Causal Limitations

Case: People v. Hickman, 297 N.E.2d 582 (1973) [pp. 427-429]

Facts: Δs committed a burglary, and as they were escaping, the police confronted them. Δ's ran away, and
police were chasing them. By mistake, one of the officers shot another officer, thinking it was one of the
perpetrators, because he had a gun and didn’t stop when the officer yelled at him to stop. Δs convicted of
murder.
o Statute says: "A person who kills an individual without lawful justification commits murder if, in
performing the acts which causes the death … He is attempting or committing a forcible felony."
• Δ argued that this requires that the Δs would have to have killed the victim.
o Statute also says, "It is immaterial whether the killing in such a case is intentional or accidental, or is
committed by a confederate without the connivance of the Δ or even by a 3rd person trying to
prevent the commission of the felony."

Holding:
o Court holds that a Δ & co-conspirators can be held responsible for a killing of an innocent 3rd party
during the commission of a forcible felony even though the killing was not actually done by a person
acting in concert with the Δ or his co-conspirators (under the felony-murder doctrine).
• People v. Payne - robbery of home of 2 brothers. One of the brothers and on of the robbers
both shoot, and the other brother dies. Couldn’t be determined whose gun killed him, but Court
affirms Δ's murder conviction (it is reasonable that death may occur in the commission of
robbery).
o Court also notes that the felony-murder doctrine does not apply against a surviving felon when a co-
felon is killed during the commission of a forcible felony. Court says it's not because the dead felon
assumed the risk & consented to his own death, but rather that he assisted in setting into motion the
chain of events which was the proximate cause of his death, and there is no redress for this victim.
• People v. Morris - Armed robbery, gunfire erupts, and a co-felon is killed. Δ charged with
murder under felony-murder rule, but court says it doesn’t apply when the victim was a co-
felon.
o Uses a "proximate cause" theory of felony murder.

Class Notes

• Person shot is a cop; person doing the shooting is another police officer. Δ saying not me; I never shot
anyone. Δ had nothing to do with this
• Why foreseeable that ppl may get killed? - foreseeable that police may arrive at the scene, bullets fly &
someone gets it.
• Court relies on the limitation - but not much of a limitation
o When you commit a felony, it's foreseeable that a victim may fight back, and there'll be violence;
that police may shoot to stop you & kill someone else.
o Proximate cause not much of a limitation - because always foreseeable that this may happen
during a burglary
• Court says this would be diff if it wasn’t a cop who had died (because he's innocent, and this was an
unlawful killing - someone has to be responsible for an unlawful killing). But if it was a felon who dies
at the hands of the cop, lawful killing, and no need to hold someone responsible.
• One limitation to felony murder rule - that dead person be an innocent, not a co-felon
o Co-felon - the death is justified. In defense; justified, so no murder.
_______________________________

Notes: [p. 429-432]

 • More restrictive view of the felony-murder doctrine (California)
o People v. Washington (CA, 1965) - Δ & co-felon rob and gas station, and the gas station's owner
shoots & kills the co-felon who had pointed a gun at him.
• The felony-murder doctrine ascribes male aforethought to the felon who kills in the
perpetration of an inherently dangerous felony. When a killing is not committed by a
robber or accomplice, but by his victim, malice aforethought is not attributable to the
robber, because the killing wasn’t committed by him.
• Not enough that there was a reasonably foreseeable risk which would make the
robbery the proximate cause of the killing. The statute requires that the felon or
accomplice commit the killing (like Hickman), and this court won't broaden the
meaning of it.
• The purpose of the felony-murder rule is to deter felons from killing negligently or
accidentally by holding them strictly liable for the killings they commit. This purpose is
not served by punishing them for killings committed by their victims.
• Court disagrees that another purpose of the doctrine is to prevent the commission of
robberies. Court notes that it wouldn’t be fair to hold a felon liable for an act caused by a
3rd party - because it wouldn’t be based on the felons own conduct, but on the conduct by
the 3rd parties, which they can't control.
Class Notes
• Contrary to court's analysis in Hickman
• What's the rule here? - who caused the death? Must be the participants in the felony.
o As to be the immediate cause of the killing
• Why does this court find this so important?
o The felony-murder doctrine is a form of aiding & abetting liability. There's nothing to ascribe to
the Δ. If he or his agent doesn’t do it, the 3rd party that commits the killing (victim, bystander,
police) is not acting in concert with the Δ, so you can't connect the Δ to that death. You can't
fairly contribute their conduct back to the Δ.
o Utilitarian justification - not trying to deter the felony itself, trying to deter the felony from being
dangerously committed. Commit the felony in a safe way so that ppl don’t die. If the purpose of
to make sure felons commit felony in a safe way so that ppl don’t get hurt, we shouldn’t apply
the rule when its someone else who does the killing - that has nothing to do with the Δ. We're not
going to deter them from committing the felonies dangerously by punishing them when they're
not the ones who did it.
• Criticism to this argument - if felons know they're going to be held responsible even if
killing done by 3rd person, they're going to commit their felonies in a way that won't
provoke those types of responses. Ex: More likely for clerk to pull out gun, if the felon
seems dangerous.
• Felony murder doctrine will not apply if person who pulls the trigger is not a felon

• Although Washington forbade the use of the felony-murder rule in CA when the felon didn’t commit it,
the court did not bar other means of imposing murder liability on felons who may indirectly cause death
(initiating gun battles), noting that such felons may be guilty of "abandoned and malignant heart"
murder.
o Taylor v. Superior Court (1970) - co-felon killed by shopkeeper after co-felon provoked gunfire.
Court held that the felons were provocative of lethal resistance, and the 2 men had initiated the
gun battle wit conscious disregard for human life and with natural consequences dangerous to
life."
• Agency limitation - government couldn’t rely on felony-murder. But court found
sufficient evidence for abandoned & malignant heart murder. They created a situation that
showed a conscious disregard for human life. Waiving guns around - predictable that
 there will be shooting. So even if not felony-murder, it may be something else (another
type of murder).
• Felon as a victim
o People v. Cabaltero (1939) - during robbery, Δ shoots co-felon intentionally (other co-felons also
involved). Court held that felony-murder doctrine held to apply, "irrespective of the status of the
person killed, and regardless of whether the killing is accidental or intentional."
• Court distinguishes from People v. Ferlin - Δ not held liable for death of co-felon where
co-felon, in commission of arson for insurance fraud, accidently burned himself to death
outside of Δ's presence; Court said co-felon basically killed himself.
• The Proximate Cause theory (Pennsylvania)
o Commonwealth v. Almeida (1949) - officer killed by other officers attempting to apprehend a
robber. Court explicitly expanded the felony-murder doctrine by adopting a doctrine of
proximate cause, attaching liability for any death proximately resulting from commission of the
felony. If the risk of death was foreseeable and death occurred, the felon was guilty of felony
murder.
o Commonwealth v. Redline (1958) - Δ initiated a gun battle & his accomplice was killed by a
police bullet. Court doesn’t apply the felony-murder rule.
• Court distinguishes from Almeida - The killing of an innocent person in Almeida, was
merely an excusable killing, while the killing of a co-felon was a justifiable one. When
the murder is justifiable, then it was lawful, and you can't hold a felon liable for the
consequences of the lawful conduct of another person. Court held that in order to convict
for felony murder, the killing must have been done by the Δ or by an accomplice or
confederate or by one acting in furtherance of the felonious undertaking.
o Commonwealth v. Meyers (1970) - explicitly overruled Almeida's proximate cause approach,
rejecting the distinction between excusable and justifiable killings.