The Felony Murder Doctrine in Action

Monday, April 2nd, 2012

I’ve noted before my discomfort with this rule. Here’s a particularly egregious application. A West Virginia man attempted to set fire to a tire. The fire spread, igniting a pile of railroad ties. Firefighters responded, but stopped on a bridge overpass to identify the source of the smoke. In the process, one firefighter slipped on the bridge and fell to his death.

Prosecutors are now charging the guy who set the fire with first-degree murder.

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21 Responses to “The Felony Murder Doctrine in Action”

  1. #1 |  AJP | 

    The felony murder doctrine is a staple of first-year law school hypotheticals, and it can lead to troubling results. With that said, if the facts are as you describe them, trying to squeeze a first-degree murder charge out of this particular sequence may be pushing the envelope of the doctrine beyond what the courts will accept.

  2. #2 |  BamBam | 

    @1, but the damage will be done to the person “charged with the crime”. Possible loss of job, definite loss of income, possible arrest record, definite emotional damage. All for doing NOTHING WRONG.

  3. #3 |  C. S. P. Schofield | 

    I was under the impression that the rule whereby any act of arson resulting in a death was treated as Murder was a separate issue from the Felony Murder Doctrine. Am I wrong?

  4. #4 |  John Jenkins | 

    @BamBam: If the facts are as alleged, the fellow appears to have committed arson, so he definitely did something wrong, and committed at least one felony.

    @C.S.P. Schofield: I am not aware of any rule like the one you describe, other than felony murder (and misdemeanor manslaughter). In most states if someone dies in an arson, it is a murder under the (statutory) felony murder rule because arson is an inherently dangerous felony.

    Felony murder is probably being charged here so the D.A. can get the guy to plea to something less and drop the felony murder charge in exchange. I seriously doubt they will try the felony murder count, but D.A.’s love to overcharge to force deals.

  5. #5 |  BamBam | 

    He did nothing wrong in regards to a murder charge. Arson charge, sure.

  6. #6 |  Paulus | 

    The next logical step is to charge Death Himself.

  7. #7 |  Burgers Allday | 

    FWIW, I don’t think setting an outdoor fire is considered arson.

    This is because in almost all foreseeable circumstances people can escape an outdoor fire.

    For tort law the touchstone is foreseeability of the harm, but “foreseeability” is an irreducibly nebulous concept — and this case would be one that tort lawyers would argue about. Just like they did with the fireworks and large scales in Pfalsgraf in 1928 (or whenever that was — 1928 might be when the explosion happened).

    What is interesting to see how the proverbial “bar” in criminal law has been lowered so that it is now easier for a prosecutor to win a criminal case for the state than for a civil atty to win a civil judgment for her client in closely analogous circumstances. This isn’t how it used to be or how it should be. It should be that civil remedies are a lot easier to get granted than are criminal remedies.

    Now we have arrived at the controversial part of these comments — the part that will vex and annoy you. Get set.

    Part of the problem is the overarching contempt with which society in general (and libertarian leaning folks in specific) holds the basic, commonlaw tort system (now largely superseded by bad statutes written by big bus).

    So you get in weird situations where the family of the victim has no case unless and until the criminal authorities bring a criminal charge. Then if they do, and the fire starter has money, they can get paid. But if the authorities don’t try to hook that death in for criminal pruposes, then the family can bring a civil case, but they won’t win (unless it is maybe Trayvon, but he is a special case).

    It doesn’t matter if they win or not — society (present company NOT excluded) has gotten so whiney about civil cases that there has to be a crim charge before civil liability is realistically considered. If you want to see a good example of this dynamic in action, then read about the whole history of all the litigations related to the Sean Bell case — you’ll see how the (unsuccessful) criminal prosecution gave credence to the civil prosecution. Same with OJ, although things are actually worse now — we are further through the lookingglass where civil standards of production, proof and/or persuasion are higher than analogous crim ones.

    To stay on the soapbox for one more sec: “Civil” cases are one level of government, and criminal cases are a much higher level of government. Keep trashing the civil liability system in a Koch-Octopus stylee and you will just get more and more of the things that used to be taken care of there moved to the crim side. This is where you really have to make a choice between less government (at the margin) and Team Corporatarian. It is not an easy decision to make because we love our private employers, every one of us, and we hate to think tht their lobbying has helped bring about the current situation. Ya just gotta grit your teeth and think those thoughts.

