I don’t practice criminal law, but I do know from practicing civil municipal law that you have put your finger on why this type of thing is so problematic. If the perpetrators are fleeing from the scene and the cops are chasing them, so they continue to flee and flee faster and more recklessly to get away from the cops, who in turn go faster . . . which is the cause, and which is the effect?
The fact is that a argument can be made that if a perpetrator is only driving recklessly (and thereby “posing a significant risk of death or physical injury” to others) in order to get away, then if the cops continue to pursue they are themselves creating or at least exacerbating the risk themselves. Many jurisdictions are accordingly taking another look at what circumstances justify high-speed pursuit, and when such pursuit, if initiated, should be abandoned. This is not to say they do not continue to try to reserve the right to engage in high-speed pursuit when they feel it is justified, but many jurisdictions are attempting to formalize, or if not formalize at least think-through, the costs and benefits of high-speed pursuits.
Jodi, my only point is that the fleeing suspects had no responsibility in the fact that the police were driving unsafely. None.
I have no idea what the were doing nor does it matter as they are not the ones who caused the accident. For all I know they had hidden in a side street and stopped for a cup of coffee while the police were going the wrong way chasing them. Would you consider the suspects still responsible in this case?
I suppose so. And that is why the police are supposed to have training which lets them know when they should not exceed certain limits, and why they have radios and other gadgets which let them call ahead for other units, etc. The laws of physics yield to no one. Not even the cops.
If the fleeing suspects kill a grandmother and her baby granddaughter as they flee I would be the first one demanding punishment but they have no responsibilty here.
I believe police chases should not endanger life or limb of anybody and many, if not most, of the police departments have rules which prohibit pursuits which endanger people. It is better to let them go and try to catch them later than to risk lifes. Police departments which have been sued when innocent bystanders were killed have learnt this. The public prefers that the lives of innocent people not be put at risk by reckless police chases.
Again: the police are not allowed to fire into a crowd to stop a thief because the public deems that innocent bystanders should not be put at risk. Reckless police pursuits are no different in that they put innocent bystanders at risk. They are wrong. It is the responsibility of the cop to control his car at all times. Nobody else can do anything about that than the cop himself.
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I see it as the criminals escalated the situation to the danger zone by fleeing, and this officer died as a result of that escalation. Had they pulled over (or not robbed the store), everyone would be alive.
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Again, there are multiple factors leading to the death but that does not makes the fleeing syuspects responsible. Responsible is he who did the acts which directly led to the event, he who had the last opportunity to avoid it and did not.
What happens if the cop is killed going to the scene, rather than chasing the suspects? What happens if he is killed going to the scene and it turns out to be a false alarm? What happens if while he is driving to the scene he is shot in the head by an unrelated criminal? What happens if he suffers a heart attack? What happens if it is determined the cause of the accident was a car malfunction? It seems there can be a million different causes but you always hold the suspects responsible. I don’t. I only hold them responsible when they are directly responsible. When they had the last opportunity to avoid the death and nobody else could have stopped it from happening. that’s the way I see it and that’s the way many people see it so I think you would have a hard time convincing a jury.
Can we talk about misdemeanor manslaughter now? Please, please!! I can’t wait for the peanut gallery to go nuts for that one. (too bad peanuts aren’t really nuts, or I would have made a pun!)
There’s a reason for felony murder to exist. People who commit crimes that result in dangerous situations like this one, shouldn’t get off by saying “I didn’t mean for someone to get hurt.”
Contrary to your statement, I don’t ALWAYS hold the criminal responsible. The law does provide that ‘circumstantial’ death won’t be held on the criminal, your examples would most likely be considered circumstantial. Getting into an accident while chasing you doesn’t feel that way to me.
It’s a matter of opinion, I guess, to say what is direct and what isn’t direct.
I got one for y’all. Not even a hypo, a real news item I saw a good while back. This is from memory, mind you, so some details may be slightly off.
A guy is being arrested for an “inherently dangerous felony.” I think it was either armed robbery or burglary. The arresting officer has him at gunpoint in the middle of the street; he’s on his knees with his hands on his head. An off duty officer, 21 year old rookie, sees the arrest and dashes to help the arresting officer. The arresting officer sees a man in plain clothes he doesn’t know spinting straight at him and shoots the rookie cop dead. The felon on his knees is charged with felony murder.
