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SlowDave wrote:

Excaliber wrote:

SlowDave wrote:[*] Hard for me to believe that an autopsy can determine whether a person was conscious or not for a period of time of about one minute in between a non-fatal and a fatal shooting. If they can prove "beyond a reasonable (not "shadow of a") doubt" that the BG was unconscious at the time of the 2nd shooting, then Mr. Ersland should prepare to wear stripes for a long time as that is murder.

I am not aware of any way to determine from an autopsy whether or not someone was conscious during a given time window, but, as Steve Rothstein explained, a pathologist could certainly determine whether or not the deceased was moving his torso during the time the fatal shots were fired by looking at the paths of the bullets through tissue to see if they traveled at the substantially the same angles (indicating no movement, since the video shows the pharmacist firing from a relatively stable position) or at significantly different angles (which would indicate torso movement between or during the shots). One could reasonably infer consciousness from evidence of movement, since an unconscious person would remain limp under those circumstances.
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Excaliber,
Thanks for the response. I think the problem is that it would be much easier to prove that someone WAS conscious via forensics in this situation than to prove they were not. You could prove that the person was on the ground and shot in the same position, but that doesn't prove he wasn't laying there moving his arm drawing a weapon, or making it look to the pharmacist that he was drawing a weapon.

So the argument would come down to the pharmacist could say, "Well, he was moving his arm from behind his back (or his pocket or ...) and I thought he was going to kill me so I kept firing." The prosecution could then (possibly) show that the BG was shot all 5(?) times while lying in the same position, which indicates he might have been unconscious, but doesn't disprove the defendant's statement. To prove he was unconscious or completely motionless (which seems required if you're the prosecution) seems to be very difficult.

Of course, if the 5(?) shots are shown to be placed as the BG was moving (per forensics), then the pharmacist should be on his way to acquittal, IMHO.

SlowDave,

You're correct that the path of the bullets could only be used to determine torso movement, and that's why I qualified my response by limiting it to this scenario. It is certainly possible to move just the arm and hand to draw a gun if the positions of both the body and the gun allow this.

You're also correct that lack of movement does not preclude consciousness, although conscious people who are being shot at close range tend to move a lot unless literally paralyzed by fear, which can happen too.

Proof of movement would tend to support the pharmacist's story, but would also not be positively exculpatory unless the movement could be shown to have been threatening in some way. For example, writhing in pain would probably not constitute a threat.

The recovery of a firearm in the possession of the deceased would be very helpful to the defense, although a movement consistent with an attempt to draw an unseen firearm could certainly be reasonably perceived to be threatening under the circumstances.

There is not nearly enough information available from public sources to draw a conclusion I could have confidence in. The pharmacist's statements are clearly inconsistent with the video, but this is not at all unusual for people who try to describe the details of what happened while still under the psychophysiological effects of a life threatening situation. This is unwise legally for reasons which are now obvious in this case, and a complication for the defense, but not a clear indication of guilt by any means.

It looks like we will have to wait for the forensic results and witness statements to come out at trial to get as much of the full story as can be garnered from the evidence.

SlowDave wrote:I guess I'll throw in on this as well.

1. For my own education, lessons learned include things already metioned:

• When the threat is over, call 911, don't keep shooting.
• Careful what you say to the police. Be even more careful what you say to the media.
• Don't think I'd have fired those follow-up shots there at the end.

