Felony Murder, "Malignant Heart" (Grossly Reckless) Murder, and Victim's Killing of Accomplice

The post about how surviving home invaders may be charged with murder after the victim shot and killed one of them in self-defense led to comments criticizing the "felony murder" rule. To quote the Georgia statute, there are three ways to be found guilty of murder:

(a) A person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.

(b) Express malice is that deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.

(c) A person also commits the offense of murder when, in the commission of a felony, he causes the death of another human being irrespective of malice.

And people have long been troubled by the "irrespective of malice" nature of felony murder; even felons, the theory goes, should be punished just for the crimes that they intended, not for a murder that happens unintentionally and even unexpectedly during that crime.

But I wonder what people think about allowing criminal liability under the "abandoned and malignant heart" theory here. That theory, often called the "depraved heart" theory, essentially extends murder not just to intentional killing deaths, but to grossly reckless killings. To quote one recent case (this one from Maryland, but these principles are generally treated the same throughout the country),

We have described depraved heart murder as "one of the unintentional murders that is punishable as murder because another element of blameworthiness fills the place of intent to kill." Depraved heart murder constitutes "the form of murder that establishes that the willful doing of a dangerous and reckless act with wanton indifference to the consequences and perils involved, is just as blameworthy, and just as worthy of punishment, when the harmful result ensues, as is the express intent to kill itself." "The critical feature of depraved heart murder is that the act in question be committed under circumstances manifesting extreme indifference to the value of human life." We elaborated:

A depraved heart murder is often described as a wanton and wilful killing. The term 'depraved heart' means something more than conduct amounting to a high or unreasonable risk to human life. The perpetrator must or reasonably should realize the risk his behavior has created to the extent that his conduct may be termed wilful. Moreover, the conduct must contain an element of viciousness or contemptuous disregard for the value of human life which conduct characterizes that behavior as wanton.

… [D]epraved heart murder involves "the deliberate perpetration of a knowingly dangerous act with reckless and wanton unconcern and indifference as to whether anyone is harmed or not."

Again, here's the fact pattern: Robber Rob and his accomplice Alec are engaged in armed robbery of victim Vic, and Vic pulls out a gun and shoots and kills Alec. Rob didn't just commit a felony here; he did something that was extremely dangerous, both to the victim and to the accomplice. It is hardly surprising that, in America, a robbery victim would have a deadly weapon available to defend himself (especially, though not only, in the victim's own home), and would be willing to use it. This sounds like "extreme indifference to the value of human life," and "wanton unconcern and indifference as to whether anyone is harmed or not." Even if you don't approve of felony murder liability, would you approve of depraved heart murder liability?

Here are a few possible answers:

1. The felony murder rule is just fine generally (especially when it's limited, as it is in many states, to violent or otherwise highly dangerous felonies, and when it requires at least some foreseeable risk of death, perhaps under the rubric of "proximate cause"). Rob engaged in felony robbery, so he should be punishable for murder as to any deaths that his conduct caused, even indirectly, including Alec's.
2. The felony murder rule is bad, because it risks liability without a showing of "reckless and wanton unconcern"—but the depraved heart murder rule is good, so Rob should be punishable for murder as to Alec's death.
3. The felony murder rule is bad and the depraved heart murder rule is good, but Rob shouldn't be punishable for murder, because embarking on an armed robbery doesn't rise to the level of "the deliberate perpetration of a knowingly dangerous act with reckless and wanton unconcern and indifference as to whether anyone is harmed or not."
4. The felony murder rule is bad and so is the depraved heart murder rule. Only truly intentional killings should count as murder (and depraved heart killings should generally be manslaughter or some such).
5. Under either rule, Rob shouldn't be punishable for murder, because he should only be liable for unlawful deaths directly caused by himself or one of his agents (such as by accomplice Alec), and Vic's shooting of Alec is lawful.
6. Under either rule, Rob shouldn't be punishable for murder, because he shouldn't be liable for the death of an accomplice. If Vic had shot at Rob and Alec but inadvertently killed bystander Betty, Rob should have been punishable (either under the felony murder rule or the depraved heart rule). The killing of Betty would have been accidental on Vic's part, and thus likely not unlawful on Vic's part; but it would have still been indirectly caused by Rob's conduct, and that's enough to make him a murderer as to Betty. But the same theory shouldn't make Rob punishable for murder as to Alec, if Alec had been the one whom Vic shot.

I'd love to hear which answer people endorse here (and of course other options are also potentially available).

Comments

[Martinned]

Dolus eventualis is, as you can tell from the fact that it has a Latin name, a concept that goes back to Roman law. It is part of all/most civilised countries' legal systems. (Wikipedia describes it as "oblique intent" here.)

But I'm not sure that what you're proposing is really that. It sounds to me like you're describing something much broader, and more consistent with the overall US "lock 'em up" approach to law enforcement.

[rloquitur]

Absolutely. You are part of a crew that breaks into someone's home, and beastly crimes are committed by that crew, you should eat all of those crimes (accomplice liability) and you should eat all of the consequences too.

[Martinned]

If we're going to lock people up for things they didn't do, and didn't intend to happen, why stop at the "crew"? Why not also lock up the guy who lives next door?

[rloquitur]

"Things they didn't do." That's an interesting way to describe it--I am sure that you don't think that some old lady having a heart attack and dying shouldn't be part of what a criminal eats. The point is that when you intentionally create dangerous situations (and, while I am at it, help expose others to the whims of horrendous criminals), you cannot hide behind the fact that you weren't a triggerman. I love sophistry on behalf of violent criminals.

[Krayt]

"I should be able to be the wheelman, as long as I clasp my hands together and look to the heavens and swear I don't want any deaths."

[Martinned]

Now you're just - hopefully intentionally - mixing up questions of felony murder with the law on conspiracy/JCE.

[Martinned]

I am sure that you don’t think that some old lady having a heart attack and dying shouldn’t be part of what a criminal eats.

I'm sure that I do.

[Bob from Ohio]

"things they didn’t do"

They invaded a home to steal stuff, or worse.

"Why not also lock up the guy who lives next door?"

God are you dumb.

[rloquitur]

It's sophistry.

[Martinned]

They invaded a home to steal stuff, or worse.

Yes. So let's prosecute them for that.

[Devin Watkins]

I 100% agree, they should be prosecuted for robbery, not murder.

[Dr. Ed 2]

OK. Freddy Fratboy steals a "Stop" sign and someone gets killed in the intersection because the sign isn't there. Should he be convicted of murder?

How about a lesser example -- he steals a speed limit sign and someone dies because he was going to fast.

[Michael 11]

I would think Freddy can't be guilty of murder because the traffic death is not reasonably foreseeable. Virtually all uses of an unsigned intersection do not result in a fatal collision.

This is mentioned quite explicitly in the definition given of depraved heart murder: "The perpetrator must or reasonably should realize the risk his behavior has created."

