Sunday, September 06, 2015

OK: Warning Shots Evidence of Restraint in Berdahl Self Defense Case

On December 16, 2013,  Michael Berdahl, 66, shot and killed David Wimmer, 43.  Wimmer was visiting Berdahl at his apartment in Enid, Oklahoma.  Berdahl fled, but was arrested the next day in Anthony, Kansas.  He had a pistol on his person, and admitted to the shooting.  Bond was set at 1 million dollars.  Berdahl did not make bail and stayed in jail.

The trial took place on 1 September, 2015, more than 20 months later.  The jury was out for little more than an hour when they came back and rendered a not guilty verdict.   Berdahl's use of warning shots was cited in closing arguments to bolster his self defense claim.  From
He said Wimmer continued to advance on Berdahl, even after Berdahl fired two warning shots. 
"That tells you everything you need to know about David Wimmer," Camp told the jury. "Frankly, I think David Wimmer and his actions got him killed."

It has become an Internet myth that warning shots will always be used by prosecutors as evidence that the person firing them was not really in fear of their life.  Some prosecutors do, some do not.  Perhaps the prosecutor in the Berdahl case did.  But it was the defense that used the warning shots as evidence of restraint, in the closing arguments.  A little over an hour later, Berdahl was found not guilty by a jury of his peers. 

I do not recommend warning shots.  There are well known dangers to their use.  The bullet has to end up somewhere, and you do not wish to harm an innocent person.  But in some cases, they appear to be effective; and in at least one other case  the prosecutor cited them as evidence of restraint.

Berdahl used a Colt Single Action revolver chambered in .22 rimfire.  They are usually carried with 5 rounds chambered, for safety.  Fire two warning shots, and you only have three rounds left to defend yourself, in a slow to reload revolver.   Wimmer was hit twice.  Once in the chest and once in the head. 

Berdahl had also been charged as a felon in possession of a firearm, but that charge was dropped at a preliminary hearing over a year ago.  An original charge of first degree murder had been reduced to first degree manslaughter by the trial.

Berdahl should have called the police.  It might have saved him 20 months in jail.

Because the FBI Uniform Crime Reports (UCR) track arrests and not verdicts, this case will show up in the UCR as a criminal homicide, and not as a justifiable one.  It is one of the reasons that the UCR grossly under reports justifiable homicides.

Another is that this case does not meet the FBI definition as a justifiable homicide.  The UCR definition specifically charges police departments not to rely on jury verdicts to determine whether a homicide is justifiable or not.  The UCR requires that a justifiable homicide be reported with the felony report of the crime that made the homicide justifiable.

No felony charge was made against David Wimmer for assault, so there was no felony to report.  Under the UCR definition, that means that there was no justifiable homicide.

The UCR reports about 300 justifiable homicides by people other than police each year.  Research indicates that the actual number is 3-10 times as great.   This case illustrates one of the reasons for the discrepancy.

©2015 by Dean Weingarten: Permission to share is granted when this notice and link are included.
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Anonymous said...

I have personally witnessed murder by cop on several occasions and they were ruled good shootings. there are far too many trigger happy cowardly cops that are unfit to wear the badge.

Joe said...

You have personally witnessed crap. Gtfooh and don't fucking ever fucking come back or we will have your parole officer up your rear end with a D cell flashlight.

Anonymous said...

Well Joe would you like my address I'll give you a 5 cell and let you try. In fact there is a news channel video of a California highway patrol officer shooting a man with both hands clearly on the steering wheel the cops emptied his magazine in the guy. the Bull head city cops shot a guy with a blood alcohol count of 4.0 9 times with his hands in the air. Joe must be one of the worthless cops I am complaining about. come on Joe show us how brave you are. If anyone is worthless it is a cop that covers up crime.

Anonymous said...

I think I should explain to Joe the brave cop. He says I haven't witnessed crap. Ok Joe hears is some of the crap I have witnessed, 20 Years of working ER trauma all most all of those 20 years in hospital located near major highways. West Minister California Call by a neighbor reports a noise in a near by apartment. cops illegal enter the apartment to check out the noise and blow the head off of a six year old boy He was playing with a plastic ray gun. I-10 traffic wreck one car sheared in half. Highway patrolman filing out his report starts talking to two people they refuse to answer any of his questions. He pulls his gun and threatens to arrest them, a paramedic step up and says officer you might want to come around here and take a look. The car had been cut in half the back of their heads was gone and their brains had been sucked out he was talking to and threating two extremely dead people. Arizona highway 95 more than ten miles out of bullhead city south. Bull head city police officer cruising north calls for back up report he is chasing a driver that is driving HINKY Mohave county sheriff's deputy responds to the call for back up, Bullhead city cop is doing 110 miles an hour passes five vehicles in a no passing zone in a dip, coming out of the dip meets his back up head on the impact was so great both vehicles bounce more than 20 feet apart. The sheriff's deputy was Physically cut in half by the seat belt and died at the scene. the cop apparently was not wearing his seat belt and wound up under the passenger side dash board, Fire rescue had to cut the cruiser away from him to get him out. He was about two feet shorter than he was before the collision he had spiral fractures of both legs broken ribs broken arms head injuries collapsed lung we were trying to establish an air way while running in whole blood and packed cells and had double bilateral IVs going there were several investigating officers trying to get answers to their question while we were trying to save the cops life, the doctor had to order them to leave, We re splinted his legs after straightening them out and packaged him for a major trauma center and life flighted him out. He is alive today and using both legs. I haven't witnessed crap Joe Screw you, you moron. I was in Tucson when two motor cycle gangs were battling it out, the cops brought members of both gangs to the same ER where the battle continued. The 20 bed ER was destroyed.