I gotta agree with sailor and others here. The cop chose a dangerous course of action and paid for it with his life. IMO it was his decision not to wear a seatbelt that directly caused his death. Cops are taught how to handle a vehicle in a high speed situation; most fleeing criminals are not. There are other ways to catch fleeing suspects. No one can outrun a radio signal.
It seems that if the law is applied in the manner it is to these thugs then it gives the pursuing officer carte blanche to break every law known to man and have the blame placed on the pursuee(s). What if the suspects had driven straight through an open air flea market and mowed down several innocent bystanders? Should the cop follow suit and mow down several more? And though I’ve only seen this happen in movies I have to think similar situations have occurred IRL: what happens if the suspect escapes on foot into a crowd? Does the officer have every right to start firing away knowing that any resultant injuries or deaths will be blamed on the suspect? A gun and a vehicle traveling at a high speed will have the same effect in a situation like that.
I know the article about the Topeka officer was a different situation than the OP but several other articles about this incident brought up the apparent ‘vigor’ that this particular officer used in apprehending suspected criminals or responding to calls. Do some police officers get too caught up in the chase that the safety of themselves and others take a back seat?
Well, according to the legal principles advanced by Beryl_Mooncalf, there’s no way to answer your question. Everyone has an opnion, written on long legal paper.
As may be clear from my comments above, I reject that sort of equivocation… er… unequivocally.
Treating your question as a hypothetical that is proposed to explore the principles of law, here is a short discussion of felony murder. Your jurisdiction may vary in its application of these principles. My discussion is heavily influenced by Virginia law, in which I am licensed. This is not legal advice, however. For legal advice, consult an attorney licensed to practice in your jurisdiction. I am not your lawyer. You are not my client.
There are four principles associated with the felony murder rule: merger, inherent danger, agency, and in furtherence. I’ll forgo long discussions on inherent danger of the underlying felony, the merger rule (which says that you can’t bootstrap a felony murder on to an aggravated assault in which the victim dies; the assault merges into the murder and is not a predicate felony for the felony murder rule), and the agency rule.
The rule that comes into play here is the “in furtherence” rule, which requires that there be a distinct nexus between the predicate felony and the death - the death must have occured in furtherance of the ambit of the crime. That doesn’t mean the death needs to have been intended - merely that it happened because the crime happened, and that the crime was a proximate cause of the death. The death can’t merely be a coincidence.
*If the guy in the back seat was pleading for the driver to stop the car, hasn’t his crime stopped, and driver taken on a new one?
*
Theoretically, yes. That’s a hard sell for a jury, but as a matter of law, if the jury finds that the back seat participant had renounced his participation, and taken reasonable overt actions to evince an effort to stop, then a jury could infer that his crime had ended.
If I break into a store and get caught on video tape, and the cops come over to my house the next day to arrest me and get killed on the way over, would it apply?
Almost certainly not. The length of time between the crime and the death is a factor, and that long a delay is almost guaranteed to have broken the nexus between crime and death. And although larceny is a continuing offense – that is, as long as you’re in possession of the booty, you’re still committing the crime – that’s a kind of “legal fiction” which courts have been reluctant to extend to felony murder applications. See Doane v. Commonwealth, 218 Va. 500, 502, 237 S.E.2d 797, 798 (1977) (no requisite nexus shown between the larceny of a vehicle and a traffic accident because the larceny of the vehicle was completed in one city while the fatal traffic accident occurred an adjoining county the following day).
What if the cop had been killed on the way to the store?
I don’t know of any felony murder case where the death occured before encountering the crime, and if the jurisdiction required the nexus be decided as a matter of law, I suspect this wouldn’t fly.