[y81]

Real case, in New York a few years back, a gang of white men chased a young black man who had wandered into their neighborhood, manifesting an intention to beat him up. Trying to escape, he ran onto the freeway, was hit by a car, and died. I guess Martinned would say, the gang members go free: the car killed him, not the gang, and they didn't intend to kill him, just to beat him up. They didn't cause or intend his death.
P.S. Of course, the gang members might be guilty of some minor crime, like harassment, for threatening the black man, even though they didn't touch him. But no more, if Martinned were in charge.

[Dr. Ed 2]

Assuming that it was a busy highway with frequent traffic (and at some hours of the night it might not be), the consequences of chasing someone onto it are known and predictable.

[Davy C]

So the answer would depend on whether stealing the stop sign happens to be a felony. To me that seems arbitrary.

[y81]

As Prof. Volokh notes, some jurisdictions limit the doctrine to violent or serious felonies, which would probably not include stealing a stop sign as a fraternity prank.

[Bored Lawyer]

"he ran onto the freeway"

Slight correction. NY does not have freeways. It has highways. Freeways are on the West Coast.

[Dr. Ed 2]

Technically, they are all Interstate Highways -- although more than a few are not built to Interstate Specs. The junction of I-84 and I-91 in Hartford, CT is perhaps the best known example -- and best avoided, even at 2AM....

[Martinned]

I'd start with attempted assault. Beyond that, as Dr. Ed says, it depends on the situation. But if the victim running onto the freeway wasn't a very probably consequence of what they did, I don't see how the defendants should be to blame for that.

[Harvey Mosley]

I know you aren't this stupid.

[Martinned]

Note that, in R. v. Woollin (mentioned in that Wikipedia article), the conclusion of the House of Lords was that the following was the key instruction to give to the jury:

Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case.

(emphasis added)

https://www.bailii.org/uk/cases/UKHL/1998/28.html

[dwb68]

Nothing is "a virtual certainty." If I shoot you with a pistol, there is only a 20% chance you will die.

I don't think "virtual certainty" means what you think it means here.

If you invade someones home, you expect resistance (otherwise, why go armed). And that resistance will result in injury or death.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Exactly. An armed criminal is armed by choice with the knowledge that someone may die. It doesn't matter who dies in the commission of the crime. The criminal still bears the primary responsibility. In my (IANAL) lingo, the criminal committed the original sin, and death was a foreseen possible consequence.

[Martinned]

Since you are not a lawyer, might I suggest that you keep your theological beliefs, particularly the Old Testament ones, out of everyone's criminal justice system?

[Dr. Ed 2]

"If I shoot you with a pistol, there is only a 20% chance you will die."

Today.

A century ago, it was a virtual certainty. If Reagan had been shot just ten years earlier, in 1971 instead of 1981, he likely would have died. And as Lincoln lived until 7 AM the next morning, it is quite likely that the modern Level I Trauma Center could have saved him today.

The problem with the historical nature of law is that the same objective thing -- a GSW -- is by nature quite different today.

[rloquitur]

When people set out to do a violent crime (or seriously dangerous one, like arson), any theory that allows punishment for all the consequences feels right to me.

The other thing--what prosecutors should do (although there may be "episode of criminal conduct" statutes that mitigate the severity of the punishment) is to stack crimes in these cases--let's say there's a home invasion and wife and daughters are raped by all, then accomplish liability should kick in for each rape not actually performed by the rapist. In other words, he eats all of the rapes, and he gets sentenced consecutively.

[Michael P]

I think "all the consequences" is just slightly broad. I would advocate for assigning culpability for the reasonably foreseeable consequences -- which will include somebody getting shot (fatally or otherwise) during a home invasion, but would not include freak events that might only happen once in a thousand or ten thousand times.

[Dr. Ed 2]

What usually happens -- and where the injustice arrives -- is the getaway driver. The lesser involved person who got dragged into the mess.

[Don Nico]

" would not include freak events that might only happen once in a thousand or ten thousand times."
That is sufficiently vague that the law related to it would lose its deterrent value.
"All consequences" is much more easily and predictably evaluated by all parties.

[dwb68]

Explain how that's injustice? The getaway driver knew what he/she got themselves into. No one got dragged into anything. Just say no to being complicit in a robbery!

[Martinned]

The law of conspiracy to commit a crime that all conspirators intended to commit - and the question of what to do when all conspirators agreed on some crime but not necessarily on another - is an entirely different discussion.

[John Rohan]

Prosecutors already stack a ludicrous number of crimes on top of each other for the purpose of scaring the defendant into taking a plea bargain and avoiding trial. That has led to more than one innocent person pleading guilty. It also leads to our incarceration rate, which is the highest in the free world.

[bevis the lumberjack]

But that’s fine. Because bad guys or something.

Favoring crap like this is a right wing version of virtue signaling. Our fellow citizens must be punished, even beyond things that they actually did. The harsher the better.

Innocent people can just screw off. Eggs and omelettes and all……

[Jerry B.]

But who’s innocent?

[SomeGuy 2]

The "pled guilty to a crime they didn't commit" is more of a modern myth than anything. Let me guess, the defendant now says he didn't do it and pinky swears he isn't lying now, he was lying before (under oath). In a country this large I'm not going to say it never happens, but unless you're completely credulous, you can't seriously believe this moves the needle. And if it does, it's their fault, at least to the extent they lied under oath. That leaves Alford Pleas which happen but again are very rare.

But also this is reversing cause and effect and I saw it in the other thread too. Prosecution doesn't lead to high incarceration rates, criminals do. Even in the extremely rare cases where prosecutors get the wrong person, there still really was a crime. Saying that America has more prisoners and therefore something is wrong with its criminal justice system is insane as saying that Canada has more snow shovels, yet still has snow, so clearly the snow shovels are defective. It's nonsense.

We could have a crime free America tomorrow and by extension a prison free America relatively soon, but violent criminals keep choosing to commit violent crimes. Blaming us for their choices is just a roundabout form of victim blaming. They earned their cages, they can rot in them.

[bevis the lumberjack]

I haven’t looked at the stat more recently, but as of a few years ago something like 27% of DNA exonerations involved either a confession or a guilty plea. It’s an outgrowth of aggressive, sometimes abusive interrogation techniques and of the practice of prosecutors piling on 1000 years of potential penalties to encourage plea bargaining.

Easy for you and I to say we’d never cop to something we wouldn’t do in the absence of the pressure that’s applied. To us it’s just a hypothetical that’ll never be tested.

[Absaroka]

Perhaps, but the exceptions can be pretty outrageous. For example, right here on Reason:

"She obtained a lawyer, who told her that if she admitted guilt, she could participate in a pretrial diversion program that would close the case. On the other hand, if she went to trial and lost, she faced a minimum of two years behind bars and a maximum of 20. So she took the plea deal."

That's for letting her kid walk a half a mile. That calculus - no jail time vs. 20 years - has to make someone think. It's easy to say 'I would never go along with that', but I don't think anyone who hasn't actually been in the crosshairs can be sure what they would do.