  8. #8 |  Bob | 

    Burgers Allday,

    I could be wrong, but it appears that in west Virginia, 3rd Degree Arson is defined as intentionally and maliciously causing a fire that does over 500 dollars of damage to the property of another. The punishment is 1 to 3 years.

    Fourth Degree Arson, which he is also charged with… is attempting to do the same.

    Considering the egregious nature of the penalty for such minor damage, I would expect it’s really hard to show intention and maliciousness to a jury. Hence, the charge stacking and the wholly absurd murder charge.

    It looks to me like a DA more interested in career than justice, and using West Virginia’s bad statues to do it.

  9. #9 |  Difster | 

    It’s like charging someone for murder when someone dies 40 years after an injury because minor complications from injury contributed to the death. It’s just stupid.

  10. #10 |  Cyto | 

    I’m sure the prosecutor isn’t a bad guy. Watch and see… I’m sure they’ll offer to let him plead guilty to second degree murder a sentence of 30 years, rather than life in prison.

  11. #11 |  Burgers Allday | 

    #8:

    Statutory arson, like statutory any-crime can be anything the lawmakers say it is.

    at commonlaw it was the burning of the residence.

    One interesting question about the felony-murder rule is whether it should be limited to the seven commonlaw felonies. I think in some places it is so limited and in other laces it is not so limited.

    In jurisdictions where the felony murder rule is limited to the seven traditional felonies only then it would matter a whole lot whether he burned (or at least “charred”) a “structure” (whatever that means at the margin). Arson was one of the traditional felonies (but only at night). Tire burning was not.

  12. #12 |  John Jenkins | 

    At common law, arson was:

    (1) the Malicious;
    (2) Burning of;
    (3) the Dwelling;
    (4) of Another.

    Blackstone’s full formulation is the “malicious and willful burning of the house or outhouses of another man,” since the crime of arson extended to the curtilage, but that is understood to be a part of the “Dwelling”. The time of day did not matter.

  13. #13 |  Jesse | 

    I’d see a couple of problems with a murder charge. Doesn’t a murder charge usually require intent?

    Second, yeah I can see how a murder charge is relevant pursuant to arson if the fire is the direct cause of the death. In this case however, it’s not the direct or even proximate cause.

    This is somewhat similar to another murder theory phenomena, that of charging fleeing suspects with murder for the death of officers that recklessly chased suspects and thus got into their own accidents and died. Most often when chasing motorcyclists that the officer has no hope of catching and the officer is driving at ludicrous speeds well beyond their ablility to control their vehicles.

  14. #14 |  StrangeOne | 

    So what really needs to be done is the invention of the Rube Goldberg murder charge. So as not to undermine the validity of first degree murder while simultaneously allowing prosecutors to slap a murder charge on any act tangentially related to the death of anyone anywhere.

  15. #15 |  Burgers Allday | 

    I stand corrected by you (once again iirc) John Jenkins. I was getting commonlaw arson and commonlaw burglarly confused.

    My larger point stands, despite the fact that there was no “nighttime” requirement in commonlaw arson. The better formulation of commonlaw arson is as follws:

    “At common law, arson required a perpetrator to willfully and maliciously burn the dwelling of another.”

    This has both actus reus (sp?) and mens rea requirement that are almost certainly missing in this case. This case is not a problem in jurisdictions that limit felony murder to commonlaw (that is, dwelling, with malice, etc).

    This might seem like some kind of abstract “nerd” point, but it is not. The point is that we can sensibly limit the felony murder rule (like we used to as a society) then we don’t need to expend political capital entirely obliterating the rule (which DOES make sense in some cases at least to some reasonable peeps).

  16. #16 |  supercat | 

    If the person maliciously set a fire in such a way that a reasonably-prudent fire fighter might might believe that a bridge would be in danger, and that prompt investigation is critical even at some degree of personal risk, a felony murder charge might seem appropriate if the harm that befell the fire fighter wasn’t caused by the actual fire, and the actual fire didn’t pose any real risk (e.g. even if the “fire” was limited to some smoke bombs). On the other hand, nothing I’ve read about the facts of this case suggests such intention.

  17. #17 |  Burgers Allday | 

    If the person maliciously set a fire in such a way that a reasonably-prudent fire fighter might might believe that a bridge would be in danger, and that prompt investigation is critical even at some degree of personal risk, a felony murder charge might seem appropriate if the harm that befell the fire fighter wasn’t caused by the actual fire, and the actual fire didn’t pose any real risk (e.g. even if the “fire” was limited to some smoke bombs). On the other hand, nothing I’ve read about the facts of this case suggests such intention.

