Today we have a question about a supervillain-worthy plot from the movie Swordfish. As always, if you have questions or post suggestions, please send them to email@example.com and firstname.lastname@example.org or leave them in the comments.
NB: If you haven’t seen the movie, the question and answer technically include spoilers, but they’re from the opening scene.
Alan writes “In the film Swordfish, the villain Gabriel Shear has an elaborate plan involving hacking a bank’s computer while holding hostages. He wires these hostages with explosives rigged to a sensor which will detonate them if they leave the bank, and he explains this to the authorities. However, SWAT members still grab one of the hostages and drag her away from the bank, against her will, and she explodes, presumably dying in the process and killing several SWAT team members. … Is Gabriel Shear liable for murdering the woman, or the SWAT team members? (Would this be ‘felony murder’?) Would the woman’s relatives have a civil claim against the police? Does the fact that she was unwilling to go with the officers affect these considerations?”
There are basically two issues here: Shear’s liability and police liability. Since this scene is set in L.A., we’ll use California law.
I. Shear’s Liability
In California, murder is described in Cal. Penal Code § 187-89. Immediately we see two potentially applicable kinds of first degree murder: murder by explosives and felony murder. The felony murder rule may apply because the murder was committed in the perpetration of, amongst other things, the kidnapping of the hostages. The question is: is Shear liable for the murder given that he didn’t ‘pull the trigger,’ so to speak? Intuitively the answer seems like it should be yes, but let’s work through the analysis.
A. First Degree Murder by Explosives
This is the most straightforward charge: Shear murdered the victim with explosives. But there are at least two potential sticking points: cause and intent.
An essential element of murder is that the defendant must cause the victim’s death, and Shear’s actions were at least one step removed from the victim’s death. It was the SWAT team member pulling the victim out of range that was the immediate cause of death. Does that get Shear off the hook?
As it turns out, probably not. A defendant can also be responsible for a death if he “sets in motion a chain of events that produces as a direct, natural and probable consequence of the [act] [or] omission the death in question and without which the death would not occur.” People v. Fiu, 165 Cal.App.4th 360, 369 (Cal. Ct. App. 2008) (emphasis in original). The prosecution would argue that a direct, natural, and probable consequence of fitting hostages with explosive collars designed to kill people is that someone will, in fact, get killed.
Now, the defense might argue that the SWAT team member’s intervention broke the chain of causation, but it takes a lot to break the chain: “To relieve a defendant of criminal liability, an intervening cause must be an unforeseeable and extraordinary occurrence. The defendant remains criminally liable if either the possible consequence might reasonably have been contemplated or the defendant should have foreseen the possibility of harm of the kind that could result from his act.” Fiu, 165 Cal.App.4th at 371.
Here, it’s pretty clear that Shear in fact contemplated and foresaw the possibility of a hostage being harmed by police intervention in precisely this way. That’s why he warned the police about the collars. It’s no defense that the police tried to intervene anyway. Indeed, as Justice Cardozo said in the context of torts, “Danger invites rescue….The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.” Wagner v. Int’l Ry., 232 N.Y. 176, 180 (1926) (by the way, the Wagner case justifies a tort claim against Shear by the deceased police officer’s heirs; superheroes could make the same claim against supervillains if they are injured while trying to rescue the supervillains’ victims).
Another potential issue with a straightforward murder charge is that arguably Shear did not intend to kill anyone. Indeed, he specifically instructed the police regarding the explosives, which suggests he wanted a clean getaway. In California the intent required for murder (‘malice aforethought’) may be express or implied. Cal. Penal Code § 188. According to the California Supreme Court, “Malice is implied when: The killing resulted from an intentional act, 2. The natural consequences of the act are dangerous to human life, and 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.” People v. Dellinger, 49 Cal.3d 1212, 1222 (1989) (en banc). Here, Shear intentionally caused the killing (per the above), the natural consequences of putting explosive collars on people are pretty obviously dangerous to human life, and Shear clearly was aware of the danger to human life and deliberately acted with conscious disregard of it. So the intent requirement appears to be met.
But suppose a court disagreed and found that causation, intent, or both were absent. Could another approach fit, perhaps the felony murder rule?
B. Felony Murder
The California felony murder rule is limited to killings committed in the perpetration of, or attempt to perpetrate various specific violent crimes listed in the statute. Let’s assume that Shear and his conspirators committed at least one of those other crimes (most likely kidnapping). Would the felony murder rule help us out here if regular murder were unavailable? The answer is “probably not.”