[Noscitur a sociis]

While this appears to be quite unjust, I’m not sure that’s a good example of the sort of problem John Rohan is referencing, and SomeGuy2 is skeptical of (and not just because she didn’t actually plead guilty or get convicted of anything). It’s not like there’s any question about what she did: the issue is whether her conduct amounts to a violation of a fairly vague and subjectively framed statute.

[TwelveInchPianist]

"The “pled guilty to a crime they didn’t commit” is more of a modern myth than anything."

Are you claiming that the trial penalty is rarely large enough to sway an innocent person to plead guilty, or that prosecutors rarely charge innocent people?

"And if it does, it’s their fault, at least to the extent they lied under oath."

Take, for example, the not-so-rare example of the plea for time served. You're in jail for six months awaiting trial, and the prosecutor offers you a deal: admit guilt and go home today, or say in jail for an unknown amount of time and hope for an acquittal, but face the risk of a longer jail sentence.

Do you really think it's a person's own fault if he lies under oath in the face of a system where he faces less jail time if he admits guilt than if he's acquitted?

[bevis the lumberjack]

In the case of the home invader getting shot, no murder occurred. How do you charge anyone with a crime that didn’t happen?

[rloquitur]

easy--the killing was unlawful as to the accomplice . . . . .

[Dr. Ed 2]

No, it was a justifiable homicide. Hence no crime.

[Don Nico]

You need to see beyond the proximate cause.
The robber caused the criminal circumstance that resulted in the death of the accomplice. It's a crime and easy for the judge and jury to figure out.

[Dr. Ed 2]

Kettle pleading....

Reminds me of the phrase "sorta pregnant" -- one either is or is not pregnant, and this either was a murder or it wasn't. Anything else really is kettle pleading.

[Noscitur a sociis]

It was a murder. The person who is guilty of the murder is the accomplice. The victim, like you, me, and everyone else, is not guilty of the murder. It’s not that hard.

[Don Nico]

Mr Ed talks about kettle pleading as if it is something more than a lame excuse for lack of relevant knowledge
The root cause gets the primary blame and requires the principal fix.
Obviously he knows nothing about and has never had to do root cause analysis of any serious occurrence.

[Dr. Ed 2]

No Don, I'm taking a harsher position than even you are.

I'm saying that the dead perp deserved to die, and hence society has neither a right nor a duty to punish his death. Not that he died, but that his death is punishable.

[bevis the lumberjack]

The victim wasn’t murdered. You can use junk logic and twist into something unrecognizable, but it still comes down to that.

[Noscitur a sociis]

In the case of the home invader getting shot, no murder occurred.

Kind of begging the question, aren’t you? If the law defines the accomplice’s actions as murder, then a murder occurred.

If you mean that as a matter of logic, a murder only occurs if everyone involved in proximately causing death is also liable for murder, that seems pretty obviously incorrect.

[bevis the lumberjack]

No, I mean the person(s) doing the actual killing committed murder.

You’re relying on a technicality - an overly broad definition of murder defines it that way, so it must be murder.

[Noscitur a sociis]

How is determining what is or isn’t murder by reference to the law defining murder a “relying on a technicality”? Is there some Platonic definition of murder external to the law that I should be consulting instead?

I mean the person(s) doing the actual killing committed murder.

As a descriptive matter, I don’t believe that this accurately sets forth the law anywhere in the United States. If I were to intentionally trick you into killing someone by making the victim look like a burglar, or having you unknowingly administer poison or detonate a bomb, or engineer a situation where you’re not criminally responsible because of insanity or are acting under heat of passion, I could not use your innocence as a defense. And as a matter of moral intuition, I’d be surprised if anyone thinks that I should be able to.

Which is not to say that there’s no distinction to be drawn between this scenario and felony murder, or that the current rule is the right one. Just that I don’t think the distinction you’re drawing works.

[bevis the lumberjack]

The law has to have some relationship to what happened though.

If you give grandpa a surprise party and the stress of the surprise kill’s him, that’s clearly not murder. By your argument if a legislature defined it as murder then it’s clearly murder, no questions asked.

[Devin Watkins]

To me, felony murder rule should be abolished. To me, this is an invention by government to get around the mens rea requirement that people be judged for their own actions. People should be held accountable for the things they intended or were reasonably foreseeable and that their actions caused. If you enter into a conspiracy in which it is planned or you were aware that your accomplice would kill someone, then you should be held accountable for that. But there are plenty of crimes where murder isn’t a part of the plan, and people shouldn’t be held accountable for acts that they did not intend or were a part of.

While I think its reasonably foreseeable that a victim could have a gun and attempt to defend themselves against some crimes (not all), but I would not apply such a rule to the self-defense shooting of an accomplice. To me, an accomplice’s choice to also engage in this criminal behavior should be considered a new independent cause that breaks the chain of proximate causation.

But say the victim pulls out a gun to defend himself and accidently kills an innocent 3rd party. I’m ok with applying something like felony murder in a situation like that, because it was both people’s actions that caused the result. But the charge should be something closer to involuntary manslaughter. They weren’t intending to kill that person, but it was the result of their actions. It is not “depraved heart” murder because they didn’t do anything that had an extreme indifference to the value of human life. They didn’t, for instance, shoot a gun into an occupied building not caring if someone got hurt or not.

[rloquitur]

So innocent bystander is killed in the course of a felony, and involuntary manslaughter is the result? Nope---guy should never ever walk streets again.

[Don Nico]

Exactly. You might argue for 2nd degree murder, but the felon is the root cause of the bystander's death, although not the most proximate cause

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Armed robbers are armed and know that death is a possible consequence. That is the intent -- to kill someone if necessary to save their own skin. They deserve no favors just because the death was not one of their victims, but one of their accomplices.

[Devin Watkins]

I agree that armed robbers are armed, and that they know that death is a possible consequence. But that doesn't mean they have an intent to kill. Most likely, they are using the guns as a means of scaring people into giving them what they want without killing anyone. I believe if someone commits armed robbery and they get killed by the victims of their crime in self-defense, that robber got what he deserved and was responsible for his own death. No one else is responsible for that robber's bad choices.

[Don Nico]

"But that doesn’t mean they have an intent to kill."
If they did not have that contingent intent, they would not have been armed in the first place

[Devin Watkins]

I'm saying that there are reasons why robbers are armed that are other than an intent to kill the victim. Maybe they plan to kill them anyway after robbing them (as the robbers in this story were discussing), but that isn't all robbers. Some robbers use empty guns without bullets, because they are using the weapon to scare people and have no intent at all of actually shooting anyone.

[dwb68]

Making a threat of force in a commission of robbery is intent, because that how its intended to be communicated lol. Maybe its a bluff, but who cares.

If the victim takes you seriously and shoots back, killing your partner, so sad for you. You threatened someone, they believed you, felony murder. Period. I fail to see a problem here. Don't rob people.

[Don Nico]

Check dwb's answer. Carry a gnu when you rob a place, and you provide facial evidence of intent.

[Dr. Ed 2]

Some of them use weapons that are so dirty and in such poor repair that they are more likely to explode in the hand of the robber than to shoot someone.

