Unarmed Man Is Charged With Wounding Bystanders Shot by Police Near Times Square

[Wendell]

When he reached into his pants pocket, two officers, who, the police said, thought he was pulling a gun, opened fire, missing Mr. Broadnax, but hitting two nearby women. Finally, a police sergeant knocked Mr. Broadnax down with a Taser.
<http://www.nytimes.com/2013/12/05/nyregion/unarmed-man-is-charged-with-wounding-bystanders-shot-by-police-near-times-square.html>

Unarmed Man Is Charged With Wounding Bystanders Shot by Police Near Times Square (http://www.nytimes.com/2013/12/05/nyregion/unarmed-man-is-charged-with-wounding-bystanders-shot-by-police-near-times-square.html)

[Tamara]

If the shooting was justified then anybody shot goes on the tab of the person who caused the shooting to happen.

I have no clue why the gunternet suddenly went all "zomg the sky is BLUE!" on this case. This is the same legal principle by which, if Thug A and Thug B bust up in your house and force you to shoot them, and you kill Thug A and wound Thug B, the latter can be charged with felony murder... for the guy you shot.

Now, whether the shooting was justified in the first place is another question, but unlike the rest of the internet, I haven't watched enough of the game films yet to tell the quarterback what he should have done.

[Wendell]

It's not the same.

[Tamara]

It's not the same.

And why not?

[ford.304]

It's not the same.

It's applying the same principles. The question is, was this a reasonable use of force on the part of the police. You consider the use of force to be unreasonable, and therefore the punishment of the man to be so as well.

[Totem Polar]

So, what if this guy was off his meds, weaving around like the town drunk in traffic, and the same thing happened but the NYPD killed one of those women instead? Would that be grounds for Felony murder? Specifics of this particular situation aside, we could chase this idea quite a ways. For example, remember that guy who got shot at Costco (or wherever) because his CCW got spotted by an employee and the cops got involved and then dropped him for reaching for his piece? What if he had lived through his wounds, and the cops had also hit someone else by mistake? Felony murder for that?

I really am asking, because somewhere between a hypothetical hood number 2 getting his ticket punched in the middle of an armed robbery (clear example of why the law exists), and just charging anyone involved in a disturbance at any time whenever anyone else gets shot by mistake (though excusable) by anybody (clearly vague), there exists a fairly large middle ground. What if the guy had been shot at by a CCW'er (assuming a different city, natch) who was afraid Mr. EDP was reaching in his waistband for a gun, instead of the cops, and the CCW'er missed and center punched a bystander? Still assault charges for Mr. EDP? I find these ideas fascinating: high stakes, but unclear rules. Any grist for the thought experiment mill from folks who've studied up on this concept?

[MDS]

So, what if this guy was off his meds, weaving around like the town drunk in traffic, and the same thing happened but the NYPD killed one of those women instead?

Then, assuming NYPD were justified in shooting, he should be treated as if being of his meds (or whatever) caused that death, IMO. Looking forward to more informed opinions.

[Tamara]

I really am asking, because somewhere between a hypothetical hood number 2 getting his ticket punched in the middle of an armed robbery (clear example of why the law exists), and just charging anyone involved in a disturbance at any time whenever anyone else gets shot by mistake (though excusable) by anybody (clearly vague), there exists a fairly large middle ground. What if the guy had been shot at by a CCW'er (assuming a different city, natch) who was afraid Mr. EDP was reaching in his waistband for a gun, instead of the cops, and the CCW'er missed and center punched a bystander? Still assault charges for Mr. EDP? I find these ideas fascinating: high stakes, but unclear rules. Any grist for the thought experiment mill from folks who've studied up on this concept?

Well, we have a case right now in Indiana, right here in Broad Ripple, where a guy named Tristan Crayton and his buddy were leaving a nightclub after the buddy was tossed for getting in a fight. The guy he was fighting with and two of his friends allegedly jumped the pair outside the club. Tristan pulled his heater, which he was legally carrying, and hit all three alleged assailants... and one bystander.

He's been indicted by a grand jury, but that's not saying much. I'm waiting for the trial. It will be interesting to see what happens if it is ruled a legitimate self-defense shooting; does the bystander then go on the assailants' tab?

[joshs]

Well, we have a case right now in Indiana, right here in Broad Ripple, where a guy named Tristan Crayton and his buddy were leaving a nightclub after the buddy was tossed for getting in a fight. The guy he was fighting with and two of his friends allegedly jumped the pair outside the club. Tristan pulled his heater, which he was legally carrying, and hit all three alleged assailants... and one bystander.

He's been indicted by a grand jury, but that's not saying much. I'm waiting for the trial. It will be interesting to see what happens if it is ruled a legitimate self-defense shooting; does the bystander then go on the assailants' tab?

There are two distinct concepts being talked about in this discussion: felony murder and transferred intent. Felony murder (which I'm using to describe the same provisions that some jurisdictions apply when the victim doesn't die) simply makes a person who commits a criminal act liable for the foreseeable consequences of that act, even when the person does not actually commit the crime charged.

Transferred intent is normally applied where a person intends to kill/injure person A, but instead kills/injures person B. The transferred intent rule simply says that the assailants intent to kill/injure A transfers to B. Since most crimes have a mens rea/intent requirement, without the transferred intent rule, the assailant could not be held liable for injuring or killing B.

