Two kids commit an armed robbery. Cop shoots one of them in the back. The other kid is now charged with homicide under the felony murder rule. Might be difficult to muster much sympathy for a kid who just committed armed robbery, but this doesn’t feel like a just charge. Felony murder cases often feel that way.
So in the midst of a rash of police scandals and allegations of misconduct in Seattle, an arbitrator has ruled in favor of the police union: Seattle is not allowed to release the names of police officers who have been the subject of formal complaints. This makes it pretty much impossible for anyone outside of law enforcement to see if the same cops are generating multiple complaints.
Adele’s ex-boyfriend does all the world’s shitty boyfriends a huge favor: He makes them look good by comparison.
So isn’t this basically a form of fraud? This is the same guy who make the prank call to Wisconsin Gov. Scott Walker pretending to be David Koch. Which I take to mean he thinks spending money to advance your political opinions is somehow a threat to the democratic process, but lying to gain access to your political opponent’s calling lists, then calling up, insulting, and lying to your opponent’s supporters while pretending to be a campaign worker is just a robust form of activism. Or at least good material for a newspaper column.
If it was felony murder for something stupid, like aggravated jaywalking, or whatever the new “not really a felony” felony of the week is, I would agree that a felony murder charge is excessive. But this was armed robbery, something which I think even the most radical of libertarians are likely to agree should be considered felonious. He could have easily avoided this murder charge by not participating in armed robbery.
I mean, this isn’t exactly selling rabbits without a permit.
“Felony murder cases often feel that way.” I think that’s not right. Felony murder cases that come to your attention might often feel that way, but most felony murder cases (that don’t get stories on the news) occur when the assailant kills someone in the commission of a violent felony (most often robbery).
In this instance though, I think you’re right, because it has always seemed wrong to me to hold someone criminally responsible for another person’s *lawful* act.
Felony murder cases that come to your attention might often feel that way, but most felony murder cases (that don’t get stories on the news) occur when the assailant kills someone in the commission of a violent felony (most often robbery).
I’m going to say it. If he’s guilty of felony murder, then the cop committed murder. The justification for the felony murder rule applies to murders that are committed by your accomplices or result by gross negligence thereof. It’s already a stretch to consider the cop an accomplice, but at very least it has to be a murder to be a murder.
C. S. P. Schofield |
May 29th, 2011 at 12:55 pm
My understanding of the reasoning behind the Felony Murder charge goes like so: You and your buds do something seriously illegal (a felony) that creates a dangerous situation in which somebody dies. You are therefore responsible for that death … and not some poor slob who had nothing to do with instigating the situation. It fixes responsibility on the idiots who started the mess that killed somebody.
Say that I have a dangerous workplace. The people who work there take precautions, and I have procedures in place to minimize that danger. Four nitwits break in after dark because they believe – for whatever reason – that I have gold or drugs or 1st edition copies of The Hunt For Red October stored inside. One or more of them dies in the process. The others get charged with murder at least in theory so that I CANNOT be blamed.
This may have been superseded by later changes in the whole Lawsuit subculture.
I don’t think the charge is totally unreasonable, I just think that Cops who are along on a raid that turns out to be a mistake (and thus a Felony B&E plus assault) should be charged with Felony Murder if anybody (householder OR cop) dies during the raid.
When most wealth is accumulated in a few individuals and those few individuals can outspend the rest of the nation to advance their political views, it promotes plutocracy, not democracy: A government of, by, and for the wealthiest among us.
That arrangement is not beneficial to civil liberties, as the wealthy can afford lawyers to beat back whatever laws they’re accused of infringing.
Can you give me a single example for that “trying to obscure his spending money on political organizations” bit?
They’ve entirely obscured their role in bankrolling the 2010 Tea party talks and conventions. Each of hundreds of teaparty events around the country claimed to be a “grassroots movement” funded by locals “coalescing out of a desire to take back their government” – but when you trace the money back, you would inevitably find a missing link in the trail – one that more often than not pointed to the Koch brothers or their AFP.
No, this use of the “Felony Murder” clause is absurd. And makes a mockery of it.
