When Is An Accident A Crime?: Mens Rea And The Case Of Innocent Conduct vs. Negligence vs. Recklessness.
See also: Jury Room Demonstrations And The Juror As Expert Witness: The Case of Officer Peter Liang
Officer Peter Liangs conviction in Brooklyn last week demonstrates how one person’s conduct can be interpreted as completely innocent or criminal in nature depending on how their mens rea or mental state is viewed in the larger factual context. The state of the law in New York regarding civil negligence, criminal negligence and recklessness is nebulous to say the least, and can quite easily be the cause of some consternation for a jury trying to apply the law to the facts of Officer Peter Liang’s case.
This case demonstrates the often-confusing difference between an accidental death and that of Criminal Negligence and Recklessness. The difference between these mental states is often the difference between no criminal charges at all, and the possibility of up to 15 years in prison. In this article, I will attempt to explain the differences in each of these mental states/ mens reas and give examples of New York case law that expose some of the flaws in the state of the law and in the outcome in this case in particular.
Facts Of The Case
New York City police officer Peter Liang was found guilty on Thursday, February 11th of manslaughter in the second degree and official misconduct in the fatal shooting of Akai Gurley.
On November 20th 2014, Liang and his partner officer Shaun Landau were on a vertical patrol in an unlit housing project stairwell in Brooklyn, New York. Liang claims he was startled by a noise and fired his weapon accidentally. The bullet ricocheted off the wall, hitting Gurley who was standing on the lower floor, killing him.
According to some reports, for several minutes after the shooting, Liang did not render assistance. His testimony was I was panicking. I was shocked and in disbelief that someone was hit. Liang said he had been holding his weapon safely, with his finger on the side of his weapon and not the trigger when the sound alarmed him I just turned, and the gun went off.
Prosecutors argued that Liang held his gun recklessly and acknowledged not helping Gurleys girlfriend try to revive him. Liang stated that it was wiser to wait for a professional medical aid.
Negligence vs. Recklessness
It is often difficult to distinguish Accidental Conduct versus Negligence or Recklessness when determining the mens rea or mental state of an action. Frequently, negligence and recklessness are a matter of degrees of the same actions, and the context of the actus reus (the actions of the accused) need to be considered to determine the level of culpability, if any at all. The various mens rea, or culpable mental states, are defined under New Yorks Penal Law 15.05 as follows:
Various Culpable Mental States In Penal Law Section 15.05
Culpability is defined as the responsibility for a fault or wrong; blame.
The culpable mental state means intentionally or knowingly or recklessly or with criminal negligence. For the purpose of this discussion, only the mental states of recklessly and criminal negligence are shown here.
The following definitions are:
- Recklessly: A person acts recklessly with respect to a result or a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in that situation.
- Criminal negligence: A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.
Both criminal negligence and recklessness require that there be a substantial and unjustifiable risk that death or injury will occur; that the defendant engage in that conduct contributing to that risk; and that the defendants conduct amount to a gross deviation from how a reasonable person would act. The single distinction between the two mental states is that recklessness requires that the defendant be aware of and disregard the risk while criminal negligence is met when the defendant negligently fails to recognize that risk. The underlying conduct, exclusive of the mental element, is the same when regarding these two statutes. People v. Asaro, 21 N.Y.3d 677 (2013). The two mental states are so similar in nature that it is easy to see how they can be confused and often difficult for a jury to apply to a set of facts. Although the distinction seems slight, the consequences of a jurys finding one or the other are significant because they carry vastly different penalties.
Elements Of The Crimes At A Glance: Legal Definitions
Criminally Negligent Homicide:
Penal Law 125.10 defines criminally negligent homicide as when, with criminal negligence, he causes the death of another person. Criminally negligent homicide is a class E felony and carries no minimum sentence, but a maximum of 4 years in jail.
Manslaughter In The Second Degree:
A person is guilty of manslaughter in the second degree under Penal Law 125.15(1) when he recklessly causes the death of another person.
Manslaughter in the second degree is a C felony and carries no minimum sentence but a maximum period of incarceration of 15 years.
Criminal Negligence vs. Civil Negligence: Criminal vs. Accidental
The definition of criminal negligence as stated by New Yorks highest court, juxtaposed to civil negligence, seems to be a contradiction in terms. The New York Court of Appeals holds that criminal negligence requires a defendant to have engaged in some blameworthy conduct creating or contributing to a substantial and unjustifiable risk of a proscribed result. In People v. Boutin, 75 N.Y.2d 692 (1990) the Court held that criminal negligence not only requires failure to perceive a risk of death, but also some serious blameworthiness in the conduct that caused it, nonperception of a risk is not enough, even if the proscribed result occurs. The New York Court of Appeals explanation of criminal negligence seems to beg the question, how can anyone engage in seriously blameworthy conduct when the very definition of negligence is that one is unaware of the existing risk and that he/she acted unintentionally. A look at the high courts definition of civil negligence is no more enlightening.
Civil Negligence
New York courts divide civil negligence into two categories: ordinary negligence (negligence per se) and gross negligence (also called willful negligence).
Ordinary negligence has been defined by the New York Court of Appeals as affording a reasonably safe standard for human conduct and the failure to exercise that care which a reasonably prudent person would have exercised under the given circumstances. People v. Grogan, 260 N.Y. 138, 146, 183 N.E. 273, 276 (1932). Conversely, gross negligence differs in kind, not only degree, from claims of ordinary negligence. It is conduct that evinces a reckless disregard for the rights of others or smacks of intentional wrongdoing. Colnaghi, U.S.A., Ltd. v. Jewelers Prot. Servs., Ltd., 81 N.Y.2d 821, 823-24, 611 N.E.2d 282, 284 (1993) Gross?negligence is used interchangeably with willful negligence.
