The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last week, I blogged about whether citizens with lawfully carried guns ever stop mass shootings; the answer is yes, they sometimes do. Of course, that hardly resolves the debates about gun policy, but I had heard people suggest that this never happens, and it turns out that it does happen. (Tuesday's example of the woman illegally and dangerously shooting at a fleeing shoplifter, of course, also shows that people with concealed-carry licenses also sometimes misuse their guns.)
It turns out, though, that there's one such defensive use incident I originally missed, but that yielded a Georgia Supreme Court decision just a few weeks ago, in Hill v. State. And that decision both tells an interesting story of effective and heroic self-defense, and brings up a very interesting and controversial criminal doctrine.
On the night of May 2-3, 2009, Terrion Key and Charles Bailey hosted a party for a group of about a dozen friends at their apartment in College Park. Around 3:00 a.m., [Jarmal Hill] and [Calvin] Lavant, who lived in the same apartment complex, entered the apartment through an open sliding glass door. [Hill] was armed with a black handgun and Lavant had a silver revolver; both men were dressed in black clothes and wore caps along with bandanas covering their noses and mouths.
[Hill] and Lavant ordered everyone in the apartment to lie on the floor and took their wallets, cell phones, and other valuables. Two former United States Marines, Sean Barner and James Adams, were attending the party but had gone outside briefly a few minutes before the home invasion; when they returned, they too were ordered at gunpoint to lie on the floor, and [Hill] and Lavant took their cell phones, a wallet, and an iPod.
[Hill] and Lavant ransacked the apartment for other items of value, and then decided to separate their male and female prisoners. The men were forced at gunpoint to go into the back bedroom and lie on the floor there, and two of the female guests were forced into the other bedroom, while the other two female guests remained in the living room.
Lavant said to [Hill], "we are about to have sex with these girls, then we are going to kill them all." Barner heard [Hill] and Lavant discussing condoms and the number of bullets in their guns, and he decided that he needed to act. He had brought his book bag to the party, with his pistol in it, and, fortuitously, the bag was behind the bed in the bedroom where he was lying.
Barner took out his gun, stood up, and walked down the hallway into the living room with Adams following closely behind him. Barner saw [Hill] standing by the front door of the apartment looking out and opened fire on [Hill], who ran out the sliding glass door.
Barner then rushed back to the bedroom where Lavant was holding two of the women, shouted for everyone to get down, and broke down the door with his shoulder. Lavant had ordered the two women to bend over the bed, pulled one of the women's underwear aside, and placed a condom over his penis.
When Barner crashed into the room, Lavant started shooting at him. Barner fired back at Lavant, who fled through a window. Lavant was shot in the face and thigh, and one of the women in the room was hit in the arm and both legs, but she survived.
Lavant ran off and later died of his injuries. It's impossible to be sure, of course, that Lavant and Hill would have killed anyone if they hadn't been interrupted. Maybe there wouldn't even have been anyone wounded. But it's nearly certain that at least one of the women would have been raped, and the "we are going to kill them all"—coupled with the discussion of "the number of bullets in their guns"—pretty strongly suggests that the home invaders wouldn't have just left peacefully after that.
Note that, unlike most of the situations I discussed in my earlier post, this one involved a shooting in someone's home. But it wasn't Barner's home, and if Georgia didn't allow people to get concealed-carry licenses, he likely wouldn't have been carrying the gun in his bag. Also, Barner was a military serviceman, not just a civilian. But Barner was acting as a civilian and carrying a gun as a civilian (he had a concealed-carry license); indeed, if he had been on a military base, he would generally not have been allowed to carry a gun except when on security duty.
2. So that's the good story about the good guy. But in the criminal prosecution arising from that story, Hill (the surviving home invader) hadn't just been convicted of armed robbery, aggravated assault, false imprisonment, burglary and attempted rape. Hill had also been convicted and sentenced to life in prison for murder—murder of his accomplice, Lavant, who had been justifiably killed by Barner after Hill had fled.