Clearly, no murder was committed during the alleged robbery. Does that stop the DA? Fuck no! Stretch it in any possible way to prevent the police from actually having to do any investigation at all. (Get a guilty plea on the Armed Robbery in exchange for dropping the Murder Charge.)
This is why we can’t have nice things, like an honest Judicial System.
The Felony Murder clause should only be used if a murder is committed by one of the parties of the Felony DURING the commission of the Felony. Geeze, That should be obvious, huh?
They so obscured their role that…you know about it.
As to how you get to a felony murder charge for someone who wasn’t actually the killer. Start with the basic felony murder rule, which at common law was if you killed someone during the commission of one of the common law felonies, then the crime is murder and proving the felony takes the place of the element of “malice aforethought.” [common law murder was the death of a human through the criminal agency of another with malice aforethought]. Instead of proving malice, the state would have to prove all of the elements of the felony (say, robbery).
The idea was that if you were committing burglary or robbery or some other felony and you killed someone, that the death was a foreseeable consequence of your actions, and that’s the equivalent of malice (with the idea of deterring dangerous felonies).
Of course, in most jurisdictions felony murder is now determined by statute, and there are a lot more felonies, so that there are only specific enumerated felonies that take the place of malice aforethought. That’s basically where the rule stands.
To get to applying it to co-defendants, you have to go to the law of criminal conspiracy. Each conspirator is responsible for the actions of the other conspirators in furtherance of the conspiracy (with some exceptions that aren’t important here), so if two guys are committing a robbery and one of them shoots the victim, then both of them are potentially guilty of felony murder (or possibly robbery and murder if the state can prove malice separately from robbery), here again because the criminal acts of your co-conspirators are reasonably foreseeable.
I would quibble with some of the felonies that are considered predicates for felony murder in some jurisdictions, but I don’t think it’s an inherently problematic rule to here (in some jurisdictions the requirement is that the felony be inherently dangerous, but this does not hold where there is a statute that specifies them).
Where I think it goes sideways is that some states have extended felony murder beyond that to the deaths of co-defendants lawfully killed by police or victims acting in self defense, because the deaths of your co-defendants when engaging in a dangerous felony are also reasonably foreseeable. ( I once saw a felony murder charge against the driver and passenger in a second getaway vehicle, when the driver of a first getaway vehicle lost control during the getaway attempt and killed himself and his passenger on this theory.) The fundamental problem with this extension of felony murder is what I mentioned above: you are holding one person criminally responsible for another person’s lawful act and the person whose actions you are attributing to the defendant was not a part of the conspiracy. I just think that’s too far a leap, but it is the law in some jurisdictions.
[NB: Of course there are many, many nuances, exceptions, odd holdings, and peculiar laws out there that this general outline doesn’t deal with. I bet the law in Louisiana, for example, bears little or no resemblance to this.]
#12 | C. S. P. Schofield | May 29th, 2011 at 12:55 pm “My understanding of the reasoning behind the Felony Murder charge goes like so…”
Mine is pretty similar to yours, but I would phrase it a little differently. I would aver that the crime of felony murder entails deliberately committing an unlawful act which, through some reasonably foreseeable chain of events, causes someone’s death. Robbers sometimes get shot. Anyone who commits robbery should reasonably be aware of the possibility. An individual who commits a robbery wherein an accomplice gets shot may not have intended for the accomplice to get shot, but he nonetheless did deliberately engage in a crime where such an outcome may have been foreseeable.
The fact that a death occurs in a robbery does not necessarily imply that such death should be regarded as a foreseeable consequence; that should be a question for a jury to decide. In general, people are allowed to presume that other people will act reasonably and lawfully (i.e. people are not generally required to foresee that others will act unreasonably or unlawfully, absent some particular reason why they should). If the shooting was not 100% justified, the surviving may be able to argue that he had no reason to foresee that the cop would act in a less-than-100%-justified manner in shooting the accomplice. Whether a jury accepted such an argument would likely depend upon the particulars of the case.
