a neighbor's less than well balanced drunk son) who stumbled back out of the house and collapsed on the patio. The homeowner walked up and shot him in the head and killed him. This was stupid, of course, and the homeowner got convicted for murder. The sad thing was that the intruder was already fatally wounded, but not dead at the time of the head shot.

[shortwave]

To many 'may's' and 'maybe's' in the article to form an opinion.

I.E. The Grand Jury may have determined...and...

...scientific evidence shows there was no blood flow, meaning maybe he was already close to death

As far as the article contents goes,and we all know all the facts probably aren't disclosed in this article, might be enough evidence to cause suspicion, but IMO, not enough to convict him.

Do we know that the downed armed assailant didn't still have a gun in his hand and when the clerk came back in, he(assailant) again moved scaring the clerk causing him to shoot again?

What the clerk is guilty of is being stupid for chasing/shooting at the other assailant out on the street.

[Double Naught Spy]

Do we know that the downed armed assailant didn't still have a gun in his hand and when the clerk came back in, he(assailant) again moved scaring the clerk causing him to shoot again?

Nope, we don't know that. We also don't know what the likelihood of movement was given such extremely low blood pressure at the time. We don't know that the clerk didn't pull and Ersland. Heck, we don't even know if the downed robber even had a weapon.

However, we have been informed that...

“The issue was that although [Mr. Abu-Karsh’s] conduct was initially justified, the grand jury concluded that his subsequent conduct was not in self defense,” he said.

http://www.toledoblade.com/Courts/20...n-robbery.html

[csmsss]

The prosecution's hypothesis is only that - a hypothesis. Blood flow does not always happen the way one might expect. They're going to need more than a theory to get to a jury.

[shortwave]

the grand jury concluded that his subsequent conduct was not in self defense

Yes, this we know.

So there must be a trial to prove guilt or innocents.

Again, not enough evidence in the article's the OP's nor DNS's provided for us to claim innocent or guilt.

[Armorer-at-Law]

the grand jury concluded that his subsequent conduct was not in self defense

That's not what a grand jury does. The grand jury decides if there is enough evidence that a crime may have been committed to proceed to a trial. In this case, it would be more accurate to say that the grand jury concluded that his subsequent conduct may not have been in self defense.

[shortwave]

You're right Armorer-at Law.

And we need to be very careful to not be the jury with so little evidence.

Otherwise, we are guilty of doing the same as most anti-2nd Amend. people.

As far as whether the person that was actually shot was armed or not, we don't know for sure. The security video clearly shows the one that ran having a weapon inside the store. We do know the clerk was initially cleared of charges so we can only assume there was enough evidence to make the initial judgement.

So I ask for discussion purposes...

Does it matter if the shot perp actually had a gun or not? Or is perp 'guilty by association' ?

Since the clerk was initially cleared of a 'bad' shooting, only to later, after examination of the wounds, found to be in suspicion of going back in the store and shooting the perp again(for reasons not clear at this point), wouldn't it stand to reason that either the perp was armed or when/if the shooting started inside the store, since these two perps were together robbing the store and at least one was armed, are they both not paid for?

Lets take another scenario:

Two guys break into your home. One armed with a gun, one not. You come out of your bedroom, armed and both perps are standing in your living room. Much commotion ensue's, the armed perp shoots at you, and you shoot both perps. From the corner wall where you ducked behind, you are watching both perps with your gun still on them as you dial 911.

Perp with gun still in hand, although down, is laying on floor barely alive. But you have no way of knowing exactly how bad he's hit. His arm and gun is pointed in your direction. He moves his hand/arm containing the weapon. You shoot him again.

Will you be cleared of all charges or will you get charged/tried with the shooting of the unarmed perp? Will you also be charged with again shooting the already downed armed perp?

[C0untZer0]

My first thought is more mandatory training on lawful use of force.

I think Ersland had a few screws loose so I doubt training would have helped in that case.

I guess I should say I don't know what happened - the article doesn't say that Bandar Abu-Karsh came back into the store and shot a disabled robber, it's being proposed by the prosecutor. But let's say he did - I don't know if Bandar Abu-Karsh had been educated that it would be illegal for him to do that or not, if he knew and he decided to shoot the robber anyway - that's one thing.