But I digress....

[dwb68]

“I only meant to scare them!” – every armed robber, ever.

LMAO.

If the threat was not real, victims would not comply.

Its hard to take your comments seriously. The victim obviously thinks there is a threat of force, and must act as if in the situation - otherwise they wouldn't comply. And: fists and feet are just as potentially deadly as a gun, so if I threaten to beat you if you don't give me your phone, you are justified in using deadly force.

[Devin Watkins]

Of course the threat is a real threat. And no doubt the victim must act as if the threat is real (with self defense). But that doesn't mean the robber actually intended to kill the person, even if they did not comply with their threat. Maybe they did (and if there is evidence of that, prove that), but there should be a difference between threatening harm and actually doing it.

[dwb68]

“I beat your head in but didn’t really mean to kill you” is not a defense. LOL

Shit happens in a fight. Once you start it, take responsibility for how it ends.

And if you bring extra people as backup, and they die during the fight, thats a you problem.

"Of course the threat is a real threat" - translation, intent to kill. full stop.

[Devin Watkins]

Actually it is generally a defense to first degree murder that although you hit them over the head, it was not willful and premeditated with malice aforethought. Don't get me wrong, that violates a bunch of other laws, but intent to kill is more than an act that kills.

[Don Nico]

Devin,
Do you actually understand how easily a blow to the head can be fatal? If you did, you would not be so cavalier in your response

[Devin Watkins]

There are lots of things that can be fatal. Doesn't mean that is always someone's intention.

[David Nieporent]

And: fists and feet are just as potentially deadly as a gun,

No.

[dwb68]

Tell that to the thousand people or so killed every year by feet and fists.

[David Nieporent]

I mean, even if your numbers were right, what would that prove about the relative lethality of fists and feet vs. firearms?

[ragebot]

According to FBI data personal weapons (stuff like fingers, hands, fists, elbows, feet, knees, head butts, and the like) are responsible for more deaths than long guns (what the libtards like to call assault weapons). But don't let facts get in your way.

[Dr. Ed 2]

I believe that "long guns" includes shotguns and bolt-action rifles in addition to assault weapons.

🙂

[jimc5499]

I was leaving work one afternoon. A co-worker walking in front of me was knocked down and her laptop bag an purse were grabbed. The guy then started kicking her. I got close enough and pulled a pistol. The police came we got everything sorted out and I left. A few days later I get a call from the District Attorney's office informing me that no charges were being made against me. While we were talking I was told that if I had fired, there would have been no charges. He didn't have a gun, just steel toed boots.

[dwb68]

Quite right. He's beating her. Easy enough to kick a person to death.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

His accomplices bear responsibility too.

There was a case a few years ago of four cops standing around a guy on the ground, kicking him. One kick was the killing kick, the others just maimed him. None snitched on who delivered the killing kick.

They should all have been charged with murder, even if three had spilled the beans on the fourth.

[David Nieporent]

Hey, I remember a case a few years ago of four cops standing around a guy on the ground, smothering him. Some held his limbs; others knelt on his neck. The last one used a deadly weapon to keep bystanders from intervening to protect their victim.

[David Nieporent]

They deserve no favors just because the death was not one of their victims, but one of their accomplices.

"Not convicting someone of something he didn't do" doesn't really sound like something normally to be described as a "favor."

[dwb68]

If you invade granny's home and try to rob her with a BB gun, then she dies of a stroke, too bad for you. You probably wont get the max sentence. But in any case, who cares. The simple solution, don't rob grannies.

[Devin Watkins]

The question is not if they should get the max sentence (I don't think anyone thinks that), but what should be the appropriate sentence for a crime like that? In a lot of places (not all) felony murder is categorized as a first-degree murder with up to life imprisonment. In some states it is a capital offense, which means that the death penalty is available. I don't think that is an appropriate sentence for scaring granny’s into having a heart attack. The penalty for involuntary manslaughter in most places is more like 1 to 10 years. That is more appropriate. That means that people shouldn't rob grannies, but we are not going to execute you for doing so.

[Don Nico]

Devin,
seems that you have described felony manslaughter. The action causing death, in whatever manner, was intentional.

[Devin Watkins]

It could be. In some places voluntary manslaughter requires intent to kill or seriously harm, neither of which really apply here. But in other places it does not. Felony manslaughter, in the jurisdictions that have that offense, may be the appropriate charge for something like armed robbery in which self-defense leads to a 3rd party death.

Some more minor crimes, which are not as inherently dangerous, involuntary manslaughter may be more appropriate. If they knew the act they were engaged in had a serious risk of injury (for instance driving through a red light), and someone died as a result.

[ragebot]

Not sure about non Florida jurisdictions but state law in Florida provides for what is called special circumstances when committing crimes. Peeps between the ages of 15-50 (hope I remembered that right) who commit crimes on persons under 15 or over 50 do so under "special circumstances" and are subject to enhanced sentencing.

[John F. Carr]

In my state an unintended killing is murder if there is "a plain and strong likelihood that death would result" from the defendant's acts. I like this rule better than "any death during a felony is murder". Manslaughter has a 0-20 year sentencing range and the judge has a lot of latitude to consider the facts of the case.

https://www.mass.gov/info-details/model-jury-instructions-on-homicide-ix-appendix

[rloquitur]

Of course you do.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Of course you think that's an intelligent, informative comment.

[Bob from Ohio]

"judge has a lot of latitude"

Yeah, that's the problem.

[Dr. Ed 2]

And what does that say about the legal profession?

Remember that judges are lawyers, and that the legal profession produces the judges.

[Bored Lawyer]

"if there is “a plain and strong likelihood that death would result” from the defendant’s acts."

And you don't think an armed invasion and robbery of a house by four people qualifies?

[John F. Carr]

No. The case law says running somebody over with a car is an example of conduct that would support a murder conviction without a subjective intent to kill. An armed robbery doesn't even come close.

[ReaderY]

The classic example of the problem with an uncabinned felony murder rule, now somewhat old, is the accomplice who gets a heart attack and dies while in the act of consensual sodomy in a state making it a felony crime. There are just so many felonies, many non-violent, and so many ways people can accidentally die in the course of them.

[rloquitur]

See Texas v. Lawrence.

[Rossami]

Which merely means that the example needs to be updated, not that there aren't still lots of other entirely non-violent felonies during which someone could accidentally die. See any of the old articles on "Three Felonies a Day".

[Mr. Bumble]

How is this type of crime treated under federal law?

[Davy C]

18 U.S. Code § 1111 has the murder rule.

(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.

Any other murder is murder in the second degree.

I guess they must have some stupid definition of "malice aforethought" that includes actions that lack the intent to kill, because that's the only way you can find a felony murder rule from this.

[dwb68]

Felony murder rule is fine, with the caveat that there are always varying degrees of culpability.

Seems straightforward to me... if you don't want to be charged, don't go helping friends with violent crimes.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

My attitude towards felony murder follows my attitude towards an unarmed bank robber who passes a note claiming to be wearing a bomb vest, or who uses his finger in a pocket to pretend to have a gun, or who has an Airsoft replica gun, or a real but unloaded gun: he is threatening death, and if someone shoots and kills him, he got what he was threatening.

