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Felony Murder: Limits of Agency

Under the felony murder rule, a death that occurs as the proximate result of the commission or attempted commission of another qualifying crime (robbery, kidnapping, felony involving use of a deadly weapon, and others) constitutes first-degree murder, even in the absence of premeditation and deliberation. See G.S. 14-17(a). Shea Denning wrote a great summary of the basic law on felony murder here, and she tackled the confusing merger doctrine here.

But one topic we haven’t yet covered on this blog is the issue of agency. Under North Carolina’s felony murder law, a defendant can only be held responsible for a death that was caused by himself or an accomplice to the crime, not by an adversary such as a police officer who shoots back. Recently, I was confronted with a couple interesting questions about this rule.

First, why is that the rule, and does it have to be?

Second, how does it apply to situations such as when an innocent bystander is killed by a stray bullet that could have come from either an accomplice or an adversary?

Why Is That The Rule?

In a number of other jurisdictions, it’s not. In fact, there are two very different schools of thought on what the scope of a defendant’s felony murder liability should be for any resulting deaths.

a) Foreseeability or Proximate Cause Theory:

This theory holds that when a defendant and his accomplices commit a dangerous or violent crime, it is reasonably foreseeable that officers, victims, or even bystanders may resist and defend themselves. Therefore, regardless of whether the ensuing death is directly caused by the acts of one of the perpetrators (e.g., a fatal blow delivered to a bank teller during an armed robbery) or by an adversary attempting to oppose the crime (e.g., a security guard returning fire who accidentally kills a customer), the defendants are held responsible for initiating the chain of events that foreseeably led to that death.

Foreseeability is now the minority view, but it still applies in various states across the country. See, e.g., Robinson v. State, 782 S.E.2d 657 (Ga. 2016) (“Proximate causation imposes liability for the reasonably foreseeable results of criminal conduct if there is no sufficient, independent, and unforeseen intervening cause,” and a store owner fatally shooting the defendant’s robbery accomplice was reasonably foreseeable); State v. Burrage, 465 S.W.3d 77 (Mo. App. 2015) (“We use a ‘foreseeability-proximate cause concept of homicide responsibility’ in felony murder cases”), citing State v. Moore, 580 S.W.2d 747 (Mo. 1979) (where a customer returned fire at armed robbers and accidentally killed a bystander, the robbery “set into motion the chain of events which caused the death” so it was “the natural and proximate result of the acts of the [defendant] or of an accomplice”); People v. Hickman, 319 N.E.2d 511 (Ill. 1974) (“The shot which killed Detective Loscheider was a shot fired in opposition to the escape of the fleeing burglars, and it was a direct and foreseeable consequence of defendants’ actions. […] Those who commit forcible felonies know they may encounter resistance, both to their affirmative actions and to any subsequent escape”).

b) Agency Theory:

North Carolina’s courts have rejected the foreseeability theory and adopted a view known as the agency theory. Under our law, the “the felony murder rule only applies where the lethal act of a defendant, or someone acting in concert with a defendant, caused the death.” State v. Williams, 185 N.C. App. 318 (2007) (noting that “North Carolina adheres to the agency theory, and not the proximate cause theory, of felony murder”). Accord, State v. Bonner, 330 N.C. 536 (1992) (felony murder inapplicable where off-duty officer acting as a security guard shot and killed two of the four robbers); State v. Oxendine, 187 N.C. 658 (1924) (felony murder inapplicable where bystander was accidentally killed by person shooting back in self-defense). A limited exception may also apply in agency jurisdictions if the victim was killed by an adversary, but the victim was being used as “human shield” by the defendant. See Wayne R. Lafave, 2 Subst. Crim. L. § 14.5(d) (3d ed., 2019) (felony murder applicable because the defendant’s act of “using a victim as a shield or in compelling a victim to occupy a place or position of danger constitutes a direct lethal act against the victim”).

What accounts for this stark difference? In Bonner, our state Supreme Court explained that a majority of states have adopted the agency doctrine because, as a matter of fundamental fairness and criminal intent, a defendant should only be held culpable for his own (or his accomplices’) actions, not the actions of other parties. 330 N.C. at 542. Additionally, Bonner cited approvingly to other courts which have held that if the other party’s acts in response were justifiable, such as shooting back in self-defense, it “serves as a factor foreclosing the presence of an ‘unlawful act’ required under felony murder statutes.” Id. at 544; citing Commonwealth v. Redwine, 137 A.2d 472 (Pa. 1958) (“How can anyone, no matter how much of an outlaw he may be, have a criminal charge lodged against him for the consequences of the lawful conduct of another person? The mere statement of the question carries with it its own answer.”).

Adherents of the proximate cause theory might respond that the defendant is only being held accountable for his own unlawful acts, since resistance or opposition to his crime was a reasonably foreseeable consequence of it. Adherents of the agency theory would dispute that, and argue that the victim’s or bystander’s opposition was a separate and intervening act. Reasonable minds can disagree, and the unsurprising result is our current jurisdictional split.

But at least in North Carolina, the rule is clear: we are an agency state.

The Unknown Shooter Problem

With that background, what about the second question: suppose that an innocent bystander has been killed during a shootout between the defendant and another person, but it cannot be determined who fired the fatal shot. The defendant stands charged with several qualifying felonies, such as discharging a firearm into occupied property or assault with a deadly weapon with intent to kill his original target. May he also be prosecuted for felony murder based on the bystander’s death?

