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.  He was charged with manslaughter and bond was set at $1 million. Berdahl did not make bail and stayed in jail. The trial took place last week, 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,” (Berdahl’s attorney, Greg) 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 will, some won’t. Perhaps the prosecutor in the Berdahl case did, but the defense that used the warning shots as evidence of restraint on his part in the closing arguments.  A little over an hour later, Berdahl was found not guilty by a jury of his peers.

I don’t recommend warning shots. There are well known dangers to their use. The bullet has to end up somewhere, and you don’t want 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 gun. Wimmer was hit twice. Once in the chest and once in the head.

Berdahl, of course, should have called the police following the shooting. It might have saved him 20 months in jail.

 

©2015 by Dean Weingarten: Permission to share is granted when this notice and link are included.
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26 COMMENTS

  1. A million bucks for bail!? Who has a spare $100K sitting around? And twenty months to come to trial? I figure that at age 66, you don’t have a lot of time to spare.

      • Ya, rules say, if you need to protect yourself, you need to put your nuts in a vice controlled by a-holes with no clue, who will get to guess about your situation and your actions for extended periods of time.

        Just another area that the law again fails the people and persons that it has already failed.

      • Lucky? A man was attacked, had to shoot someone, got arrested, spent over a year and a half in jail before trial, has a huge legal bill which he probably can’t even think of paying in full, and he is lucky?

    • I suspect bail was set high because he was considered a flight risk, having fled town immediately after the shooting.

    • The original charge was 1st deg murder, which usually has no bail. Here in Florida, a murder one conviction has only two sentencing options, Life w/o parole or death. Pretty sure the same applies in Oklahoma, it’s a death penalty state that actually carries out the sentences. They amended it down to manslaughter right before trial. Actually, a smart move on the prosecutor’s part. If they had reduced the charge soon after arrest, his bail would have been reduced, substantially. Still, with an interstate flight in his jacket, he would be a very high risk client for a bail bondsman. Even a $100,000 bail would mean he needs 10 grand for the bondsman, plus $100,000 in attachable assets.

      If you look at the “big picture”, he served a 20 month sentence for being a felon in possession.

    • I don’t have 100 grand to just spend on bail, but Second Call Defense does. That’s why I have a membership.

  2. Well, it’s hard to tell whether the “warning” shots helped or hurt Berdahl. He may have been acquitted because of the shots, or he may have been acquitted despite the warning shots. One thing that we do know — Berdahl ended up killing Wimmer, so the warning shots were, at best, ineffective.

    Oh, and here’s another lesson. If you have a DGU, don’t go on the lam unless you really want to spend 20 months in jail for something you didn’t actually do. Running away evidences a consciousness of guilt and will probably get you charged with a crime and high bail when hanging around would get you released without a charge or with lower bail.

    Berdahl got lucky. He’s a felon in possession, he punched Wimmer’s ticket twice (a double tap maybe) and then sped away.

  3. Another legal myth. The truth is that warning shots are probably not a good idea most of the time, but there are exceptions. Just try and make sure you have some idea where your ‘warning’ shots are going…

      • Poor choice of case. She went out into the garage, retrieved a handgun from her car, re-entered the house (claiming that for some reason she could not get out the garage door), and fired a “warning shot” that just missed his head. For some inexplicable reason, the jury just didn’t believe that she was acting in self-defense.

        • Agreed. She didn’t deserve a mandatory 20 year sentence, but she shouldn’t have walked scot-free either. If I recall, after all the stink that the NAACP raised they allowed, they allowed her to plead to agg assault with time served.

          The 10-20-Life is a good law, but it’s been horribly misapplied by prosecutors. The intent of the legislature was that it was to be a sentence enhancement to a separate crime, such as robbery, sexual battery, kidnapping/false imprisonment, carjacking, armed burglary, etc. Essentially any crime that you could commit w/o using a firearm.

  4. H spent a long time in jail because of a clearly excessive bail. However, he should have been able to save almost all of his Social Security checks. Imagine the total cost to the state of the trial and taking care of him for that period of time. I hope he was thinking and shot the warning shots into the ground where there was no danger of them coming down and damaging or hurting someone.

    • I would say he wasn’t thinking at all, considering he was using a .22 single action for self defense and fled to another state. One thing I believe in is owning up to my actions.

    • He spent a long time in jail because he’s a known flight risk to evade prosecution. He should’ve been held without bail outright and charged with flight to evade prosecution. The judge made a mockery of the 8A, pretending to offer bail so as to avoid the knock of not offering bail at all.

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