Suffolk shop owner won't face charges for killing burglar

SUFFOLK

A store owner who shot a burglar four times last month will not face criminal charges because he believed his life was in danger, the commonwealth’s attorney has decided.

The burglar, Ernest Roop, 38, created “a very dangerous situation” when he broke into the J&L Food Mart in Whaleyville dressed in camouflage and carrying a crowbar and a hunting knife, prosecutor Phil Ferguson wrote in a statement released Thursday.

Roop did not have a gun and did not appear to be holding the knife or the crowbar when he was shot, he said.

The store owner, James H. Durden Jr., had a blood alcohol concentration of about 0.10 when police arrived – high enough to be charged with driving under the influence had he been operating a vehicle. Ferguson called that issue “irrelevant to this case.”

Durden was responding to an emergency situation, the prosecutor said, and “one could not argue he was at fault.”

According to the account in Ferguson’s letter:

An alarm alerted Durden and his wife at their home less than 100 yards from the store about 4 a.m. June 21. Durden’s wife said she was going to investigate, and Durden decided to go with her, first retrieving his .45-caliber handgun. On the way out, he told his daughter to call the police.

The couple saw a broken window at the east side of the store. Through a south window, Durden spotted Roop at the cash register.

The burglar turned toward Durden with what the store owner thought was a gun. Durden fired three times toward Roop, ducked down, looked up and was “face to face with Roop at the Southside window as Roop had run around the counter and toward the glass” where Durden stood.

Durden fired one more shot.

Police found Roop on the floor under that window.

Ferguson wrote that Durden cooperated with police and the commonwealth’s attorney’s office and that evidence supported his story.

“Under Virginia law, a person may use deadly force when he reasonably fears under the circumstances as they appear to him that he is in danger of being killed or that he is in danger of great bodily harm.”

A Suffolk jury, Ferguson concluded, would not convict Durden.

Durden may have mistaken Roop’s heavy, gray gloves for a gun, he said, although it is impossible to know. Video surveillance at the store recorded only part of the incident and was poor. Of approximately three cameras in the store, only one was working, the prosecutor said.

“It would almost tell you nothing. … You could see the person was deceased, you could see him reaching into the cash register,” but that was only in one far corner, he said.

Durden did not return a telephone message Thursday.

Roop had a criminal record, including a felony burglary conviction in 2003 that earned him jail time and was revoked twice, according to online court records. His family said he had struggled with drug addiction for years but was never violent.

Roop’s father, Scott Roop, learned of the decision when a reporter contacted him Thursday afternoon.

He said he understands the right to defend oneself and one’s property.

“But I don’t know that property is worth deadly force.

“Someone was apparently intoxicated, he was handling a firearm. To me he used very excessive force.”

Anne Coughlin, a law professor at the University of Virginia, said the fact that Durden had been drinking “would raise some additional alarms. You would worry that perhaps the store owner wasn’t thinking clearly, wasn’t able to evaluate the situation in a reasonable manner.”

Still, she said, “you wouldn’t want to deny him the right to defend himself. “He wasn’t out drinking looking for trouble. He was behaving in a perfectly law-abiding way and this emergency arose and it was necessary for him to respond to it.”

Scott Roop said he wishes a jury or a judge could have made that call.

“I guess I’m just a little disappointed in our city. They chose to feel it wasn’t worthy of investigating further.”

Kristin Davis, (757) 222-5555, kristin.davis@pilotonline.com