Man who shot burglar exonerated

Published 4:04 pm Thursday, July 16, 2009

The man who fatally shot a burglar in his Whaleyville store last month will not be prosecuted, officials said Thursday.

James H. Durden Jr. will not face any charges after shooting Ernest Scott Roop, who was burglarizing the J&L Market at the time, Commonwealth’s Attorney C. Phillips Ferguson announced.

“Mr. Durden was confronted with a very dangerous situation created by Roop and was legally justified in using deadly force as he genuinely believed that Roop had a firearm and that his own life was in danger,” Ferguson wrote in his decision. “In addition, from a practical standpoint, I am convinced that a Suffolk jury would not convict Mr. Durden of criminal misconduct under the facts of this case.

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“Therefore, this Office declines to prosecute any charges against Mr. Durden,” he concluded.

Ferguson wrote that Durden has been cooperative with his office, as well as with the police department.

According to the letter, Roop broke into the J&L Market, located at 6500 Whaleyville Blvd., about 4 a.m. on June 21. An alarm alerted the owners of the store, James and Laura Durden, who live less than 100 yards from the business, the letter says.

“He [Roop] was dressed in camouflage clothing with his face concealed in a ‘ninja’ style fashion. He was armed with a hunting knife and crowbar, and was wearing heavy construction gloves,” the letter says.

The letter continues with the following details:

“After being awakened by the alarm system, Mrs. Durden indicated she was going to investigate the cause of the alarm. Mr. Durden decided to accompany her and retrieved his firearm before leaving the home. As he was leaving the home, he advised his daughter, Jamie Durden, to call the Suffolk Police Department.

“When the Durdens reached the store, they noticed a window had been broken out on the back (east) side of the building and a security bar was pulled away from the window. While looking through a window on the South side of the building, Mr. Durden noticed Roop inside the store at the cash register. Roop turned toward Mr. Durden with something in his hands which Mr. Durden thought was a firearm. Mr. Durden then fired his handgun three times in Roop’s direction. Mr. Durden then ducked down and when he looked up, he was face to face with Roop at the Southside window as Roop had run around the counter and toward the glass where Mr. Durden was standing. Mr. Durden, still perceiving Roop to be a threat, fired a fourth shot. Roop’s body was found lying on the floor directly under the window. It was later determined that Roop did not have a firearm.”

According to the letter, Virginia law states that 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 of great bodily harm. The facts of the situation must be viewed from the reasonable perspective of the person using deadly force.

At the time, Roop was committing the violent felony crime of statutory burglary while armed with a deadly weapon, a Class 2 felony, Ferguson wrote. Both the hunting knife and the crowbar meet the definition of a deadly weapon under the facts of the case.