Now add a second bank robber, also unarmed. A guard shoots and kills one. I have zero sympathy for the other bank robber; he too was threatening death, and whether he intended that death to be his accomplice or not, he did not mind that other people thought they could die. Call it depraved heart or gross negligence, I don't care.

In the home invasion case of the previous article, it was even more clear cut: both were armed, they told the victims they were going to die, they were counting bullets. It's hard to imagine a more clear cut case of felony murder.

None of this has anything to do with approving of capital punishment. It has everything to do with intent.

[Reallynotbob]

You're highlighting one of the rationales for felony murder: the likelihood that a victim is the person killed, leaving only the assailants alive to identify which one pulled the trigger. Felony murder skips over all the finger-pointing among defendants.

[Davy C]

So what's wrong with conspiracy to commit murder?

[Reallynotbob]

You need to show agreement to achieve the crime, in this case murder. In the hypothetical, as I understand it, the conspiracy was to rob a bank not kill.

[chilicook]

I don't have a problem with Felony murder rule so long as it is limited to certain "violent" or "forcible" or "inherently dangerous" felonies (terms vary). In Florida there is list of specific felonies, essentially violent felonies, human trafficking and certain specific drug distributions. I get it; it is a harsh rule; but if you are engaging in or facilitating these types of crimes you have to know someone may wind up being killed during the crime. If someone dies, even if you weren't the one who committed the immediate act that killed them, they would not have died 'but for' your action. And holding you responsible for that does not seem unfair.

[Archibald Tuttle]

DUI homicide comes to mind. There is usually no mens rea.

[Dr. Ed 2]

I've always had problems with that -- if the argument for the underlying OUI/DWI charge is that the person wasn't of cognitive mind and hence ought not have been driving, then how can you hold a person criminally liable for doing so?

As we have increasingly gone into a dual mode of both criminal and medical responses to OUI -- with the two being comingled over the past 40 years -- how is the mens rea test being met?

And then how do we justify prosecuting 18-year-olds as we have defined them as not responsible in the first place?

[Noscitur a sociis]

As usual, your question answers itself: the justification for banning drunk driving is that, at a certain point, a drunk person is incapable of operating a vehicle without unjustifiably endangering themselves and others, not that they aren’t “of cognitive mind”.

Likewise, “we” haven’t “defined [18 year olds] as not responsible”, which is why there’s no hypocrisy in holding them accountable for criminal behavior.

[Dr. Ed 2]

I will presume you misunderstood my point and were not being intentionally obtuse.

"a drunk person is incapable of operating a vehicle without unjustifiably endangering themselves and others, not that they aren’t “of cognitive mind”."

Agreed -- and my point is that society should not *then* turn around and decide they aren't "of cognitive mind." And it is.

[Noscitur a sociis]

Can you give an example of one of the statutes you have in mind?

[bevis the lumberjack]

That’s not murder though. It’s manslaughter.

[ragebot]

As someone who has finished 15 Ironman distance triathlons and use to ride a bike around 200 miles a week in training I had an interesting experience when I went to the long course worlds in Ibiza several years ago. Talking to peeps from the EU the punishment for DUI there is you lose your license, as in it is gone and you are not getting it back under any circumstances. In the US even three time DUI losers tend to get a restricted license where they can drive to and from work. Even if the DUI involved serious injury or even death the punishment is often little more than a slap on the wrist.

I ascribe this to what John Keats described in his book "The Insolent Chariots".

https://www.amazon.com/exec/obidos/ASIN/B00005W71P/reasonmagazinea-20/

[Rossami]

Put me down for options 4 and 5.

Murder requires (or should require) a clear mens rea. Removing that requirement does not merely escalate the punishment for lesser killings, it diminishes our ability to discriminate and punish the intentional murders.

[Soronel Haetir]

My main problem with depraved heart murder is that it is not applied more broadly. For example, to vehicular homicide coupled with DUI. That circumstance, to me, shows entire disrespect for the potential outcome of someone's actions.

[YepThatGuy]

Your hypothetical is something of a conflation of two different tests (in California anyway, and the California Penal Code treats murder similarly to many other states): Provocative Act Murder (described in Criminal Jury Instruction 560 - https://www.justia.com/criminal/docs/calcrim/500/560/) and Implied Malice Murder (Instruction 520 - https://www.justia.com/criminal/docs/calcrim/500/520/).

Implied Malice under 520 is how murder cases are brought in certain DUI homicide cases. The "high probability...chain of events" language in 560 makes provacative act murder something of a different challenge.

[TwelveInchPianist]

I'm curious about how much of the objection stems from the fact that we call the crime murder. If we just had a death enhancement for people who commit felonies where someone dies, do people still object?

[Devin Watkins]

I think it depends on the length of time for the enhancement vs actually committing such murder. The big problem for me with felony murder rule is that (1) the death may have a very tenuous causal relationship to the crime (the heart-attack example), and (2) its inherently less of a bad act to commit robbery then murder: People should be punished for their own acts, not the acts of others.

So, if someone does something bad, and other people have a heart attack and die, is this sentencing enhancement going to apply? If you’re say climbing a tree at the Supreme Court building (18 USC 1821) and fall on someone who dies, does this sentencing enhancement apply?

And if it does apply, is it going to be substantially less then actual murder?

[David Nieporent]

If you’re say climbing a tree at the Supreme Court building (18 USC 1821)

Say wha?

https://uscode.house.gov/view.xhtml?req=granuleid:USC-1999-title18-section1821&num=0&edition=1999

[Bored Lawyer]

My favorite felony!

[Absaroka]

Am I reading that right? I get dentures made by some unlicensed person in Guatemala, and then travel to D.C.[1] wearing my dentures, so I spend a year in jail?

[1]I'm assuming, arguendo, that D.C. has the predicate laws against unlicensed dentistry.

[Bored Lawyer]

Yup! So don't smile around any federal agent. If you are wearing dentures. 🙂

[Ken Arromdee]

It was repealed in 2021 https://lwn.net/Articles/369257/ .

That thread also claims it's only a restriction on dental practice, but I don't see that in the text of the law--the law doesn't require that the person jailed for transporting the dentures be the one prescribing them.

[Devin Watkins]

Sorry, got moved to 40 U.S. Code § 6133 https://www.law.cornell.edu/uscode/text/40/6133

[Bored Lawyer]

As Prof. Volokh notes, the felony murder rule has a number of limitations that have been adopted. Many jurisdictions require that it be a dangerous felony. And AFAIK, every jurisdiciton requires proximate causation. Those two cut down considerably on the outlier cases you might imagine.

[Noscitur a sociis]

The federal felony murder rule only applies to a listed set of felonies (“arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery”) and the statute you’re citing is a misdemeanor, as is simple trespass on the grounds of the Supreme Court, so I don’t think your parade of horrible people quite pans out.

