Unreasonably Foreseeable To A Drunk

It’s not mere chance that so much bad law comes out of Nassau County, New York. The former District Attorney, Kathleen Rice, planned to ride her drunk driving crusade all the way to Washington, and she did. With the blessing of those who were only too happy to ship her out of town.

But we’re still cleaning up the mess she left behind, including the misbegotten prosecution of James Ryan for the bizarre death of Police Officer Joseph Olivieri.  At Fault Lines, Ken Womble provides the backstory from the Appellate Division, Second Department’s decision reversing the dismissal of homicide charges:

According to the evidence presented to a grand jury, on October 18, 2012, before dawn, the defendant allegedly caused two collisions when he drove his car on the Long Island Expressway while he was under the influence of alcohol. In the immediate aftermath of those collisions, the defendant’s stopped vehicle was in the eastbound High Occupancy Vehicle (hereinafter HOV) lane, facing perpendicular to the direction of traffic. Within a few minutes, a police officer responded to the scene. While the officer was standing near the defendant’s stopped car, he was struck and killed when the driver of a sport utility vehicle traveling in the HOV lane did not see him or the defendant’s stopped car in time to avoid hitting them.

Unlike federal law, New York allows a defendant to move to dismiss charges in an indictment for legal insufficiency. The trial court tossed charges against Ryan based upon the disconnect between his conduct, drunk driving, and the death of Olivieri. The appellate court reversed.

There was never any doubt that the Nassau County District Attorney’s Office was going to charge Ryan with driving while intoxicated. DWI charges are kind of their thing.  What surprised a number of people, including Mr. Ryan’s defense attorneys, was that the DA’s Office was able to obtain an indictment for far more serious charges.

The prosecution’s theory was premised on the “but for” argument for culpability. There was no question that Ryan drove drunk.  There was no question that Ryan did not drive the car that killed P.O. Olivieri. There was no question that Olivieri was killed. But for Ryan’s drunk driving, Olivieri wouldn’t have died. Easy, right?

The law is not that easy. The law is never that easy.  Judges often write sentences that seem to be clear in their simplicity, but the trained eye of a lawyer knows to dig deeper to find the actual legal meaning.  In this particular decision, the digging begins at People v. DaCosta and People v. Matos. These cases along with People v. Kibbe provide actual examples of the line between accident and homicide by showing just how far New York courts have been willing to attenuate causation.

The question of culpability is pretty straightforward when the defendant is the individual who did the dirty deed, in this case struck and killed Olivieri. Except that wasn’t the case. It’s not that the defendant was pure as the driven snow, at least from a distance, as he did drive drunk, and drunk driving his been vilified to the point of being tantamount to murder in itself.  You gotta give MADD props.

But as Ken says, it’s a matter of attenuation. How many steps away can a defendant be before his wrong can no longer be deemed responsible for subsequent harm committed by another?  The driver who killed Olivieri had an accident, an act of negligence at best.  One is supposed to remain sufficiently aware of the fact that there may be someone, something, in the road ahead, so that you don’t drive your car into it or him.  That someone died is a tragedy, but that a tragedy occurred doesn’t make it a crime.

But it is not the causation between Ryan’s intoxication and the accident that is at issue. It is the causation between the accident and the death, 5 to 10 minutes later, of Officer Olivieri.

And while it may not be so easy to connect Ryan’s wrongdoing with Olivieri’s death, given the intervening act of negligence by the driver who actually killed the officer, it’s similarly not too hard to connect the dots.

As one commenter to Ken’s post wrote:

To put it simply, but for the alcohol, would he have caused the crash? If yes, but for the crash, would the cop have been there to get hit?

While I can understand a multiple step causation test being problematic in light of the precedents you cited above, it’s not like a cop attending a crash is an unlikely event for a drunk driver to consider. Does the probability of what the second hop is figure in at all?

And another wrote:

I don’t think it’s too much of a stretch to foresee that driving while intoxicated will lead to traffic accidents, and that deaths may result from said accidents. That seems like common knowledge to me.

