Quiz for the day:
When you shoot ten bullets into a crowd of 62 people, and kill two people, you're guilty of two counts of attempted murder and _______ counts of attempted murder.
Sixty? Eight? Zero?
The correct answer: It depends.
The trial court here thought the answer to this question would be sixty. Relying in large part on the "kill zone" theory of criminal liability that ostensibly says that if you shoot into a crowd you can be convicted of attempting to kill everyone in the crowd.
The Court of Appeal reverses.
Justice Rothschild does a good job of explaining -- very coherently, in my view -- the appropriate scope of the "kill zone" theory. Yes, there's such a theory. But no, it doesn't mean that you're guilty of a thousand counts of attempted murder just because you shoot a single bullet into a crowd not caring who you hit.
The theory instead applies when you attempt to kill a specific person in a crowd by killing everyone in the crowd. Throwing a bomb into a crowd, for example. You intend to kill X, but by killing X and everyone around him. Spraying automatic weapons fire into a crowd designed to kill X because it kills everyone else too. That's the proper scope of the kill zone theory. A theory that's inapplicable here. Ten shots aren't designed to wipe out the entire crowd of sixty. They may create dangers to sixty -- and for that, you might be liable (assault?) -- but that's not the attempted murder of sixty.
That seems right to me.
Mind you, I think it creates some very difficult line-drawing issues. Even the person spraying the assault rifle, for example, might say that he didn't "intend" to kill the crowd -- that was merely a byproduct of his attempt to kill X, so there's insufficient intent. Similarly, what do you do about the shooter who fires ten bullets into a tightly packed group of five? How do we decide whether this is a situation in which the shooter "intends" to kill X by killing all five or, instead, the other four are only "byproducts" of the attempt to kill X and hence there's no liability for attempt. I'm really unsure how we'd choose -- or at least choose rationally -- between these competing interpretations of the facts.
But the existence of an uncertain line doesn't necessarily mean there's not in fact a line. We don't know precisely how many hairs make a beard. But that doesn't mean there's no difference between someone who's bearded and someone who's clean-shaven. There is.
