There is an interesting case out of Orlando that raises questions about the use of felony murder charges by prosecutors whenever there is a fatality in the commission of a crime. Kody Roach was charged with felony murder even though he never fired a shot and the victim, Maria Fernada Godinez, 22, was actually killed by a police officer.
According to reports, three officers were dispatched to the Vixen Bar after a bouncer reported to a 911 operator that “I have a gun-wielding maniac. He set it on the bar top and he wielded it many times. I had to throw him out.” While the bouncer was unarmed, he was able to remove Roach from the bar but when the first two officers arrived, Officer Eduardo Sanguino and a fellow bicycle officer, Jeff Angel, they said that Roach was at the bar’s locked door.
News reports state that “surveillance video obtained by Vixen Bar shows Roach dropping his gun after he was kicked out of the bar for carrying a gun.” However, that does not appear to be the account of the officers.
They say that Roach walked to the street “pointing his right hand at the officers,” and ignored commands to get on the ground. Instead, he began to walk back toward the bar. Angel fired his Taser but said that the taser had little effect due to Roach’s loose clothing. They say that Roach went for his waistband with his right hand, and according to the affidavit in the case:
“In order to prevent an armed individual from causing harm to any members of the public or to any of the surrounding officers, Ofc. Sanguino discharges his firearm nine times striking Roach at least five times.”
They say that when he fell, Roach dropped a .40 caliber Ruger handgun from his right hand — a stolen gun that was later found the gun to be unloaded. Only Sanguino appears to have fired any shots.
It was then that the officers learned that one of their bullets had passed through a hole and hit Fernanda Godinez.
The use of the felony murder charge has long been controversial in such cases, particularly because some have questioned why an unarmed bouncer could remove Rouch but three officers had to fire multiple shots to subdue him. We have previously discussed the sharp statistical difference between officer shootings in this country as opposed to other countries.
Roach however has not been charged in the stolen-gun case — a charge stemming from the disappearance of a weapon from a friend’s apartment after an argument. Notably, Roach has a criminal history dating back to 2009 that includes charges of battery on a law-enforcement officer, grand theft, violating probation and driving with a suspended license.
The Florida felony murder statute (like virtually all such statutes) does not require that the perpetrator pull the trigger or even know of or support the ultimate act. He is only required to have been engaged in a felony during which a life was taken. However, the law was designed with murders in mind that were caused by co-conspirators like a partner shooting a convenience store clerk. Here it was the police who killed the woman and Rouch had an unloaded weapon. Ideally, such cases are handled by prosecutorial discretion but prosecutors today radically inflate charges to force defendants to take tough plea agreements or face life in prison.
The officers clearly have a right to defend themselves and they may indeed be cleared of any wrongdoing. However, there remains the question of whether the death of this young lady should be charged as murder against Rouch. He is by no means blameless of course but the case raises the question of the reasonable limits (or any limits) in the charging of felony murder in such cases.
What do you think?
Kudos: Michael Blott
It’s not clear–or I missed it–whether the cop actually hit Roach or not. Regardless of the justification or not over a gun that could have been loaded, the idea of this officer just firing willy-nilly, hitting one of the other cops in the leg and shooting through the building to kill an innocent young girl, is disturbing. Was the gun too heavy for him? Had he ever actually fired it before? There’s certainly a degree of incompetence here, at the very least.
Am I missing something, or do some people think a police officer is able to stop time and reposition himself?
That’s what it would appear to be. It’s like time is a variable. You have 1/2 second to decide to shoot or be shot. You do your best to make sure you have a clear backdrop. You may even use hollow points instead of FMJ bullets (hollow points are less accurate, but also less likely to pass through walls). But guess what? Sometimes you don’t get that luxury. Sometimes there is an unseen person in your backdrop. Sometimes an innocent person gets killed…by accident.
It’s always easy to second guess the cop, the next day, from your living room chair. Dare I say that none of those who are complaining about the unseen woman getting hit by a stray bullet have ever had to make that 1/2 second decision. Nor have they any tactical training. They know from the movies. That’s the limit of their life experience.
Here’s what the cops know when they arrive on scene:
Caller said “I have a gun-wielding maniac.”
Roach walked to the street “pointing his right hand at the officers”
(Roach) ignored commands to get on the ground.
Roach went for his waistband with his right hand.
So. A reported “gun wielding maniac” ignored police commands to get on the ground, couldn’t be controlled by use of a non-lethal taser, and reached into his waist band with his right hand. The police shot him, justifiably in my opinion.
As to the question at hand, the question of the reasonable limits (or any limits) in the charging of felony murder in such cases, the law was written for a reason. Whether or not it is too severe was something to be decided while it was being written, not ex post facto after a perp has been charged.
Doubtless it’ll be pleaded down.
It goes without saying, unless one is pro-criminal, when the police ask you to stop, or to raise your hands, or to lie down, just do it.
“…some have questioned by an unarmed bouncer could remove Rouch but three officers had to fire multiple shots to subdue him.”