An instructive case is another one from my jurisdiction, Virginia. King v. Commonwealth, 6 Va. App. 351, S.E.2d 704 (1988). For a death to be felony murder, the:
In King, the accused and a partner were transporting a large load of marijuana by airplane. The airplane crashed into a mountain after encountering an unexpected heavy fog. King survived, while his partner in crime did not. King was convicted under the felony murder rule, but the conviction was oveturned - the death was not a result of the crime; merely a coincidence that occurred during the crime. Had they been evading pursuit, or flying dangerous low to avoid radar, the felony murder rule may have applied.
In Davis v. Commonwealth, 12 Va. App. 408, 404 S.E.2d 377 (1991), a conviction for felony murder was upheld against a habitual offender driver caused an accidental death. The accident occurred when the driver was attempting to elude police in order to
Because the habitual offender was committing the offense and attempting to escape detection when the accident occurred, the accident was “a consequence or action which was directly intended to further the felony.” The felony was the act of driving after having been declared an habitual offender, a continuing offense, which the driver was committing at the time of the accidental death.
As I explained above, and as Sublight correctly suggested on Page 1 of this thread, the word “directly” is paired with “related”. In other words, the death must be directly related to the felony - not directly caused by the perpetrators thereof.
That said, if you were a juror and felt that the Commonwealth failed to prove a direct relationship – that the death was a mere coincidence or insufficiently related in time, space, or causual connection, of course you’d be correct to vote to acquit.
In a nutshell, my call on this is he is not actually “in pursuit”. Even if had his lights and siren on he would still be at least partially at fault here. I’ll leave the percentages to the actuaries but he was travelling fast enough (IMHO) that the driver making an unprotected left misjudged his/her arrival at the intersection. We all make judgement calls like that based on “flow of traffic” all the time and many of us have probably had close calls from someone who was not moving with the flow of traffic.
If the drivers of the vehicles he was trying to apprehend were unaware of the officers presence they had not made any attempt to evade. If they were racing rather than attempting to evade police they had not initiated a “pursuit” situation. I would say the officer was correct to attempt to catch up to them before trying to stop them since plenty of the street racer types I have met would try and evade. This officer did a poor job stalking his target and someone got hurt.
IANAPO and the line may be drawn earlier than I realize. One of our ambulances in my EMT days was invoved in a similar accident to this and was cited for like 25% at fault because he was doing like 40mph in a 40 zone in very heavy rain (too fast for conditions). Car turned left in front of him and got clobbered hard.
The word is “causal”: caused by. And I cannot in any way consider the death of the cop was directly caused by the suspects fleeing. It was caused directly by the cop’s decision to drive dangerously and recklessly with disregard for his safety and that of others. No matter what had happened until that moment the cop could have avoided the death just by being prudent.
It is a principle of common law that the one with the last opportunity to avoid damage or injury has the obligation to do so even if he would otherwise have the right to act that way.
Suppose I am in my boat and a danger of collision exists with another boat but I have the right of way. Having the right of way does not entitle me to exercise it recklessly and if I am involved in the collision and it is proven that, even though I had the right of way, I could have avoided the accident, I will be held liable. I do not know why the other boat is not yielding and it does not matter. Maybe he is having difficulties, maybe he cannot do it for reasons unkown to me. Having the right of way is not a license to ram other boats and the vessel who had the last opportunity to avoid the accident will be held totally or jointly liable.
The fact that a car is parked illegally in front of my house does not entitle me to ram it with my truck as if it were not there which it should not be.
The fact that I can legally fire a gun in a certain direction in my ranch and that person A happens to be there illegally does not entitle me to still fire and kill that person.
You cannot exercise a right if it can be reasonably foreseen that it might result in great damage to property, life or limb.
The cop had no right to drive recklessly endangering himself and others. The cop had the last opportunity to avoid the loss of life. The cop is 100 % responsible.
If my daughter is playing in the yard and is killed by a speeding cop I am not blaming the fleeing suspects, I am blaming and suing the Police department for having irresponsibly dangerous policies in place.
And if I am sitting in the jury the fleeing suspects would not be guilty of murdering the cop but the cops would be guilty of reckless driving.