[bevis the lumberjack]

Change my earlier example slightly.

I steal a car and I’m driving along obeying traffic laws. A drunk crosses the center line and hits me head on, killing the drunk and his passenger. Have I committed intoxication manslaughter while stone cold sober?

[Dr. Ed 2]

Let’s go one step further — let’s say that the state DOT is grossly negligent in either designing, marking, or maintaining the highway and a *sober* driver likely would have crossed that line….

This is actually more common than you might think — most crossover/headon accidents like this occur at night, often in rain/snow/fog. I say “presume gross DOT negligence” for the sake of argument, and that is a debate in and of itself, but there *are* Federal standards which are fairly precise and often not met.

An example I like to give — White Pine trees have a bad habit of snapping off in high winds. A mature White Pine can be well over 100 feet tall, and they tend to snap in the middle. And if the wind's blowing, the treetop won't fall straight down, it will instead go a ways downwind in the process of falling -- and land stump-first like a spear.

So Danny the Drunk Driver is driving along and 5 tons of tree falls out of the sky, impaling him. (I know of a situation where this actually happened on US Route 202.) Did his being drunk cause this accident?

Or was it an act of God?

[Dr. Ed 2]

And as to OUI, it gets worse -- the Federal statistics include drunken PASSENGERS in the calculation of "alcohol-related fatal accidents."

So if Charlie the Cop arrests Danny the Drunk Driver and is taking him to the police station for booking -- and (stone-sober Charlie) slides off the road because of black ice and one of them dies in the resulting accident, that is included in the OUI fatality statistics. Seriously.

Worse, the Feds use a .01 level to define impairment -- most medical texts state that anything below .02 is negligible, with the OUI standard being .08 (.04 for a Commercial Vehicle).

So instead of having Danny the Drunk Driver in the back seat, Officer Charlie instead has Willie the Wifebeater, whom he arrested for domestic assault and who has a BAC of maybe .02 but that isn't why he was arrested. That also is an "alcohol related fatal accident."

[jimc5499]

Pittsburgh a few years ago had an accident where a driver had a heart attack while driving. The car went up on a sidewalk and injured a few people at the outside tables of a restaurant. Some of the injured had been drinking so the accident went down as "alcohol related". The standard for the statistics is anyone involved having a measurable amount of alcohol in their system. Many police departments have "alcohol related" as the default on their accident reports. It boosts the numbers. That comes in handy when grants are being handed out. It also makes "alcohol related " accidents more of an issue than they really are.

[Mr. Bumble]

Kind of like attributing deaths to Covid when the decedent had a positive Covid test.

[Don Nico]

Yes, it is quite like that.

[Dr. Ed 2]

" It also makes “alcohol related ” accidents more of an issue than they really are."

It also means they don't have to figure out what really caused the accident. In this case, the lack of a barrier to separate errant vehicles from diners comes to immediate mind...

[MatthewSlyfield]

I'll vote for 4 with a side order of 5.

I think the felony murder rule is way overbroad in most states.

I think it should only cover cases where the death was unlawful on the part of the person who most immediately caused the death, and even then, only where the person who pulled the trigger is an agent or accomplice of the person you want to charge.

[Reallynotbob]

Depraved heart murder should not be used in the hypothetical, and the reason why illustrates the reason felony murder statutes serve a purpose.

The classic examples of a depraved indifference to human life homicide are like this: Perp tosses a full can of paint off a skyscraper onto a crowded street; it might miss everyone but very likely it kills someone. Or Perp shoots wildly into a crowd. Or Perp sets a dangerous trap in the kindergarten classroom. The intent to kill is not specific to a victim, and may not be specific to killing at all. But the act is so unreasonably dangerous that we call it a murder. It's also Perp's act that directly caused the death.

If you extend that to "proximate cause" and not just "direct cause" then you get problems. For example, what about dangerous ventures where the organizer acts "with reckless and wanton unconcern and indifference as to whether anyone is harmed or not" because there is a probable externality (in the hypo, an armed and angry Vic the victim) then you sweep in many other types of externality that feel morally much different. For example, major public works construction projects are statistically likely to be lethal. Does the organizer of tunnel blasting operation have a depraved mind because there is a statistical certainty of death caused by the enterprise? Most people would say "no" but drawing the line of statistical likelihood is difficult and feels arbitrary for criminally prosecuting a murder.

So the common law doctrine of felony murder partially solves this problem by defining "felony" as the type of activity sufficiently likely to result in a death that the proximity of causation and foreseeability issues are minimal. Also, it guarantees that there is a felonious mens rea on the part of the accused, albeit not specifically a murderous one. That lines up better with the paint-dropper and the wild-shooter, and less well with the tunnel-blaster.

So I would charge Rob with felony murder for Vic shooting Alec, but I would not apply depraved heart without more a more direct act (such as using Alec as a human shield).

[Dr. Ed 2]

"Does the organizer of tunnel blasting operation have a depraved mind because there is a statistical certainty of death caused by the enterprise? Most people would say “no” but drawing the line of statistical likelihood is difficult and feels arbitrary for criminally prosecuting a murder."

Isn't this where things like OSHA specs come in to play?

I vaguely remember one coal mine a decade or so ago being criminally charged because what they were doing (undercut mining) was considered *so* dangerous that it wasn't acceptable.

[Reallynotbob]

I hear you, but concepts like OSHA requirements and technical safety guidelines are best handled in the civil courts where money damages are available and the victims' survivors are able to prove the case. The question of prison time is reserved to the state through prosecutors.

Which is another good reason to cabin the reach of "murder" by depraved heart. Even if we assume citizens are adequately on notice of what is prohibited via "depraved heart" effects (which is a valid debate) prosecutors like to have short-distance putts. That civil court awards money on a "preponderance" standard, but the prosecutors need a higher quantum of proof. The more complicated the Rube Goldberg machine of causation, the less interested prosecutors are in spending their resources deconstructing each step to a "beyond reasonable doubt" standard.

Here's a recent coal mine example, but maybe not the one you are thinking of. The managers hurt workers by intentionally defeating safety equipment protocols. https://www.wwrrlawfirm.com/blog/2021/12/former-coal-mining-managers-facing-criminal-charges/

[Squirrelloid]

I think I side with 5, albeit without having thought through all the consequences.

Consider a group of incompetent armed bank robbers who decide to shoot their way out of the inevitable police response. They manage to not shoot anyone, but at least one of them is killed by police during the gunfight.

Attempted murder? Sure. They were trying to shoot policemen.

But should they really be guilty of murdering their fallen co-conspirator because the police shot him?

Before you say yes, consider also the barrage of news stories we get about inappropriate use of force by police. Even getting pulled over by police for speeding can result in someone getting shot. You might as well declare that all criminals have depraved indifference because there's a decent probability one of their partners in crime will be shot by police at some point in connection with the crime.