Chasing a robber down the street was stupid, it's one thing if the robber moved to another firing position but I doubt that happened - seems like he was fleeing. Chasing a robber down the street firing at him seems to be an indicator to me that Bandar Abu-Karsh needed more training.

Another thing that I thought of though is - why would Karsh run out of the store if the first robber - Lamar Allen wasn't down?

I don't know what Karsh's story or defense is going to be but it seems that unless his story is that all the shots were fired at Lamar Allen before he pursued Joe Hunter out of the store - I think he's got a losing case.

Anyway, when I hear these stories I just think more training has to be required of permit holders.

[Mello2u]

From the linked news article: http://www.wtol.com/story/17007425/c...hooting-robber

The Grand Jury may have determined that the clerk disabled the suspect the first time, but went beyond self-defense with the second round of shots.

"Or the issue of blood flow - that the first bullet indicated there was substantial blood flow and then the next bullet, scientific evidence shows there was no blood flow, meaning maybe he was already close to death and additional bullets were involved," explained Phillips.

This seems to me to THE issue.
It will come down to a battle of the medical experts.
If the defense can put on the stand a credible expert who can state that in his/her expert opinion the blood flow changes were due to some other physiological mechanism, such as adrenalin, rather than incapacitation.

There is a physiological phenomenon caused by adrenalin which causes constriction of blood vessels to reduce bleeding from major wounds. It happened to me when I was 6 years old and almost cut off two toes. I bled very little for having so many veins and arteries cut.

[Onward Allusion]

johnbt
Enough facts to convince the grand jury. Sounds as if his heart had already stopped beating before the final shot or shots.
<SNIP>

Way too many questions than answers/facts.

Keep in mind that most grand juries are no more than rubber stamping committees. There are way too many questions, that's why the indictment.

As for shooting someone in the back (not in this case), it's been proven that this can legitimately happen in many cases.

[johnbt]

"Enough facts to convince the grand jury." - me

Let me reword my statement for you:

There were enough facts to convince a grand jury. I don't know what you are disputing. There were enough facts to get an indictment. Are you reading something else into my short statement?

[hermannr]

Beyond any resonable doubt...that is the measure...if they have video evidence that the clerk came back and shot the guy again, after he was dead, or almost dead...there may be a problem...but if it is on the weight of some forensic examiners guess...that will never be "beyond any reasonable doubt" at least in my book.

[Double Naught Spy]

And we need to be very careful to not be the jury with so little evidence.

Otherwise, we are guilty of doing the same as most anti-2nd Amend. people.

Wow, pulling a Rush Linbaugh are you, backtracking but still trying to get a jab in at the opposition? LOL.

Right, so the grand jury found no reason to move forward with any charges on the initial shooting but found sufficient evidence to proceed with the subsequent shooting.

Does it matter if the shot perp actually had a gun or not? Or is perp 'guilty by association' ?

Neither, armed or not, the shot perp was involved in conducting the robbery of the store with one who was armed. They are both engaged in armed robbery even if one does not have or does not display a weapon.

Since the clerk was initially cleared of a 'bad' shooting, only to later, after examination of the wounds, found to be in suspicion of going back in the store and shooting the perp again

The clerk wasn't cleared of a bad shooting. It was just that originally the cops had no recognized evidence to indicate that the clerk's activities were illegal.

(for reasons not clear at this point), wouldn't it stand to reason that either the perp was armed

Not necessarily

Lets take another scenario:

Will you be cleared of all charges or will you get charged/tried with the shooting of the unarmed perp? Will you also be charged with again shooting the already downed armed perp?

There is no law of for the situation you describe where you can be charged with shooting an unarmed perp, if things are as you said and at least one guy was armed. With that said, in many states, being inside your home as they were would count for reasonable fear for your life.

There is no law that says you can't shoot a downed but armed perp. Whether he is up or down isn't a salient criterion to whether your shot was justified. There are plenty of examples of downed wounded people continuing to fight.

Beyond any resonable doubt...that is the measure...

Not exactly, at least not in Ohio. Because of apparently numerous cases where such terminology was used loosely and resulted in apparent wrong verdicts, Ohio actually has legal code on this point.

2938.08 Defendant presumed innocent.

A defendant in a criminal action is presumed to be innocent until he is proved guilty of the offense charged, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he shall be acquitted. The presumption of innocence places upon the state (or the municipality) the burden of proving him guilty beyond a reasonable doubt.