The man had a record of assault on a police officer, so he may well have had a grudge which would make him more agressive toward police than toward non-uniformed bouncers.
That being said, CBS News ran an interview with a police union representative who was defending Darren Wilson and asked if it was not better for the police sometimes to “just step back” The police guy said yes, that would sometimes be appropriate, but that “that is not in our nature.” My first thought was that perhaps it should be in their nature.
Jack,
When I was taught how to shoot (by former law enforcement no less) I was taught to always consider what’s behind what you are shooting at. A bar full of people doesn’t sound like a good place to shoot at.
As others and Prof. Turley have stated: the man was drunk and armed. But the unarmed bouncer got him safely out the door without shooting. There is considerable differences in the story the police are telling, and the news reports. I don’t know who is right. I do know that news reports get it wrong as often as police over-exaggerate the threat. So in this case, I’m left to fill in blanks that is easy to do on the internet and 1,200 miles removed from the scene.
He may have left the officers with no choice. But they should have considered that when they start pulling the trigger the bullets have to go somewhere. I also am well aware that officers can spend dozens or hundreds of hours practicing with firearms, and spend little to no time in conflict resolution and negotiation skills. I just Googled police academy curriculum and this is the first one I came up with:
Communication Skills 18 hours
Report Writing 26 hours
Use of Force/Defensive Tactics 68 hours
Arrest Procedures 16 hours
Firearms 71 hours
Physical and Emotional Readiness 25 hours
Patrol Procedures 74 hours
I’m not including everything so here’s the link: http://www.jccc.edu/police-academy/police-academy-curriculum.html
18 hours on communication skills, but 254 hours that focus on the arrest, force, firearms, and physical demands of the job. 18 hours of communication. And how much communication training is demanded to keep certification?
I looked at my home state, Illinois at the State Police officer training courses. Nothing on communication, negotiation, or de-escalation techniques : http://www.isp.state.il.us/academy/localtraining.cfm
This is a problem. Are police being taught to de-escalate a situation? Are they being taught that their first weapon of choice is their brain and communication skills? Are they being taught that a relaxed posture, calm voice, and basically every one of us non police would do when presented with a stressful and potentially dangerous situation would do is even an option?
My apologies to anyone who got through my rant. Have a good day and I promise no more of this. Today at least.
Sadly, the fact that the police will shoot multiple times and hit innocent people has become foreseeable. Nonetheless, the prosecutor has overcharged in this case.
Squeeky Fromm
Girl Reporter
JMJR,
Was anybody in the bar in reasonable fear for their life or serious bodily harm?
Did anyone else in the bar have a gun? (I’m assuming your answer would be YES due to your comment “that didn’t “cause” anyone to shoot then”. I have trouble with the concept that patrons and employees with a gun could have an option to not shoot if they didn’t have a gun to shoot with. On the other hand, I guess a 4 year old without a car can choose not to drive recklessly down the highway.)
@Jack: Of course the comment assumed that the bartender or someone else in the bar was armed. Not an unreasonable assumption, but admittedly still an assumption. You know, for purposes of discussion. To test a hypothesis. A hypothetical, if you will. You’re supposed to just run with that, rather than “varying the hypothetical”. That way we stay on topic rather than degenerating into endless digressions over extraneous and unresolvable issues.
Or, put another way. If, instead of calmly defusing what appears to be a very similar, if not exactly the same situation encountered by the police, the bartender had pulled out a gun, shot the mad several times and killed an innocent bystander by accident, would you still say that the suspect had caused the bartender to shoot?
You might argue the standard is different for cops and there may be good reasons for a double standard.
That would be more to the point, but you might stay on topic some other ways I haven’t thought of, too.
You’re welcome.
He had a gun. The police had no way of knowing whether it was loaded or not. He had brandished the gun at others. He reached into his waistband when confronted by the police. A gun dropped to the ground when he was shot. Shouldn’t be any issue with the police in this matter.
The bystander was killed, that’s terrible. Just awful. Had Jack’s conduct when approached by the police officers not required that they use their guns, she would still be alive. Is the charge too severe? Maybe. But nevertheless, his actions caused the police to shoot, so he is culpable.
@Miachael Haz: That’s just simplistic. His actions “cause” the police to shoot? If the bartender had shot and missed and killed someone else, would you make the same argument and exonerate the bartender?
Or, put another way, he pretty much did the same actions in the bar before the police arrived. If that didn’t “cause” anyone to shoot then, how does it somehow cause someone to shoot later?
Felony murder should be used sparingly and judiciously. IMO this is not a righteous use of it.
David, What does ordering a pizza have to do with anything? What does an area with lots of drunks have to do with anything?
Are the bullets from a drunk person more or less deadly than those from a sober person?
When I see someone claim the police “have a license to kill with impunity:, I know right away that person has no idea what they are talking about. Just like you and I, the police officer can only employ lethal force when in fear of imminent threat of death or serious bodily harm to himself or others. -The same “license” you and I have…the right of self-defense.
