Criminal Law

Crime Victim Kills Attacker—Are the Other Attackers Guilty of Murder?

Yes, in many states, under the "proximate cause" theory of "felony murder."

|The Volokh Conspiracy |

CNN (Susan Scutti) reports, "6 teens tried to rob a house, police say. After the homeowner shot and killed 1, the others were charged with murder." According to prosecutors,

[O]n Tuesday at 1:15 am, the six teens awakened a 75-year-old resident of Lake County. The resident saw the headlights of the stolen Lexus they were driving in the area of his driveway. Grabbing his firearm, he left the house and went to the outside of his property …. Facing "multiple strangers," he ordered them off his property, but they "continued to advance on him[.]"

One stranger had something in his hand, the resident later explained, and believing himself in danger, the resident fired his gun several times, striking one of the defendants with a single bullet, the prosecutor said…. "When Lake County authorities responded to the scene of the shooting, they located the offenders' hunting knife on the driveway[.]"

But while prosecutors are still deciding whether the shooting was justified, they are charging the remaining teens with murder of their confederate. How is that possible?

It's complicated, and the rules differ from state to state; but Illinois does indeed allow such prosecutions.

The basic legal principle is this: Many state murder laws 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), "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 generally 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 sufficiently foreseeable.

A. 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 to such scenarios, 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.

B. 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.

C. 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 Illinois case: Illinois follows the proximate cause approach (see People v. Dekens (1998)), so the teens here could indeed be guilty of murder. Here is the relevant passage from the Illinois Supreme Court precedent:

We believe that a charge of felony murder is appropriate in these circumstances. In [an earlier case] we determined that a defendant may be charged with the offense when an intended victim mistakenly shoots and kills a bystander. Here, the intended victim shot and killed the defendant's cofelon. We do not believe that the defendant should be relieved from liability for the homicide simply because of the decedent's role in the offense. Nor do we believe that application of the doctrine depends on whether or not the decedent was an innocent party.

To hold otherwise would import the agency theory of felony murder into our law. As we have noted, Illinois has long followed the proximate cause theory. Consistent with that view, then, we conclude that a defendant may be charged with murder under a felony-murder theory when an intended victim of the felony shoots and kills a cofelon of the defendant. We note that other states that adhere to the proximate cause theory also recognize liability for felony murder when the decedent is a cofelon of the defendant.

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  1. If I were creating law on a blank slate I would not even require that A (the deceased)’s involvement was somehow necessary for B (the accomplice) to commit the offense. That may be fine for two-party conspiracies but becomes a mess for larger groups. I would simply say that so long as V (the victim)’s actions were justified (regardless of the standard required of self-defense) that all members of the conspiracy are guilty. As soon as your group invites a lethal response all members are guilty for any death, whether victim or accomplice. Needing the deceased to be necessary would necessitate inquiery into the group dynamics. If it’s Leader Louis that dies then all members are liable for his death while if it’s Minion Marvin who bites it none are simply doesn’t make sense to me.

    Now, my standard does require investigation into whether the self-defense actually meets whatever standard is in play, if the defense is not justified then any other conspirators should not face murder charges, they did not invite lethal force and so should not be liable that lethal force was used. But that seems like a far more tractable problem than determining who in a criminal conspiracy was calling the shots. Particularly because there would then be great incentive for the survivors to lie.

    1. To what extent does it have to be “justified”? The DA thinking that a crime has occurred in the excessive reaction? The DA thinking that he has PC to charge? The DA charging? The DA securing a conviction?

      1. Err, those examples are various levels of the “self defense” claim *not* being justified. My mistake.

      2. If it’s questionable enough to secure an indictment (even given the very low standard that usually requires) I would say that’s enough for the survivors to avoid criminal liability for the death. If the DA tries but fails even that much then felony murder is still on the table.

  2. We do not believe that the defendant should be relieved from liability for the homicide simply because of the decedent’s role in the offense.

    Nice reasoning. Isn’t this something the legislature should explicitely call out — other dead perps count as murder for the remaining perps, regardless of reason? Or reasons a, b, and c but not

    1. I read it (IANAL!) as the court merely expounding on what the legislature had legislated. Possibly the legislation and judicial terms (“agency” and “proximate cause”) differ.

