It shouldn’t matter but OK lets say the falling bullet kills the bf. Now?
At least according to California law, shooting a gun in a non-range or self-defense setting knowing it’s loaded and injuring somebody is an automatic felony no matter the circumstances (unless you can argue self-defense)
609.205 MANSLAUGHTER IN THE SECOND DEGREE.
A person who causes the death of another by any of the following means is guilty of manslaughter in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both:
(1) by the person’s culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another; or
From Minnesota Statutes. This would seem the appropriate charge to me.
I agree that second degree manslaughter sounds appropriate. Stupidity or ignorance could be mitigating factors but there should be a penalty for causing the death of another.
I’m not a lawyer but I’m not sure that would help her. The crime is the act itself. What could she testify to?
He. The boyfriend. Testifying that he convinced her to do it. Argued hard. Threatened to leave her. Jury trial.
I have held a Desert Eagle but I refused to fire it. It is a heavy gun. I didn’t want to hurt myself.
Had this young woman practiced with this gun? Or was it her first shot?
Oldie and a choice example of asshole behavior. Girl fires Desert Eagle. It’s a very heavy (4.5 lbs with an empty mag.), hard recoiling pistol. Giving it to a noob to shoot is a terrible thing to do and, IMHO, earns the genius who came up with the idea a swift kick to the junk. At least she didn’t double-tap herself in the head with the thing.
I reiterate, a .50AE DEagle goes for $1500 plus. What the hell were two near-teenage hillbillies with one kid, and another on the way, doing with the thing? Do you know how many diapers and Gerber that can buy? Sigh.
(It’s a great, accurate pistol, FWIW, when it runs, and a total guilty pleasure. Just, I mean, teenage parents have other stuff to buy, y’know?)
As to punishment, according to most definitions I could cursorily find, retribution is a perfectly valid goal. (Along with deterrence, incapacitation, restitution, and rehabilitation.) I don’t see why retribution is necessarily a wrong thing here, and I don’t see why someone whose reckless conduct has led to the death of a human being, should escape incarceration. If only to deter anyone else stupid enough to consider such a thing. (And yes, I’d be o.k. with a manslaughter case against the Texas geniuses I showed a video from in my last post. At least the boss is sitting in the car getting shot at by an underling, and not the other way around. Right, Krieger?)
You got me interested, so I went off and did some digging.
Two initial comments: First, I’ve only found one Supreme Court of Canada case that speaks directly to unlawful act manslaughter, and I’ve not found one on crim neg causing death. However, in addition to the unlawful act manslaughter case, there’s one on parents’ duty to provide necessities of life to a child, and one on dangerous driving causing death. Both of those offences use a negligence standard, so I believe would apply to crim neg causing death. All three cases were decided in 1993, but best I can tell from a quick note-up, they’re still good law.
Second, when you say that the common law required a subjective element, that has to be qualified by the fact that the common law in England, Canada and the United States can deviate from each other. The analysis of the Supreme Court of Canada, discussed below, is based on common law principles which have developed in Canada. I don’t know if English common law takes the objective approach used in Canada, or the subjective approach you mention for US law.
The first case is a dangerous driving case causing death, an offence which uses the test of a “marked departure from a reasonable standard of care”: R. v. Hundal, [1993] 1 SCR 867. The Court split 6-2-1 on reasons. Justice Cory wrote for the majority. His reasons, as summarized in the headnote, were:
[QUOTE=Cory J]
Section 233 (now s. 249) of the Criminal Code requires an objective standard. This standard is quite appropriate given the need to reduce highway carnage. A consideration of the personal factors essential to determining subjective intent is generally not necessary given the fixed standards of physical and mental well‑being coupled with the basic knowledge of the standard of care required of licensed drivers. A driver, whose conduct was objectively dangerous, should not be acquitted because he or she was not thinking of his or her manner of driving at the time of the accident. The nature of driving itself is often so routine and automatic that it is almost impossible to determine a particular state of mind of a driver at any given moment. The question to be asked, therefore, given that liability for dangerous driving is based on negligence, is whether, viewed objectively, the accused exercised the appropriate standard of care ‑‑ not whether the accused subjectively intended the consequences of his or her action. The accused can still raise a reasonable doubt that a reasonable person would have been aware of the risks of his or her conduct. The test must be applied flexibly in the context of the events surrounding the incident.
[/QUOTE]
Chief Justice Lamer and Justice McLachlin (as she then was) concurred, but were concerned that Cory J’s approach diluted the objective standard too much. Justice La Forest also concurred, but commented that the objective standard applied because driving is such a heavily regulated activity, which he said was different from “the general offence of criminal negligence which requires a subjective mens rea.”
The next case is the manslaughter case: R. v. Creighton, [1993] 3 SCR 3. The accused and two others were having a recreational drug evening, which included the accused injecting one of the others with cocaine at her request. She went into convulsions and died; he was charged with manslaughter and convicted at trial. The unlawful act was drug trafficking (i.e. the injection), but the Crown also had to prove reasonable foreseeability of bodily injury, which triggered the debate over objective-subjective standards.