In a foreseeability/proximate cause jurisdiction, that’s an easy yes. It doesn’t matter whether the fatal shot was fired by the other person, or if that other person was acting lawfully in self-defense, because the defendant remains liable for the consequences. See, e.g., Commonwealth v. Devine, 26 A.3d 1139 (Pa. Super. Ct. 2011) (where defendant initiated a gun battle on a crowded street and victim was caught in the cross-fire, the finder of fact “could reasonably infer a causal nexus” between defendant’s conduct and decedent’s death).

But is a felony murder prosecution possible on these facts in an agency state like ours? After all, there is at least a 50% chance that the fatal shot was fired by the other person, who was not an accomplice of the defendant. Even if the state somehow got past a motion to dismiss and a skeptical jury, Bonner, Oxendine, and Williams tell us that a felony murder conviction couldn’t possibly hold up on appeal.

Right…?

Well, maybe not. See State v. Platt, 85 N.C. App. 220 (1987). In Platt, two rival gangs got into a fight near an apartment that served as one gang’s “fortress.” The fight escalated into a mutual shootout, and “during this shootout, five persons in the vicinity of apartment 231 were shot.” The defendant was unquestionably a participant, but he argued that his charges should have been dismissed because the evidence showed only that “gunfire erupted from all directions during a fight between two rival groups resulting in wounds to the five victims but failed to show who actually shot any of the victims.” The Court of Appeals disagreed and affirmed his conviction, holding that since the evidence showed the victims were shot during “a shootout between two rival gangs, the jury could reasonably infer that defendant, either solely or while acting in concert with other members of the ‘Platt’ group, inflicted these injuries during the shootout.” Therefore, it was properly left up to the jury to decide “whether the facts, taken singly or in combination, satisfy them beyond a reasonable doubt that the defendant is actually guilty.”

Granted, Platt was only addressing assault charges rather than felony murder, but it suggests that it should be left up to the jury to decide whether the identity of the shooter is known or unknown. See also State v. Frione, 248 N.C. App. 303 (2016) (unpublished) (felony murder is inapplicable if “an adversary, not an accomplice, committed the deadly act,” but affirming conviction in this case where an attempted robbery turned into a four-way shootout because circumstantial evidence indicated the fatal bullet most likely came from defendant’s gun).

Adversary or Mutual Combat?

Critics of this post will correctly point out that I just cheated. If there is a factual basis to determine who likely fired the fatal shot, then the shooter’s identity is not truly “unknown.” That’s no help at all in resolving situations where it’s genuinely impossible to determine whether the fatal act was caused by the defendant, an accomplice, or an adversary. In an agency state, the inability to identify which side (accomplice or adversary) caused the death makes any felony murder prosecution a practical impossibility for all the reasons given above.

Right…?

In an obvious case of self-defense, probably so. But in many other cases, perhaps not. Think about the types of cases where the identity of the person who committed the fatal act is most likely to be in question. Real world examples could include shootouts between rival gangs, drug deals gone wrong, road rage that escalates to gunfire, or even violent confrontations between opposing groups at protests. In some of those cases, the underlying violence might be more accurately characterized as “mutual combat” rather than self-defense.

A growing number of courts have held that when both sides choose to engage in violence, they become de facto accomplices for felony murder purposes because they are aiding and abetting each other in carrying out the conflict, even though they are also adversaries who are trying to harm or kill each other. Therefore, a defendant who willingly participates in the violence can be held liable for any resulting deaths, even if it cannot be determined whether it was directly caused by him or an adversary, because either way it was caused by an aider and abettor to the underlying crime. See, e.g., State v. Young, 838 S.E.2d 516 (S.C. 2020) (“Today, we extend our jurisprudence and hold that each participant who willingly engages in mutual combat may be held accountable for the death or injury of an innocent bystander resulting from that confrontation. As each combatant aids and encourages the others to fire and continue firing the hail of bullets that results in a victim’s death or injury, each may be found guilty under the ‘hand of one is the hand of all’ theory of accomplice liability”); State v. Spates, 779 N.W.2d 770 (Iowa 2010) (“the acts of a defendant engaged in mutual combat can be the proximate cause of injury to an innocent bystander that directly results from the act of another combatant” because “participants in mutual combat encourage each other to engage in the potentially lethal conduct that leads to the injury of innocent bystanders, thereby supporting liability as an aider and abettor”).

Would that theory work in North Carolina? It seems to satisfy both prongs of Bonner, since: (i) the fatal act is now attributable to an accomplice; and (ii) a willing participant in mutual combat is not acting lawfully in self-defense. On the other hand, our case law has consistently foreclosed felony murder liability for the acts of an “adversary,” which the defendant’s opponent clearly still is. We have plenty of cases addressing mutual combat in relation to claims of self-defense and conventional murder, but I have not yet seen one that applies it in the context of imposing felony murder liability. (As always, please correct me in the comments if I’m wrong.) Platt seems like a potential first step, but it only characterized the defendant as acting in concert with other members of his own group, not his adversaries.

Until we have a clear answer, I hope readers will share their thoughts in the comments section below.

One comment on “Felony Murder: Limits of Agency

  1. A coherent doctrine of mutual-combat-agency is preferable to permitting the jury to speculatively find “false facts” in order to reach a desired outcome. Our courts should not encourage the latter, even (especially?) when tempted by egregious crimes.