FELONY MURDER LIABILITY FOR HOMICIDES BY POLICE: TOO UNFAIR & TOO MUCH TO BEAR.

• Author: Kolar, Maria T.

INTRODUCTION: THE KILLING OF STAVIAN RODRIGUEZ 243 I. FELONY MURDER AND KILLINGS BY NONPARTICIPANTS 249 A. Background and Some Felony Murder Law Basics 250 B. Killings by Nonparticipants 254 II. STATE-BY-STATE ANALYSIS OF AMERICAN FELONY MURDER LAW REGARDING KILLINGS BY NONPARTICIPANTS 256 III. PROXIMATE CAUSE FELONY MURDER STATES: MURDER CONVICTIONS FOR KILLINGS BY AN ADVERSARY 263 A. Broad Statutory Felony Murder Liability for Killings by Nonparticipants 263 1. Alaska 264 2. Florida 265 3. Missouri 268 4. New Jersey 270 5. Ohio 274 6. Oklahoma 276 B. Broad Case-Based Felony Murder Liability for Killings by Nonparticipants 279 1. Georgia 280 2. Arizona 283 3. Indiana 286 4. New York 288 5. Wisconsin 291 6. Rhode Island 293 7. Illinois? 294 IV. PREVENTING FELONY MURDER LIABILITY FOR HOMICIDES BY NONPARTICIPANTS 302 INTRODUCTION: THE KILLING OF STAVIAN RODRIGUEZ

Just after 7:00 p.m. on Monday, November 23, 2020, five Oklahoma City Police Officers gunned down fifteen-year-old Stavian Rodriguez shortly after he exited the Okie Gas Express, a gas station convenience store in southwest Oklahoma City. (1) Rodriguez and his sixteen-year-old friend, Wyatt Cheatham, had apparently robbed the clerk/owner of the Okie Gas Express at gunpoint that night, taking cash and cigarettes and then leaving a few minutes later without anyone getting hurt. (2) After the teens had safely exited, however, Rodriguez went back by himself, perhaps to retrieve something he had left behind. This time, the clerk/owner managed to exit the store while Rodriguez was still inside--by going out the drive-through window--and then locked Rodriguez inside the store (by locking the front door from the outside) and flagged down someone nearby, who called 911. (3)

In a few minutes, numerous Oklahoma City (OKC) police officers began arriving at the scene. (4) Unsurprisingly, Wyatt Cheatham was long gone by the time multiple police officers established a perimeter around the Okie Gas Express, with Rodriguez locked inside. (5) Both security camera video and bodycam videos worn by OKC police officers that night reveal a chaotic scene, with numerous officers shouting conflicting commands, including that Rodriguez should "come out," which he could not do (due to the locked front door), that officers "only want to talk," and that he should "show us your hands." (6) Rodriguez eventually followed the lead of the store clerk and exited through the store's drive-through window. The OKC Police Department initially reported that Rodriguez was holding a gun when he came out of the building and that he was shot when he refused to follow police commands. (7) By the next day, however, this version of events began to be called into question, after witnesses at the scene indicated that Rodriguez was complying and had put down his gun before he was shot. (8) A video of the shooting taken by a local news employee from across the street also appeared to show Rodriguez putting his gun down shortly before he was shot. (9) In the weeks and months that followed, Cameo Holland, the mother of Stavian Rodriguez, pushed for release of the videos from the body cameras worn by officers at the scene. (10) And local activists and groups like Black Lives Matter and the NAACP protested and called for action and accountability for what was perceived as another unjustified police killing of an unarmed citizen. (11)

Meanwhile, Oklahoma County District Attorney David Prater decided to file a first-degree felony murder charge regarding the killing of Stavian Rodriguez--by five OKC police officers--against Wyatt Cheatham, Rodriguez's apparent accomplice in the original armed robbery. And on December 18, 2020, Cheatham was charged, in Oklahoma County District Court, with two felony crimes: Count 1, Murder in the First Degree (felony murder), for the shooting death of Stavian Rodriguez during the commission of a robbery with a firearm, and Count 2, Robbery with a Firearm, for the armed robbery of Mostafizor Khan at the Okie Gas Express on November 23, 2020. (12)

