No Narrative Will Bring Fanta Bility Back (Update)

I’ve seen the argument. I’ve made the argument. When it’s applied to a specific set of facts, a particular individual, it’s a damn fine argument. But as a general proposition, it doesn’t work.

Growing up on the South Side of Chicago, I’ve seen my classmates carry firearms to keep themselves and their families safe from harm. And I later represented some of those same individuals in court—being prosecuted for firearm possession—when I started work as a public defender.

It is unequivocally true that some people in the street carry illegal concealed guns for protection. But whom do they need protection from? No, it’s not the cops. They know better than that. It’s from the other guys in the streets with guns, the ones nobody wants to talk about because it spoils the pretense of innocence that makes for a much more empathetic narrative than the real one, that some people carry guns for defense and others to prove their power, get their way, rid themselves of their enemies.

Is this a slur on the narrative? Not for 8-year-old Fanta Bility.

The shootout took place just before 9 p.m. a block from the stadium, as the officers were reportedly running crowd control after Academy Park High School’s season-opening game.

According to an arrest affidavit, Ford and Strand were on opposite sides of a conflict between two groups of teenagers as they left the football game. What they were fighting about is unclear, but witnesses said Ford lifted his shirt as the argument escalated, revealing a handgun.

Strand went to a nearby car and allegedly pulled out a 9mm pistol. The two began firing at one another, striking and injuring an unidentified victim, police said.

What this was about is unknown, and likely not particularly relevant. Ford had a gun, and for whatever reason, decided it was worthwhile to shoot at Strand at a high school football game where there were lots of people. Maybe Ford would argue that he only had the gun because of his need for protection, but he pulled it first and he shot.

Had Strand’s gun been in his waistband and he returned fire, he might have availed himself of self-defense if he shot Ford, a defense that’s oddly on a lot of people’s minds at this Rittenhouse moment. But he didn’t. If he was able to get to his car to retrieve his gun, then self-defense isn’t going to fly. He could have driven away instead, but he chose to get his gun and fire back. At the same high school football game. With a lot of people around.

The three officers then drew their weapons after Strand allegedly shot in their direction, police said. A car turning onto the street—occupied by two 19-year-old women, both alumni of the school—was caught in the subsequent crossfire.

As bullets struck the vehicle, the women in the car were cut badly by shattering glass, according to authorities. Other shots went beyond the car, striking Fanta and her sister, who were leaving the stadium, as well as two others.

Third-grader Fanta died. Her sister and the others were injured. They were likely struck by bullets from the police, who were firing either at the car under the mistaken belief that it was involved in the shootout or past the car at Strand or Ford or whoever was engaged in a shootout. This was one of those scenarios where little is clear except people are shooting at each other. The cops did what seemed in the chaos of the moment to be their job, shooting to stop the shooter(s) who put other people’s lives at risk.

And Fanta Bility was shot and died, for which Ford and Strand are charged with felony murder.

At Reason, Billy Binion argues that the problem here is the charges against Ford and Strand.

Two Pennsylvania teens are staring down first-degree murder charges after a bullet killed 8-year-old Fanta Bility outside of a high school football game in August this year.

Neither Angelo “A.J.” Ford, 16, nor Hasein Strand, 18, fired that fatal shot. A police officer did, but the two teens were charged under the concept of transferred intent, which allows the state to prosecute someone for a crime he didn’t technically commit if it happened during the commission of a related offense.

While it’s unclear why “transferred intent” is mentioned in a straightforward felony murder indictment,* his issue is why the two guys engaged in a shootout that drew a reaction from police would be charged when it was a cop’s bullet that killed Fanta. The concept of felony murder is often criticized for this reason, that it’s one thing to charge a person for the outcome they directly caused, but not for the outcome caused by police in reacting to their conduct.

If you leave out some of the unpleasant details preceding the killing of Fanta Bility, this narrative carries some weight.

The charges against the two teens have revived an under-the-radar debate about the doctrine of transferred intent, a controversial approach that some say grants the state too much latitude to sweep people up in prosecutions for crimes they did not commit. That’s complicated here by the fact that the actual shooter in question was another agent of the government.

There are a great many factors that could alter the equation, from cops using deadly force when it wasn’t justified that ended in an innocent bystander’s death to cops being reckless without connection to the underlying crime. Think of the police rushing to respond to a relatively insignificant 911 complaint running down an innocent person in the street on their way. Think of the target of the 911 complaint being charged with murder for the cops’ running the person down. There’s no direct connection. No foreseeability. No basis to argue the person should have seen it coming.

But here? Ford and Strand decided that a shootout at a high school football game was what they were going to do. They had guns. No doubt they would have said the guns were only for self-protection, except that they were shooting at each other. The cops did what cops are supposed to do, try to end the shootout.

