ATF Death Watch 83: Felony Murder?

TTAG Commentator John Earnest writes:

Might the “felony murder” doctrine be applied to any persons in the Executive Branch who conceived, ordered and implemented Operation F&F/Gunwalker? As you may have expected, the only answer that can be given is, “it depends”, because the felony murder rule is kind of mushy and very fact-dependent. Best guess is no, for several legal reasons, the initial one being statutory immunity for acts done in the execution and regular course of one’s duties of office . . .

In general the felony murder rule makes any participant in a violent felony criminally liable for any deaths (this can include an accidental or unintentional death) which occur during or as a result of the commission of the crime.

Example: 2 guys rob a bank; one stays outside with the car; the other goes inside where, just to frighten folks, he shoots a pistol into the ceiling where it ricochets off a light fixture, out a window and hits a passing motorist in the head, killing her. The guy inside might have been guilty of nothing more than a misdemeanor charge of criminally negligent homicide but for the fact that he was engaged in the commission of the violent felony of bank robbery at the time.

The felony murder rule makes the shooter, as well as the accomplice waiting in the car, guilty of non-capital murder. And yes, technically the rule would allow a murder charge against the person who supplied the gun to the robber if he had a pretty good idea it would be used in criminal activity.

But the rule requires there be a a fairly close connection between the person charged and the crime itself. While in my example it’s possible the gun supplier could be charged, in F&F, even assuming there is no immunity for official acts, there is such a distance in time, place, people and acts that I cannot see how the felony murder rule could be applied.

This doesn’t address the practical problem of how evidence of who was responsible, such as who said what, would be obtained.Then there’s the practical problem of who will start a criminal investigation. No US law enforcement agency will. And I don’t see Congress appointing a Special Prosecutor.

Now, if we change the question to whether those who came up with and pushed this plan should be morally responsible for any deaths which ultimately occurred because of their decisions and acts, the answer is, “You damn betcha”.

A moral person just could not be associated with F&F without ultimately taking some action to indicate his or her disapproval and disassociation. Any moral person who was a proponent of permitting hundreds of pistols and “assault weapons” (as the left has attempted to mis-define semi-auto versions of combat long arms) to go directly into the hands of the Mexican drug cartels, which were then engaged in an extremely violent war not only among themselves but with US Border Patrol and Immigration officers and DEA agents on US territory, would be weighed down with the crushing guilt of his/her responsibility in the deaths of scores of not only cartel thugs but also Mexican as well as US law enforcement agents and even innocent bystanders.

No moral person, no person with honor and integrity, no person of conscience, could possibly have endured the guilt of participating in bringing this evil program into existence. An honorable man or woman would, at a minimum, have argued against the program on moral, not political grounds. Conscience would have forced them to blow the whistle on this politically motivated program, which at heart was an unconstitutional attack on the 2d Amendment and which obviously was going to directly result in multiple deaths.

Indeed, a person of integrity would be hard-pressed not to resign once he or she saw what the deadly harvest of this operation was. And I haven’t noticed any resignation of any hgh White House or DOJ figures in protest of F&F.

So how could a moral person have come up with F&F in the first place? How could anyone with any integrity push for it to be implemented, or have acted as overseer of the ATF agents involved to make sure they were going along with the plan? Well, those questions suggest their own answers: there was no moral person who wanted this program put in place. Not a single person in the Obama White House or the Holder Department of Justice who was involved in the birth and life of F&F, even at the very highest levels, could have had a shred of integrity.

As outrageous as are all the deaths by these guns, it is even more distressing that there was apparently not one decent, honorable person, not one man or woman of integrity and conscience, in any position of significant power or influence in the Obama White House, the Holder DOJ or ATF. I believe history will ultimately record this Administration as one of the most morally and intellectually corrupt in US history. God help us; and please let us make it to January 20, 2013 without losing what little remains of the America that George Bush handed over to Barack Obama.