US Pharm. 2009;34(7):49-51.
“One Dead, Pharmacist Praised” heralded the lead story in the local paper.1 As attention-grabbing as that sounds, the subtitle was even more intriguing: “But Murder Charge Filed After Drugstore Shoot-Out in Oklahoma.” On May 19, 2009, just before 6 pm when the pharmacy was about to close, the pharmacist on duty at Reliable Discount Pharmacy, a small independent retail store located in Oklahoma City, was confronted by two young men wearing ski masks demanding cash and drugs. At least one of the robbers pointed a gun at the pharmacist, Jerome Ersland, a 57-year-old partially disabled Gulf War Army and Air Force veteran who had undergone back surgery just 6 weeks earlier and was wearing a back brace that substantially restricted his movement. He was apparently injured during a mortar attack while in the service in 1991 and had worn a back brace ever since. He was discharged from the Air Force as a lieutenant colonel and has collected military disability benefits for his injuries.
Working in the pharmacy with Ersland were two female employees, who fled as soon as they saw the robbers. Rather than complying with the robbers’ command to hand over the loot, Ersland pulled out his own gun and shot one of the men in the head. The other robber fled the store with Ersland attempting to chase after him. Unsuccessful because of his back surgery, Ersland, a licensed pharmacist since 1977, returned to the pharmacy. What happened next and why is the subject of intense debate that has shaken the foundations of criminal law and evidence of self-defense in the face of perceived deadly force. Walking past the man he had shot in the head moments earlier, Ersland went to the back of the pharmacy, retrieved another gun, and proceeded to empty five bullets into the stomach of the injured but not yet dead man. Self-defense or murder?
All of this was caught on the pharmacy’s video surveillance equipment. If interested, copies of the video are posted all over the Internet.2 So too are comments and stories from those who want to anoint Ersland as a hero and others who think he should be executed as a cold-blooded murderer of an “innocent,” if not severely wounded, man.
The district attorney in Oklahoma concluded that Ersland should be tried for first-degree murder because the victim was unarmed, unconscious, and lying on his back and posed no threat to the pharmacist when he fired the subsequent shots. Oklahoma has a self-defense statute, passed in the 1980s, euphemistically known as the “Make My Day Law,” named after a Dirty Harry movie containing the famous line uttered by Clint Eastwood.3 Under this law, people can use deadly force when they feel threatened in their home, car, or office.4
Before making up your own mind about the desired outcome of the legal proceedings that will unfold over the next several months, consider some of the additional evidence and circumstances about not only this case but about pharmacy robberies and other violence faced by pharmacists at a dramatically increasing rate. People who would have robbed liquor stores or gas stations in the past to steal money for drug habits are more frequently going straight to the pharmacy to get the hard drugs.5
Here are a few more facts to consider. A coroner’s report indicated that the shot to the head would not have been fatal, but that the multiple shots to the stomach were the cause of death. Pharmacist Ersland has had a permit to carry a concealed weapon for about 6 years. Other than during his military service, where he was presumably trained in the use of firearms, Ersland claims he had never pulled out a gun to shoot anyone. Very recently the judge hearing the case ruled that Ersland’s military records were discoverable by the prosecutor as part of the investigation.6 Whether those records will be admissible at trial is debatable. At any rate, the judge put release of the records on hold for 2 weeks so that Ersland’s lawyer could oppose their disclosure to the Oklahoma Court of Appeals.7 He claimed those military records likely contain private medical and mental exams.
Following Ersland’s arraignment on the murder charges, the judge set bail at $100,000, a relatively small amount in a capital murder case.8 After Ersland spent a night in jail, an anonymous donor posted the bail money, and the accused was released, returning to work a few days later. Ersland claimed that he carried a gun and kept another one in a drawer in the rear of the pharmacy because the store had been robbed before. The store is located in an area where frequent crimes occur.9 Ersland also stated that he thought the robbers had cased out the pharmacy and knew that the pharmacy would have its narcotics and money out on the counter and ready to be put into the safe in preparation for closing at 6 pm. Apparently the front door to the pharmacy is kept locked by a magnetic system so that no one can enter or leave the store without permission. No explanation has been reported as to how or why the robbers got through the locked door.
Ersland appeared on a nationally televised program to defend himself against the murder charges.10 He stated that he thought the robber lying on the floor had shot one of the female employees. He claimed that the robber just looked dazed and started to move. Ersland stated, “I thought I was going to get killed in the next few seconds.”