Note also that the jury may in some cases also be tasked with deciding whether or not certain actions by an accomplice should have been regarded as foreseeable. For example, if someone agrees to participate in a robbery using “finger-in-pocket guns”, but it turns out an accomplice has a real gun with which he shoots someone, a jury may have to decide whether the action of the accomplice should be considered foreseeable. Of course, the defendant would likely claim he knew nothing of the accomplice’s gun, whether he did or not; the jury would have to decide whether to accept the defendant’s claim.
#19 | John Jenkins | May 29th, 2011 at 1:58 pm “The fundamental problem with this extension of felony murder is what I mentioned above: you are holding one person criminally responsible for another person’s lawful act and the person whose actions you are attributing to the defendant was not a part of the conspiracy.”
The defendant isn’t being held responsible for the lawful actions of the shooter; he’s being held responsible for the actions of the decedent which made the lawful shooting necessary.
If a lone robber were to get shot in lawful self-defense, I would suggest that in a lot of ways the death might in some sense be regarded more as “death by misadventure” than as homicide. The robber wasn’t trying to get himself killed, but deliberately engaged in actions which would put him at substantially greater-than-normal risk. A robber who accidentally picks an armed victim could be seen as analogous to a burglar who tries to cut through a wall but electrocutes himself on a live wire. When multiple people are involved in a crime and one of them ends up dead, the precise nature of the conspiracy and the exact events that lead up to the death may implicate or exonerate the surviving conspirators of felony murder.
I agree with supercat. The whole concept behind felony murder is to punish and deter people from being involved in highly dangerous crimes of violence. Where I do have a problem is where the guy with the gun pleads down his charge, and the driver of the get away car gets a stiffer sentence. I also have a problem where you have an adult or older kid with a gun who leads on a much younger person: I think that its much harder to argue that the youger one was part of the same conspiracy of violence.
Helmut O' Hooligan |
May 29th, 2011 at 2:53 pm
#5 Matthew Peck:
“Exactly how does a person turning in a cop’s direction get shot in the back?”
Well, if he has a gun in his hand and is running away from a robbery that might explain it. You may have missed that part, Matthew ;)
Look, if he was turning to fire over his shoulder, getting shot in the back sounds pretty plausible to me. Even if he wasn’t, the shooting could still be justified under the Garner vs. Tennessee decision. That decision, to the best of my recollection, stated that an officer can justifiably shoot an armed, fleeing felon if said felon presents a threat to public safety. So if lil’ Johnny Dillinger here was running towards a crowd of people after committing an armed robbery, gun in hand, technically the police can light him up. Frankly, if you do a stick up, sometimes the police or an armed citizen will cap you. OK, in Chicago the armed citizen would probably get arrested, but you know what I mean. Shit happens. Most people, except for the usual storefront preachers and professional activists understand as much.
For the record, I don’t really support the felony murder charge in this case, though I don’t have a problem per se with a felony murder statute. But then I belive in a more nuanced, individualized brand of justice than we currently have, so what do I know.
#23: I believe so, provided that the person killed was involved in the unlawful act. If gang #1 was trying to rob gang #2’s drug stash, gang #2 killing of someone in gang #1 would not be legal, but the other members of gang #1 would still be liable for felony murder.
So isn’t this basically a form of fraud? This is the same guy who make the prank call to Wisconsin Gov. Scott Walker pretending to be David Koch. Which I take to mean he thinks spending money to advance your political opinions is somehow a threat to the democratic process, but lying to gain access to your political opponent’s calling lists, then calling up, insulting, and lying to your opponent’s supporters while pretending to be a campaign worker is just a robust form of activism. Or at least good material for a newspaper column.,
I take it that this is a reply of sorts to the selectively edited ACORN/Sherrod/NPR “sting” videos that were conducted under similar false pretenses.
Sauce for the goose and so on. I cannot really get angry about this one. If the GOP is silly enough to have untrained and unmonitored volunteers calling people back 10 times in two days, then that is their own problem.
The Dems should learn from this one, because it will be tried on them as well.
That seems to me to be like saying that when a rich person bribes a police officer for lenient treatment, the problem is the rich person.
