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.

[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

[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.

[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.

[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.