Dead Robber’s Mother Files Suit for Wrongful Death

Submitted by Bob Jacobson on Thu, 05/26/2011 - 13:34

 

Dead Robber’s Mother Files Suit for Wrongful Death
 
This story from the May 18, 2011, Oklahoman by Nolan Clay caught me just a little bit by surprise. It seemed quite incredulous to me that someone who was shot and killed during a robbery attempt would have a surviving relative with the nerve to file a wrongful death action. Naturally, I assumed there was more to the story than the shocking headline revealed.
 
16 Year Old Killed While Robbing Pharmacy
 
Antwun “Speedy” Parker was shot by the pharmacist he was attempting to rob at the Reliable Discount Pharmacy in Oklahoma City, OK on May 19, 2009. Antwun was 16 years old. He was hit once in the head but received five other shots to his body. The pharmacist, Jerome Ersland, was charged with first degree murder and awaits a trial that was to have started last week. Mr. Ersland’s attorneys claim their client acted bravely in defending himself and two female co-workers.
 
Can This Mother’s Claim Possibly Succeed?
 
I have little sympathy for one who is injured or killed while attempting to commit a crime. One question I have never asked myself when considering a premises liability question is what duty of care a business owner owes to someone who is attempting to commit a robbery in his store. My best guess is that the duty would be very low. We do not know if Speedy Parker was armed, but, assuming he was, I would think that the persons inside the pharmacy would be rather frightened and agitated about their own safety given the prospect of a crime being committed. I believe Mr. Ersland was justified, based on the facts in the article, in firing upon Parker. The next question, and it is the one that I believe answers the question regarding the wrongful death claim, is whether or not Mr. Ersland used excessive force in firing the other five shots. Also, at the time the additional shots were fired, was Parker still alive? It seems likely that since Mr. Ersland was charged with first degree murder and Parker’s mother obtained counsel to pursue a wrongful death claim, that it is possible the force was excessive and that Parker may still have been alive when the other five shots were fired. If the force is found to be excessive and Parker was still alive when it was taken, the claim might very well have a chance of success.
 
Did the Pharmacist Commit Murder?
 
Based on the information provided, I do not believe Mr. Ersland can be convicted of first degree murder under any circumstances. First degree murder generally requires that the killing be premeditated. It would be difficult to prove that Mr. Ersland had the required mental state when he took his action in defending himself and others from a robbery. Since his actions were due to passions kindled by the attempted robbery, it would seem very unlikely to me that Mr. Ersland could be convicted of first degree murder.
 
Robert Jacobson is a personal injury attorney serving the Boise, Eagle and Meridian areas of Idaho