Since the (super)rich can arrange for the system to be favorable to them to begin with, the fault is systemic and equally applicable to both sides.
I believe the point has been made here more then once that large corporations arrange for corporate socialism that benefits themselves while small companies are left to endure market discipline. Similar principle.
“The lawsuit focuses on the New York Police Department’s Taxi/Livery Robbery Inspection Program, or TRIP, which allows officers to pull over without cause any taxi and livery cab whose company has voluntarily enrolled in the program.”
This confuzzles me. WHAT possible motivation would a Taxi or Livery company have for enrolling in this?
@Buddy Hinton: I am not sure of the answer to that question because I have not read any cases on it. I would say that the killer’s intervening unlawful act should cut off liability because he is not one of the conspirators, but when you have liability for the lawful killing of co-conspirators, it creates a doctrinal problem (e.g., is a third party’s criminal act reasonably foreseeable?).
There was recently a case in Oklahoma City that would have raised that issue, but I believe the co-defendants on the original robbery all pleaded guilty, and the killer was convicted by a jury and sentenced to life, so the legal argument never came up (only the defendants on the robbery side would have been able to raise it).
@Supercat: The logic underlying conspiracy liability for crimes does not really support the extension of liability for intervening lawful acts affecting co-conspirators. Traditionally, you are responsible for the acts of your co-conspirators, not their health and well-being. Since, to my knowledge, *dying* is not a crime, I think liability for that is a bridge too far, at least regarding third parties. There is a better case where a co-defendant is killed by another co-defendant, but that is well within the ambit of conspiracy.
Re: Seattle, how does a labor arbitrator get to make that decision? Doesn’t the public interest in proper oversight of the police supersede the interest of individual officers in having information withheld about disciplinary action taken against them in their official capacity? The arbitrator’s ruling appears to violate the state’s open records laws, so I have trouble seeing how a court wouldn’t reverse it on appeal.
Re: NYPD: It’s time for a federal consent decree, state receivership or something of the sort. An arrangement allowing receivers to unilaterally fire problematic commanders might be appropriate. This is one case in which ignorance of the law truly is no excuse, given how many lawyers the NYPD has on its sworn and non-sworn staff. In fact, that may be a bit too generous. Any officer who gives a shit about the Fourth Amendment probably took to heart police academy lessons indicating that stunts like the TIRP program aren’t kosher.
On second thought, maybe I’m giving the NYPD Academy too much benefit of the doubt by assuming that its law and procedure courses aren’t bullshit tailored to the specifications of scofflaw commanders. My understanding has always been that the academic instruction at most big-city academies is pretty legitimate, but the NYPD has surprised me time and time again with its recalcitrant abetting of misconduct, so all I can offer in this case is a shot in the dark.
C. S. P. Schofield |
May 29th, 2011 at 6:09 pm
The first time I ran into Felony Murder law was in a book of fiction; Oath of Fealty by Larry Niven and Jerry Pournelle. The situation was a eco-terrorist raid on a gas pipeline. They can be seen over security cameras, and have material that is meant to look like (but isn’t) bundled dynamite. In attempting to keep them away from the gas pipe, one of the terrorists is killed. The eco-terrorists are startled to be charged with murder.
Now, I don’t KNOW that Niven and Pournelle get their law right, but they are hard SF authors, accustomed to getting called on sloppy research by geek readers. This is why I think that the situation in the post is the kind of thing that this law has been applied to for some time.
@C.S.P. Schofield: It depends on the jurisdiction. I don’t even know whether the question of liability for co-conspirator deaths caused by third parties was even tested at common law. In the U.S., different states have different rules (the U.K. has abolished felony murder), with about 45 states having the doctrine, and those states split among those who impute responsibility for co-defendant deaths and those who do not. My recollection is that the move to imputing responsibility for co-defendant deaths is a relatively modern trend. I know that Oklahoma only relatively recently adopted that rule by statute. cf. State v. Jones, 1993 OK CR 36 and Kinchion v. State, 2003 OK CR 28; see also Oklahoma Amended Laws 1996, HB 2115, c. 161, § 1, eff. November 1, 1996 (this one will be harder to find, the other two are readily available at OSCN.net).