  3. The whole point of felony murder is that you are responsible for any death that arises naturally out of the decision to commit a felony. Accomplice death is a very common fact pattern.

    1. One argument I see against an expansive interpretation is that it doesn’t apply elsewhere. Suppose Engelbert Expert invites Nancy Novice mountain climbing, and Nancy dies through no fault of Engelbert; in fact, he may even have warned her to do or not do something which she did not or did do. Wouldn’t this law, in that situation, imply Engelbert was at fault regardless?

      1. Diacritic Dude: In the situation you’re describing, there’s no felony, so no felony murder. Nor is there murder on some other theory: Engelbert didn’t intent that Nancy die, didn’t know that she almost cetainly would die, and wasn’t super-reckless about that (“super-reckless” is my shorthand for what the law often calls “depraved heart” murder). And there probably wouldn’t even be involuntary manslaughter or negligent homicide, which generally requires gross negligence (since you said that “Nancy dies through no fault of Engelbert”).

        But if you specify some facts that does show gross negligence on Engelbert’s part, or worse, then he might be guilty on some theory. (For instance, if Engelbert invites an untrained five-year-old to go with him to do something very dangerous, and the five-year-old dies while doing it, then perhaps Engelbert would indeed be guilty of negligent homicide or involuntary manslaughter, depending on how the state labels and defines such a crime.)

        1. “Diacritic Dude: In the situation you’re describing, there’s no felony”

          Wasn’t that the point? DD appears to be attempting to apply rule outside of the commission of a felony. Attempted paraphrase: “If a person is liable due to a decision to commit a felony, why not due to a decision to go mountain climbing?”

          1. I’m not sure I understand the question, then, as paraphrased. A decision to commit a felony is seen as highly culpable, because felonies are highly culpable; if your actions then cause a death, the law in states that recognize felony murder often doesn’t require extra culpability beyond that initial decision to commit a felony.

            A decision to go mountain climbing is not seen as highly culpable, so the law doesn’t punish you for deaths that occur as a result of the decision, unless there’s some other basis for finding you culpable.

            1. What if the two were climbing a mountain in a state that had a law making the climbing of that specific mountain a felony?

          2. The felony murder rule is a poor fit to deaths from legal activities.
            At least last time I checked,climbing a mountain was legal; however, committing felony is illegal. The state has an interest in totally prohibiting felony, but allows mountain climbing under reasonable safety rules.

      2. Where you get gray areas are proximate cause. If, say, a bank robber is run over by a citizen driving a car while running from the bank…then it’s a closer question.

        1. I would say even in that circumstance felony murder should apply. We want to discourage people from committing felonious acts.

      3. The felony murder rule is meant to be exceptional, so the fact we don’t treat other activities this way probably isn’t a compelling argument against it.

  4. Yeah, this is not really surprising. Various US states have lots of insane criminal laws, and I was aware of some of the more “adventurous” approaches to felony murder out there.

    On the remote chance that you guys aren’t so far removed from sanity that you wouldn’t even recognise it with a telescope, let me refer you to R. v. Jogee (2016), where the UK Supreme Court basically rethought the law on Joint Criminal Enterprise (i.e. the UK equivalent of felony murder/conspiracy) from scratch:

    there are two questions that must be asked in order to ascertain the guilt of a defendant on the basis of joint enterprise:

    1. Did the defendant assist or encourage the commission of the crime?
    2. In this assistance or encouragement, did the defendant act with the requisite mental element of that offence?

    https://en.wikipedia.org/wiki/R_v_Jogee

    Needless to say, nothing in Jogee comes anywhere near making someone liable for the death of a co-conspirator through the victim’s self-defence.

    1. Felony murder is hardly an American invention. It is an old common law concept that goes back at least to early 18th Century England. If the Brits want to abolish it, bully for them, but a cite to a 2016 court decision doesn’t really make me question my sanity all that much.

      1. The English abolished felony murder a lot longer ago than that, together with torture, the death penalty, and all manner of other barbaric laws.