And it’s true that the devolution of causation of harm has become “common knowledge,” that we have been skipping down the path of act to consequences with such fuzzy glasses that we no longer get too bent by the number of steps, of assumptions, of fortuitous events, between the conduct committed and the eventual harm attributed to it.

As Mark Draughn, the WindyPundit, replied in a comment for those who require concrete examples of how concepts apply,

What if it wasn’t a DWI? What it it was speeding? Or right turn on red where not allowed? An equipment violation? Illegal parking? In all those cases, it would not be unlikely event for a cop to stand alongside the car, and he wouldn’t be there but for the violation. What’s the principle here? That whenever a cop gets struck and killed we pin a murder on whoever made him get out of his patrol car?

And where does it stop? If one of the police witnesses in Ryan’s trial gets killed in a car accident while driving to the courthouse — which but for Ryan’s alleged DWI, he wouldn’t be doing — does Ryan get hit with another murder charge?

Windy goes after the vilification of drunk driving, which has become the equivalent of shooting a bullet into a crowd, to make a point. But even if it wasn’t just about the commonly accepted inherent evil of drunk driving, what if Olivieri wasn’t killed, but merely winged, and then taken away by ambulance, which was t-boned by a big rig, resulting in death? What if Olivieri made it to the hospital, but then killed by medical malpractice? See how the game of attenuation gets played?

Criminal culpability can be extended to pretty much anything based upon how liberally one views reasonable foreseeability. This is the butterfly theory of crime, where one bad act gets blamed for all consequential harms that could arguably flow from it. But the crime Ryan committed was driving drunk.

That Ryan, as a drunk driver, might crash into a car is a direct consequence of his conduct. But if his culpability doesn’t end with the direct consequence of his actions, if his culpability covers the attenuated intervention of forces beyond his control, then he could be held criminally liable for pretty much anything.

The only remaining question is whether “common knowledge” would have any problem with that, since every tragedy, particularly one involving the death of a cop, seems to demand that someone be criminally culpable.  And we do so hate drunk driving.

15 thoughts on “Unreasonably Foreseeable To A Drunk

  1. Jay

    It’s true that legislators, judges, and prosecutors go wild for strict liability for the intoxicated. But I’d remind you that vehicular manslaughter works on the same basic principles without intoxication. The only difference at least where I practice is vehicular manslaughter is a misdemeanor if you’re sober. The other rule at play here is that if someone dies, someone has to be punished, at least as far as vehicles are concerned. Civil liability is unrelenting and cruel. Criminal law, if you read your Holmes, is supposed to be concerned with culpability. Culpability, the extent to which what a person did is wrong and shows them to be lacking wholesome morals, has nothing to do with liability- which simply assigns fault for everything that occurs to someone (occasionally God). The moment the common law began permitting manslaughter prosecutions in cases where people died due to the accidents caused by the unfortunate, it set all of this in motion.

    Intoxication is a different issue. An intoxicated person is presumed to have the mens rea required for whatever law they are alleged to have broken. That’s totally insane, but not the same issue you’re raising regarding the potential madness of allowing civil tort to further become criminal law.

      1. Myles

        I took your comment as a challenge, so my plan was to explain Jay’s comment. I’ve now read it three times, and while I have no clue what he’s talking about, I have a headache. I blame you.

  2. EH


    Not only is this result legally problematic for all sorts of reasons as you describe, but it is factually idiotic.

    Most drunk drivers don’t get pulled over. Hard to know for sure but I’ve seen estimates from 1/10 to 1/100.

    Out of those who get pulled over, those who have a cop get killed while standing by the side of the road are a tiny, tiny, fraction. (National Law Enforcement Memorial Fund stats show “struck by vehicle” deaths at TEN in all of 2014. This undoubtedly includes some non-highway-stops.)

    In 2014, there were more than a MILLION DUI stops. Even if you assume all ten deaths were DUIs, that’s less than a 1:100,000 chance of an officer getting hit in a DUI stop… and it’s even less likely with respect to the underlying offense, since most DUIs don’t result in stops at all.

    Even if we judged people on foreseeable risk, how can a “less than one in 100,000” risk be foreseeable?