Huh?, you might say. (Or, "yeah, I remember that doctrine," you might say, if you went to law school and studied this in first-year criminal law.) Yes, in some states, including Georgia, a felon can be guilty of murder if a victim (or a police officer or a bystander) kills the felon's accomplice. In other states, the rule is different.
The basic legal principle is this: Many state murder statutes (including Georgia's) provide that someone is guilty of so-called "felony murder" "when, in the commission of a felony, he causes the death of another human being."
And "causes" is a capacious term. Obviously, shooting someone so that he immediately dies counts as causing death. But so could, for instance (to quote a Georgia Supreme Court decision's summary of an earlier case), "smash[ing] the victim's skull with a hatchet" even though "the victim die[s] nine months later from infection and gangrenous lung abscess." So could "throwing the drunken victim off a bridge into a river" if this causes the victim to drown. The criminal is guilty of felony murder so long as the "proximate cause" requirement is satisfied, which is to say that (1) the death wouldn't have happened but for the defendant's actions, and (2) the death was foreseeable.
So say that robber Rob and his accomplice Alec are robbing victim Vic, and Vic pulls out a gun and shoots and kills Alec. A jury might be able to find that the death wouldn't have happened but for Rob's actions (since Alec might have been unwilling to commit the crime by himself). And the jury could find that there was a reasonably foreseeable possibility (not certainly or even probability, but just a foreseeable possibility) that Vic would use deadly force to defend himself against Alec. In states that follow the "proximate cause" approach, Rob would then be guilty of murder, because "in the commission of a felony [robbery], he cause[d] the death" of Alec. The same would happen if it is police officer Polly who kills Alec.
But that's the minority view. The majority of states that have opined on this question follow the "agency" approach, under which felons are guilty of felony murder only if the immediate human cause of the death is one of the felons. If Alec kills Vic (even accidentally), then both Rob and Alec are guilty of felony murder. But if Vic kills Alec, Rob isn't guilty of the felony murder of Alec, since the immediate human cause of the death was Vic. One common argument for the agency view is that, when Vic kills Alec, that's not murder at all—that's Vic's justifiable defensive killing of Alec. Therefore, Alec's killing is not felony murder on the part of Rob (who is guilty of robbery and conspiracy to rob, but nothing more).
Okay, so we know what happens if Vic kills Alec—felony murder on Rob's part in the proximate cause states, not any crime on Rob's part in the agency states.
But what if Vic (or police officer Polly) shoots at Alec, but accidentally kills bystander Betty? In the proximate cause states, Rob is guilty, since that sort of unfortunate event is foreseeable (it's foreseeable that Vic would try to defend himself and that this self-defense in the heat of the moment will accidentally kill someone else). In the agency states, Rob isn't guilty, since Vic is the immediate human cause of the death.
Yet wait: There's a third, small category of states (which at least includes New York)—in those states, Rob would be guilty of felony murder for the death of bystander Betty, but wouldn't be guilty of felony murder for the death of accomplice Alec.
The focus in those third-way states is on who dies (felony murder if anyone dies other than one of the criminals). The focus in the agency states is on who kills (felony murder only if the immediate human cause of the death is one of the criminals). And in the proximate cause states, it's felony murder if anyone dies, so long as the death is foreseeable and wouldn't have happened if the defendant hadn't participated in the crime. (Actually, these requirements of foreseeability and but-for causation for a felony murder conviction would also apply in the non-proximate-cause states; it's just that in those other states there are also the extra requirements I discuss above.)
Back then to the Hill case. From 1981 to 2010, Georgia had precedents on the books making it an agency state; but in State v. Jackson (2010), the Georgia Supreme Court reversed those precedents—by a 4-3 vote—and adopted the proximate cause view. And because this sort of reversal of precedent can generally be applied retroactively (except when it can't, itself a complicated question), that decision was applied to Hill.
The jury found that Hill's participation was an actual cause of Lavant's death and that trying to rob the party could foreseeably lead to one of the victims killing Lavant. So though Barner justifiably killed Lavant, Hill murdered Lavant. Some heroism, some law weirdness, all wrapped in one case.