And Fanta Bility is dead, and others are injured, and this is not the scenario that either makes us feel empathy for people carrying unlawful weapons just for their own protection or the wrongfulness of the felony murder rule making a shooter culpable for the death of a child killed by a cop who was trying to end the shootout. This is the case that reminds us why these rules arose in the first place.

*Update: It appears that Billy Binion was right about transferred intent and I am wrong about felony murder, for which the predicate offenses are limited under Pennsylvania law:

The act of the defendant in engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.

Apologies to readers and Billy Binion, and thanks for Judge Dwyer for pointing out my mistake.

18 thoughts on “No Narrative Will Bring Fanta Bility Back (Update)

  1. JR

    Ford and Strand were on opposite sides of a conflict between two groups of teenagers as they left the football game. ….Strand went to a nearby car and allegedly pulled out a 9mm pistol. The two began firing at one another, striking and injuring an unidentified victim, police said.

    This is a textbook examples of Daniel Moynihan’s The Negro Family: The Case For National Action.

      1. JR

        Almost 70 % of black children today are born to single mothers where as in 1965, it was 25%. Yes, much has changed since then, and ignoring the timeless truths of the contribution of the intact family to society at large made these things exponentially worse. Refer to writings of Thomas Sowell, Walter Williams, etc

        Stop blaming cops for black deaths. Go to where it all started. This isnt that difficult.

        1. SHG Post author

          Cops are to blame when cops are to blame, and not to blame when they aren’t. If you don’t think it’s difficult, then you don’t think.

  2. Jake

    Probably tangential, but while it’s true, no narrative will bring Fanta back, I can’t help but observe one narrative might give her family a smidge of solace in the form of an economically meaningful civil judgment. Unless the authorities get yet another layer of protection from civil responsibility after firing into a crowd with callous disregard for innocent lives by shifting the entire criminal liability to Ford and Strand.

      1. Jake

        An exchange of bullets in a crowd is bad. An exchange of more bullets in a crowd is worse. You may find these facts controversial, I do not. Particularly since I learned from you, the cops do not have an affirmative duty to do anything.

        1. Paleo

          The cop at Stoneman Douglass exercised his choice to do nothing. How’d that work out for him? If the cops in this case did nothing and several people had been killed nobody would be celebrating their judgement.

          The cops were arguably incompetent but they didn’t commit a crime. I agree it would be nice if her family had meaningful civil recourse.

          Ford and Strand committed a crime that lead to the death of that little girl. Did they commit murder? I don’t know.

          1. SHG Post author

            There is a point to the felony murder rule that’s often misapplied. This just wasn’t an example.

            Had the shootout taken a dozen bystanders, with cops standing there, there would rightfully be condemnation of their failure to act (legal obligations, notwithstanding). There’s a potential for failure either way, but we keep creating lose-lose situations for cops and can’t keep making excuses for it.

          2. LY

            it would be nice if her family had meaningful civil recourse

            No it wouldn’t. It would be nice if their little girl hadn’t been killed. Aside from that there is nothing that can make it right or even alleviate the pain and distress they must be feeling. Unfortunately all we as a society can do is seek to punish those we hold to be responsible for the tragedy.

            Not smart or knowledgeable enough to have a valid opinion on whether the charges are appropriate in this instance so I won’t get into that.

  3. Drew Conlin

    I don’t possess the wisdom to make some profound comments on how this should play out.
    I do know that it’s very sad, a kid, having fun at a high school football game is shot to death.
    In the Detroit area and likely other places at one time they stopped having fans at high school games and sometimes played them in the morning.

    1. SHG Post author

      It was a football game here. It could have been a party, a club, a “contested” street corner, any one of a million other things.

  4. B. McLeod

    This is probably one of the better cases to assert felony murder. Urban centers are becoming large, open-air shooting galleries, and if society wants that to not be acceptable, strong measures must be taken against it. The felony murder doctrine suffers from the flaw that it punishes an outcome rather than specific conduct, but it is a lawfully available alternative to tactics like random, unconstitutional searches. The “agent of the state” criticism here seems particularly misplaced given the police gunfire is often the direct cause of death in felony murder cases.

    1. SHG Post author

      Exactly. This was a shootout. If every a situation gave rise to the outcome of death being reasonably foreseeable, it’s a shootout.

  5. Robert Parry

    I read Binion’s article and found some things occluded in the usual froth of Reason foment. Thanks for bothering to find and relay the details that were inconvenient to Reason’s tale.

    1. SHG Post author

      Binion has an unfortunate tendency to be very agenda driven. That, combined with his lack of legal acumen, leads him to take occasionally misguided shortcuts to his conclusions.

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