Two kids walk into an Oklahoma City pharmacy. One is packing heat. It is undisputed that they intend to rob the place. The pharmacist, James Ersland, is also armed. One of the would-be robbers, sixteen-year old Antwun Parker, who was unarmed, goes down, shot in the head. His armed accomplice flees the scene. Ersland runs past Parker in pursuit. He comes back into the store. He gets another gun. He returns to the incapacitated Parker and pumps five shots into the kid’s gut, killing him.
Self Defense or murder? A jury, after deliberating less than 40 minutes, decided it was murder. They rejected the lessor charge of manslaughter. Ersland now faces life in prison with the possibility of parole. Outrage has ensued. Many feel the Ersland is a hero and should not have been put on trial for murder. There is push for extreme leniency in sentencing and a pardon from the governor of Oklahoma.
I feel no sympathy for Antwun Parker. He walked into Ersland’s store with the intent to do evil. If he was killed with the 1st shot there is no trial. It is cut and dried self defense under Oklahoma’s “Castle Law” which allows self defense in protection of home or place of business. He wasn’t killed. He was lucky. He was lucky until Ersland got another gun while he lay incapacitated. He was lucky until Ersland came back and shot him multiple times, finishing the job. I don’t feel sympathy for him but I believe in the rule of law that has developed over the course of two thirty-four years in this country. To quote and overused “Law and Order” blurb, that is what separates us from anarchy and societal chaos. We do not live in a vigilante society in which every possible consequence that flows from the original act is “deserved”. Once the threat had passed under both Oklahoma’s Castle law and morally, Ersland had no right to end Parker’s life. Morals and the rule of law don’t only apply only when the choice is easy.
I would never want to be in Ersland’s position. Adrenaline flowing, lives hanging in the balance. Milliseconds to decide. Imperfect decisions are often made and often excused. Hindsight takes a backseat to survival. That was when the Parker walked into the pharmacy. Then it changed. When Parker was laying on the floor incapacitated the rules changed. There was all the time in the world to evaluate other options. He had time to think. He had time to get out. Ersland had time to reflect on a proper course of action. Whether it was fear, adrenaline, anger etc., Ersland chose to kill the kid plain and simple. The video tells no other story.
While there are those that argue that the video may not tell the whole story, it provides more than enough data to come to logical conclusions. The jury thought so in deliberating less than 40 minutes. This is not Death Wish. Ersland is not Charles Bronson or Dirty Harry. This is not a vigilante society. While I could have understood the jury coming back with manslaughter, they made the correct legal and moral decision in coming back with conviction. You can watch the video below and decide for yourself.
Jose Luis Gonzalez is 63 years old. His trailer home has been broken into several times. He is sick and tired of it. 15 year old Jesus Soto, 13 year old Francisco Anguiano and two other teenage boys were prowling his neighborhood one night. They were hungry. Word must have been out that the Gonzalez trailer was an easy mark for free food. The boys decided to let themselves in and help themselves. They apparently thought the coast was clear. Gonzalez was in a nearby building at the time. He returned home and confronted the boys with a 16-gauge shotgun. Soto testified at trial that they were all unarmed. Soto testified that Gonzalez forced them all to their knees. There was testimony that the boys begged for forgiveness while Gonzalez hit them with the barrel of the shotgun and kicked them repeatedly. Gonzalez then shot and killed 13 year old Anguiano. Gonzalez was charged with the murder.
At trial Gonzalez testified that he thought Anguiano was lunging at him when he fired the shotgun. The medical examiner testified that Anguiano was shot in the back at close range. There was testimony that two mashed Twinkies and some cookies belonging to Gonzalez were stuffed in the pockets of his Anguianos’s shorts.
It was the opinion of the Assistant District Attorney that the Texas “Castle Law” did not apply. He stated:
“What really took place here was a case of vigilantism. A 13-year-old boy was killed because a man was enraged.“
In 1995, the Texas Legislature created an exception to a 1973 statute, which required a person to retreat in the face of a criminal attack. The exception allowed a person to use force without retreat when an intruder unlawfully entered their home. Is this what happened in this situation? The law also extends a person’s right to stand their ground beyond the home to vehicles and workplaces. The Castle Law allowing the reasonable use of deadly force when an intruder is:
Committing certain violent crimes, such as murder or sexual assault, or is attempting to commit such crimes;
Unlawfully trying to enter a protected place; or
Unlawfully trying to remove a person from a protected place.