What is this? Is it going to be OK now for the cops to arrive at the scene of a robbery and just blow the building up and blame everything on the suspects? The police needs to exercise discretion and limit themselves to using reasonable force and means. If a cop cannot control his car it not the fault of anybody else but his own. The rest of us have the duty to control our cars at all times and cops should be no different.
In the case in question the offense was stealing candy. It seems to me very unreasonable to risk lives to recover candy. Or are we so concerned with having felons with cavities in their teeth that we are willing to risk lives to prevent it?
The gravity of the offense has nothing to do with the fact that it was solely the actions of the cops which lead to the death. The laws of physics yield to no one and cops should know it. You cannot exceed a safe speed without serious risk and that applies to whether you are doing it for the heck of it or whether you have the best intentions. The consequence of defying the laws of physics is the same in both cases.
What has happened in the past has nothing to do with it. A cop cannot use deadly force except to defend himself or others. What the suspect has done before has no bearing. A cop can only use force in the measure needed to prevent future damage. A cop is not allowed to shoot a suspect who is fleeing, much less is he allowed to shoot at a suspect who is fleeing in a crowd. He is not allowed to risk lives just to prevent the subject from fleeing. He is not allowed to risk lives with his gun or with his car. Or would you advocate the police be allowed to shoot in a crowded mall against a fleeing suspect?
A cop may use reasonable force and take reasonable risk to prevent further harm from happening. He may shoot at a suspect who appears to be about to shoot at him or at others. He may cause some damage to property in order to prevent a suspect from causing greater damage. But a cop who sets a building on fire so that a suspect will not get away with some candy should be prosecuted for arson.
Law & order types scare me. It seems once someone has crossed that thin blue line then anything goes. Soon someone will advocate installing on the highways machines which would automatically launch an RPG to any car which was speeding. After all, if you don’t want to get hit all you have to do is obey the law.
[quote]
In my criminal trial experience, there was rarely a dispute about the law. I agree, of course, that the facts were often in dispute, but the plea bargain decision was almost universally based on a realistic appraisal of what the prosecution could prove - not what conclusions of law those facts compel.
[/quote
When I say the law is disputed, I mean the law that the jury hears, is disputed. As each side often disputes the law as much as the facts. Each side attempts to have his client tried under a statute most favorable to the outcome they seek.
I’ve seen many examples of disputed law in my time. Typically, after hearing the evidence the jury determines what the facts are, from the evidence. The prosecution and the defense each submit (potential) jury instructions to the judge, who determines which instructions the jury is to hear. The jury instructions are precisely worded definitions of the applicable LAW that must be read verbatim to the jury, by the judge. These instructions are often in dispute. Which one, what parts of which one, etc. The bench determines the “LAW” in the case then. This is “disputed law” as it applies to the case. You certainly have seen this before, Counselor.
Seriously? * Shoplifting is a misdemeanor, Theft most often a felony,* There is a dollar limit that may be involved elevating one to another, but they are two separate offences.
If you are arguing that the act of stealing is theft, I suppose you have a point, but if you are arguing that theft (as defined in a penal code) is part of shoplifting (as defined in the penal code), I disagree. Theft and Shoplifting are separate offense, with separate penalties.
Again, taking a car can be theft in the sense that it was stolen. However it isn’t always that black and white. Maybe this is where “questions of law” arise.
Here, “joyriding” and “GTA” are different crimes, each has a different penalty. The purpose in enacting such legislation is to prevent a felony (GTA) from ruining a teenagers life when he merely wanted to “borrow” a car without permission from a stranger”.
I’d go further, but I’m beginning to find that there is one more lay persons here than I first thought.
Bricker
Amazing, we do think alike.
J.D. June 19th, 1977
July Bar, Sworn in December, 21st 1977.