The problem with this particular felony charge of murder is that it gives police a perverse incentive to kill anyone currently engaging in a felonious act. If they do, the police will not be held accountable for the death, one of the defendants is dead (and cannot testify), and the other defendants have just racked up felony murder charges which make it much more likely that the other charges will stick.
C. S. P. Schofield |
May 29th, 2011 at 7:01 pm
“the U.K. has abolished felony murder”
The U.K. appears to have abolished the idea that Thuggery should be illegal, preferring to punish those who rock the boat by defending themselves. What that says about them abolishing felony murder is not clear to me.
I guess I am inclined to defend the idea behind Felony murder because I feel that in a perfect world when the cops screw up massively and raid the wrong house, and somebody (householder OR cop) dies, the cops should be charged with Felony Murder. All the cops. They are supposed to be more careful than that, damnit, and if putting their hides at risk of the law is what it takes to MAKE them careful….
I’ve noticed that it’s become normal jurisprudence to hold the person alleged to have committed a crime liable for virtually anything and everything that might have occurred pursuant to that crime, even if so far removed that it stretches cause and effect to the breaking point.
There was a story in the news a few years back of a suspected motorcycle thief who was evading police in a chase. One of the responding officers, far behind the suspect, was driving basically like a lunatic, lost control of his car, hit a tree, and died. The suspect was charged with homicide. He ended getting 40 years. I argued that it was doubly stupid because now not only does the taxpayer have to support this unskilled-driving government employee’s family for life, we have to pay to house this guy in prison for 4 decades when he could instead be working off some kind of restitution for the crime he actually committed (or alleged to have committed, theft.)
It’s ridiculous to hold someone accountable for anything and everything that happens as a corrallary to their actions, no matter how far removed. This gives police a virtual blank check to do absolutely anything, no matter how over the top, in response to anything. They could shoot indiscriminately and if they killed an innocent bystander, the criminal could be charged with that death as well.
#34 | John Jenkins | May 29th, 2011 at 3:57 pm “Traditionally, you are responsible for the acts of your co-conspirators, not their health and well-being.”
Thus the analogy with someone who gets electrocuted while trying to cut his way through a wall. There are circumstances where it would seem criminal culpability should attach to co-conspirators, and other circumstances where it should not. I think the biggest determination for a juror should be ‘foreseeability’. Not all lawful acts by non-participants are foreseeable, and not all unlawful acts are unforeseeable; I think a juror’s sense of what’s foreseeable is probably a better test than any particular other rule a legislator might try to write.
This gives police a virtual blank check to do absolutely anything, no matter how over the top, in response to anything. They could shoot indiscriminately and if they killed an innocent bystander, the criminal could be charged with that death as well.
Not only that, but as long as they know a crime has been committed, they can do whatever they want until a suspect is charged. The charges will merely include all of the collateral damage charges, deferring responsibility to some future conviction. It’s more than a blank check.
“I guess I am inclined to defend the idea behind Felony murder because I feel that in a perfect world when the cops screw up massively and raid the wrong house…”
Of course, if they raided the right house, and it was for something stupid like MJ possession, and the pigs murdered one of the residents, the rest of the residents would be charged with felony murder.
(Of course in a perfect world, the police wouldn’t be raiding anyone in the first place, least of all wrong houses and/or for drugs).
About the felony murder bit – this kid is obviously trouble. Armed robbery is a serious crime… But he didn’t kill his partner. He just didn’t.
I have a huge problem with attributing the other guy’s death to this guy. If he had been driving a getaway vehicle and slammed into a bridge or something, then it would make sense in a way, but like Radley said – pinning someone else’s ‘lawful’ act on him as a felony murder rap is just wrong. He (allegedly) tried to commit armed robbery. He was caught. He should be tried for armed robbery.
I’ll say it again in a slightly different way – a person shouldn’t ever be charged with something they didn’t actually do. How long until a wife or husband, faced with the aftermath of a no-knock raid, is charged with felony animal cruelty and felony murder because the SWAT team shot their dog and spouse? If they didn’t have that 1/4 oz of pot in a cigar box under the bed, it never would have happened, right?