        1. Only a liberal moron would think the death penalty is barbaric

    2. That case appears to be about coconspirator liability under Pinkerton v. United States, 328 U.S. 640 (1946) and its state-level counterparts. That’s very different from the felony murder rule.

      1. It’s the closest thing. How else can you make someone criminally liable for something they didn’t themselves do?

        1. >How else can you make someone criminally liable for something they didn’t themselves do?

          You know this happens without controversy all the time under ordinary principles of accomplice liability and conspiracy liability, right?

  5. Look up “provocative act murder” and you’ll find no shortage of cases with similar fact patterns. Not new, and hardly unjust.

    1. Since all the defendants are young black males and one young black woman, the reason that this story made national news is that it is making headlines as an unjust use of the law. Chicago Tribune and other papers are saying as much.

      Note, I do not agree with that statement, but the families of the defendants are shocked that this is happening to their kids. No word on what the family of the deceased thinks though.

  6. The mistake made by this crew of street thugs? Other than attacking a man with a knife who spends time at the range, was leaving Cook County for Lake County.

    If they had stayed in Cook, CCSA Kim Foxx would have them out on bail the same day and the Citizen that shot one, would be up on charges of excessive force, Unlawful use of a weapon and anything else she could cook up.

    Three weeks ago on a Friday, 37 people were arrested in Chicago by the CPD on gun related charges. 34 of them were released on their own recognizance and back on the streets in less than 24 hours. (Gee, I wonder why Chicago has so much violent crime?)

    Lake County (as well as most of the other “collar” counties) has this “quaint” policy of holding criminals responsible for their actions and pressing charges, where appropriate.

  7. If the underlying felony was making a false statement under oath on a warrant application….well, you know the rest of the question.

  8. In this case, with six teenagers, rather than just the two, I’d have thought it was going to be harder to argue that the dead teenager would not have participated in the shenanigans but for the presence of any particular one of the other teenagers. A single co-perp mght be at risk, but each of five co-perps is going to have a good defense, unless he’s plainly the ringleader.

  9. Well the law is if someone is killed in during a felony, the other participants can be charged with murder. Seems charging them answers the question if the shooting was justified, as they admitted the teens were committing a felony. Let the old guy alone.

  10. 19 May 2009 Oklahoma City, Oklahoma: Emanuel Mitchell (33) and Anthony Morrison (44) gave teenagers Antwun Parker and Jevontai Ingram a gun and disguises and sent them into Reliable Discount Pharmacy to commit a robbery for them.

    When Ingram pulled the gun on pharmacist Jerome Ersland, Ersland drew his own gun and fired at Ersland but hit Parker who went down (self-defense at that point since armed robbery participant Parker was part of the threat).

    Ersland chased Ingram from the store, returned and then shot Parker while he was still down (unjustified use of force at that point; a “reasonable person” juror would not consider Parker then to be a threat since he was wounded and the armed partner had been chased off). Ersland also made statements to police contradicted by the store’s video surveillance tapes and altered the crime scene destroying his credibility.

    Ersland, Mitchell and Morrison all three were found guilty of felony murder in the death of Antwun Parker.

    Teenage gunman Ingram had turned state’s evidence, showed remorse and contrition, and helped end the criminal careers of Mitchell and Morrison who routinely intimidated teenagers into doing crimes, hiding illegal weapons, etc.

    Nolan Clay, “Druggist in OKC is convicted of murder”, Tulsa World, 27 May 2011.

    1. Ersland’s conviction was an outrage.

  11. “But so could, for instance (to quote a Georgia Supreme Court decision), “smash[ing] the victim’s skull with a hatchet” even though “the victim die[s] nine months later from infection and gangrenous lung abscess.”

    Indeed, it was only through official courtesy that John Hinckley escaped being charged with the murder of James Brady, a full 34 years after putting a bullet in him.

    https://www.washingtonpost.com/local/crime/prosecutors-will-not-charge-hinckley-with-murder-in-death-of-james-brady/2015/01/02/67de0024-929a-11e4-a900-9960214d4cd7_story.html

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