Felony Murder and the Reach of Pinkerton Conspiracy Rule Forum

[33naham]

If A, B, and C, conspire to rob a 7-11.

A and B never make it to the robbery, but C enters the 7-11 and pulls a gun on the clerk (D), demanding money.

(D) pulls out a shotgun and fires at the robber (C), but misses and instead hits and kills an innocent bystander (E).



Is C guilty of Felony Murder? -and if so-

Pinkerton holds A and B liable for the crimes committed by fellow conspirators; are both A and B liable for the death of E?

***Does it all depend on whether D has a self-defense justification that nullifies the existence of a crime against E?***

[DocHawkeye]

It's been a year since I took Crim Law but I'll give this a go:

It depends on the theory of felony murder if C is guilty of it or not. Under one model, the death of any person resulting from the comission of a felony is felony murder. Under an opposing model, if the perpetrator of the felony does not control the instrumentality of death, then then felon is not guilty of felony murder. If C is guilty of felony murder, then A and B are also guility of felony murder under Pinkerton.

[ArmyOfficer]

The way I undertand it:

FMR rule only applies to killings in furtherance of the felony. There are two different tests to see if killings by a non-felon are in furtherance: Agency Theory and Proximate Cause Theory. Under Agency, felon is only liable if he or one of his accomplices did the killing. Under proximate cause theory, felons are liable for any killing that is a proximate cause of their predicate felony, whether they did it or not.
Under agency nobody would be liable. Under proximate cause, they might be.


For Pinkerton liability the crime must be in furtherance of, or a reasonably foreseeable consequence of the conspiracy. D shooting at C and killing E probably isn't in furtherance of the conspiracy to rob. Is it a reasonably foreseeable consequence? Depends on a lot of factors. Prior violent hist, what the plans exactly were, did the others know co-conspirators were bringing a gun.

The self-defense part is tricky. The way I have seen it, felons are not liable when co-felons are shot by someone acting in self-defense because that killing is not unlawful. However, assuming D acted reasonably and was justified and just made a mistake, there are probably enough policy considerations to not relieve the felons of that liablity if a proximate cause theory of non-felon shootings is used.

[kalvano]

Robbery is a crime explicitly defined by the MPC as one that felony murder applies to.

The questions for C is whether the jurisdiction is an agency jurisdiction or a proximate cause one. For agency, one of the criminals must do the killing. For proximate cause, if the death happens in the course of a felony, no matter who causes it, it's felony murder as long as the connection between the crime and death isn't too attenuated. A shopkeep pulling a gun is definitely foreseeable and I don't think there would be any issue that C is on the hook for felony murder in a PC jurisdiction.

As to A and B, did they help plan the crime? How involved? And why didn't they show up? Did they oversleep or did they affirmatively renounce involvement and go to the cops or something?