Oklahoma, along with approximately eleven other states discussed infra, (13) allows an individual who was involved in a particular type of felony (such as armed robbery) that somehow results in a death to be charged with murder for the subsequent death--even if the individual charged had no expectation and no intent that someone would end up dead due to the felony and even if the actual killer (i.e., the person who, in fact, killed the victim) was a police officer, a victim of the original crime, or a bystander at the scene. (14) Many Oklahomans were quite shocked to learn that Wyatt Cheatham--who was not even present when his friend was gunned down--could be charged with the first-degree murder of Rodriguez, who was clearly killed by police officers. (15)

Almost twelve weeks later, on March 10, 2021, various security and bodycam videos of the shooting of Stavian Rodriguez were released to the public and revealed a number of important facts. Rodriguez was not holding a weapon or anything at all when he exited the Okie Gas Express through the drive-through window. Rodriguez then showed police the gun in his left waistband by lifting up his shirt, while putting his hands up, as instructed. Rodriguez then voluntarily disarmed himself by gingerly removing the gun from his waistband with his left hand, holding the extended magazine between his thumb and index finger, and dropping the gun on the ground in front of him. And Rodriguez was then shot in an avalanche of bullets a few seconds later, when he lowered his hands and appeared to reach for his sagging pants, with his right hand near his right waistband and his left hand seemingly reaching toward or into his back left pocket. (16)

And on March 10, 2021, the same day that Oklahoma County District Attorney David Prater released the security camera and bodycam videos to the public, D.A. Prater also charged the five OKC police officers who used lethal force against Stavian Rodriguez with the crime of first-degree manslaughter for killing him. (17)

In addition to being a stunning development regarding the police shooting of Stavian Rodriguez--just weeks before the trial of former Minneapolis police officer Derek Chauvin for the callous police officer murder of George Floyd (18)--the filing of first-degree manslaughter charges against the five police officers who actually killed Rodriguez raised a huge legal question in the pending criminal case against Wyatt Cheatham. Could the State of Oklahoma actually convict Cheatham of the first-degree felony murder of Rodriguez when the same district attorney who was prosecuting Cheatham for this indirect crime was also maintaining that the killing of StavianRodriguez--by the five officers who actually shot and killed him--was, in fact, a criminal homicide by the police?

In other words, would Oklahoma law actually allow the State to convict someone of first-degree felony murder for the homicide crime of one or more police officers, simply because that individual had earlier committed or attempted a designated felony with the person who ended up dead, and the officers were present in response to that felony? Is Oklahoma felony murder law really so broad that it permits the first-degree murder conviction of persons who commit or attempt felonies, which eventually "result in" a death, even if the actual killing was a homicide by a responding police officer? Isn't holding a felony participant accountable for first-degree murder based upon a law enforcement homicide just too unfair and too much to bear? (19)

The felony murder charge against Cheatham for the killing of Stavian Rodriguez by five Oklahoma City police officers also raises the broader question of which other states would plausibly allow a felony murder conviction for a felony participant like Cheatham when the actual killing was a homicide by someone not involved in the original felony? Police officers are actually one of three categories of "nonparticipants" in the original felony who sometimes end up killing someone in response to that felony--a situation which is the focus of this Article. Victims of the original felony, bystanders, and police officers all constitute "nonparticipants" in the original felony, who sometimes kill in response to that felony. This situation raises the question of whether a participant in the original felony can then be held accountable for "felony murder" for that killing by a nonparticipant.

For the states that would potentially allow such a conviction (for a killing by a nonparticipant), this raises additional questions. Does it matter who is killed, i.e., whether the person killed was a participant or a nonparticipant in the original felony? Does it matter if the lethal actions of the nonparticipant were themselves unjustified, inappropriate, or even a chargeable homicide? Does the fact that a felony participant "started it," by committing or attempting a felony, really mean that he or she is criminally accountable--as a "felony murderer"--for any death that later results, regardless of who kills who, how unreasonable or unforeseeable the killing was, and whether the killing was itself a crime?

In Part I of this Article, I will begin addressing these questions by first providing some background regarding felony murder law generally and in America, in particular, with a special focus on felony murder liability for killings by nonparticipants in the original felony. The two basic approaches to such killings will be summarized, namely: (1) the "agency approach," which would not permit a felony murder conviction for a killing by a "non-agent" in the original felony and (2) the "proximate cause" approach, which does permit felony murder liability for many killings by "nonparticipants" (i.e., killings by victims, bystanders, and police officers) that were "proximately caused" by the original felony because the nonparticipants were somehow resisting or...