The Volokh Conspiracy
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Surviving Home Invaders May Be Charged with Murder After Resident Shot and Killed One of Them in Self-Defense
Atlanta TV station 11alive (Addie Haney) reports:
Police now believe four people were involved in a shooting in east Atlanta's Gresham Park neighborhood and that it started as an attempted home invasion. One person has since died in connection to the shooting, according to police….
At this time, police said the shooting "appears justified" and no charges are expected to be filed against the the person who fired the shot.
The three surviving subjects are expected to be charged with felony murder because of the death of their alleged accomplice. The two adults will also be charged with home invasion.
What's with the murder charges?, you might ask. Here's the answer, from a very similar story from a 2015 Georgia Supreme Court case, Hill v. State:
[Jarmal Hill] and [Calvin] Lavant, … entered [an] apartment [in which a party was taking place] through an open sliding glass door. [Hill] was armed with a black handgun and Lavant had a silver revolver; both men were dressed in black clothes and wore caps along with bandanas covering their noses and mouths.
[Hill] and Lavant ordered everyone in the apartment to lie on the floor and took their wallets, cell phones, and other valuables. Two former United States Marines, Sean Barner and James Adams, were attending the party but had gone outside briefly a few minutes before the home invasion; when they returned, they too were ordered at gunpoint to lie on the floor, and [Hill] and Lavant took their cell phones, a wallet, and an iPod. [Note that Barner was, in fact, a Marine, not a former Marine, at the time of the events. -EV]
[Hill] and Lavant ransacked the apartment for other items of value, and then decided to separate their male and female prisoners. The men were forced at gunpoint to go into the back bedroom and lie on the floor there, and two of the female guests were forced into the other bedroom, while the other two female guests remained in the living room.
Lavant said to [Hill], "we are about to have sex with these girls, then we are going to kill them all." Barner heard [Hill] and Lavant discussing condoms and the number of bullets in their guns, and he decided that he needed to act. He had brought his book bag to the party, with his pistol in it, and, fortuitously, the bag was behind the bed in the bedroom where he was lying.
Barner took out his gun, stood up, and walked down the hallway into the living room with Adams following closely behind him. Barner saw [Hill] standing by the front door of the apartment looking out and opened fire on [Hill], who ran out the sliding glass door.
Barner then rushed back to the bedroom where Lavant was holding two of the women, shouted for everyone to get down, and broke down the door with his shoulder. Lavant had ordered the two women to bend over the bed, pulled one of the women's underwear aside, and placed a condom over his penis.
When Barner crashed into the room, Lavant started shooting at him. Barner fired back at Lavant, who fled through a window. Lavant was shot in the face and thigh, and one of the women in the room was hit in the arm and both legs, but she survived.
Lavant later died of his injuries—and Hill (the surviving home invader) was convicted not just of armed robbery, aggravated assault, false imprisonment, burglary and attempted rape, but also of Lavant's murder.
[1.] That's because in Georgia and in some other states, a felon can be guilty of murder if a victim (or a police officer or a bystander) kills the felon's accomplice. The basic legal principle is this: Many state murder statutes (including Georgia's) provide that someone is guilty of so-called "felony murder" "when, in the commission of a felony, he causes the death of another human being." One can thus be guilty of murder in such a situation even if one doesn't intend to kill.
And "causes" is a capacious term. Obviously, shooting someone so that he immediately dies counts as causing death. But so could, for instance (to quote a Georgia Supreme Court decision's summary of an earlier case), "smash[ing] the victim's skull with a hatchet" even though "the victim die[s] nine months later from infection and gangrenous lung abscess." So could "throwing the drunken victim off a bridge into a river" if this causes the victim to drown. The criminal is guilty of felony murder so long as the "proximate cause" requirement is satisfied, which is to say that (1) the death wouldn't have happened but for the defendant's actions, and (2) the death was foreseeable.
So say that robber Rob and his accomplice Alec are robbing victim Vic, and Vic pulls out a gun and shoots and kills Alec. A jury might be able to find that the death wouldn't have happened but for Rob's actions (since Alec might have been unwilling to commit the crime by himself). And the jury could find that there was a reasonably foreseeable possibility (not certainty or even probability, but just a foreseeable possibility) that Vic would use deadly force to defend himself against Alec. In states that follow the "proximate cause" approach, Rob would then be guilty of murder, because "in the commission of a felony [robbery], he cause[d] the death" of Alec. The same would happen if it is police officer Polly who kills Alec.
[2.] 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).
[3.] Okay, so we know what happens if Vic kills Alec—felony murder on Rob's part in the proximate cause states, not any crime on Rob's part in the agency states.
But what if Vic (or police officer Polly) shoots at Alec, but accidentally kills bystander Betty? In the proximate cause states, Rob is guilty, since that sort of unfortunate event is foreseeable (it's foreseeable that Vic would try to defend himself and that this self-defense in the heat of the moment will accidentally kill someone else). In the agency states, Rob isn't guilty, since Vic is the immediate human cause of the death.
Yet wait: There's a third, small category of states (which at least includes New York)—in those states, Rob would be guilty of felony murder for the death of bystander Betty, but wouldn't be guilty of felony murder for the death of accomplice Alec.
The focus in those third-way states is on who dies (felony murder if anyone dies other than one of the criminals). The focus in the agency states is on who kills (felony murder only if the immediate human cause of the death is one of the criminals). And in the proximate cause states, it's felony murder if anyone dies, so long as the death is foreseeable and wouldn't have happened if the defendant hadn't participated in the crime. (Actually, these requirements of foreseeability and but-for causation for a felony murder conviction would also apply in the non-proximate-cause states; it's just that in those other states there are also the extra requirements I discuss above.)
[* * *]
Back then to the Hill case. From 1981 to 2010, Georgia had precedents on the books making it an agency state; but in State v. Jackson (2010), the Georgia Supreme Court overruled those precedents—by a 4-3 vote—and adopted the proximate cause view. And because this sort of overruling of precedent can generally be applied retroactively (except when it can't, itself a complicated question), that decision was applied to Hill.
The jury found that Hill's participation was an actual cause of Lavant's death and that trying to rob the party could foreseeably lead to one of the victims killing Lavant. So though Barner justifiably killed Lavant, Hill murdered Lavant. And the same logic would apply to the case with which I started this post.