The SCC split 4-1-4. Interestingly, there were two significant shifts from the line-up in Hundal. Lamer CJ and McLachlin J, who had argued in Hundal for a strict objective test, now disagreed. The point in dispute between them was exactly the point you raise: should there be a subjective element in assessing the accused’s conduct, or is it an objective test, subject only to incapacity? McLachlin J kept to the same position as she had taken in Hundal: the test was objective, subject only to incapacity. Lamer CJ now took an approach that introduced a greater subjective element, a change from his position in Hundal. And La Forest J., who had said in Hundal that criminal negligence had a subjective mens rea, now agreed generally with McLachlin J, subject to a few qualifications. As summarized in the headnote, McLachlin J adopted an objective test, subject only to mental incapacity:
[QUOTE=McLachlin J.]
**The objective test for criminal fault, which requires a “marked departure” from the standard of the reasonable person, should not be extended to incorporate a standard of care which varies with the background and predisposition of each accused. Considerations of principle and policy dictate the maintenance of a single, uniform legal standard of care for such offences, subject to one exception: incapacity to appreciate the nature of the risk which the activity in question entails. ** The principle that the criminal law will not convict the morally innocent does not require consideration of personal factors short of incapacity. The criminal law, while requiring mental fault as an element of a conviction, has steadfastly rejected the idea that a person’s personal characteristics can (short of incapacity) excuse the person from meeting the standard of conduct imposed by the law. The fundamental premises upon which the criminal law rests mandate that personal characteristics not directly relevant to an element of the offence serve as excuses only at the point where they establish incapacity, whether the inability to appreciate the nature and quality of one’s conduct in the context of intentional crimes, or the incapacity to appreciate the risk involved in one’s conduct in the context of crimes of manslaughter or penal negligence.
[/QUOTE]
Lamer CJ would have included a subjective element, the assessment of “human frailty” which did not rise to the level of mental incapacity. The net result in Creighton was a confirmation of an objective standard for “marked departure”, subject only to the accused’s mental capacity.
The last case is *R. v. Naglik*, [1993] 3 SCR 122, where a mother was charged with failure to provide the necessities of life, to wit, medical care, for her 11 week old son. That offence also is based on the “marked departure” from the accepted standard of behaviour which is used in manslaughter and criminal negligence. The Court lined up 5-4 on that issue, with La Forest J this time joining fully in the majority decision of McLachlin J. Her position, as summarized in the headnote, was:
[QUOTE=McLachlin J.]
Lamer C.J.'s reasons were agreed with respecting the mens rea for s. 215 , except his adoption of the objective test for penal negligence discussed in R. v. Gosset. For the reasons given in R. v. Creighton, in determining what the accused “ought to have known”, the trier of fact must determine the conduct of the reasonable person when engaging in the particular activity of the accused in the specific circumstances that prevailed. These circumstances do not include the personal characteristics of the accused, short of characteristics which deprived her of the capacity to appreciate the risk. Youth, inexperience, and lack of education were not suggested on the evidence to deprive the accused of the capacity to appreciate the risk associated with neglecting her child. Therefore, she must be held to the standard of the reasonably prudent person.
[/QUOTE]
The reason McLachin J. referred to “youth, inexperience and lack of education” appears to be that the defence had tried to raise those issues as factors to be considered. McLachlin J. rejected that argument.
Chief Justice Lamer again wrote for the other four judges, again with the disagreement being about whether there was a subjective element in the objective test. However, he commented about the standard of care required, which McLachlin J. adopted:
[QUOTE=Chief Justice Lamer]
The concept of a duty indicates a societal minimum which has been established for conduct: as in the law of civil negligence, a duty would be meaningless if every individual defined its content for him or herself according to his or her subjective beliefs and priorities. The policy goals of the provision support this interpretation. Section 215 is aimed at establishing a uniform minimum level of care to be provided for those to whom it applies, and this can only be achieved if those under the duty are held to a societal, rather than a personal, standard of conduct.
[/QUOTE]
The two take-aways from this case are that it repeats that the test is objective, subject only to mental incapacity, and the standard of care is a general “reasonable person” test, not one that varies from individual to individual.
So, it strikes me that if the case under discussion in this thread arose in Canada, charges of manslaughter or criminal negligence causing death would be determined on an objective standard of behaviour. Factors such as the accused’s “youth, inexperience and lack of education” would not be considered. My guess is the argument that she was relying on her boyfriend’s assurance that the shot couldn’t penetrate the book would be treated similarly: the question isn’t whether she believed the boyfriend, but rather whether a reasonable person would believe the boyfriend that the book would stop a round from a .50 calibre gun.
Based on the comments in this thread, full of reasonable people, I think defence would have a hard time trying to make that argument.