The purpose of the felony murder rule is two-fold. First, to upgrade what would be manslaughter or second degree murder to first degree murder. Second, to impose liability on every participant in a felony. If Shear isn’t guilty of first degree murder because he didn’t cause the hostage’s death or intend to harm the hostage, then he’s likely not guilty of second degree murder or manslaughter either. So felony murder won’t work for the first purpose. And since the SWAT team member that was the most direct cause of the hostage’s death wasn’t a participant in the underlying felony, felony murder won’t work for the second purpose.
This seems like an unsatisfying result, but as it turns out the California courts have plugged this hole. The fix actually takes us back around to regular murder by way of the “provocative act” doctrine.
C. Provocative Act
Under the provocative act doctrine, “When the defendant … with a conscious disregard for life, intentionally commits an act that is likely to cause death, and … a police officer kills in reasonable response to such act, the defendant is guilty of murder. In such a case, the killing is attributable, not merely to the commission of a felony, but to the intentional act of the defendant or his accomplice committed with conscious disregard for life. Thus, … the police officer’s killing in the performance of his duty cannot be considered an independent intervening cause for which the defendant is not liable, for it is a reasonable response to the dilemma thrust upon the victim or the policeman by the intentional act of the defendant.” People v. Gilbert, 63 Cal.2d 690, 704-05 (1965).
In fact, the courts have specifically found provocative act liability in cases where hostages have been taken, used as shields, and then accidentally killed by a would-be rescuer. Pizano v. Superior Court, 21 Cal.3d 128 (1978) (en banc). In Pizano the court noted “Taking [the victim] as a hostage, pointing a pistol at him, stating he would be shot if the police intervened, and then using him as a shield provided a more than sufficient basis for an inference of malice. Indeed, it has been argued that malice is express in such cases on the ground that using the victim as a shield is a direct and deliberate creation of immediate lethal danger to the deceased and to him alone.” Pizano, 21 Cal.3d at 136.
So we think we can safely conclude that Shear is guilty of murder, even in the unlikely event that the straightforward murder charge didn’t apply and he escaped the felony murder rule. But Shear’s criminal liability does not necessarily excuse the government of any tort liability for the victim’s death.
II. Police Liability
In California, police officers and their employers generally enjoy absolute immunity from tort liability for their discretionary acts, even if they abuse that discretion. Cal. Gov. Code §§ 820.2, 815.2. However, if the police officer exercises discretion and chooses to act, then he or she (or his or her employer) may be liable for his or her negligent performance. McCorkle v. City of Los Angeles, 70 Cal.2d 252, 260-61 (1969). As we’ve discussed on the blog before, however, police officers have no general duty to rescue anyone, and this is true in California as well. Camp v. State, 184 Cal.App.4th 967, 975 (Cal. Ct. App. 2010) (noting “A police officer … is as much entitled to the benefit of this general rule as anyone else.”). “Liability may, however, be imposed … if an officer undertakes affirmative acts that increase the risk of harm to the plaintiff.” Id. A special relationship, and therefore a duty to rescue, has been found in cases where a police officer “placed a citizen in harm’s way.” Id at 977.
I’m not sure if the police officer knew about the explosive collar. It’s been a while since I saw the (admittedly not very good) movie, but from a review of the script I don’t think the officer knew about it. Regardless, trying to drag a hostage away from a well-armed and clearly dangerous group of bank robbers would pretty clearly increase the risk of harm to the hostage even without the explosive collar. It seems at least as dangerous as what the officer did in the McCorkle case, which was to direct the plaintiff to walk into a dangerous intersection. But is it enough? Alas, probably not.
It is not enough that a police officer’s actions increased the risk of a pre-existing harm (e.g. that the collar would explode); the officer’s actions must change the risk or introduce a new risk. Adams v. City of Fremont, 68 Cal.App.4th 243, 284 (Cal. Ct. App. 1998). Furthermore, “law enforcement officers are shielded from ordinary negligence claims based on their response to public safety emergencies when those efforts prove to be ineffective in preventing self-inflicted harm or harm caused by third parties.” Munoz v. City of Union City, 120 Cal.App.4th 1077, 1097 (Cal. Ct. App. 2004).
Here, the officer’s actions increased the pre-existing risk that the collar would explode, but he did not create a new risk by, for example, opening fire on the bank. And of course the fairly blanket public safety emergency exemption described in Munoz applies anyway, since the harm was caused by a third party. It’s generally pretty difficult to sue a government for incompetent police work, and this case is no exception.
One way or another, Shear is guilty of murder, likely first degree murder, as well as a host of other crimes. The police officer and the government, however, are likely not liable for the hostage’s death. Theoretically Shear is liable for the deaths of both the hostage and any police officers, but (spoiler alert!) since he manages to get away with billions in the end, that’s cold comfort for the victims’ families. That’s what life insurance is for, we guess.
That’s all this week! Keep your questions and post suggestions coming!