So, a guy reportedly has a gun. He is even beating on the door/window with that gun, and you want the officers to approach him and use king fu??? Man, you’ve been watching too many movies. That would possibly explain why you think the police officer, in the 1/2 second he had to draw a sight picture and do his best to have a clear background, should have known that someone was in the line of fire.
Will the police officer feel terrible about the woman being shot? Sure. He will second guess himself for the rest of his life. However, if he’s smart and decides to remain on the street, he must be willing to make the same call again.
Well, I suppose common sense tells you that this guy is dangerous and a perennial problem and might as well be in prison. On the other hand, the felony murder rule should be abolished:
http://strikelawyer.wordpress.com/2014/08/17/the-arizona-felony-murder-bootstrap/
In other words, I feel very strongly both ways.
David & Bailers,
I’m combining the response. So, if you see something that is not attributable to you, it might be the other guy.
Imagine this: You get a report of an armed maniac at a bar. When you arrive, you find the person meeting the description outside the bar. He is acting just as crazy as when he was in the bar. You give him orders. He won’t comply. (Remember, he reportedly has a gun.) You employ non-lethal force, but it has no effect. Then the suspect, not effected by the taser (which is the case in about 40% of taser use) reaches to his waistband. You have less than 1/2 second to decide what to do. If you choose wrong, you or your partner face death or serious injury. What do you do? –When looking at the totality of the circumstances, you fire. You have less than 1/2 second to acquire a sight picture. You fire until the threat no longer exists. If you don’t…well…you know the potential outcome.
Statistically speaking, only about 1 of 3 shots hits the target. Of those that hit, only about 1/3 has sufficient effect to eliminate the threat.
The bullet counters are always ready to second guess.
http://townhall.com/columnists/thomassowell/2008/05/28/the_bullet_counters/page/full
As the article states, one bullet went through a hole. Kind of hard to include that hole in your sight picture in less than 1/2 of a second. Hindsight might be 20/20, but real life isn’t.
While I don’t think a murder charge of any kind would result in a conviction. I do think a manslaughter charge would. If not for the actions of the suspect, no shots would have needed to be fired.
Jack, the man was drunk. He was on Church St. in Orlando which is known for lots of intoxicated people acting weird late at night. He had just ordered a slice of pizza outside the bar without incident. The bartender mentioned had no problem getting him out of his joint without incident. The police have a license to kill with impunity and knowing that, one officer here overreacted. Based on how others were able to interact with the man, they could have easily walked up to the man and taken his gun from him. We especially know this is true when we learn that the gun wasn’t even loaded. While the police did not know that, the man did, so I doubt he was using the gun in a lethal way. Instead, he was a stupid drunk man. He reportedly beat on the locked door with the gun. Why couldn’t the police just come up behind him and grab him? Maybe he deserved to be shot, but the girl who was killed sure didn’t. It was the policeman who caused her death. That will probably haunt him for a long time even if he is not charged. The problem is that the police are just going to continue to overreact this way if somebody does not start protecting us from the police. Maybe they should train the police in kung fu or other martial arts so they learn how to disarm drunks rather than having their first reaction being to shoot them.
Dave,
Playing devil’s advocate here, can we really hold someone responsible for the actions of others when the force they use isn’t necessarily appropriate? There’s some missing parts here that could help explain the nine shots, but at a minimum, I’d like to know if these officers were taught about watching their backdrop when choosing to shoot.
Even if this criminal is legally responsible, the officer is morally responsible for killing an innocent woman by not being more disciplined in discharging his firearm. I wonder what the legal responsibility would be if this shooting happened with a concealed carry holder who fired and killed someone inside the bar. Shouldn’t that be the standard?
“The officers clearly have a right to defend themselves and they will indeed be cleared of any wrongdoing”
There, fixed that sentence for you.
An interesting case with two issues. Number one the training of the police and number two the use of charges by prosecutors that don’t fit the case. The first is more in my area being a former army officer with combat experience in Vietnam. In my opinion it is the responsibility of the military or civil authority to act responsible and not play cowboy. If they are not capable of properly evaluating situations then they make things worse as in this case. The responsibly rests on the police or military person for they are the one that signed up for the job and they have the responsibility for the situation they find themselves responding to.
Interesting how Roach is shot five times and lives, but the one stray bullet kills the girl. This police officer apparently needs more time at the firing range.
I think it is totally inappropriate to charge Roach with the homicide. Charge the police officer with manslaughter. That is the only way to stop these overly aggressive police officers.
Unarmed bouncer avoids any killing while dealing with Roach … Police show up and bullets fly I am afraid of police… who are a threat to me every day …. in unexpected ways
Rouch created the situation that led to the unfortunate misfire. He should be held responsible at least in part.
“Help, it’s the police!”
(FT – “Forward Into The Past”)
This is just like the guy “acting erratically in the street” in Times Square where bystanders were hit when the police opened fire in the crowd. He was charged with assault. But NEVER in any of these discussions is the question “Did the officer NEED to fire his/her weapon?” ever asked.