[Reallynotbob]

This is a good time to note that not all states apply felony murder to participants in the felony. See, e.g. NY jury charge on Murder 2:

"Under our law, a person is guilty of Murder in the Second
Degree when, in the course of and in furtherance of the
commission or attempted commission of (name of felony charged) [or of immediate flight therefrom], that person [or another participant if there be any] causes the death of a person other than one of the participants....

"A death caused in the course of the commission or
attempted commission of (specify name of crime) is 'in
furtherance of' the commission or attempted commission of that
crime when there is a logical nexus, that is, a logical link between
the commission or attempted commission of that crime and the
death, and the death was not just coincidental to the commission
or attempted commission of that crime."

[Martinned]

I sure hope that what the judge actually says to the jury is simpler than that, otherwise the prosecutor and the defendant might as well cut out the middle man and flip a coin.

[Harvey Mosley]

Many commenters are using our high incarceration rate as an argument against the felony murder rule. This is wrong. The felony murder rule has nothing to do with our incarceration rate. These people would already be incarcerated for their other crimes.

The best way to lower our incarceration rate is to stop locking people up for victimless and for malum prohibitum crimes. Legalize drugs, prostitution, gambling, etc. and our incarceration rate will plummet.

As for the felony murder rule, don’t willingly participate in violent felonies and you don’t have to worry about it.

Also, why should the penalty for attempted murder be less than for murder? We are rewarding the criminal because he failed.

[Mr. Bumble]

With the exception of drugs, how many people are incarcerated for the other crimes you mention?

[Noscitur a sociis]

The best way to lower our incarceration rate is to stop locking people up for victimless and for malum prohibitum crimes. Legalize drugs, prostitution, gambling, etc. and our incarceration rate will plummet.

Drug offenders are only about 20% of the prison population. So while this would certainly lower the incarceration rate somewhat (assuming, of course, that it didn’t correspondingly increase the crime rate), the US would still be exceptional in the percentage of people locked up. And one of the primary drivers of that is people serving very long sentences for violent crimes, which our felony murder rule certainly facilitates.

[Voize]

I suspect that high sentencing minimums and three-strikes laws are a much greater contributor to incarceration rates than the felony murder rule.

E.g. Rummel v. Estelle (1980) where Joseph Rummel scored a mandatory life sentence in Texas due to his three strikes for credit card fraud, check forgery, and refusing to refund payment for work he didn't do. Three non-violent crimes involving a total of $230.

Rummel was released on other grounds, but not before SCOTUS affirmed that his sentence did not offend the 8th Amendment.

[Harvey Mosley]

I'd be willing to bet a beer that dropping the felony murder rule would lower incarceration less than my (admittedly unrealistic) proposal would.

[Bored Lawyer]

Put me down for # 1, although I understand most of the other positions.

# 5 sounds to me like the height of sophistry.

[LawTalkingGuy]

I don’t see how it’s sophistry. It’s a perfectly defensible position to say someone can only be punished for the specific harms they intend to cause. A lot of criminal law is based upon this idea. Felony murder is in some ways outside the norm, which is why it’s controversial in the first place.

[Bored Lawyer]

Did you read # 5? It draws a distinction between someone being killed by an accomplice and someone being killed by a victim acting in self-defense. I find THAT distinction forced.

[LawTalkingGuy]

Yeah rereading it I didn’t really think about the parenthetical which is confusing. I took it to mean only liable for unlawful killings you do or direct an agent to do. Which would make sense. That’s just straightforward intent and causation. Calling an “agent” an “accomplice” isn’t really getting at the same idea.

[questioner7]

What if Rob kills Vic to stop him from shooting Alec? Would that be "justifiable homicide in defense of another"?

[Noscitur a sociis]

No. The exact details vary by jurisdiction, but generally you cannot use force in self defense (or defense of another) unless 1. You reasonably believe that the force you’re defending against is unlawful; 2. You are not the initial physical aggressor; and 3. You are not engaged committing a felony while using force. I don’t see how Rob would satisfy any of these criteria, much less all three.

[Voize]

There is a missing option: Rob is not liable for Alec's death because Alec was an eyes-wide-open willing participant in the dangerous enterprise that got him killed.

[questioner7]

In "is it murder", do you mean first-degree murder with mandatory life sentence without parole, or something else? The former should be reserved for planned, intended, unlawful killings, to set these apart from everything else. It's hard to answer the posed questions without knowing which degree of murder can be "imputed" through the proposed rule.

[Noscitur a sociis]

Felony murder and malignant heart/depraved indifference murder are usually classified as first-degree murder. Not in every state, though, and not every state punishes first-degree murder with mandatory life without parole.

[dwb68]

I think what a lot of people miss in the comments is that there is no mind reading helmet that allows juries to objectively measure intent. “I didnt mean to do it” is literally what every defendant and five year old says.

Making a threat of force in a commission of robbery is de facto intent. Maybe its a bluff, but who cares. The robber intends the victim to take the threat seriously, otherwise they wont comply. If the victim takes the robber seriously and shoots back, the jury is allowed to take the robber’s own threats at face value as evidence of intent. "You said you were going to kill me and held me at gunpoint." At that point, it no longer matters if the gun wasn't loaded. Or if it was a BB gun. During a robbery, there is no time for deep forensic analysis.

Multiple people committing a robbery is a force multiplier. As in “we” will beat you up, knife you, or shoot you. So if you miss robber #1, robber #2 may take you down. And again, the jury is allowed to take the group’s own threats at face value as evidence of intent.

And I dont see a problem with the getaway driver being charged either. Hiring a hitwoman is murder – solicitation or conspiracy to commit murder is treated the same as murder – and the getaway driver is facilitating murder.

My advice… Don’t rob people.

[Davy C]

Scenario 1: You're the getaway driver for a team of hitmen. They try to kill their target, but succeed in only wounding him.

Scenario 2: You're the getaway driver for an unarmed bank robber. The robber is shot by police.

I have a problem with any felony murder law which gives you a stronger sentence for Scenario 2 than Scenario 1.

[iowatwo]

Are cops treated the same way? Cops dont have anymore rights than citizens.
Cops only have the rights and powers delegated to them by the people. Only the People can delegate power.

[Noscitur a sociis]

Is your question whether police officers can be guilty of felony murder if someone dies while they’re committing a felony?

If so, the answer is yes. You might hear about a rather high-profile example out of Minneapolis not so long ago.

[iowatwo]

Your case is not a good example. Those convicted followed their training, and the dead man died of too many drugs in his system.
I seem to remember a cop shooting a young teen pointing an air soft or BB gun, and not being prosecuted....because the cop cant be forced to make a split second decision, but a home owner fending of armed intruders must take heighten care.

Does this felony murder rule apply to States with castle laws?

[David Nieporent]

Your case is not a good example. Those convicted followed their training, and the dead man died of too many drugs in his system.

Why do people feel the need to do this? This is a complete and utter lie in every respect. Based on your post you are reasonably fluent in the English language, so you know it's a complete and utter lie in every respect. It does not advance any ideology to lie about this case, which makes it such a tell. (It's like the Holocaust deniers who claim that Anne Frank's diary is a forgery. Even if it were — which it isn't — it would not actually prove that the Holocaust didn't happen, so it doesn't actually advance anything to make the claim.) It's just pure vice signaling, letting everyone know that the speaker is an awful human being.

