Arizona’s East Valley Tribune looks at the question (considered here Jul. 28 first and second post) of whether the fugitive being chased by Phoenix police could be held legally responsible for the crash of two news copters observing the scene. An unrelated local case puts a twist on an otherwise familiar “felony murder” fact pattern:
In an ongoing case, a Phoenix woman faces murder charges in a 2004 robbery attempt at a Mesa check-cashing store following the death of her accomplice. The accomplice was shot and killed by the store’s clerk, who also shot Rhonda Wright multiple times.
Prosecutors reasoned that the clerk would not have pulled his weapon if the assailants had not entered his store.
(Dennis Welch, “Homicide charges in helicopter crash a tough call”, East Valley Tribune, Jul. 29). More on felony murder and the Phoenix crash: Michelle Tsai, “News chopper down”, Slate, Jul. 30.
More: Mike Cernovich identifies another culprit in the chopper crash (Jul. 30).
8 Comments
While I think it’s perfectly reasonable to hold a felon accountable for the death of his accomplices, most states felony murder laws specifically exempt accomplices.
As for the Phoenix news copter crash, I’m waiting for the NTSB report before I’m willing to give an opinion. If the crash was caused by the inherent risk of covering a high-speed chase, I will hold the fleeing felon accountable since he created that risk. If the crash was caused by the negligence of a pilot, I will not hold the fleeing felon accountable. He did not create that risk.
(Plus, that a highly experienced news helicopter pilot would operate negligently is not foreseeable. That helicopters might crash due to the inherent risk of flying is.)
How about indicting a couple of news producers for reckless endangerment?
Why not hold the cops responsible for the high-speed chase? I’m sure the felon didn’t start a high-speed chase on purpose–he’d much have preferred no chase at all, and to make a complete getaway.
“If the crash was caused by the inherent risk of covering a high-speed chase, I will hold the fleeing felon accountable since he created that risk.”
He didn’t create the risk. The people who chose to inject themselves into the situation created the risk for themselves.
If the crash was caused by the inherent risk of covering a high-speed chase, I will hold the fleeing felon accountable since he created that risk.
Wrong. Unlike the cop in the Missouri case, the newsies are under no obligation to respond. It is their choice to cover the pursuit. ergo, why should the fleeing felon be held responsible for the freely chosen high risk behavior of others? IF the felon happened to launch his vehicle off a highway ramp and crash it into the choppers, a la Live Free or Die Hard, then there’d be a case, but this is bovine pucks.
Under FAA rules, the helicopters were supposed to be a certain distance apart at all times. Absent a mechanical failure, the accident was solely the fault of both pilots – period. Going after the fleeing suspect for the failure of the pilots to follow FAA regulations is ludicrous. Of course, prosecutors don’t care. They figure they can push and leave it up to the judiciary to temper their power.
There is no risk in covering a high speed chase in a helicopter. The risk comes from too many aircraft being in too small an area. I actually believe that the management of the television stations are more of a factor in this incident than the person fleeing the police. We had a large fire, here in Pittsburgh today. I could see the smoke from where I work and was able to see the helicopters from the local news stations covering the fire. There was at least 4 helos operating in the area at the same time and they were entirely too close to each other. If they would have colided would the owner of the building that was on fire be liable?
It is always refreshing to start an analysis by identifying cause in fact. In this case the cause in fact of the deaths was the mid-air collision of the helicopters, which baring mechanical failure, acts of god (weather, heart attacks, spontaneous combustion, etc) or intentional tort (bullet, sabotage, Vulcan mind meld) by another was due to an act (or acts) by one or both pilots.
A felony murder analysis in many instances requires scrutiny considerably beyond the usual since, in almost all cases, felony murder determinations appear to be of the same calibre as premeditated murder. Most convictions have involved violence during the commission of the crime – not the case here. I heard a television personality (legally trained) arguing that this situation is the very sort with which the felony murder statutes were meant to deal. I doubt this. The agency theory applied to this case would appear to preclude a finding of felony murder, since it (the murder) requires the immediate act of the agent of the crime. The car thief’s act clearly did not cause the pilots to be killed. Proximate cause analysis on the other hand can offer a different course since an argument (albeit weak) can be proffered that the thief could reasonably foresee the consequence of his act. The same could also be said of the pilots (who assumed the risk) and the news agencies who sent them to their death. The pilots knew that they were chasing a fleeing felon, ie they were not unwilling participants, the latter presumably being the very people these statutes were meant to protect. Unlike the police, who have a legally sanctioned role, the pilots had no privilege; in fact one might offer an argument that they were willing participants in the process of profiting from the felony. In the case of car theft, the felon’s flight is almost certainly a continuous transaction. We can ask the question, what if the helicopter pilots, completely independently of a police chase (of police information), spotted a stolen car being driven along a public street? Here we have felony possession of a stolen vehicle but the driving is not a continuous transaction with the theft. What if the car is being driven by someone other than the thief? Suppose the pilots in this hypothetical case, entirely of their own volition, decided to chase the stolen car? It seems to me that they have assumed the risk of their actions in this case, as well as in the actual case. The problem with using proximate cause analysis, as opposed to agency theory, in felony murder cases is that it invites connections to the felony that a reasonable person would say are too remote and, if we are going to draw these long bows, we might just as well treat all of these as cases of strict liability – almost certainly not the intention of the statutes.