Was the rookie’s death a foreseeable result of the felony? An arsonist who unintentionally kills a firefighter or sleeping bum will be guilty of felony murder in nearly any jurisdiction, probably even if another’s non-gross negligence was a contributing factor. Arrests at gunpoint are tense and emotionally charged situations, and it’s arguably foreseeable that something could go wrong and an innocent person is shot as a result. The arrestee may not have pulled the trigger, but somebody’s dead because he created a dangerous situation. Convict or accquit?
That’s your opinion, SAILOR, but it’s hardly one you can expect everyone else to hold, especially when the high speed (if indeed speed was a factor, which seems reasonable to assume) was a direct result of pursuit. You are taking on the responsibility that in reality will rest with the jury – to decide ultimate responsibility for the officer’s death – and while that is of course totally fine, your opinion isn’t a factual answer to this GQ, and no one reading this should take it as such.
Furthermore, you are assuming this pursuit was “reckless” which, again, is assuming facts not in evidence. On one end of the spectrum, we don’t know that the officer’s wrecking of the car was not due to circumstances entirely beyond his control, like a mechanical failure. At the extreme other end, we don’t know that the officer’s wreck was not caused solely by his own mishandling of the car, in a manner that was grossly unsafe but did not mean the rest of the chase was “reckless” if the other officers were operating their vehicles properly under the circumstances.
So my point stands: We do not have enough information to assign blame at this point. But the death of a police office during a pursuit of a fleeing suspect will almost always lead to a charge of felony murder. Whether it will support a conviction depends on the facts of the case.
Mistrial with a deadlocked jury, based solely on these facts. I’d need to know more before I could make a decision. Did the off-duty officer identify himself in any way? Did the arresting officer properly give the running man the opportunity to halt? Things like that.
Rhum Runner
Sure, we’ll change the facts and the law for you, never mind that the DA in the matter is filing under the FMR. But then, what do the DA’s know about criminal law?
With all due respect, Bricker -and I do have a respect beyond all casual expression for those rare few who can demonstrate your grasp and attention for fact and logic (hardly a given with lawyers)- I’d argue that you’re deliberately confounding the issue. (and, yes, I am not a lawyer - but I could be argued to have a formal background as a logician)
I would grant the policeman greater latitude in his pursuit of the pedophiles because there is an imminent danger to a citizen of a separate, different and very serious crime.*
You clearly had this in mind, since you specified pedophiles, whereas the severity of the crime actually committed, and the basis for the pursuit as you misleadingly presented it, is kidnapping, which (barring a jurisdiction with extended anti-pedophile laws) is of itself the same offense, with the same severity, whether the kidnapper is Mother Teresa, the Grand Wizard of the KKK or Roman Polanski. You chose the loaded term pedophilia, rather than the (at least marginally) more serious case “child murderer”, when murder is generally the extreme automatically chosen for off-hand hypotheticals. You also cannily chose to specify a ‘girl’, when the law should rightfully only consider the victim as a child.
Yes, I am willing to accept some limited transient risk to prevent a lifelong trauma to a child. I would less readily accept the same risk for recovery of stolen property or prompt apprehension of the thief, even if the value were far more than $650. Even someone with my limited skills could make mincemeat of a civil defendant who chose to risk the lives of the general public to avoid losing $650. I would consider revoking the licensure of a physician [medicine and medical ethics being more among my fields of expertise] who risked a patient’s life to potentially save $650 - an all-too-common situation under insurance capitation.
The severity of the offense actually weighs rather little in my estimation. The consequences of escape do. In the given case, the consequences do not extend much beyond a fairly modest monetary loss, though I will concede that the officer may have believed that the crime was more violent than it actually was, and that the risks included some future ‘armed robbery’, or possibly the risk of injuring citizens while attempting to flee (a murkier issue). I also note that the officer’s ignorance of the circumstances would indicate that he would not have known the amount of the theft (of less relevance, if he believed it was an armed robbery).
