Neither man involved in a shooting last fall will face charges due to a confluence of "unusual" circumstances.
According to Bismarck police reports, 50-year-old Joey Schwalick shot 30-year-old Jamal Fermin with a round of rock salt on Oct. 29 at an apartment building where Schwalick lives on the 600 block of North Seventh Street. Fermin sustained a neck injury that required surgery.
When reviewing for possible charges, Burleigh County Senior Assistant State's Attorney Julie Lawyer said she looked at several factors, including self-defense, non-lethal force and intent.
Fermin was reportedly highly intoxicated when he entered the open door of the building's common area. Schwalick told police Fermin wouldn't leave until he brandished a knife and told him to go.
He reportedly returned and was standing in the doorway when Schwalick shot him once from less than five feet away with a 12-gauge shotgun loaded with two homemade rounds of rock salt. The wad of the shotgun shell reportedly lodged itself in Fermin's neck. A passerby drove him to an emergency room. Schwalick called 911.
Lawyer said Schwalick's decision to use non-lethal force rather than other weapons, such as the knife, entered into her decision not to file charges. The question of self-defense was raised as well.
"He used (the round of rock salt) on purpose because he didn't have any intention of killing that person," she said.
As for Fermin, Lawyer said she didn't bring any charges against him, such as criminal trespass, as related intent would have been difficult to prove, and he was "not in his right mind."
"We figured he kind of already got punished," she said. "He was so intoxicated at the time, he couldn't even tell us where it happened."
Police interviewed Fermin, who had "absolutely no idea what happened" and remembered little after leaving to walk home after drinking with friends that night, according to police reports.
"This is a very unusual set of specific circumstances," Lawyer said. "Looking at all the factors, that's why nobody was charged with anything."