#47 | JOR | May 29th, 2011 at 11:20 pm “Of course, if they raided the right house, and it was for something stupid like MJ possession, and the pigs murdered one of the residents, the rest of the residents would be charged with felony murder.”
For that to stick, a properly-instructed jury would have to determine that the actions of the cop doing the killing was legitimate, and that the death was a foreseeable consequence of the possession. I don’t think those conditions would apply.
#50: Again, I agree. The felony murder rule is supposed to stop people engaging in activities with a “foreseeable consequence” of death. At the same time, anything involving the police seems to have death as a foreseeable consequence.
The Seattle thing is a function of the union contract with the city forbidding release of the names, correct? Note that it was an arbitrator and not a judge. This isn’t the state of “the law” — this is an enforceable/binding agreement between two parties.
This is not precedent, and has no bearing whatsoever on similar public information cases.*
The city is still negotiating that contract…they [the voters or their representatives] could simply remove those portions in the next contract if they desired.
* The courts could certainly debate whether it is lawful to contract around sunshine laws.
fun fun fun here. Woman burns sage as a religious ceremony. Idiot cop thinks she’s burning pot. Field test confirms that it’s pot (doesn’t it always?). Cop somehow avoids arresting her, but sends sage to lab for further testing. DA orders arrest based upon the field test, without even bothering to check results of lab test. Woman arrested at place of employment in front of customers and fellow employees. Booked into jail, strip searched, and stays for the night.
A month later, the woman and her lawyer figure out it wasn’t actually tested by the lab at all. Shockingly, the test confirms that it’s just sage, and not pot.
And as a non-surprising post-script, she tried to sue for malicious prosecution, and the case was dismissed because prosecutors are allowed to do whatever the hell they want to do and never have to face consequences (must be nice!)
“The Felony Murder clause should only be used if a murder is committed by one of the parties of the Felony DURING the commission of the Felony. Geeze, That should be obvious, huh?”
First I’d say felony murder here is silly, but I disagree with this statement. Suppose the robbers were involved in a shootout with police, and in the crossfire a police officer dies. To me it doesn’t much matter who shot the bullet in that case, the robbers were responsible for the shootout and should be charged. Even if the bullet that killed the officer was some crazy ricochet shot by the same officer who died.
However I do think a reasonable exception to felony murder would exclude the robbers themselves, and put some real limits on it that the officers so that the shooting itself had to be justified.
I’m slightly relieved that this happened in Florida instead of the Upper 47. The authorities in Florida don’t have much interest in exchanging worst practices with other states, so there may be a buffer for the rest of us.
This case is a perfect example of why we need statutes explicitly making officials civilly liable for official acts of gross incompetence and bad faith. The rationale for official immunity is that officials shouldn’t be liable for honest mistakes made in the course of performing their duties, but these assholes weren’t performing their fucking duties. Since prosecutors like to turn a blind eye to their own kind, legislatures need to allow private citizens to fill the gap.
It’s a known and foreseeable consequence of committing armed robbery that your accomplice will be shot in the course of it. Holding people responsible for deaths that occur in the course of committing crimes is a reasonable way of deterring such crimes.
I understand why Radley gets worked up over things like innocent people going to prison, use of excessive force in drug raids, etc. But I just don’t get this whining about a perfectly straightforward application of the felony murder rule. Yes, police and prosecutorial abuses ought to be curbed. But this bleeding heart attitude about thugs makes no sense at all.
Just Plain Brian |
May 30th, 2011 at 9:13 pm
Hey, Zippy, what kind of pussy are you? Some thug dies, and you get all worked up, thinking that someone should pay? The world is better with one less criminal in it, and it’s stupid to treat their death like it was some innocent person.
I don’t see the reasoning behind charging this kid with murder. It’s a bit more understandable if one of the kids killed somebody during the course of the robbery and then you charge his accomplice with the murder as well.
What precedent this sets, is that every time a cop in Chicago shoots somebody, whether justified or not, the cop has just committed attempted murder or murder.