Most, if not all, jurisdictions in the US apply the transferred intent doctrine to self-defense/defense of others. If you act in reasonable self-defense and mean strike C, who is assaulting you, and instead hit D, an innocent bystander, your "good intent" will transfer, and, as long as you were justified in the actions you took against C, then you will be justified for striking D. However, there are two major variations on how this is applied. In some jurisdictions, it is an absolute defense. (If you were justified in striking C, then no criminal liability is possible against D.) Other jurisdictions allow criminal charges for striking D where the mens rea element is only criminal recklessness or negligence even when striking C was justified.

This (http://lawofselfdefense.com/law_case/hill-v-commonwealth-2010-va-app-lexis-219-va-ct-app-2010/)Virginia case has a pretty good discussion of the law of transferred intent applied to self-defense.

[Tamara]

Thank you for the clarification!

[Totem Polar]

Good stuff. So then, sounds like both ideas might apply in Tam's example; the good intent would protect Tristan, assuming that he was in the right (ie. they got jumped, clear disparity of force by greater numbers, etc) from liability on the bystander, and the felonious assault on the same would apply to the 3 guys who jumped Tristan dude and wise guy/friend outside the club, again assuming the triers of the facts figure that's how it all actually went down. Correct?

[Kobalt60]

According to the police commish, what the guy did to get shot was put his hand in his pocket and pull out his empty hand and point it at the cops in a gun gesture. Sorry, that doesn't cut it for me. Being threatened by an imaginary gun does not a good shoot make. Sure the cops were scared, that much is clear, but there need to be consequences when police aren't trained to distinguish weapons from empty hands.

I'm guessing that one cop had his finger on the trigger and flinched when he saw the empty hand point and then the other officer shot because the first one shot instead of making his own shoot decision.

[joshs]

According to the police commish, what the guy did to get shot was put his hand in his pocket and pull out his empty hand and point it at the cops in a gun gesture. Sorry, that doesn't cut it for me. Being threatened by an imaginary gun does not a good shoot make. Sure the cops were scared, that much is clear, but there need to be consequences when police aren't trained to distinguish weapons from empty hands.

I'm guessing that one cop had his finger on the trigger and flinched when he saw the empty hand point and then the other officer shot because the first one shot instead of making his own shoot decision.

Really? If the potential bad guy looks like he is drawing a gun to harm you and this is consistent with other facts (strange, aggressive behavior, etc.), then waiting until you see if he comes up with a gun or just a finger gun means your life is literally, in his hands. Justification doesn't require that you were right, just reasonable.

[KevinB]

According to the police commish, what the guy did to get shot was put his hand in his pocket and pull out his empty hand and point it at the cops in a gun gesture. Sorry, that doesn't cut it for me. Being threatened by an imaginary gun does not a good shoot make. Sure the cops were scared, that much is clear, but there need to be consequences when police aren't trained to distinguish weapons from empty hands.

I'm guessing that one cop had his finger on the trigger and flinched when he saw the empty hand point and then the other officer shot because the first one shot instead of making his own shoot decision.

As pointed out already by Josh, the activities gave the officers a reasonable belief that the person had a firearms, and had the desire to harm them or others - thus they where justified in using lethal force to remove the threat.

I'm not sure of NYPD regulations specific to firearms discharges, but typical any office involved in an OIS will be investigated. In this case those officers who misses the correct target will likely face administrative if not criminal actions, but the suspect will also be charged.

[TumblinDown]

This (http://lawofselfdefense.com/law_case/hill-v-commonwealth-2010-va-app-lexis-219-va-ct-app-2010/)Virginia case has a pretty good discussion of the law of transferred intent applied to self-defense.

The reference to the OK Corral and the preliminary hearings of the murder charges against Wyatt Earp, Morgan Earp, James Earp, and Doc Holliday in the opinion are priceless! Props to the judge. Made my day! LOL

[fixer]

There are two distinct concepts being talked about in this discussion: felony murder and transferred intent. Felony murder (which I'm using to describe the same provisions that some jurisdictions apply when the victim doesn't die) simply makes a person who commits a criminal act liable for the foreseeable consequences of that act, even when the person does not actually commit the crime charged.

Transferred intent is normally applied where a person intends to kill/injure person A, but instead kills/injures person B. The transferred intent rule simply says that the assailants intent to kill/injure A transfers to B. Since most crimes have a mens rea/intent requirement, without the transferred intent rule, the assailant could not be held liable for injuring or killing B.

Most, if not all, jurisdictions in the US apply the transferred intent doctrine to self-defense/defense of others. If you act in reasonable self-defense and mean strike C, who is assaulting you, and instead hit D, an innocent bystander, your "good intent" will transfer, and, as long as you were justified in the actions you took against C, then you will be justified for striking D. However, there are two major variations on how this is applied. In some jurisdictions, it is an absolute defense. (If you were justified in striking C, then no criminal liability is possible against D.) Other jurisdictions allow criminal charges for striking D where the mens rea element is only criminal recklessness or negligence even when striking C was justified.

This (http://lawofselfdefense.com/law_case/hill-v-commonwealth-2010-va-app-lexis-219-va-ct-app-2010/)Virginia case has a pretty good discussion of the law of transferred intent applied to self-defense.

Thanks Josh. This is useful information.