Maybe shoplifting is a separate offense where you live, but it ain’t around here. We have various degrees of grand larceny, and petit larceny. Petit larceny -" A person is guilty of petit larceny when he steals property." People who shoplift here are charged with petit larceny , unless the property is worth more than $1000, in which case they’re charged with grand larceny. Do you really mean to say that where you are stealing $20 worth of property from a store is treated differently than stealing the same property from the back seat of a car? And that the statute that prohibits stealing any property from any other place specifically excludes stealing merchandise from stores?
Theft might not be a lesser included offense of joyriding , but it would have to be a lesser included offense of GTA. And BTW, the reason for the two separate crimes probably has more to do with the difficulty in proving that the person caught driving the stolen car was the same person who stole it than it does with a desire to protect teenage criminals.
If you want to convince me that shoplifting and GLA don’t include theft, you’ll have to the post the text ( or a link) of the relevant statutes. And IANAL.
I didn’t ask if they were two distinct offenses. I asked if you contended that one was not a lesser included offense of the other. That is, does an acquittal for theft bar a subsequent prosecution for shoplifting?
While you’re at it, why don’t you post a brief explanation of the relevant case law for lesser-included offenses?
Uh huh.
And your criminal experience?
To the extent that this suggests your disbelief in my bona fides - naturally anyone can say anything on a message board. But I’ve been posting here since December of 1999. I’ve put up over 5,000 posts. Frankly, I’m convinced I have established my credentials in legal expertise pretty firmly here.
You, on the other hand, are displaying some astonishing… approaches to analysis. If you really did pass the bar in 1977, and have been practicing since that time… perhaps it’s time to retire.
I passed the bar in 1986, and I freely admit I no longer practice law.
doreen try to keep on topic. We are talking about a specific case here, not wild what ifs. If you had read the entire thread you may have seen that.
Yes, shoplifting is treated differently here. It is a misdemeanor, it carries far less of a penalty than does a felony, which theft is when the dollar value of the property taken. The point is that there are extrinsic facts that must be addressed before the a crime can be identified. And by the way, this thread is in the context of whether or not an officer’s death was attributable to the acts of the three malfeasants, and if so, should they be charged with the officers murder. Please, read the threads first.
-Side bar Counsel-
Your comments started with my identification of the IRAC rule. This is the standard for writing a response to a hypo, or a law exam. Identify the issue. Define the Rule of law applicable to the issues. Apply the rules of law to the issues. Conclude the result.
When I was a fresh new lawyer, I had the privilege (well, we all need money) of grading law exams. IRAC was the standard in approaching exam questions, and in fact, it is useful in approaching most legal issues.
The purpose in providing this was to teach many how to break down legal questions into the various issues involved, Then addressing those issues by application of the revenant law or statute, and making a conclusion after that process. This avoids blanket “He did it so he is guilty” statements, which shows only an opinion unsupported by law.
In the particular case, if a theft (forget burglary for the time being) was required, and the acts committed constituted the crime of shoplifting, which is not theft in the sense of application of the vicarious murder statute, then the defendants have a chance. That was the point, not defending shoplifters as being other than thieves.
I have read the thread. There was a discussion of Tennesee law, in which you decided that the OP couldn’t be a theft ( although you amazingly left open the possibility that it could be a robbery ). Bricker then said " if the predicate offense is taking stuff ,then that’s theft" You disagreed, and said that shoplifting may not legally include theft. It turned out that the incident in the OP was in Arkansas, not Tennessee. Bricker asked you to cite a jurisdiction where theft is not included in shoplifting. You replied by saying “Seriously? Shoplifting is a misdemeanor, Theft most often a felony, There is a dollar limit that may be involved elevating one to another, but they are two separate offences” which does not even mention a jurisdiction. It sure seemed to me that you thought this applied everywhere. l have no idea what jurisdiction you were talking about, but it pretty clearly isn’t Arkansas because according to this
It appears than in Arkansas that under the proper circumstances any felony qualifies for felony murder. It also appears that the theft of property worth $650 is a felony, as the theft of property worth $500 or more is a class C felony.