    What you are describing is more murder, but where the intent is merely reckless and not purposeful or “intentional.” I mean, the intent becomes murderous when you douse your victim’s car in accelerant and then light it from a hidden position when he sits down in it. That is intentional murder. Hurling bolders off the clock tower (and not watching below when doing so) is more like what a reckless murder is like. That seems to be what happened in this case, but it is not traditionally analyzed as felony murder because that merges (at least in people’s minds, if not “at law”) with the real murder charge which might possibly be brought (but might be lost because juries don’t like to call reckless behavior as murder).

    Making felony murder cover acts that would traditionally be considered as being regular murder, but rejected as regular murder, is a highly dubious approach. Mr. Balko may have put his finger on a new crim law trend here.

  18. #18 |  Jerryskids | 

    @ #8 Bob – Reading the story and the law, I am not sure that you don’t have that backwards. It seems to me they have a shaky arson case re: the “willfully and maliciously” but from follow-up stories they want the guy to pay for the death of the firefighter who fell off the bridge. IOW, they aren’t throwing the felony murder charge in there to get him to plead to the arson, they are throwing the arson in there so that they can pin a murder rap on him.

    The guy was drunk and did something stupid – setting a box on fire – which led to something bad happening – the railroad ties catching fire – which led to something awful happening – the fireman fell off a bridge. But the whole thing looks to me like stretching the law a good bit.

  19. #19 |  Goober | 

    The key to whether this was arson or not is the “maliciously” part. I can think of more than a few reasons why a person would set fire to a tire that are not malicious. I’ve done it myself, to use as tinder for a brush pile that I’d collected and wanted to burn off. Not arson. Perfectly legal. I even was a good wittle citizen and bought a permit to do so, but the permit was for the brush pile, not the tire – you don’t need a permit to burn a tire where I live, but you do need a permit to burn brush. Go figure.

    I am not going to speak to the intent of this guy lighting the tire on fire. Maybe he just wanted to burn a tire? If burning a tire is not a crime where he lives (and it is not a crime in most locations), then he committed no crime, unless he did so in a negligent and reckless manner. Even then, though, that is not a felony, and it sure as hell isn’t arson.

  20. #20 |  Goober | 

    @ Jesse, #13:

    I’d see a couple of problems with a murder charge. Doesn’t a murder charge usually require intent?

    Not felony murder. Usually the law is written in such a way that intent to murder is not necessary. If somebody is killed while you are in the process of committing a felony, then you can be charged with that person’s murder, because the act of committing a felony is usually an act which puts others at risk of life and limb. For instance, I know of cases where a pair of robbers were robbing a place, and a citizen with a gun killed one of the robbers in self-defense. The other robber went down for the felony murder of his accomplice as a result. It is a very tricky law that has a lot of room for abuse, although it can be used in some cases to good effect.

    Second, yeah I can see how a murder charge is relevant pursuant to arson if the fire is the direct cause of the death. In this case however, it’s not the direct or even proximate cause.

    Irrelevant. IF it was arson (which is a big IF) the fire fighter would not have been on that bridge and would not have fallen to his death if it weren’t for the fire. This is well within the definition of the felony murder statutes as I understand them. The big if here is whether it was arson, which to me is what this entire case hinges on.

    This is somewhat similar to another murder theory phenomena, that of charging fleeing suspects with murder for the death of officers that recklessly chased suspects and thus got into their own accidents and died. Most often when chasing motorcyclists that the officer has no hope of catching and the officer is driving at ludicrous speeds well beyond their ablility to control their vehicles.

    Yup. That would be felony murder. A textbook case of it. Like I said, it is really a big legal gray area and is rife with abuse. To me, police are far too willing to chase suspects at high speeds, putting everybody at risk, often times over something as simple as a traffic violation. To me, high speed pursuits should be in the same category as SWAT raids – only to be done when there is knowledge that the suspect is armed, dangerous, and willing to do harm to innocents. However, like SWAT raids, they have become the norm rather tha the exception, and we are all at great risk as a result. There was an incident here in my hometown, on a construction sites, where the cops spike stripped a guy on a narrow bridge in the middle of a construction zone, and he went head on with a semi on a bridge that is 150 feet off the ground. Killed the guy. Truck driver, and all of the workers were okay, thank God, but you can guess that I was somewhat miffed about the whole thing.

  21. #21 |  SHOES THROWER | 

    If a girl is raped, becomes pregnant, and dies giving birth, would the rapist be guilty of first degree murder under the Felony Murder Rule?

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