The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

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."


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.