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Shooting in foiled robbery accepted as self-defense

Originally ran here as:
Shots fired at fleeing robbery suspect spark controversy
by Tonya Maxwell and John Boyle
Asheville Citizen - Times
January 05, 2002

ASHEVILLE, NORTH CAROLINA -- As police continue to look for a suspect in an attempted robbery, the actions of the man who foiled the crime have created heated legal discussions.

According to a police report, a man walked into Lord's Drug Store on Merrimon Avenue Wednesday, and said he would shoot the pharmacist if he was not given all the Xanax in the store. Xanax is a powerful anti-anxiety drug that is popular among street dealers. Pharmacist Michael Overman told police that he grabbed his own gun and chased the man out of his store. Police believe Overman shot at the man at least twice as he ran away.

But District Attorney Ron Moore has no intentions of charging Overman with discharging a gun in the city limits, or any other crime.

"Technically, maybe you could make a case, but I don't think 12 citizens would ever convict," Moore said. "I don't want to encourage citizens to overreact, but on the other hand if you come into a business saying you have a weapon and threatening someone's life, tough luck what happens to you."

A failed robbery

The man who tried to rob Overman Wednesday afternoon at Lord's ran into some tough luck in the form of Overman's .38-caliber revolver. The slender white male came in his store and, according to Overman, said, "Give me all your Xanax or I'll kill you."

Acting as if he were going for the anti-anxiety medication, Overman instead grabbed his handgun and told the man, who appeared to have a gun in the bag he was carrying, to sit down. The suspect in the attempted robbery ran out of the store, located in the Merrimon Village commercial strip on Merrimon Avenue.

Overman, a bespectacled 54-year-old, says he gave pursuit. Adrenalin admittedly pumping, Overman paused at the south corner of Merrimon Village in front of Photo-Quik, then wheeled around the corner and made a split-second decision to fire at the suspect, who was fleeing across Maney Avenue, a side street on the west side of Merrimon Avenue.

"After I fired the first shot, he may have turned towards me," Overman said. "I thought maybe he'd stop."

The suspect bolted across Maney Avenue, which runs slightly uphill. On his left was the brick wall of Merrimon Square. Behind him were a waist-high rock wall and a large pine tree. A few feet behind the wall, on a three-foot elevated lot, sits an occupied brick house. Overman fired first at a distance of about 20 paces, then again when the man was about 35 paces away.

"I thought it was a relatively safe shot," Overman said. A hunter trained in handgun safety, Overman says he would "never knowingly put somebody in danger."

A pharmacist for 30 years, Overman says he doesn't want to be portrayed as a "gunslinging crazy." He stresses that he was aiming low, and he says he uses a softer lead bullet that "pancakes" upon impact.

Police did not find any bullets at the scene.

Community reaction

While Overman has received dozens of supportive comments since the incident, some of the pharmacist's neighbors aren't so happy about someone firing a gun on a heavily trafficked street.

"The bullet could've come through the window," said Chris Small, who lives with his fiancee, Jennifer Pierce, in the Maney Avenue home near where Overman shot.

Small was upstairs at the time of the 3 p.m. incident and heard the two gunshots. Pierce wasn't home but still finds the incident disturbing.

"Bullets ricochet; freak accidents happen all the time," she said. "To me, it's like that whole vigilante thing -- at what point do you stop defending yourself?"

Overman's business neighbor, Photo Quik 1-Hour owner John Smith, believes it's "totally wrong" for someone to fire a gun on a public street under the circumstances Overman faced.

"If he's not charged or reprimanded, that gives everybody the right to not only keep a gun behind the counter, but to run out in the street and bang away," he said.

Overman says he has gotten more than 30 calls from supporters, the general theme being that if more people reacted the way he did, criminals would learn their lesson. In his shop Friday, one customer after another offered kind words.

"He's got to protect himself, and I'm not against guns," said Carolyn Wright, a regular customer at Lord's. "With Mike, I think he would take all precautions. He wouldn't hurt anybody."

While Overman finds the idea of killing another person repugnant, he's not repentant about his actions.

"I'm not a pacifist," he said. "I believe in protecting yourself and standing up for yourself. I don't go looking for trouble, but in this business it finds you."

Certainly, Overman has reasons to give chase to robbers. Four months ago he held an unarmed robber at gunpoint in his store until police arrived. About 10 years ago, he had a gun held to his head during a robbery, and on another occasion he held three men at gunpoint in his parking lot after they tried to rob him of drugs.

He can also recite a litany of violent robberies against local pharmacies during his career.

"I'm fed up with it. I've had enough."

Legal reaction

Overman has not been charged with a crime, nor will he be.

"This is a unique case, and I don't believe the interest of justice will be served by charging him," Moore said.

