Criminal Charges for Random Gunfire

A man in Charlotte was struck by a stray bullet on July 4th. The police say that “it appears that it was not an intentional shooting but that someone . . . fired a celebration shot into the air” and happened to hit the man. The shot could have been fired anywhere in a several mile radius and prospects for identifying the shooter appear to be slim. A story about the incident is here.

The story notes that stray bullet impacts, while not common, do occur from time to time. It refers specifically to a 1987 tragedy in which “a stray gunshot killed a 16-year-old girl floating on a raft in the crowded Ocean Island wave pool at Carowinds.” An ABC News story about New Year’s Eve gunfire and the harm it causes is here.

The story led me to think about what criminal charges would be appropriate in such a case if the shooter could be identified. To abstract away from the Charlotte incident, imagine the following fact pattern: Gary Gunslinger legally owns a rifle. It is his birthday and he is hosting a family cookout in his backyard. Gary has had a drink or two and decides to celebrate by shooting his rifle into the air. He’s not trying to hit anyone, but a bullet strikes Valerie Victim as she stands waiting for a bus a mile away.

If Valerie is killed, the first issue is whether any homicide charge applies. If Gary’s conduct is so reckless that it amounts to malice, a second-degree murder charge would be proper. Although I couldn’t find a case on point, I would expect a court to look at that issue through a framework similar to that used to examine vehicular homicides. Factors like the extent of Gary’s intoxication, the number of shots fired, the recklessness with which the shots were fired, whether Gary owned the gun legally, and whether Gary had any history of reckless behavior with a gun would all be relevant. If a court were to find the evidence insufficient to establish malice, then involuntary manslaughter would be a proper charge.

Let me pause for a quick reader poll. Assuming that Gary had consumed two beers, fired four shots into the air, and has no known history of irresponsibility with a gun, which charge would you consider most appropriate?

Which charge is most appropriate for Gary?

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If Valerie were injured but not killed, Gary could be charged with an assault by culpable negligence. (For a discussion of the negligence theory of assault, see Jessica Smith, North Carolina Crimes 113 (7th ed. 2012).)

A few other charges are possible. If Gary’s yard were fenced in, perhaps he could be charged with discharging a firearm from within an enclosure. G.S. 14-34.9. There aren’t any appellate cases citing that section, so it isn’t clear how far the term “enclosure” reaches. Finally, if Gary lived in a jurisdiction that prohibited the discharge of firearms, he could be charged under the appropriate ordinance. For example, Section 15-13 of the Charlotte City Code prohibits “shoot[ing] any firearm in the city,” except at a range or with the city’s permission. Most other larger cities have similar ordinances, though many, unlike Charlotte’s, contain an exception for self-defense. Cf. G.S. 160A-189 (“A city may by ordinance regulate, restrict, or prohibit the discharge of firearms at any time or place within the city except when used in defense of person or property or pursuant to lawful directions of law-enforcement officers, and may regulate the display of firearms on the streets, sidewalks, alleys, or other public property.”).

As an aside, Wikipedia’s page on “Celebratory Gunfire” notes that a number of states have laws specifically targeting random gunfire. A discussion of California’s law is here.

If folks see the issue differently, think I’ve missed a likely charge, or have other comments about this type of conduct, please weigh in by posting a comment.