Is footnote six of this opinion really correct?
The whole opinion (and concurrence) is about the "kill zone" theory of attempted murder. It's a criminal law professor -- and philosopher's -- dream, and Justice Corrigan's opinion is incredibly detailed. You'll learn a ton about the subject matter by reading the thing, and it's a multifaceted and complicated doctrine. So if you've got a couple of spare hours to read 70 or so pages of legal theory, seriously, I recommend the thing.
The only thing I wanted to talk about in detail, though, is footnote six. The present case involves a guy who had previously committed a murder who was being sought in a police manhunt. The police trace the guy to an apartment complex, there's a massive police presence while the officers spend an hour going door to door looking for him, and eventually two of the officers start searching a community building in the complex with several closed doors. They're concerned that the guy they're looking for might be hiding behind one of these doors, so just like in the movies, they're super careful when they start opening each of the doors. One of the officers stands way to the side, while another carefully stands to the left of the door and reaches across it to open the door, and when the door starts to open, the guy inside starts shooting -- exactly as the officers feared. The officers return fire and hit the guy, who eventually surrenders.
The shooter gets convicted of murder for the guy he actually killed, but also gets charged with two counts of attempted murder -- one for the officer who opened the door, who the guy was clearly trying to kill, and the other for the officer standing to the side, who the guy didn't even know about but who was arguably in the "kill zone" created when the shooter fired his shots through the door.
The question in the case is whether that second count -- the one based on the "kill zone" theory -- is valid.
The classic "kill zone" case has a ton of bullets shot into a group of people. You can learn more about this from Justice Corrigan's opinion, but the easiest hypo is when you're trying to kill X and X is standing in a tight group of 10 people and you blast your Uzi into the group, killing not only X (who you wanted to kill) but also Y and Z. Even though you were only "trying" to kill X, you're still guilty of intending to kill Y and Z because you deliberately created a "kill zone" around them.
The question here is whether firing three shots from behind a closed door creates similar criminal "kill zone" liability.
Justice Corrigan's opinion notes that most of the kill zone cases involve shooting tons of bullets into the kill zone; e.g., “21 shots into a small space enclosed on three sides." She holds that the three shots here were insufficient as a matter of law to create a "kill zone" on the outside of the door. Although the opinion contains the caveat that "we do not suggest categorically that a kill zone can never be created with a relatively small number of shots," here, the three shots the guy fired weren't good enough to impose kill zone liability.
That's the context in which footnote six appears. Which states, in its entirety:
"The Attorney General asserts Mumin [the shooter] did not shoot more than three rounds because he was wounded by the officers’ return fire. But the inference of intent to create a kill zone is drawn from what the defendant did and the amount of force actually used. While there may be a plausible explanation for why he did not fire more shots, it is not sufficient to argue he might have kept shooting and from that speculation infer that he would have intentionally created a kill zone. Canizales teaches we may only evaluate the intent to create a kill zone based upon the actual circumstances. (See Canizales, supra, 7 Cal.5th at pp. 609–611.)"
Hmmm. I'm not so sure.
It's facially difficult to argue with the general proposition that criminal liability must be "based upon the actual circumstances." But we're talking here about liability for attempted murder. It's an attempt. And for that crime, sure, we're always concerned about the "actual circumstances" of the crime, but we are also cognizant that what matters is not the "actual consequences" of the crime, but instead what was the defendant's intent regardless of what the actual reality was.
So if, for example, a person points a gun at you and pulls the trigger, they're clearly liable for attempted murder notwithstanding the fact that the "actual circumstances" were that, unbeknownst to the would-be shooter, there were no bullets in the gun. Their intent was to shoot the thing. They're liable.
For that reason, I'm not at all confident that footnote six is correct when it says that what we care about for attempt liability purposes is simply "what the defendant did and the amount of force actually used." What matters instead seems to me what the defendant intended to do and the the amount of force that he intended to apply. After all, the empty-gun shooter didn't actually fire a weapon, and the "amount of force" that he actually used against the victim was zero. But he's still liable for attempted murder.
Similarly, here, if it's true that the defendant intended to, say, empty all ten rounds in the clip against the officers, and the jury found that he would have in fact done so but for being shot in the interim by the police officers, then I don't know why his attempt liability couldn't reasonably be based on the 10 shots he intended rather than merely the three he successfully fired off. No different than the empty gun fact pattern, right?
Imagine, for example, that a guy has a set of explosives wired up to a plunger, with twenty people in the area, with the goal of killing one person (Jim) therein but knowing full well that the explosion will kill all twenty. To be dramatic, right before shoving down the plunger, the guy announces "I put TNT in the mailbox, and now I'm going to create a massive explosion to kill Jim," but this is overheard by a police officer who promptly shoots the guy. If the shot stopped the guy from pushing down the plunger, I have zero doubt that the guy would still be liable for attempted murder, at least of Jim. Similarly, if the shot only stopped the plunger from going all the way down, but it still went halfway down and thereby set off a tiny fraction of the explosives, killing only Jim, it seems to me that the guy still remains guilty of attempted murder of all twenty. That was his intent, and he in fact killed someone (Jim). What matters is not the amount of force in fact used, but rather the amount of forced intended, and what would have been the amount of that force but-for the unexpected police intervention.
So Justice Corrigan's opinion is incredibly detailed and coherent. But I wonder a lot about footnote six.