The law also provides civil immunity for a person who lawfully uses deadly force in the above circumstances.
It took the jury of eight men and four women three hours Friday to find Jose Luis Gonzalez not guilty of murdering 13 year old Anguiano. Should Mr. Gonzalez should have been acquitted? This sounds more like a “gangland” execution than a person afraid for his life. It is not clear how Aguiano who was on his knees could have “lunged” at Gonzalez and get shot in the back. Did he rise up and hop backwards at him? If anyone was afraid for their lives it was the subdued teenagers as they were being kicked and beaten by Gonzalez.
Unfortunately for Francisco Anguiano the Texas Castle Doctrine statute does not distinguish between Twinkies, jewelry or a plasma television. The statute does not impose any circumstances to define when something transitions from a deadly force situation to the requirement of a non-deadly response. There is no question that the boys entered his home unlawfully. Under the statute he had no duty to retreat. He had no duty to ask them what they were doing there. He had no duty to call the police. He had no duty to ask the to leave. He had no obligation to anything or anyone but the danger he perceived himself in even if that perception was flawed. Assistant District Attorney Uriel Druker maintained during his closing arguments that the case was not about homeowners’ right to protect their property, but about when a person is justified in using deadly force to do so.
Druker’s argument seems reasonable but is legislatively flawed. The legislature passed the Castle Law in part so homeowners would not have to go through that thought process before defending themselves. If someone enters your home unlawfully the intent is to do you harm. End of story. A story however with many unwritten chapters and thousands of possible scenarios in between. After his acquittal Gonzalez said he was sorry for Anguiano’s death, but “it was a situation in which I feared for my life.”
Did the venue matter? Laredo is town plagued by cross-border Mexican drug cartel violence. Fears are high. Tempers are short. Triggers are quick. Juries both empathize and sympathize with residents under siege. It should also be noted that Gonzalez’s attorney Isidro “Chilo” Alaniz, is running unopposed for district attorney. That does not bode well for any future hungry kids looking for a free snack.
Motto of Story? If you live in Texas steal your Twinkies from the local 7-11. You will live longer.
Here is another example of how far Texas grand juries and juries are willing to go to protect homeowners T In June, a grand jury in Houston cleared a homeowner who shot and killed two burglars outside his neighbor’s house despite the dispatcher’s repeated request that he stay inside his own home. The video is below.
Man Shoots Thieves Robbing Neighbor’s House; 911 Tapes Released
W.C. Frosch, an elderly peaceful gentlemen of 74 years was relaxing inside his home when he heard a noise out front. He peered out the window and saw 15-year-old Brandon Robinson and some other teens running across his lawn. Mr. Frosch thought the teens were prowlers, so he armed himself with a handgun and told his wife to call 911. He shot through a window, striking Brandon under his left arm. Brandon and his pals were in fact crossing his yard to check out a loud party that was under way at a home on the other side of Frosch. While the injuries were not life threatening, there was a bizarre and tragic ending to the episode. On their way to the hospital a vehicle crossed the center stripe and struck the truck driven by Brandon’s mother head on. Brandon survived but his mother died.
The local authorities initially cited Texas new “castle law” in declining to file charges. Under the law, a person is presumed to be acting reasonably if he shoots someone he believes is trying to break into his occupied home, business or car. The case was later presented to a grand jury and Mr. Frosch was indicted last week on a charge of aggravated assault with a deadly weapon, a second-degree felony, punishable by two to 20 years in prison and a $10,000 fine. You can read the story here.
What is Texas new Castle Law? Here is an overview:
In 1995, the Texas Legislature created an exception to a 1973 statute, which required a person to retreat in the face of a criminal attack. The exception allowed a person to use force without retreat when an intruder unlawfully entered their home. The Castle Law extends a person’s right to stand their ground beyond the home to vehicles and workplaces, allowing the reasonable use of deadly force when an intruder is:
Committing certain violent crimes, such as murder or sexual assault, or is attempting to commit such crimes;
Unlawfully trying to enter a protected place; or
Unlawfully trying to remove a person from a protected place.
The law also provides civil immunity for a person who lawfully uses deadly force in the above circumstances.
There you have it. What is the big change? Your car is now your castle. Your workplace is now your castle. That is a pretty big moat!