Idle Thoughts, have you never heard someone in a bar trying to dissuade his buddy from driving home, and the buddy saying, “Yeah, those drunk drivers are dangerous, but I’m not drunk. I can carry it.”
If he personally believes that he’s not drunk, shouldn’t he be acquitted on your analysis? He’s agreeing that drunk driving is dangerous, just that the doesn’t think he’s drunk.
How’s that different from the girlfriend who knows that shooting a gun at another person is dangerous, but her boyfriend has told her the book will stop it?
Both are relying on objectively unreasonable facts.
Would a reasonable person be expected to engage in some form of due diligence?
When the drunk driver runs over some poor guy on a late night 7-11 run, that guy did not volunteer to put himself in the situation. Here, Pedro Ruiz voluntarily placed himself in harms way. In fact, the whole thing was his idea.
Also, we punish drunk driving to deter other drunk drivers because drunk driving is a plague. I don’t think this stunt will be sweeping the nation.
The two things aren’t remotely similar. This is a terrible argument.
I’m not a lawyer, but it’s clear a charge of manslaughter is at least feasible. (If it wasn’t, prosecutors wouldn’t have filed it.) But even if she can be charged with manslaughter I don’t understand what good jail would accomplish. She is unlikely to re-offend, others aren’t likely to imitate her. Probation and community service would be fine, and possibly her children should be removed if an investigation merits that. But what good does jail do, other than give online assholes their recreational outrage endorphin rush.
ETA: Not calling Northern Piper an “Online asshole,” He’s a reasonable guy even if he’s wrong here, just that I’m seeing a lot of them around baying for this girls blood for reasons that I’m sure are noble and just.
Except that 30 other people were there watching and none of them said/did anything to try to stop it either.
I can see myself as a spectator watching something like that and just assuming they knew what they were doing. Like the guy being shot with a cannon ball, or the lady hanging by her teeth over Niagara Falls. It’s just a stunt that went horribly wrong. It happens. These two were just way more stupid than some.
The purpose of putting someone in jail is to protect society from them. Nobody is being served by putting her in jail.
We all go a little crazy sometimes. Besides, mother told me to stab her. She said it was OK.
By some of the logic in this thread, we shouldn’t punish gang bangers or mobsters that shoot each other. There’s no deterrence factor, the (lack of) guilt they feel isn’t going to change with prison time, and as long as they only kill other mobsters, the general public isn’t harmed. I think we should just let them shoot each other.
As others have said, it matters more what is reasonable, and assuming that a book will stop this gun isn’t reasonable. Full stop. This isn’t something which would be questionable, it’s completely reckless.
There may be other reasons for not jailing her, but as a society we can’t simply give a free shot (no pun intended) to all people who are overly exuberant with the idea of become famous.
I’m not really certain which outcome is best. She is obviously going to suffer by the loss of her boyfriend and the father of her children. However, if it were a stranger, then I would be 100% on board for some sort of jail sentence.
Very informative, thank you.
No offence, but your examples don’t really come across as serious armor manufacturers. I’m talking about the actual professionals, with multi-million dollar R&D budgets, shareholders and nine-digit defense contracts. Do *they *conduct live human testing?
I was responding to Idle Thoughts comparison to drunk driving offences. It seems to me that Idle is using two different approaches to the objective-subjective issue, which is fairly important in determining criminal liability.
For drunk driving, Idle Thoughts seems to be using an objective standard: everyone knows that drunk driving kills people, so if you drive drunk and kill someone, you’ve committed a crime. It doesn’t matter that you didn’t intend to kill.
That’s an objective test for criminal liability.
But if I’ve understood his position correctly ( and if I haven’t, Idle Thoughts, please correct me), he thinks that this shooting should be judged by a subjective standard. The fact that pointing a gun at someone and pulling the trigger is dangerous, objectively, isn’t enough to decide if she’s committed a crime. As I understood him, he thinks that there should be a subjective analysis, about what she was thinking.
But both drunk driving and involuntary manslaughter are offences that don’t involve an intention to kill. It’s generally enough that the person has done a dangerous act that results in death (subject to whether the laws of the jurisdiction provide for conscious advertance, as mentioned by Richard Parker.
So why would an objective test be used for drunk driving, but a subjective test be used for pointing a gun at someone and pulling the trigger?
Some facts some readers seem to be ignoring: Monalisa began dating Pedro when she was 14 and had his child when she was 15. She has been with him ever since. She has stated that he showed her a book he had shot which the bullet did not penetrate. His cousin has told the same story. She also stated that he had been trying to convince her to do this “for awhile” and that he set up all the cameras and provided the weapon.
What in that account would indicate that she should do jail time? Be charged with manslaugter, fine. Find her not guilty, I sure hope so.
That’s a fair point. As i said in my post, I don’t doubt that this woman could be charged and convicted for manslaughter. My only point is that i don’t see why jail time is appropriate here, while I do for drunk driving.