As nebulous as the standards are for criminal negligence and civil negligence, the attempt to distinguish the two doesnt seem to make the matter any clearer. In People v. Conway, 6 N.Y.3d 869 (2006) the Court found that the carelessness required for criminal negligence is appreciably more serious than that for ordinary civil negligence and must be such that its seriousness would be apparent to anyone who shares the communitys general sense of right and wrong. Other than being appreciably more serious, there does not seem to be a clear distinction of what makes a persons actions punishable by jail time rather than merely subject to a civil lawsuit. It is easy to see how a jury would struggle with applying the law to a given set of facts.
Perhaps the Court will have better luck in distinguishing criminal negligence and criminal recklessness.
New Yorks Highest Court Weighs In On The Distinction Between Criminal Negligence And Criminal Recklessness
New Yorks highest Court has often grappled with the distinction between these two crimes and their respective mental states. The New York Court of Appeals cases interpreting manslaughter in the second degree and criminally negligent homicide often create more questions than they answer, as the Court has pointed out that criminal recklessness and criminal negligence may be but shades apart on the scale of criminal culpability. People v. Strong, 37 N.Y.2d 568 (1975).
In the case of People v. Montanez, 41 N.Y.2d 53, 390 N.Y.S.2d 861, 359 N.E.2d 371 (1976) the Court of Appeals made the distinction between negligence and recklessness: The Defendants awareness of the risk determines the degree of culpability, if he fails to perceive the substantial and unjustifiable risk of death inherent in his act, he is guilty of criminally negligent homicide (PL 125.10), but if he is aware of that grave risk of death and acts in disregard of it, he acts recklessly and is guilty of manslaughter in the second degree (PL 125.15(1). Although this seems somewhat clear, the Court of Appeals has also held that a person who acts with the recklessness necessary for a conviction on manslaughter in the second degree also acts with criminal negligence. People v. Randolph, 81 N.Y.2d 88 (1993).
The New York Cases Regarding Recklessness
Here is a small survey of New York cases where appellate courts found that a defendant acted recklessly in discharging a gun. Each of these cases are factually distinct from the case of Officer Liang because each of them contain some clear intentional act by the defendant that created the risk in addition to being aware of the risk that they had a hand in creating.
- Defendant was playing with a gun, pointing it at a clock in the room and clicking the trigger. The gun did not go off and, the eyewitness testified, she thought the gun was unloaded. The defendant then spun the barrel of the gun, looked into it, pointed it at the victim’s head, and shot him. Although in this case a jury could reasonably conclude that the defendant perceived and disregarded the risk (see, Penal Law 125.15[1], 15.05[3] ), thus fulfilling the statutory definition of manslaughter in the second degree, we cannot say that no reasonable view of the evidence would support a finding that the defendant was guilty of criminally negligent homicide, and not of manslaughter People v. Knowles, 186 A.D.2d 149, 150, 587 N.Y.S.2d 719, 720 (1992)
- Defendant aimed a loaded weapon into a crowded area and pointed it at a fleeing man with whom he had been fighting. He was warned by a friend not to shoot and gun discharged when his arm was bumped.?? Court of Appeals found that his actions were reckless. People v. Randolph, 81 N.Y.2d 868 (1993).
- Defendant removed a loaded revolver from his belt area, swung it across his body with his finger on the trigger, and allowed the barrel to point in the direction of another person, barely three feet away. Although the discharge of the weapon may well have been unintentional the actions of defendant were reckless. People v. Licitra, 47 N.Y.2d 554 (1979).
- Defendant was showing his friend a gun in the kitchen and the gun accidentally fired, fatally wounding his friend in the neck. Defendant was tried for manslaughter second degree and the prosecution argued that he recklessly threatened his friend using the gun. The Court of Appeals held that there was no evidence of a threat and that the gun accidentally firing does not meet the standard of recklessness. People v. Montanez, 41 N.Y.2d 53 (1976).
- Individual holding a shotgun could easily determine that it was loaded and defendant was repeatedly asked by the victim not to point the shotgun at him, but he ignored the warnings. The Court held that the jury was warranted in concluding that the defendant created a substantial and unjustifiable risk by persisting in his examination of the gun in close proximity to others. People v. Tallarine, 223 A.D.2d 738 (2d Dept. 1996)
- Defendant danced and posed with a loaded handgun in front of the decedent and two other teenagers while he was handling a gun and it discharged, killing the decedent. The court found that the evidence was legally sufficient to establish that defendant was aware of a consciously disregarded a substantial and unjustifiable risk of death. People v. Coley, 289 A.D.2d 252 (2d Dept. 2001).
- The fatal shot fired by defendant, into the victim’s back while the victim was fleeing, was reckless. People v. Colecchia, 251 A.D.2d 5, 6, 674 N.Y.S.2d 10, 10 (1st 1998).
Liang’s Case Does Not Meet The Standard Of Recklessness
I think each of these cases has a common thread: the defendant participated in creating a risk of death and then chose to ignore that risk. The nature of these cases seems markedly different than that of Officer Liangs. Liang was on patrol attempting to thwart crime; he was not blatantly waiving his weapon around unjustifiably creating a risk, but doing his duty. He didnt aim his weapon at anyone, the bullet ricocheted off of something before striking Mr. Gurley.
The results of this case were nothing short of tragic, as the loss of life always is. However, comparing the facts of Liangs case to those cases where recklessness has typically been found, the evidence seems to fall far short of demonstrating his participation in creating and then ignoring an unjustifiable risk.
Until the law in New York becomes clearer and creates more bright line rules for these types of cases, juries will continue to have difficulty in applying the law to a difficult set of facts, such as this one.