Should he "plea out"?

[Brian Pfleuger]

As you walk up to your downed threat to kick the gun away from him, he shoots you.

Now your both bleeding because someone lying on the floor equals no threat regardless of a firearm in his hand.

THE GUY DIDN'T HAVE A GUN!!! A gun is not going to materialize in his hand! In his pocket? Maybe. In his backpack? Maybe. You don't shoot someone over a "maybe". He WASN'T a threat. Continue to watch? Yep. Warn him if he moves? Yep. Shoot again if he reaches in a bag/pocket/backpack? Yep.


He. Shot. An. Unarmed. Man. Lying. On. The. Floor. Whilst. Said. Man. Was. Unconscious.

M. U. R. D. E. R.

[johnwilliamson062]

the reason I don't think the marks on the floor are enough is it is very posble he could have suffed some sot of paralysis below the shoulders and not moved his body dnough to matter while still having decent control of his arms. I don't know how many here have been laid out before or witnessed someone get laid out, but it is not all that uncommon to see appendage movement when the torso is not moving. The shooter fired pretty quickly, and even he was squirming a little he may not move all that much and there were probably deflections off of bone.
I still think it is going to be really difficult to give "beyond a reasonable doubt" even though the guy can't keep his story straight.
I still have not voted b/c I am still not sure. In these cases the law does not matter nearly as much as who ends up on the jury.
2 real lessons here, take and maintain a defensive position or retreat, and keep your mouth shut afterwards.

[hogdogs]

The police in Lakewood here at home are trained to shoot two to the chest, one to the head to stop a threat. If the threat so much as twitches, they repeat the exercise.

I doubt that is exactly correct. If the guy is down and "twitching" and the cop is on film being recorded, repeating the exercise It wouldn't matter one bit what dept. policy was. Especially if the guys family was there to back up the video in court.

Just makes sense to me, if they are still moving they are still a threat.

Glad you ain't a policy maker!!!

hogdogs,

As you walk up to your downed threat to kick the gun away from him, he shoots you.

Now your both bleeding because someone lying on the floor equals no threat regardless of a firearm in his hand.

If a person is out cold and/or just laying there and has a pistol still laying on their hand I could order them to sling it. If they are obviously un responsive I can cautiously approach while keeping the BG fully covered up with muzzle. If he should attempt to draw on me he would be dealt with accordingly. If he doesn't move and I used care and wisdom I could boot the gun.

the reason I don't think the marks on the floor are enough is it is very posble he could have suffed some sot of paralysis below the shoulders and not moved his body dnough to matter while still having decent control of his arms. I don't know how many here have been laid out before or witnessed someone get laid out, but it is not all that uncommon to see appendage movement when the torso is not moving.

Had he been paralyzed yet arms mobile he would have been shot with his back sack removed and his arms digging in it cuz that is where the gun would have been as he didn't have a gun in hand nor drawn and now on the ground...
M.U.R.D.E.R.
Now please do us all a favor and vote in the poll and comment on the poll only in this thread. we have a thread in Tactics and Training for discussing the shooting. If you do yourself a service and read the 20+ pages of posts you will find many links to reports as well as many wise posts by informed TFL'ers.
Thanks,
Brent

[wmeSha]

The job of the defense attorney is to do well for his client. Given the video footage, I'd say that a defense attorney has to seriously consider going for a plea if he can swing it. The prosecutor has to weigh the likelihood of the murder conviction.

I don't claim to know the minds of attorneys, but I have to think the defense would want to pursue a plea but the prosecution will reject it and go forward with murder 1.

[hogdogs]

wme, I think in this case the DA will offer some plea deal as he seemed apprehensive of charging the guy but was slapped handily across the face with irrefutable evidence of poor judgement at least and blatant execution at worst.
ALL ON HIGH RESOLUTION REAL TIME CAMERAS X3...
Brent

[Dust Monkey]

I feel sorry for the man. I cant speak for his state of mind or what he went through. But, Ex Investigator hat on, the video is damning. The first shot that hit the bad guy = good shoot. No problem. The walking around the counter and back, emptying 5 shots into the BG laying on the floor, Murder. Period. Unless there is some evidence that says BG was a threat, the second shoot was not self defense. So I hope he has a good Lawyer and I hope he listens to his lawyer and any plea deal that is offered. Going to a jury on this one is a very bad roll of the dice. With that said, any lawyers out that want to hazzard a guess as to what typr of plea deal might be on the table for a situation like this...

[5whiskey]

I've posted once, but I want to say this...

unless this guy can make a reasonable case that he felt threatened when he dropped the 5 .380 slugs in the kids chest, I pray that he doesn't walk. That video just gave all of the antis 5 reasons to argue against the right to defend ourselves. Not to mention it's a shame that this kid is dead. Yeah, the kid was in the wrong. Got it. It's obvious he's not an experienced criminal based off of his fumbling in the video. Were the kid NOT EXECUTED as we saw in the video, he could have went on and done well in life.