In charging a jury the trial court shall state the meaning of the presumption of innocence and of reasonable doubt in each case.

Effective Date: 01-01-1960

Also see...
http://opd.ohio.gov/RC_Casebook/jury...ons.htm#Burden of proof; Presumptions
http://opd.ohio.gov/RC_Casebook/burd...rden_of_go.htm

So the concept of 'reasonable doubt' isn't what the jurors think is reasonable or not. The court is to provide instruction as to what constitutes being reasonable doubt.

As for shooting someone in the back (not in this case), it's been proven that this can legitimately happen in many cases.

Not only that, but there is not law that stipulates where a person can or cannot be shot legally during self defense. The same criteria for what make a SD shooting justified applies to the back as well as the front.

Another thing that I thought of though is - why would Karsh run out of the store if the first robber - Lamar Allen wasn't down?

I don't think you are asking the right question in the right way. Under stress, people often do things than in hindsight were not or did not seem logical. Running out of the store if the perp wasn't down apparently seems illogical to you. I am not sure that "down" is the issue so much as to whether or not the perp was still a threat. So why would the clerk run out of the store if the first perp was still a threat? Likely for the same reason many people would. If you have the chance to remove yourself from a situation where there is a real or perceived serious threat to you, why would you remain in proximity to the threat? If you can remove yourself from the situation, the threat to you is greatly reduced or fully alleviated.

A better question to ask is why the clerk would then go back into the store if he thought the perp was still a threat? Why go back into harm's way?

[Aguila Blanca]

Originally Posted by DNS

Not exactly, at least not in Ohio. Because of apparently numerous cases where such terminology was used loosely and resulted in apparent wrong verdicts, Ohio actually has legal code on this point.

Also see...
http://opd.ohio.gov/RC_Casebook/jury...ons.htm#Burden of proof; Presumptions
http://opd.ohio.gov/RC_Casebook/burd...rden_of_go.htm

So the concept of 'reasonable doubt' isn't what the jurors think is reasonable or not. The court is to provide instruction as to what constitutes being reasonable doubt.

And, after the court explains to the jury what "reasonable doubt" means, it is STILL up to the jurors to decide whether or not they think there is proof of guilt beyond a reasonable doubt. The judge gives the jury the definition of reasonable doubt, he/she doesn't tell the jurors how to decide the facts of the case before them.

[ScottRiqui]

And, after the court explains to the jury what "reasonable doubt" means, it is STILL up to the jurors to decide whether or not they think there is proof of guilt beyond a reasonable doubt. The judge gives the jury the definition of reasonable doubt, he/she doesn't tell the jurors how to decide the facts of the case before them.

Exactly. And even with all the instructions and evidence in the world, the jury is free to decide whatever they want anyway. There could be hi-def video of the clerk putting three bullets into the robber's motionless body, and the jury is still within its rights to return a verdict of "not guilty". The only way a judge can take the decision out of the jury's hands is before deliberation begins, either by declaring a mistrial, dismissing the case (with or without prejudice), or directing a verdict of "not guilty". The judge can't direct the jury to return a "guilty" verdict.

[shortwave]

Wow, pulling a Rush Linbaugh are you

Ok...

Well, I guess if Rush Linbaugh read the same articles that are posted here and has seen there's not enough evidence for us to decide innocents or guilt one way or another, then yes I'm pulling a Rush Linbaugh.

FWIW, not being snarky but as a rule, I like Rush Linbaugh. Thanks!

backtracking but still trying to get a jab in at the opposition? LOL.

Opposition...again, ...who's the opposition???

Haven't backtracked a bit and not taking jabs at anyone.
Apologies if you or anyone else took my posts that way.

I've maintained from the onset, there's not enough evidence one could gather by the posted articles for us to say the clerk is guilty of breaking any laws or not. For anyone to presume the clerk is innocent or guilty without first having a trial would be the same mindset of many anti-gun people who claim stricter gun laws help reduce crime without getting the facts on what they're talking about. In other words, they jump to conclusions.

We do know the GJ has found sufficient evidence for an indictment but that in no way makes the clerk guilty. To make assumptions of guilt or innocents at this point is irresponsible at best.