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?
Loading ...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.
“I shot an arrow in the air, it fell to earth I knew not where…”
While there has long been this romanticized notion of shooting things into the sky the fact is that you are responsible for what happens next. I don’t know that Gary’s “history of responsibility” should factor in that much. Plenty of people have a history of responsibility with knives until they up and stab someone. Their to-that-point commendable behavior doesn’t tend to factor into the closing arguments.
For 2nd degree murder: “The malice necessary to prove second degree murder is based on an inherently dangerous act or omission, done in such a reckless and wanton manner as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief.”
I’d argue that randomly shooting a gun in the air fits the statute.
It doesn’t on the surface fit the “deliberately bent on mischief” part of the statute.
I agree with Mr. Rand, but in addition, I disagree that “[t]heir to-that-point commendable behavior doesn’t tend to factor into the closing arguments.” Isn’t that one of the factors in determining if the person was “utterly without regard for human life”? If it is as Jeff says he would liken it, to DWI, it would be. Don’t you need a prior impairment charge before manslaughter becomes DWI murder?
As a firearms safety instructor, concealed carry instructor, hunter education instructor, I always teach that bullets will go until they stop. The only safe direction is toward the target with a suitable backstop to keep the projectile(s) from causing unintended death, injury, or property damage. Whomever points the gun and pulls the trigger is responsible for any damages resulting from that intentional act.
If Gary fired those shots in some sparsely populated area, I would charge involuntary. If he fired them in a more densely populated area, I would charge on 2nd-degree. There’s going to be a lesser-included instruction for involuntary, assuming you get to the jury), and I would bet he would be convicted of involuntary.
In a great number of these type cases, the discharge is accidental and therefore the resulting death is also, so involuntary is the appropriate charge. In this hypo, the discharge is intentional x 4 and the death is really more unforeseen than accidental.
Great post!
I find it incredible that anyone could justify shooting a gun in the air and not care where “it” lands so the shooter commits an “accidental” shooting. Sounds just like the individual who while reaching for their rifle in the closet shot 3 people standing outside in the street…this gun owner was not charged in the death of the one who died nor the assault on the 2 that lived. Absurd…we have become a state of no responsibility unless the activity is so outlandish that not charging them could cause the D.A. to lose the next election!
I’m sixty and have probably shot a thousand bullets in the air while squirrel hunting. I’d say that the chance of anyone getting killed by anyone shooting a bullet in the air at more than about sixty degrees is just about zero because of the parabolic effect caused by gravity and total drag on the bullet. Now as the elevation of the discharge decreases, the angle at the end of the parabola increases making it more destructive. During the Vietnam war the North would use all kinds of anti-aircraft artillery down to some old lady in a rice paddy with an SKS to shoot up into the sky at US aircraft flying over. Usually after the barrage they would go inside to keep from getting hit – we’re talking tons of stuff that was shot up. Hardly did anyone get killed, usually just a pop on the head.
“What goes up must come down.” The projectile is going to travel until: 1.)it strikes a sizeable object which stops it cold, 2.) its inertia is slowed and/or stopped by resistance, in this case gravity, which will “drag” and weigh on the projectile due to lack of sufficient velocity and 3.) is struck by an object traveling at a similar or greater velocity in the opposite direction without deflection.
It is a known fact that a penny (one cent), if dropped from the top of the Empire State Bldg. in New York, strikes a man on his uncovered head would cause certain death. And that substance is copper. The much heavier lead projectile, even a 22 cal., would similarly cause death, and most likely continue through the man’s head and not stop possibly until were slowed significantly by organs and bones with the man’s body.
Although an old comment, it still warrants correction. Throwing a penny off the Empire State Building will not kill and barely even wound.
https://www.scientificamerican.com/article/could-a-penny-dropped-off/
http://www.businessinsider.com/drop-penny-off-empire-state-building-2015-12
If I were a prosecutor, I would charge 2nd degree and work to get a jury to find malice in the shooter’s gross negligence. If I had to settle for Involuntary Manslaughter, I could sleep at night.
However, since I am a defense attorney, I immediately began thinking of as many factual issues that would affect how a jury might vote. The more alcohol involved – the more difficult I would rate the case. However, if the bullet was a ricochet as opposed to a direct hit from the firearm, I would be looking for acquittal of any criminal charge. Civil remedies still abound.
Various military organizations including the United States have researched what happens to a projectile fired into the air. Interestingly, bullets fired straight up almost all ways fall point up and not point down. The “average” hunting round would hit the ground at 300 feet per second and would not be lethal. Bullets fired upward from 45 to 85 degrees normally land point first. A great article on this is in “Hatcher’s Notebook” by General Julian Hatcher.