Criminal Law Blog

At Least One Judge Wants the “Urban Gun Battle” Theory Overturned


Fleming v. United States (decided Nov. 10, 2016).

Players: Associate Judges Glickman, Fisher, and Easterly.  Opinion by Judge Glickman.  Concurrence by Judge Easterly.  Peter F. Meyers for Mr. Fleming.  Trial judge: Robert E. Morin.

Summary:  In Roy v. United States, 871 A.2d 498 (D.C. 2005), the DCCA approved a jury instruction in a murder case on the “gun battle” theory.  Under this theory, if a defendant is a participant in a shoot out during which a bystander is killed, a defendant may be found guilty of that person’s murder without proof that either the defendant’s or one of his confederates’ bullet killed the bystander.  In this radical departure from traditional theories of criminal liability, so long as the government proves “(1) a defendant’s actions contribute substantial to are or a substantial factor in a fatal injury . . . and (2) the death is a reasonably foreseeable consequence of the defendant’s actions,” the defendant may be found guilty of murder.

In this case, Mr. Fleming was charged with murder for the death of an individual who was killed during a gun battle between four persons—two on each side of a dispute.  There was no evidence whether antagonistic or friendly fire resulted in the death.  The jury was instructed on the gun battle theory of liability, and Mr. Fleming was convicted of the murder.

The basis of Mr. Fleming’s appeal was that Royshould be limited to the death of bystanders, and not expanded to the death of participants in a gun battle.  The panel majority disagreed, and held that there is no distinction to be drawn between the death of a bystander and the death of a participant.

Of Note:  Judge Easterly writes a compelling concurrence arguing that Roy was wrongly decided.  She argues that nowhere in the criminal law is there precedent for removing but for causation from the requirements of criminal liability, and that to remove the essential element that the defendant “kills another” from D.C. murder statutes is to impermissibly rewrite those statutes.  She argues (1) that the court should go en banc to overturn Roy, but also (2) that because Roy conflicts with long-standing precedent it is not even binding law.   CP

Read full opinion here.