I'm all for someone having the right to defend themselves. I'm of the frame of mind that if a criminal dies while attempting a crime which someone defends against, then the criminal took that chance and his death is on him. If the first headshot would've killed him, oh well. The 5 to the chest against an unarmed, unconcious, FORMER assailant though? Come on folks, we have more sense than this... right?

[Al Norris]

doh_312, johnwilliamson062: We are not going to debate the quilt or innocence of the pharmacist. Nor are we going to debate whether the kid moved or didn't move. This thread is about the poll questions. If either of you wish to debate anything else, go back to the original thread, up in Tactics and Training.

But not here and not this thread.

[Wagonman]

The police in Lakewood here at home are trained to shoot two to the chest, one to the head to stop a threat. If the threat so much as twitches, they repeat the exercise

I don't think that a twitch is a threat.


I hope he is able to plea out to manslaughter with a shortish sentence.

He was wrong but there were extenuating circumstances.

[Ricky B]

The poll leaves out the most obvious response:

Yes to a lesser charge (say, murder 2 or voluntary manslaughter) with a sentence of substantial jail time.

[B. Lahey]

I am not a lawyer, but my take on it is that it depends if he said anything stupid to the cops.

I don't think the video is conclusive. It looks bad, but you can't see what robbery-boy is doing when shot the second time. The first shot was one of those stupid shotgun revolvers, so it could have been ultra low velocity birdshot that hit him. I don't think it's a safe assumption to say that he was unconscious, he could have just as easily been briefly stunned by a relatively harmless wound and later decided to try to fight again.

But if the pharmacist dude screeched "better to be judged by 12 than carried by 6!" or "dead men tell no tales!" when the cops asked him what happened, he should probably take whatever deal he can get.

I bet he said something stupid or he probably wouldn't have been charged in the first place.

[WeedWacker]

They say "he was unarmed" but what was the he pulled from his pants right after entering the pharmacy? Half looked like a MAC


ETA: NM, it's his mask...

[teeroux]

Well one argument could be is that would he have died anyway without the second string of fire?

Reguardless of when or how many times he was shot after the fact if he was dead or would have died shooting him again would not cause him to die again and could possibly only have caused him to die faster.

I don't think that he should have shot him again but IMO the procecution should prove beyond doubt that he may have lived if not shot a second time.

[hogdogs]

Tee, The defense isn't in a position to that. A person is a person until "declared dead" by a physician or medical examiner. So even if he was dead when the second shooting occurred he was considered a "person" and not a "body".
Brent

[bababooey32]

bababooey32?

Did you not read my post (#33), above?

[hogdogs]

In regards to the court case (reason for seperate thread)

Irrelevant. As part of a group that attempted armed robbery, he is a legit target.

he is a legit target

BUT NOT A LEGIT BULLET OPERATED PINATA!!!
Contrary! I agree he was part and parcel, an armed man, legally when the first shot was fired. But it is still beside the point on the second shooting. I do feel that in this case we have 2 separate shooting events, not one. The first was a very legit SD use of lethal force. The second event is what is in question and being prosecuted.
One thing the ME is going to see is spatter evidence. If it lines up with arms laying down, than it is pretty obvious the guy wasn't aware enuff to posture defensively. If the guy was moving, crawling, trying to right himself doesn't, in and of it self, make him a threat. If the kid has a face full of .410 pellets and is unable to see, and has no weapon drawn, he is not a threat.
Brent

[OuTcAsT]

unless this guy can make a reasonable case that he felt threatened when he dropped the 5 .380 slugs in the kids chest, I pray that he doesn't walk. That video just gave all of the antis 5 reasons to argue against the right to defend ourselves. Not to mention it's a shame that this kid is dead. Yeah, the kid was in the wrong. Got it. It's obvious he's not an experienced criminal based off of his fumbling in the video. Were the kid NOT EXECUTED as we saw in the video, he could have went on and done well in life.

I'm all for someone having the right to defend themselves. I'm of the frame of mind that if a criminal dies while attempting a crime which someone defends against, then the criminal took that chance and his death is on him. If the first headshot would've killed him, oh well. The 5 to the chest against an unarmed, unconcious, FORMER assailant though? Come on folks, we have more sense than this... right?

5whiskey has nailed my position, Well said !

[Crosshair]

After reading most of the stuff from the links posted, I have this to say:

Reasonable doubt. One event with two possible explanations, neither one can be fully ruled out.

For other things

Does anyone HONESTLY expect someone to remember things 100% how they happened in such a fast, dynamic, and traumatic event? That would seem really suspicious to me .

When I hit a deer last year, the dents on my car, position of my car, and position of the deer did not match the memories I have of the event and the description of the event I gave. I remember the deer going under the car when I hit it, but the damage to the car clearly shows that the deer went onto the hood and over the car.

Stuff happens, memories get garbled. Just because someones memory aint the best doesn't mean he is lying.