    1. SHG Post author

      Meet the new world. All tragedies are foreseeable if you just tilt your head a bit and squint.

      Your analysis was offered to the court in the Heidgen case, that it is not reasonably foreseeable that driving drunk could result in a fatal crash because millions of people drive drunk and make it home to sleep it off. The Court of Appeals rejected it. Brave new world.

  3. Eric Christenson

    How about this one for extended liability:

    (well, yes it is a link, but I think you’ll find it interesting and won’t mind)

  4. KP

    “”That whenever a cop gets struck and killed we pin a murder on whoever made him get out of his patrol car?””

    So if I’m driving and get stopped by a cop in case I’m carrying drugs, or a large stealable amount of cash, or an illegal immigrant, and the cop gets run down in a similar accident….

    then I’ll be liable for his death because he stopped me of his own violation??

  5. maz

    So, should Ryan claim entrapment, since Olivieri, by the act of stopping him, caused him to commit a crime he otherwise would not have been likely to commit? (Admittedly, Ryan *had* committed a crime — just not the one resulting from the traffic stop.)

  6. Bartleby the Scrivener

    So according to the logic of the original court that ruled on this, the story of the horseshoe nail is just the beginning when it comes to finding criminal liability?

    Yeah, remind me never to go anywhere near their jurisdiction.

  7. mb

    You used to be able to explain the concept of proximate cause with the extreme example that Josef Stalin’s mom wasn’t responsible for Communist oppression, with confidence that whoever you were explaining it to would agree that she wasn’t.

    But in a culture of lawlessness, people have to check to see if it’s racist to agree with that before they let Mrs. Stalin off the hook.

  8. Marc R

    I see this as more of a felony-murder rule charge, if the DWI had any enhancements to make it a felony. The reckless parking (a ticket, not even a misdemeanor) argument is a tort argument, and the only criminal analogue is a negligent manslaughter or perhaps with a stretch a 3rd degree charge. While both serious charges, it’s a different magnitude from Man and M3. The other charges were gratuitous and the parking wasn’t any type of justifiable lesser-included.

    I think the “how far removed” tort issue you discuss equally applies to culpable careless or reckless criminally unlawful deaths, as it does to F-M1. Take discharging a firearm, receipt of stolen property, or attempted burglary (where the predicate felony or overt act enhancers were all acquitted) convictions and then a homicide conviction. Perhaps an objective or at least easily articulated description of how the crime occurred, per the verdict form, that explains how that crime is logically connected to the cause of death should be an element.

    Parking the car poorly didn’t kill anyone. He didn’t pull a gun inviting deadly force or create a need for such pursuit that adequate breaking for an improperly parked vehicle was impossible. If he hit and killed the officer while being pursued for fleeing and alluding…but that’s not what happened.

    Perhaps looking to felony-murder relationship to the attached felony is better than applying a tort analysis for murder which would be an intentional tort whereas negligence is more akin to the similar manslaughter equivalent .

    1. SHG Post author

      What is interesting (in the same way a train wreck is interesting) is watching people struggle to find some way to rationalize the sense that there has to be some level of attenuated culpability, but this goes too far. So where is the line and how can a cognizable rule be drawn?

      Felony-murder doesn’t help, as there was no murder (death, but by negligence) even if there was a felony. The tort concept of proximate cause seems closer to the mark, but still allows multiple inferential leaps and leaves criminal culpability up to the vicissitudes of what a judge or jury perceives as reasonably foreseeable, which would fail to satisfy due process for lack of notice.

      The rule of inferences, that a jury can draw a reasonable inference from a proven fact, but cannot draw inference upon inference, might offer the best test of how attenuated the consequences can be before a defendant is no longer culpable for them.

      In a case like this, the illegal conduct was drunk driving, committed when Ryan, while intoxicated, drove a car. The culpability would extend to Ryan, driving drunk, striking another car. The crash would be negligence, but for the drunk driving, and the rule would make him criminally culpable for it. But what flows from the crash would extend too far out for criminal culpability. The death of Officer Olivieri is well beyond the level of attenuation for which Ryan could be culpable based upon the volitional conduct of drunk driving.

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