He added that considering Overman's past experience with robberies, the pharmacist "probably reacted a little more strongly than if he'd had time to sit and reflect. You've got to cut him some slack and take that into account."

Because there's no victim, the only charge Overman could face would be discharging a weapon within city limits, a misdemeanor that carries a fine but no jail time, according to Asheville Police Department Capt. Tom Aardema. The city's ordinance prohibits firing a gun within city limits, although it makes exceptions for law enforcement and governmental workers who are doing their jobs. It also excludes firing or archery ranges, and makes a provision for self-defense.

"This section shall not apply in defending one's self or property or the safety and property of others...," the ordinance reads.

Aardema does not endorse Overman's actions though.

"What we'd like to recommend to folks is if you feel threatened, take steps to protect yourself," Aardema said. "But when the threat is removed, de-escalate."

He also said that Asheville police officers pursuing a suspect are strictly prohibited from taking a shot unless the officer's life or another person's life is threatened. The department's policy manual states: "Asheville Police Department officers may not use deadly force against fleeing felons except to defend themselves or a third person from what they reasonably believe to be the use of or imminent use of deadly force."

Had Overman injured or killed the suspect, he might have faced criminal charges, Aardema said.

"Any time you cause the death of another person, you can be charged," Aardema said. "Whether you're convicted or not is a different matter."

Moore declined to speculate.

"I don't want to play 'What if...'" he said.

The self-defense issue

Entire books expound upon self-defense law in North Carolina, but the law is still somewhat murky. It is skewed in favor of the person defending himself, though.

"If you're in fear for your life, you can use deadly force," Moore said. "Also, there's the idea of when someone uses a gun in a crime they've crossed the line. The moral of the story is don't threaten to rob and shoot people."

Overman acknowledges that he may have pushed the envelope regarding what is technically legal, but he says emphatically that he "absolutely" was acting in self-defense.

"I don't know what the law is exactly," he said. "But there should be some provision in the law for apprehending someone who's threatened to kill you."

Overman maintains that he felt threatened even though the suspect was running away. In the heat of the moment, he says, "you don't have time to consult your lawyer.

"I didn't know that the threat was gone," he said. "The man told me he was going to kill me if he didn't get the drugs. He could've come back and gotten me later. My thinking was, 'If I can get him today, it's better than him getting me tomorrow.'"

In North Carolina, the courts have shaped self-defense law, particularly a Supreme Court decision stemming from a Buncombe County case. In 1980, a former Georgia woman, Elsie Juanita Norris shot her husband four times, believing herself to be in danger.

The next year, North Carolina Supreme Court justices heard the Norris case on appeal, defining self-defense in the state. Most important, they determined a homicide could be justified by self-defense if the defendant believes himself or herself to be in danger of death or great bodily harm. A reasonable person must also believe that threat was reasonable, they ruled.

But ultimately, self-defense is determined on a case-by-case basis, said Louis Bilionis, a University of Carolina at Chapel Hill law professor.

Bilionis declined to comment specifically on the attempted robbery of Overman's pharmacy, but he said that events in real life often occur more quickly than rational thought. Sometimes, he said, what appears unjustified in retrospect seems to be a clear threat in the moment.

"The cardinal principle of self-defense is the use of force must be proportional. Once the threat is no longer present, the right to respond with deadly force no longer exists." Later, he added, "In North Carolina, a person committing a robbery doesn't get the death penalty. He shouldn't be able to get it from a shopkeeper either."

Another factor in a criminal case where a defendant claims self-defense, Bilionis added, is a jury.

"The law is clear that there becomes a point where the use of deadly force must be withdrawn. What a jury will do in a particular case is a different matter."

Police in Durham have charged a man with murder after alleging he shot an intruder outside his home early Christmas Eve without justification. The defendant is claiming self-defense.

It's not the first high-profile self-defense claim the city has seen. In 1993, three teen-agers broke into the home of Michael Seagroves. He later stood trial for fatally shooting one of the teens and wounding another.

Prosecutors argued that the teens were fleeing and Seagroves acted aggressively. His lawyer maintained that Seagroves was justifiably threatened, defending himself, his family and his home.

The jury deadlocked in the case, and charges were later dropped.

New law sprung from the Seagroves case. For the first time, state legislators attempted to clearly define the "use of deadly force against an intruder."

The statute now says that a homeowner may use "any degree of force" that he "reasonably believes necessary" to prevent death or serious injury to occupants of the home.

For his part, Overman says he's not exactly sure if he would repeat his actions. But he believes firmly in protecting his workers and property, and keeping drugs off the streets. And he doesn't believe in backing down from criminals.

"Sometimes it's better to beg for forgiveness than ask for permission first," he said.

Contact Maxwell at 232-5957 or Boyle at 232-5847

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