It appears that the incident was definitely a theft, as theft is defined as
It still would be theft if the property was worth less than $500. It would just be a misdemeanor theft. The only reference to shoplifting was an amendment in the theft section which referred to the presumption that a person knowingly concealing unpurchased goods upon his person is presumed to have taken the goods with the intention to deprive the owner.
It would seem that the only issues are if the thieves caused the death, and if so ,did they do it under circumstances manifesting extreme indifference to human life.
Doreen
The purpose in my comment was to open look at the statute regarding whether there can be vicarious liability for the death of the officer. (this is from an incorrect jurisdiction, but non-the less applicable in the theory of how on goes about analyzing these matters.)
This is the statute we were working under.
This required that the definition 39-13-202. First degree murder.
(a)_ First degree murder is:_
(1) A premeditated and intentional killing of another;_
(2) A killing of another committed in the perpetration of or attempt to perpetrate any first degree murder, act of terrorism, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect or aircraft piracy; or_
(3) A killing of another committed as the result of the unlawful throwing, placing or discharging of a destructive device or bomb._
(b)_ No culpable mental state is required for conviction under subdivision (a)(2) or (a)(3) except the intent to commit the enumerated offenses or acts in such subdivisions.
At the time this transpired, there were considerable Yes, No opinions being posted. In fact the statute may allow that the crimes that the defendants committed that resulted in the officers death are not within the meaning of the statute. At the time this was open the $650.00 amount had not been entered into the situation. At that time, it was possible that the THEFT covered by this statute, may not have been the crime that they were charged with. Although Shoplifting is theft, it is specifically not mentioned in item #2 below, therefore, it is certainly relevant to distinguish it from THEFT. Different crimes, different penal code numbers, different penalties, and the “If the legislature had intended that shop lifting be one of the named offenses, they would have written it into the code” argument applies. This requires searching for a definition of theft, and shoplifting, as well as ruling out burglary.
The purpose wasn’t to find guilt or not find guilt, each can do that themselves, instead, it was to provide a tool to use to arrive at the opinion. If I was to give nothing more than my opinion here, I could have been done in three words. “They are fried.” That spreads ignorance, not knowledge.
You could well argue the point. “Extreem indifference to human life”. Is running (high speed chase) from the police extreme indifference to human life?
You are looking at it impartially, as you must. You may not always agree with, or even like it, but you have to apply it, as it is written.
consider the following;
What is responsible for the Death?
–The accident (?)
What is responsible for the accident?
–The pursuit of the felons (?)
What is responsible for the pursuit of the felons?
–The report of an Armed Robbery and the sighting of the car(so the officer thought) (?)
What is responsible for the Armed Robbery report?
–The three candy bar thiefs stealing candy bars? (?)
Feel free to argue otherwise…
It the candy bar thieves had bought them, instead of stealing them.…
I see where you are going.
My post was focused on the OP’s question. Not some issue irrelevant to the matter at hand.
I was focused on:
There was a statute posted that provided the framework for analyzing the issues of law. Within that framework were specifically enumerated crimes that triggered the vicarious liability. My point was that, if someone searched, they may find that the act that occurred was a shoplifting, not a theft.
Understand that the legislature is presumed to have intended the statute be interpreted within the clear meaning of the language used. Therefore, theft, and shoplifting, being two separate criminal offenses, one being in the statute under scrutiny, the other not mentioned therein, escapes the reach of the original statute.
We are not here to discuss theft vs. shoplifting, the legislature would have done that by providing two separate crimes. We’re looking, just as we would in the real world, at whether ‘shoplifting’ more closely fits the criminal acts involved, and if so, whether it is within the meaning of the quoted statute. It may be the wrong statute after all, but it was the one we were using at the time all this transpired.
I would be embarrassed to ask for case law references on this.
