Jim Gordon and the Felony Murder Rule

Today’s post was inspired by a question from Christopher about the first episode of the new season of Gotham.  His question presents an interesting twist on felony murder.  Spoilers below:

First, the facts:

In the episode, Jim Gordon reluctantly agrees to collect a mob debt for Penguin in exchange for Penguin’s help getting Jim reinstated on the GCPD. The mobster, Ogden Barker, refuses to pay, so Jim attacks him and his men, takes his gun and his money, and flees. In the ensuing chase, Barker mobster shoots at Jim and Jim reflexively returns fire, killing Barker.

Then Christopher does a great job of spotting the issues:

Now, it seems to me there are two questions here relating to issues you’ve discussed on L&tM before: self-defense and felony murder. Based on what I’ve read on L&tM, I immediately assumed that Jim could not claim self-defense, because he instigated the confrontation. But when I looked into it, I discovered that there are generally two circumstances where the aggressor in a fight can claim self-defense. One is if the aggressor attacks with nonlethal force and is met with lethal force. The other is if the aggressor withdraws from the fight and the other party keeps going after them. I suppose both of those apply here. Jim assaulted the mobster and his men nonlethally and fled with their money, and they pursued and shot at him. I think that meets both of the parameters that would make it self-defense even though he was the aggressor.
But that leaves the felony murder question. As I understand it, if you choose to commit a crime and someone dies as a result of the events of that crime, then that’s felony murder even if it was an accident or if you had no direct involvement in the death — say, if one of the pursuing mobsters had been hit by a car while crossing the street, or had tripped on the stairs and broken their neck.

Which brings us to the questions:

But how does that interact with the self-defense question? Is there a circumstance where self-defense can be a legal defense against a felony murder charge? And does it apply here?

Great questions!  I’m going to use New York law, since that’s my usual go-to for Batman.  It also turns out that New York provides a clear-cut answer in the form of People v. Walker, 78 A.D.3d 63 (2010).  The facts of the case are fairly analogous:

The defendant, Timmy Lee Walker … kidnapped and robbed at least two people at gunpoint. After one of these kidnapping victims became very agitated, the defendant allowed him to leave on the condition that he come back with money. When instead, the victim returned with his armed stepson and some friends, the defendant shot and killed the stepson, firing five rounds at him. The defendant was convicted of this felony murder and now appeals, principally arguing that the trial court should have given a justification charge to felony murder.

In both cases the defendant committed (or attempted) robbery and was met with deadly force in response.  It is true that Gordon was not the initial aggressor, but it was his decision to commit armed robbery (pointing the gun at Barker’s henchman and demanding the money).  There’s the felony.  But what about the murder?  Alas for Gordon, the court in Walker was pretty clear about that: “while the defense of justification may be available to an underlying felony offense in a felony murder prosecution, it is never a defense to felony murder itself.”  The court continues:

[I]n the vast majority of situations, a defendant charged with felony murder is precluded as a matter of law from relying on a justification defense since, having created a potentially life threatening situation, the defendant forfeits the right to use deadly physical force against the victim or any rescuer.

Indeed, nearly every jurisdiction that has opined on the matter makes a justification defense unavailable to those who initiated the underlying felonies [the court goes on to cite cases in numerous states] … The majority of cases where a defendant seeks a justification defense to a felony murder charge involve armed robbery.  In all of those cases, courts have concluded that a defendant committing an enumerated crime cannot claim self–defense if the defendant kills the victim after the victim resists.

Since Gordon can’t claim self-defense / justification for the underlying felony (the armed robbery), I’m afraid he’s out of luck.