2. From a legal perspective for Mr. (?) Ersland:

• Imagine if there was no video. There are no living eye-witnesses (as far as we know) and it would be Mr. Ersland's word against no one's (other than forensic evidence). If he said the guy was moving, and a gun was found on the guy at the scene, he'd be pretty much off the hook, IMHO. At the moment, the video does nothing to change that situation, as it provides no conclusive evidence as to whether the BG was moving or not at the time of the 2nd shooting event. (I'm not disagreeing that it shows Mr. Ersland in an unfavorable light, but no conclusive evidence.)
• How is that in all of these reports, it is never mentioned whether the BG on the floor was found to be armed or not? (Makes me think he was not, but...?) This is an absolutely critical factor in deciding the situation.
• If the guy was moving but not armed, would Mr. Ersland still be justified in firing the 2nd volley? I mean, even without seeing a gun, he doesn't KNOW the guy's not armed, and the (moving) bad guy could be preparing to come at him with a knife or baseball bat or some other unseen object. All a reach, but enough (IMHO) to not convict Mr. Ersland of murder.
• Hard for me to believe that an autopsy can determine whether a person was conscious or not for a period of time of about one minute in between a non-fatal and a fatal shooting. If they can prove "beyond a reasonable (not "shadow of a") doubt" that the BG was unconscious at the time of the 2nd shooting, then Mr. Ersland should prepare to wear stripes for a long time as that is murder. Not saying the BG wasn't responsible for his actions, just that it's not self-defense. That would be Mr. Ersland taking the position of judge, jury, and executioner, and that is not allowed in the USA. Even BG's have the right to a trial by jury, and that's a good thing if you ever find yourself wrongly charged.

One thing tough to keep in mind in these situations is that the justice system has to work the same way when it's for you as for when it's against you, so I don't want to go overboard and give this guy a complete free ride, 'cause if I ever walk into a store and some nutcase shoots me, I don't want him getting off because he says I was there to rob him, I'm carrying a (concealed) weapon, and heck, "I probably deserved it."

I concur on the impressiveness of the civil discussion of this topic. Thanks everyone.

p.s. Hard to make out everyting in that video, but it sure looks like the shot Mr. Ersland fired from the end of the counter that dropped the BG was from a large revolver (e.g. The Judge) rather than a .380. Someone said that all the shots to the BG on the floor were with the .380 though. Am I mis-seeing something or what's up there? I can't tell whether he fired before that shot from the end of the counter, but that shot looks like the one that definitely dropped the BG.

I am not aware of any way to determine from an autopsy whether or not someone was conscious during a given time window, but, as Steve Rothstein explained, a pathologist could certainly determine whether or not the deceased was moving his torso during the time the fatal shots were fired by looking at the paths of the bullets through tissue to see if they traveled at the substantially the same angles (indicating no movement, since the video shows the pharmacist firing from a relatively stable position) or at significantly different angles (which would indicate torso movement between or during the shots). One could reasonably infer consciousness from evidence of movement, since an unconscious person would remain limp under those circumstances.

One could also look at any exit wounds on the back of the deceased, the markings on the floor, and the location and condition of the bullets for evidence that the body was or was not in contact with the floor at the moment the bullet(s) exited (if they exited at all). An exit wound with no indication of bounceback, an impact mark on the floor, and the round found at some distance from the body would usually indicate that the body was not in contact with the floor at the time of bullet passage, once again providing an indication of movement and probable consciousness.

On the other hand, a bullet deformed in a way that indicates contact with the floor and found inside the wound cavity at the point of exit with a matching impact mark on the floor would tend to indicate that the body was in contact with the floor at the time the shot was fired. This would not preclude consciousness, but if all the wounds followed this pattern, the findings wouldn't support significant torso movement at the time the projectiles traversed the body.

If the rounds didn't exit (and with a .380 they very well may not have), the angles of travel would still provide lots of information to an experienced investigator.

The video doesn't show the actions of the wounded bandit, which would make much clearer whether or not the pharmacist's actions were justified.

In my view, his demeanor when making his final approach and firing again at the individual on the floor is atypical for someone dealing with what one believes is an immediate deadly threat. However, his history as a military veteran who has learned to manage his emotions during life threatening situations and pain from his recent back surgery may explain some or all of that.

From the video and statements we have available at this point, I would find it very difficult to criticize the decision to arrest the pharmacist because from the information we have, one could reasonably conclude that only the first shot was justified. I would also not rule out the possibility that the man acted reasonably and lawfully on the basis of investigative information that is not shown on the video or included in the news reports.

From a law enforcement perspective, the best course in a situation like this is to make the charge and let the grand jury and quite possibly a trial jury sort through the full set of forensic evidence and witness statements to determine what really happened, and ultimately decide whether or not the defender's actions were justified.