What has not changed? There still has to be an “unlawful act”. The law does not give you the right to blow away any shady looking skell approaching your vehicle or front door. I really do not view the analysis as any different under the new law. If the person is in your home, breaking into your home etc, it appears you can still fire away with relative impunity. There is no duty to retreat. Beyond that, your actions are going to be judged after the fact by a grand jury. If they don’t indict the presumption will be that your action was lawful. If they indict the presumption will be that your action was unlawful. In other words, if the guy is not in your home or holding a weapon up to your car window, fire at your peril to the whim of the grand jury.
There is some concern about the extension of the protection to your vehicle. This is because Texas has a fairly liberal Conceal and Carry law. I wont go into it other than to say that there is a greater then the norm likelihood in Texas that the person in the car whose window you are beating on will pull a gun out of her glove compartment. Thats in my opinion is the stickiest part of the law. If you are safely locked in your vehicle and some homeless guy comes up to you at an intersection, starts banging on your window and screaming, does the law allow you to fire through the window or roll down the window and shoot him? Under the current statute there is certainly an argument that the answer is yes.
Any criminal attorneys want to chime in?
The good thing is that the statute takes any confusion about what is a reasonable belief out of the equation by substituting the “unlawful act” standard. The statute is very specific on what acts will in themselves presume a “reasonable belief.” You can read about the statute here.
Let’s say that the three prior people who knocked on your front door, put a gun in your face, tied you up and cleaned out your home. You finally wise up and get a Dirty Harry Magnum. The gun weighs more than you but the next bastard who tried it is going to pay!. Joe the roving magazine salesman guy offering great deals to fund his next bible mission to Zamunda shows up at your door at 10 p.m and knocks. Boom! Dirty Harry says hello right through the peephole. Does the fact that the last three guys who knocked robbed you make your belief that Joe would objectively reasonable? Of course not. Even if it was subjectively reasonable, the conduct of Joe did not fit any of the required exceptions in the statute. The statute tells us what constitutes a reasonable belief.
Let us take a look at very publicized recent case in Dallas, Tx.
Musician Jeffrey Carter Albrecht was shot to death Sept. 3 after he tried to kick in a neighbor’s door during a drunken rage. Albrecht was very well known guitarist and keyboardist on the Dallas indie music scene. he was a member of rising indie pop band Sorta, Edie Brickell & New Bohemians, and Salim Nourallah’s band, the Polaroids.
A neighbor reportedly thought Mr. Albrecht was a burglar and fired a pistol high through the back door as a warning, but struck the 6-foot-4 Mr. Albrecht in the head. No charges were ever filed against the neighbor. the case was referred to a grand jury which returned a “no-bill”. The facts are not in dispute that the neighbor gave ample warning to Mr. Albrecht that he was armed and would fire before he fatally shot him. You can read that story here.
The Albrecht case in my opinion is an easy call. Albrecht was unlawfully trying to enter a protected place. What about Mr. Frosch? That is an easy call as well. Trespassing in itself is not an unlawful act as defined by the statute. I don’t think he will do time but if he does not plead this out he probably will be convicted.
Bottom Line? You can go through a million different scenarios with the same number of outcomes. What do you think? You just pulled into your open garage. You feel a presence. You turn around to see someone you don’t recognize walking up your driveway. There have been a rash of garage robberies in your neighborhood. Your good friends Smith and Wesson are also sitting in your car? What do you do? What should you do?
Does the Texas Castle Law go to far? I don’t think so. In the grand scheme of things I don’t think it matters at all during that crucial millisecond decision making process. If you think your life or home safety is in jeopardy and you have the weapon you are probably going to fire regardless of any statute. it is not a deterrent to bad shoots. What it does is take the pressure off law enforcement and district attorneys and you in legitimate shoots
How about the video below. It was not even this guys house. It was his neighbors. He was warned not to use deadly force by the 911 operator and killed the burglars next door with the 911 operator on the phone!
Where is Dirty Harry when we need him? We know what he would do!
Man Shoots Thieves Robbing Neighbor’s House; 911 Tapes Released
Two kids walk into an Oklahoma City pharmacy. One is packing heat. It is undisputed that they intend to rob the place. The pharmacist, James Ersland, is also armed. One of the would-be robbers, sixteen-year old Antwun Parker, who was unarmed, goes down, shot in the head. His armed accomplice flees the scene. Ersland runs past Parker in pursuit. He comes back into the store. He gets another gun. He returns to the incapacitated Parker and pumps five shots into the kid’s gut, killing him.
