A legal anomaly?

[chickenfeet]

On Boxing Day, a fifteen year old girl was killed while shopping. She was hit by a single stray bullet after a gun fight broke out between two youths in a busy part of downtown. Police have arrested the two alleged gunmen and charged them with fire arms related offences. No-one has been charged with murder because they haven't identified who fired the fatal shot. Surely there is something wrong with the law here? Both gunmen are equally culpable and should face murder charges. If a person or persons open(s) up unlawfully with a fire arm in a crowded place, purposing the death of Person A or B, they are surely equally culpable if person X, Y or Z is killed, regardless of which gunman fired the fatal shot.

Comments

[karen2205]

Under English law this would be manslaughter - ie. committing an unlawful act that results in someone's death.

[chickenfeet2003.livejournal.com]

Are you sure about that? If you fire at person A and kill person B that's not murder? What if you set a bomb intending to kill person A and kill 50 other people but not person A?

[karen2205]

Yes. Murder requires that you intend to kill or cause grevious bodily harm to someone. There's limited room for recklessness as to whether you're going to kill or cause GBH being murder, but it's very limited - you have to be extremely reckless ie. setting a bomb off with the intention of killing A, where it is almost certain to kill a number of other people instead.

[sollersuk.livejournal.com]

Ahem. I had to check out your profile to see where you live.

In the UK, the legal situation has been (I think it has been sorted out) that where a child has been battered to death, neither parent could be charged if there was no way of proving which one did it. In the UK anybody using a handgun would, of course, be prosecuted simply for possessing it

[karen2205]

This one only really works if the parents are married to each other and cannot be compelled to give evidence against one another.

[sollersuk.livejournal.com]

No, actually, there was a prominent case a few years back where the parents weren't married to each other. The question wasn't whether they could be compelled to give evidence but a lack of direct evidence - I think each blamed the other.

[lilactime.livejournal.com]

Apparently not, otherwise they'd have charged the guy with murder already. I suspect there will be more charges laid against the fellow arrested if they can match his gun with any of the non-fatal injuries, but if his bullet didn't kill the girl, they can't charge him with her murder.

I suspect there's a great deal more they're not telling us about the whole thing while they continue the investigation. At one point a few days ago, one news station was reporting that one of the other people injured *was* one of the intended targets, and then all of a sudden, the same station was back to the story that all of the seven people hit were bystanders.

[gregclow.livejournal.com]

My understanding is that there were more than two people firing the shots - after all, the two that have been arrested were fleeing together and were caught at the same location, so it's unlikely that they were shooting at each other.

As such, it's quite possible that the bullet that killed the girl (or those that injured the other bystanders, for that matter) weren't fired by either of the arrested youths, but by someone else entirely.

If it can't be proven that either of the arrested youths actually hit anybody, I think the most they can be charged with are weapons possession and reckless endangerment or something similar.

[lnr]

Regardless of if they were shooting at each other they were both shooting in a crowded place and someone got killed. Unless there was a *very* good reason they ought to be able to be charged with something with a similar penalty to murder.

[gregclow.livejournal.com]

Ought to be - yes, perhaps. But our current legal system doesn't define "murder" that way. That's all I'm saying.

[a-d-medievalist.livejournal.com]

I think in the US, they could also only be charged with manslaughter, as there was no intent to hit the bystander. But I think they could also be charged with a bunch of other crimes that would be added onto the manslaughter charge, like reckless endangerment.

[helianthas.livejournal.com]

This sounds like a good one for Law & Order.
Perhaps we should suggest it to them...

[australian-joe.livejournal.com]

In my jurisdiction, if one causes a death while committing any very serious crime (carrying a penalty of 20+ years' imprisonment), then it is said to be a "constructive murder" (i.e. the law constructs the charge of murder; used to be called "felony murder"). The classic example is if I rob a bank and the security guard fires at me, misses, but hits & kills a bystander, I will be charged with their murder.

The key here is "causes". If both were tried for this murder, then each could say in their defence there is reasonable doubt as to whether they rather than any of the other shooters caused the death. If guns were recovered then I imagine there are a lot of ballistics matching going on right now.

One way around this might be if the prosecution can determine who fired the first shot, even if that wasn't the fatal shot. They could argue this was the act that caused the other shots including the fatal one, and was therefore the cause of the death, therefore establishing murder.

I'm assuming there is a felony/constructive murder charge where you are, and that the principal offense (attempted murder of the intended target? assault with a deadly with intent to kill?) is sufficient to trigger it. If I'm wrong on either count, then as others have said this would probably have to be charged as a manslaughter, but everything I've said re. causation still holds.

[chickenfeet2003.livejournal.com]

That sounds very sensible and consistent with the old common law doctrine of "common cause". My understanding is that here, as in many other places, common sense has given way to a very narrow definition of murder.

[australian-joe.livejournal.com]

Right, despite what TV and movies show, many (most?) criminal trials aren't settled by dramatic unveiling of facts (usually agreed by all parties), but on points of law such as causation.

Causation is a complex area! There can be multiple contributing causes even if none on their own would be a sufficient cause, for example. You also get causal chains being severed by "novel intervening acts". It's a mess. 8->

The more I think about this, I think the smart move for the prosecution would be to try to pin "the first firearm discharge" on someone, and claim that without that there wouldn't have been any shots fired, and thus it is the cause of anything resulting from shots fired - and use that to make out manslaughter. I suspect without being able to clearly identify who fired the killing bullet murder can't be made out here.

[f4f3.livejournal.com]

I think Scots law would still clasify this as murder, either under common cause, or because firing guns in a public place towards shows a sufficient degree of wicked wrecklessness to establish the mens rea necessary for murder charges to be brought. Of course, their might have been some intervening legilslation in the 20 years (WHAT???) since I graduated.

The government recently floated their intention of introducing a new bill to narrow the definition of murder still further.