Note that I am speaking of your hypothetical case, and the deceased officer’s decision for ‘hot pursuit’ based on very limited evidence that he was even chasing the correct vehicle, not the choice to indict for felony murder (most likely allowed -after the dust and facts settled- under Arkansas’ 'immediate flight" provision)
Perhaps the officer should have weighed how little he actually knew, rather than leaping to conclusions and pursuing a superficially matching suspect? The dead officer knew he had almost no facts, and what little he had was second-hand synopsis.
How would we feel if your hypothetical “car full of pedophiles” turned out, after a brief initial interview of the accuser, to be the girl’s father and his parents, reported by a distraught, chemically impaired mother after they’d picked up the girl for a court-ordered visitation or transfer of custody?
I can understand a felony murder charge in a ‘hot pursuit’ death, but I think that this case is not as clear as many, and I don’t feel your cleverly crafted example clarified matters.
I present this as a pedantic exercise (a weakness I freely admit), not a personal criticism. If you comport yourself in real life as you do on this board, I would be honored to have you as a personal friend.
My only reason for offering that hypothetical was to determine where the argument should go. If the reader felt that any hot pursuit was unjustified, no matter the severity of the offense, for example, there would obviously be little value in discussing how severe an offense this was. It seemed to me at that point in the discussion that sailor was leaning in that direction.
If the reader accepts that there is some point at which hot pursuit is justified and in the public interest, then we could begin exploring what that defining line might be, and whether this particular case came anywhere close.
The standard is “during” not “directly after”, at least in the statute cited. Are you basing your answer on a different one?
There are no “questions” regarding whether the passengers are evading; no evidence has been presented that they were. One cannot indict someone on the basis that there are “questions” as to whether they are innocent; one needs actual evidence of guilt.
I just thought of something. Why is anyone ever charged with second degree murder? Second degree murder is a felony in which someone dies. Which means it is Felony Murder, which makes it first degree murder. Isn’t it impossible to merely commit second degree murder? Or manslaughter, for that matter?
Yes, but clearly the man wasn’t planning on being arrested. Once he was arrested, he was no longer in commission of the crime. Suppose someone were to walk in a bank, point a gun at a teller, and demand some money. The teller says “Hey, you know, if someone dies during this robbery, you’ll be charged with murder.” The robber says “Gee, I guess this isn’t a good idea. Never mind then.” He then walks away. As he’s turning around, the teller pulls out a gun and shoots at him, but misses, hitting customer instead. Is the would-be robber guilty of murder?
Here’s a really silly hypothetical: suppose that someone escapes from death row. He and a partner rob a bank together, but are caught. The death row escapee is then brought back to death row and executed. The partner is now charged with felony murder, as committing the robbery led to his partner being captured, which led to his death. Valid charge?
is convicted of grand theft, and is put to death. A family member initiates a wrongful death suit, saying that grand theft is not a capital offense. The government replies that Felony Murder is. When asked who died because of the crime, the government replies "The defendant
The merger rule, which I discussed earlier in this very thread, means that the assault or murder cannot be the predicate felony for felony murder. If the felony is an integral part of the homicide or is a lesser-included offense of the homicide, then felony murder cannot be charged.
This is one reason understanding lesser-included offenses is key to felony murder; a concept utterly lost on the late and unlamented pseudo-lawyer who contributed above.
No, for reasons I explained in detail on 9-15-2003 at 10:12 AM. In this very thread.
To refresh your recollection, I quoted a case that said that the:
No, I’m reading the correct one, which clearly says “in the course of and in furtherance of the felony or in immediate flight therefrom.” “Immediate flight therefrom” would be what occurs “directly after.” I apologize if somehow I confused you.
There is also no question regarding whether in this case the predicate felony was evading arrest; it wasn’t. As it happens, however, I was not talking specifically about this case, which is why the issue was raised in a parenthetical, and in one that specifies "in my state . . . ". Just FYI, my state is not Arkansas.
The “questions” I was referring to are whether, hypothetically speaking, if the predicate felony had been evading, under what circumstances the passengers could then argue that only the driver was evading. This is by no means clear, since it hinges on the passengers’ ability to stop the evasion (if any) and on the foreseeability that the driver would evade once they all leaped into the car. It really has nothing to do with the facts of this case – which is why I never said that it did.
