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 enidnews.com:

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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