Unless there's a video camera, or a witness, or the entry wound is in his back....
LOL, I edited my post to reflect the same. Cross posted.
It's an illustration (and an attractive one). There are ample examples of smooth, fast draw/fire strokes out there. Point remains the same. Human reaction time leaves little room for an attacker to quit the fight in the middle of a determined draw and fire stroke.
The only probable scenario that gives an attacker time to "put his hands up", and for you to recognize it, is if you intentionally draw with the intent to delay your shot until you see what he does next...and that's just dumb in a justified deadly force situation.
If deadly force is not warranted, and you have the luxury of giving your opponent the next move on a silver platter, then your pistol shouldn't even be out of the holster.
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I've had to pull my weapon before and as in most defense scenarios I've heard of, simply presenting the gun was enough to stop the threat. Brandishing or not, I'm not about to take the life of somebody if there's no threat. If I had been prosecuted at the time, in THIS state, I doubt that the DA who brought charges would've gotten a conviction or even remained in that position much longer and I'm also very hopeful... nay, certain that my friends and family would've burned his house down.
Another thing to think about: if the law is TRULY written that way as "if you pull it, you have to use it" then why is Jerome Ersland still locked up?
Another thing to think about: if the law is TRULY written that way as "if you pull it, you have to use it" then why is Jerome Ersland still locked up?
As the law stands now, even grabbing your gun is considered 'deadly force', which is completely absurd. I think it should be completely situation dependent.
His case had nothing to do with that; his offense was going back to get a second gun and using it on an already-disabled attacker.
What he did was wrong, but i have a hard time feeling sorry for the perp. Once you go into someones place of abode or business and try that kind of hijinks, your life deserves to be terminated. Having said that, i think he should have served a manslaughter charge of 10-15 years.
Manslaughter is when it's unintentional. Even if you discount the aiming and shooting part, he went back to get a second gun after stepping over (or walking past; I don't recall for certain, but I thought he stepped over) the proned-out body of the disabled attacker. There's no way that was unintentional.
The law is pretty clear on this one. Even his lawyer didn't argue that; in fact, one of the arguments was that the first attacker was already dead, so at most he was guilty of desecrating a body, but the intent element was never in dispute. You might be able to bring it under manslaughter 1 under 21 O.S. 711 (3), "[Killing] unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such attempt shall have failed," but this is a lot more than just shooting the fleeing criminal, or the one who has surrendered. Sympathy for the plight of the shooter doesn't change the test of the law, nor the offenses he commits.
I agree, but i still feel 10-15 years was a more appropriate sentence in this case.
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