The Oklahoma shooting incident does not stand alone. On April 1, 2009, a 23-year-old man walked into a pharmacy near Orlando, Florida, with a handgun drawn, demanding that he be given pills.11 The pharmacist on duty pulled out his own gun and shot the man dead. The pharmacy had been robbed at gunpoint once before in 2007, by a man demanding Xanax, and there had been 25 calls to the police since 2003 for more routine investigations.12 The Orange County Sheriff’s Department ruled that the deadly force used by the pharmacist was reasonable under the circumstances. There have been 27 other pharmacy robbery reports from central Florida since the beginning of this year. In February 2009, a security guard shot and killed a would-be robber inside a Medicine Shop located in New Smyrna Beach, Florida.13 The robber, wearing a ski mask, pointed a gun at the pharmacists and demanded drugs. That pharmacy had also been robbed twice in the past 3 years.14
On May 29, 2009, a 49-year-old man entered a San Antonio, Texas, pharmacy with a gun pulled and cocked. He handed the clerk a note demanding cash and OxyContin. He then pointed the gun at the pharmacist owner of the store. The pharmacist pulled out a gun he kept in the pharmacy for protection. When the robber saw the pharmacist’s weapon, he reportedly uttered his last words, “Let’s get it on.” The pharmacist shot the robber in the chest at point-blank range. The San Antonio Police Chief ruled the shooting as a justifiable homicide.15 That pharmacy had been robbed at knifepoint 3 years earlier.16
Reports come in from all over the country showing thieves more interested in the pharmacy’s supply of Vicodin and OxyContin than money. California, Connecticut, Indiana, and New Jersey are just a few of the states where narcotics robberies have occurred.17 Illinois, Ohio, South Carolina, Tennessee, and Wisconsin have also seen increases of narcotics theft from pharmacies.18
The National Institute for Occupational Safety and Health launched a study of violence against pharmacists after it recognized the scope of the problem. Another organization, RxPATROL, in existence since 2003, acts as a clearinghouse and database for pharmacy crimes.19 Here a wealth of information is shared by the pharmacy community, pharmaceutical distributors, and law enforcement officials. A searchable database is available to registered users that will alert pharmacists as to the prevalence of pharmacy crimes in their locations. FIGURE 1 shows areas of concentrated pharmacy thefts.
It may be difficult for some to understand how the helping profession of pharmacy could abide those who use deadly force to prevent pharmacy theft. It may be equally baffling as to why others do not support gun-toting pharmacists. This discourse is not likely to be resolved in the near term. Nevertheless, before judging any of the pharmacists involved in these shootings, every pharmacist should be prepared to answer the question of what you would do if you were held up by a weapon-wielding thief in your pharmacy. Do not be alarmed if you feel frustrated by this question. The vast majority of us never know what we would do until we actually feel the heat of the moment.
AUTHOR’S NOTE: Given the nature of this case and the political ramifications it will have about the use of guns in these situations, as an attorney I think it best to offer this disclosure: I am not now, nor have I ever been, a member of or associated with any group or organization that advocates for or against gun control, use, or ownership. For a short while I owned a gun and carried it with me in the pharmacy (with a permit) after a known alcoholic employee who openly admitted to carrying a derringer in her purse threatened to kill me when she was fired for stealing large quantities of merchandise. After about 6 months, I stopped carrying the gun because I did not feel properly trained to use or care for it. A few years later at a different pharmacy, I was held up at gunpoint by teenagers looking for drugs and money. No one was hurt.
2. Gibson D. Oklahoma City pharmacist charged with murder for killing armed robber. Norfolk Crime Examiner. May 29, 2009. www.examiner.com/ x-5919-Norfolk-Crime-Examiner~
3. Talley T. “Make-My-Day” case stirs furious debate. Seattle Times. June 11, 2009. http://community.seattletimes.
4. The legislation is also called the “Stand Your Ground Law.” See note 3, supra. See also 21 OSC 53, § 1289.25. Physical or deadly force against intruder. The Oklahoma State Courts Network. www.oscn.net/applications/
5. Goldstein D. Thieves target pharmacies for OxyContin. CBS News, Los Angeles. February 6, 2007. http://cbs2.com/goldstein/
6. Marks JF. District Attorney David Prater can subpoena pharmacist Jerome Ersland’s military records. NewsOK. June 10, 2009. www.newsok.com/district-attorney-david-prater-can-subpoena- pharmacist-jerome-erslands-military-records/ article/3376584?custom_click=headlines_widget. Accessed June 10, 2009.
7. Wells J. Accused killer’s military records released. KFOR-TV. June 10, 2009. www.kfor.com/news/local/kfor-news-killer-
8. Talley T. Oklahoma pharmacist charged with murder for killing robber. Pioneer Press. May 29, 2009. www.twincities.com/ci_12481539?source=most_emailed. Accessed June 11, 2009.
9. Pharmacist arrested for killing teenager in holdup. Daily Camera. May 29, 2009. www.dailycamera.com/news/2009/may/29/pharmacist-
10. Pharmacist defends actions on national TV. News 9. June 2, 2009. www.news9.com/global/story.
11. Pharmacist shoots, kills suspected robber. WFTV Orlando. April 1, 2009. www.wftv.com/news/19058323/
12. Jacobson S, Prieto B. Florida pharmacist shoots and kills would-be robber. Orlando Sentinel. April 1, 2009. http://doctorbulldog.
14. Man killed during attempted robbery. My Fox Orlando. February 7, 2009. www.myfoxorlando.com/dpp/news/
15. Moravec E. Suspected robber shot by pharmacist identified. My SA News. May 29, 2009. www.mysanantonio.com/news/
16. Would-be pharmacy robber killed. KSAT San Antonio. May 27, 2009. www.ksat.com/print/19579098/detail.html. Accessed June 17, 2009.
17. See note 5, supra.
18. Gebhart F. Pharmacy violence to be studied by feds. Drug Topics. April 1, 2009. http://drugtopics.
19. Rx Pattern Analysis Tracking Robberies & Other Losses. www.rxpatrol.org/. Accessed June 17, 2009.
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