The Bishop and the Butterfly: Murder, Politics, and the End of the Jazz Age
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    Chokehold Cop-Felony Murderer? Cops standing by as well?

    By jollyroger on Sun, 08/03/2014 - 4:21pm |

    Among the quaint vestiges of medieval criminal law that persist in modern jurisprudence, is the doctrine of "Felony Murder"

     

    It creates liability for murder whenever a death occurs in the course of the commission of an unlawful act (curiously, even when the deceased is an accomplice of the charged individual)

     

    Thus, in its most common iteration, if three kids drive up to  a 7/11 where two go in and wave a fake gun at the clerk, should the clerk unass a shotgun from beneath the counter and blow them away, the guy in the car is liable for felony murder because of the deaths.

     

    Likewise, if, in the course of the robbery,(absent the shotgun, etc) a patron has a heart attack due to sudden fear, all three teenagers may be charged with his murder.

     

    Turning to the case of Eric Garner, who was the victim of an unlawful chokehold which caused his death, it would appear that the officer involved has felony murder liability, in that the use of force during the arrest  (which is normally immunized from criminal liability if the arrest itself was "legitimate") was specifically outside menu of lawful arrest techniques available to NYC cops.

     

    What is perhaps of greater interest, insofar as it goes to future conduct guidance of the police, may not the same felony murder doctrine result in charges against the other police present, who were, in a sense, accomplices in the crime of unlawful use of force, just as the kid in the car at the 7/11 has accomplice liability for any deaths that occur during the commission of the crime?

    Comments

    The PBA says he was 'resisting arrest'...for selling cigarettes illegally...what's worse, murder or illegal cigarettes? The average cop these days must be assumed to have the training, the temperament and the malicious intent of a Medieval executioner.


    by NCD on Sun, 08/03/2014 - 9:10pm

    The  wrinkle is that normally a claim that the murder victim was "resisting" (how many times do we see video of some guy in handcuffs with his head being stomped and the cop is saying  "stop resisting!"?) but in this case, even if he WAS resisting the chokehold's illegality renders the cop's behavior criminal, and thus potentially foundational for a felony murder charge.

     

    It will be interesting to see how this plays out--it would be nice if it doesn't have to end up with the  pathetic "deprioving one of civil rights" substitute for a frank murder charge.


    by jollyroger on Sun, 08/03/2014 - 10:03pm

    Resisting? The poor soul was asthmatic.

    The man was fearful and desperate, knowing the last inhale, would be his last; panic would set in and he would flail, doing everything he could to get another lifesaving breath, trying to get the jerk off of his back who was killing him..

    During this severe asthmatic attack, he would be unable to speak out for help  because there wouldn't be enough breath, to vocalize his distress; even without the choke hold.   

    Resisting? The poor guy was in survival mode. 


    by Resistance on Mon, 08/04/2014 - 9:04pm

    But for the fortuity of the video, this would be disappearing along with the other thousand or so chokehold arrests that have been logged by the (utterly impotent, by design) NYC Police Civilian Review Board.

     

    Of interest: Federal District Court Judge Sheila Sheindlin ordered as part of her review of the constitutional defects in stop and frisk  that the police be equipped with video cameras.  

     

    The police, of course, object.

     

    Their grounds?  Who the fuck knows...how can they object to so salutary an intervention?

     

    (sidenote--where dashboard cams have been introduced, they have often saved the cops from bogus complaints against them--which is to say, if you have nothing to hide, you have nothing to fear.)


    by jollyroger on Mon, 08/04/2014 - 10:15pm

    If the driver of the car can convince the jury that he thought his friends were just going into the 7-11 to buy some Slurpees, then I suspect he would not be convicted of felony murder. I suppose the distinction with the other officers is that they were present and could have acted to stop the choke-hold, but there is no evidence that they did.


    by Verified Atheist on Mon, 08/04/2014 - 8:01am

    Yes, there have been several driver liability cases that turned on this element of scienter.

     

    As you say, the fact that the potentially accomplice cops were present and witnessing the illegal chokehold renders this a potentially far reaching case.

     


    by jollyroger on Mon, 08/04/2014 - 2:10pm