[Glenn E. Meyer]

Because of memory failures, etc. - almost every professional will tell you to keep quiet until you talk to your lawyer. Police have procedures for that after their shootings.

Also, how come folks don't misremember things in the direction that is not in their benefit?

Yes, there may be some hypercomplex frame by frame analysis of the action to support the pharmacist like was done in the Rodney King case. That is going to cost him every cent he is has.

It is clear that after the first shot - he had the chance to avoid further conflict - independent of your moral stance on bad guys, etc. - you need to keep your head. That's why training and stress inoculation is so important.

And keeping your mouth shut about how you are a commando and cleaning of scum. Like we see here from folks.

1. I'm cleaning the scum
2. If I shoot, they will be dead
3. I will take risks as I have my little friend.

All recent posts from TFL.

Anyway, the guy should entertain a good plea offer. And if he doesn't get jail time, he needs to find another job in another location. Or he can posture that he is ready for the next one.

[divemedic]

Remember that the standard for a criminal conviction is "beyond a reasonable doubt." The following facts have been confirmed by the prosecution AND the defense:

1 The deceased was participating in an armed robbery
2 The deceased was shot once in the head by the shopkeeper
3 The shopkeeper left the vicinity of the deceased
4 the shopkeeper returned, and shot the deceased multiple times
5 The initial shooting was justified, the charges stem from a question of whether or not the second set of shots was, as well
6 The deceased was not armed

So the question here is whether or not the second set of shots was legally justified. The deceased is not visible on the video, and the only witness was the shopkeeper, who claims he was moving. Forensic evidence can tell you whether or not the deceased moved from the point where he fell, but the reasonable doubt, in my mind, enters when we ask if the deceased could possibly have moved his hands or arms, and whether or not a subject's arm twitching could reasonably be perceived as a threat.

I think there is plenty of room there for reasonable doubt, if the pharmacist has a good lawyer. Keeping in mind that the pharmacist is presumed innocent, and that it is the job of the prosecutor to prove BEYOND A REASONABLE DOUBT that the defendant unlawfully killed the decedent, I think the prosecutor has a difficult case ahead of him.

ETA: As a paramedic who has seen hundreds of head injuries, and dozens of shootings (at least in the three digits) I can tell you this: A severe head injury does not cause a person to collapse and go limp. Frequently, a severe head injury causes the person to "posture." The two types of posturing are called decorticate and decerebate posturing. The decedent was very likely to have been moving after being shot, and this would not be a conscious movement, but could easily be mistaken for one.

[csmsss]

I think it's almost certain this case will never see a jury, unless external forces (ie community pressure on the prosecutor) come into play. The defense would be criminally stupid for not accepting a reasonable plea deal (say, manslaughter for 2-5 year minimum sentence), because the alternative is to go to a jury trial and look at a minimum of 25 years or more should the jury use their eyes and ears and not their emotions in reaching a verdict.

The prosecution has to also weigh the very real possibility of running into a jury that might side with the pharmacist and acquit him. This is a defendant who many may find sympathetic and want to side with.

[Glenn E. Meyer]

The jury question will be interesting - there can easily be a panel of jurors who are unsympathetic to him. His lawyer will need to determine if they can get a change of venue.

In the Diallo case, the officers charged got the case moved to Albany. It was an ambiguous shoot with racial overtones and the original venue was not police friendly but Albany, NY was historically sympathetic to police.

Quite the crap shoot.

[Evan Thomas]

Can't really vote on this one, given the choices, but...

Should Mr. Ersland's lawyer be trying to get a deal for him? Yes, of course -- given what the evidence against him seems to be, if this goes to a jury, unless he's very lucky with jury selection, he's toast.

Should the DA offer a deal? My personal opinion is that he shouldn't. Again, based on the evidence there's a good chance the man committed murder and he ought to go down for it... but given that the DA doesn't seem to be all that keen on prosecuting, I'd be surprised if a deal were not made. I'd hope it would be for not less than second degree murder, and substantial jail time, assuming the medical examiner is correct that Mr. Ersland shot an unconscious man.

[divemedic]

In voir dire, no potential jurist will be allowed onto the panel that is against self defense in principle. Therefore, no anti's will be on the jury unless they lie to get there.

The question here is whether or not the second set of shots were legal. Anyone who believes that neither set of shots should have happened because the pharmacist should not have had a gun will be dismissed for cause.

[PT111]

When I hit a deer last year, the dents on my car, position of my car, and position of the deer did not match the memories I have of the event and the description of the event I gave. I remember the deer going under the car when I hit it, but the damage to the car clearly shows that the deer went onto the hood and over the car.

But you didn't forget in which direction you were traveling, that you were driving, where you were going or that you hit a deer instead of a bear did you. There is a difference between being confused and total distortions of the whole story. I think he was just plain lieing especially to the media.

As for the blood splatter proof, lay off watching CSI and turn over to NCIS. At least NCIS doesn't try to make you think that what they do is real.