I don’t believe I said anything at any time about evidence sufficient for an indictment. But that is quite the Socratic distillation of criminal law, RYAN. I’d better write it down. :rolleyes:
One thing that has not been brought up in this thread is the reason behind the legislature passing this law in the first place. Once the underlying reason is understood I think the law in question will make more sense.
Back in the old days, in war, if a solider deserted, and was caught, he would be executed. In front of his comrades if possible. Why would a commander do this? After all, if the guy deserts or is shot, the army is still down one man. It was done “pour encourager les autres” [to encourage the others]. In other words, to convince all the other soldiers that might be considering desertion that desertion is not a good idea.
I believe that the same holds true here. The legislature wants to convince anyonewho might be considering committing a felony that it is not a good idea, especially if anyone dies.
Is this a good idea? That question belongs in a different thread.
I don’t see how they were in “immediate flight”. Had the cop come upon them just as they were exiting the store, this would make sense. But I did not see any such allegation presented.
If you were not talking about this particular case, then your parenthical makes even less sense; instead of saying that in this particular case of a felony murder charge, the charge is supported, you are saying that in an arbitrary case in which evasion is alleged, the charge is supported. Is merely alleging evasion, without presenting any evidence thereof, really sufficient to support a charge of felony murder?
They way you worded it, it sounded like no matter what the answers to those questions, the charge would be supported.
I don’t understand what you’re saying here. Are you saying that you are making a distinction between “charge” and “indictment”? A distinction between “supported” and “sufficient evidence”?
Rick
That is hardly unique to this law. The principle of deterrence is basic to criminal law in general. If the government believes that the current penalty for a felony is insufficient deterrent, then they can simply raise it.
You allege facts. If the facts support a charge, then they are sufficient. This is definitional.
When the police pull in behind you and activate their lights, the law requires that you stop. We know from the facts in the OP that they did not stop. This is evading. So if we had been talking about facts similar to this case, we’d have alleged sufficient facts to support the charge.
If we’re talking about a generic case, then it seems obvious from context that Jodi meant that sufficient facts exist to allege evading as well.
This is not that complicated. What more were you looking for?
First, there is no “if” about it; I obviously wasn’t talking about this particular case (well, obvious to everyone but you). What I was talking about, as I believe was perfectly clear, is the fact that if the same events had occurred in my jurisdiction, then the predicate felony could just as easily have been evasion as theft. This presents no “arbitrary” case, indeed it presents no case at all, but merely points out an additional grounds for the felony murder charge, at least in my jurisdiction. I speak of my jurisdiction because I have no idea if evading arrest is a felony in Arkansas. The fact that this is a total aside is demonstrated by the fact it’s included in the discussion as a parenthetical. Why you are confused by it I don’t know, but I certainly accept that you are. But as BRICKER says, it’s not that complicated. I’m not sure how much more clearly it can be explained, in fact.
Let’s review. You said, in response to my post: “One cannot indict someone on the basis that there are “questions” as to whether they are innocent; one needs actual evidence of guilt.” The clear inference here is that by saying “questions” as to guilt existed, I was saying that those “questions” were sufficient to support an indictment – hence your pompous and utterly obvious little lecture that “one cannot indict someone on the basis that there are ‘questions’ regarding guilt.” To which I responded, I never said anything about the sufficiency of the evidence necessary to indict. To which you now respond, “I don’t understand what you’re saying.”
And I certainly agree that it is clear you do not in fact understand what I’m saying. Fortunately, for some time now I have not considered your lack of understanding to be my problem. If someone else is having difficulty parsing out my posts, I’d be glad to explain them further, but I truly believe that you will never understand them, because you don’t want to. This is my long-standing conclusion based on prior interactions with you, when the obvious or the repeatedly-explained has puzzled you exceedingly, and I therefore have learned to limit the amount of time I’m willing to devote to trying to make the lightbulb come on for you. Maybe BRICKER will be willing to try to explain further (or maybe not); it’s highly unlikely I will be.