[Noscitur a sociis]

I seem to remember a cop shooting a young teen pointing an air soft or BB gun, and not being prosecuted….because the cop cant be forced to make a split second decision, but a home owner fending of armed intruders must take heighten care.

American self-defense law generally lets people (whether law enforcement or not) use force if they mistakenly believe it's necessary, as long as the mistake is an objectively reasonable one. Which doesn't have any real connection to the felony murder rule: if you personally shoot someone, you'd typically be charged (if at all) with regular murder.

Does this felony murder rule apply to States with castle laws?

Yes, to my knowledge every state with "castle laws" also has some form of felony murder statute in effect. Which shouldn't be surprising since, again, the concepts don't really have much to do with one another.

[bevis the lumberjack]

Look at the cop who killed Daniel Shaver in Mesa. Story today over on main Reason.

That was entirely caught on video and is one of the worst police shootings we’ve seen. Yes, the cop was fired and indicted, but was acquitted because there’s a carve out in Arizona law that the rest of us don’t get.

And then when he fought his termination, the city allowed him to be rehired long enough to retire and get a pension and disability benefits. The disability was PTSD from shooting an unarmed frightened citizen.

No, cops are absolutely not treated the same as the rest of us.

[Noscitur a sociis]

Yes, the cop was fired and indicted, but was acquitted because there’s a carve out in Arizona law that the rest of us don’t get.

Could you elaborate? As I understand it, the defense was that he thought the victim was reaching for a weapon. If he reasonably believed that (or, more precisely, if the prosecution failed to prove that he didn’t reasonably believe it), it looks to me like the Arizona justification statutes would have protected a private person just as much.

But I’m anything but an expert on this case or these laws and would be happy to be educated,

[bevis the lumberjack]

From what I remember there were at least two, maybe more, cops shouting conflicting orders. “Crawl toward us” and “keep your fucking hands up”. Something like that.

Shaver was wearing nothing but gym shorts, so there was nowhere to hide a gun. As he crawled he was having trouble keeping his shorts up his and kept reaching back to pull them up while crying and begging the cops not to shoot him. One last reach and they shot him.

The cop that did the shooting had something etched into his gun they suggested he was looking forward to a body count.

All that from memory. It was just an awful shoot. Benefit of the doubt goes to the cop of course. But the trick involving the pension/disability was just the icing on a very shitty cake.

[Noscitur a sociis]

To be clear, I’m in no way trying to defend the officer’s actions (which seem indefensible) or the jury’s verdict (which seems very difficult to reconcile with what I know of the evidence). I’m just unclear how there was any legal advantage to the defendant’s status as a police officer here. I do see that Arizona has different standards for when deadly force can be used during an arrest for non-law enforcement, but it doesn’t seem like they would have come into play on the facts of this case.

[bevis the lumberjack]

Shaver was only in that mess because he was showing another couple at the hotel the pellet gun he used in his extermination business. Some busybody driving by called in a guy with a gun in a window.

[Absaroka]

I'm not arguing the law, but I have seen the video, and IMHO it wasn't a justified shooting.

Here is an edited version. There may be complete versions if you sign into youtube. I originally saw a complete version. It doesn't seem remotely justified to me. The jury apparently disagreed.

[Noscitur a sociis]

Unless there’s an awful lot of very surprising and very compelling evidence not captured in the recording (and not presented in most of the news articles about the trial), I would agree,

[Armchair Lawyer]

One of the potential consequences that isn't mentioned is the "it was the other guy" defense.

Imagine the following situation. An armed home invasion by two criminals, X and Y. One of them shoots and kills the home owner. X says it was Y. Y says it was X. Forensics and the police can prove it was either X or Y, but can't prove which one it was.

Under current law, both X and Y are culpable and can be charged with and convicted of murder. But, if the so-called felony assist law was null and void..,then one couldn't prove beyond a reasonable doubt that it was X or Y.

[bevis the lumberjack]

Unrelated to this. In this case there were multiple someones to tell us what happened.

In Texas a similar thing is the law of parties. Look up the case of Jeff Wood. Sat outside in the car while a guy he was with went into a store and killed the clerk. The shooter admitted to being the shooter. He’s been executed. Wood apparently didn’t know he had a gun. Still Texas pulled out all the stops, including the since discrete “Dr Death”.

Sometimes the state is too damn bloodthirsty and we shouldn’t be encouraging it.

[Absaroka]

In fairness, from the wiki article, Wood had previously plotted staging a robbery of the store, so he's not exactly lily white here. But apparently he had backed out, and didn't know what was afoot the day of the robbery.

I have picked up hitchhikers before, who had apparently run out of gas. If I give them a ride to a gas station and they rob it, no, I shouldn't share the blame. OTOH, if I plot a robbery with someone and change my mind, I am reasonably on notice that my co-conspirator is a pretty depraved person. I mean, if someone you knew tried to get you to commit an armed robbery, would you keep hanging out with them?

So, taking wiki's facts, I agree that 1)Mr. Wood has been overcharged and 2)he's a pretty despicable person.

[bevis the lumberjack]

Wood wouldn’t be at my house celebrating Christmas if he were ever to get out, but he’s not a murderer. At least he hasn’t been yet.

I just think it’s in the interest of those of us out here to not encourage the government’s bloodlust. One day it might be one of us - here in Texas you could ask guys like Michael Morton or Anthony Graves about that.

[Dr. Ed 2]

A lesser but similar situation -- when I was an undergrad, I gave my neighbor (a fellow student) a ride somewhere and in the course of that, I stopped at a convenience store. After leaving, to my utter shock, disgust, & horror, I learned that he'd done extensive shoplifting while I'd purchased my couple of items.

It was the LAST TIME that I ever gave him a ride somewhere, but how could I have known that he was going to do this?

And the best part: he was the son of the campus police chief...

[Davy C]

I don't see how this is different from the scenario *without* a felony murder law where X for sure did it and Y didn't. Unless you just really really want to make sure *someone* is punished and don't really care who.

They already face a 20 year sentence for the burglary.

[ragebot]

Emanuel Lasker is considered one of the strongest chess players of all time and in a famous match against Aron Nimzowitsch the talented but often sensitive player the two agreed that there was to be no smoking during the match. When Lasker pulled a cigar from his pocket and put it in his mouth Nimzowitsch objected but Lasker replied he was not smoking, only putting a cigar in his mouth to which Nimzowitsch replied 'yes but he threatens to smoke and as Lasker has often said 'the threat is often stronger than the execution'.

[Procyon Mustelid]

#6 is the rule I think makes the most sense: no felony murder liability for accomplice deaths, felony murder liability for other deaths.

[Noorondoor]

The argument that the felony murder rule doesn't serve as a deterrent is a smokescreen. Nothing serves as a deterrent for 85 IQ blacks who lack the capacity to understand the consequences of their actions.

Retribution is all society has.