On November 23, 2020, a fifteen-year-old boy was gunned down by five Oklahoma City police officers, after he exited a convenience store and dropped the gun that he and a sixteen-year-old partner had earlier used to rob the store’s owner. Initially, the boy’s non-present partner was charged with first-degree (felony) murder for this killing. But after months of efforts by the boy’s mother and local activists, the district attorney also charged five officers with first-degree manslaughter for this same killing. This case raises the question of whether Oklahoma—or any American state—can convict a defendant of felony murder based upon a killing that was a criminal homicide by a police officer. More broadly, it raises the question of whether a felony “participant” can be convicted of felony murder based upon a killing by a “nonparticipant,” who killed while resisting the underlying felony. Killings by “nonparticipants” include killings by responding police officers, as well as by bystanders and victims of the original felony. This is the first Article to address felony murder liability for homicides by nonparticipants. This Article presents a fifty-state survey of American law that determines which states maintain a traditional approach to felony murder (not requiring any culpable mens rea regarding a killing arising from a covered felony), which states are “agency states” (that limit felony murder to killings by participants), which are “proximate cause states” (that allow felony murder convictions for killings by nonparticipants), and which proximate cause states would potentially allow felony murder liability for a criminal homicide by a police officer, bystander, or victim. This Article maintains that even states that have adopted a broad proximate cause approach to felony murder should prevent such liability for killings by nonparticipants that are chargeable homicides and proposes some statutory and doctrinal approaches for doing so in a principled way.

2020 年 11 月 23 日，一名 15 岁的男孩在离开一家便利店并将他和一名 16 岁的伙伴早些时候用来抢劫商店的枪掉在地上后被五名俄克拉荷马城警察枪杀所有者。最初，男孩的不在场的伙伴因这次杀人被指控犯有一级（重罪）谋杀罪。但经过男孩的母亲和当地活动人士数月的努力，地方检察官还指控五名警官因同一起杀人罪犯有一级过失杀人罪。此案提出了一个问题，即俄克拉荷马州或任何美国州是否可以根据一名警官的刑事杀人杀人罪来判定被告犯有重罪谋杀罪。更广泛地说，它提出了一个问题，即重罪“参与者”是否可以根据“非参与者”的杀戮而被判重罪谋杀罪，”谁在抵抗潜在的重罪时杀人。“非参与者”的杀戮包括响应警察的杀戮，以及旁观者和原重罪受害者的杀戮。这是第一篇解决非参与者杀人罪的重罪谋杀责任的文章。本文介绍了对美国法律的五十个州的调查，该调查确定哪些州对重罪谋杀采取传统方法（不要求任何因受保护的重罪引起的杀人罪的犯罪意图），哪些州是“代理州”（限制重罪）从谋杀到参与者杀人），这是“近因状态”（允许对非参与者杀人的重罪谋杀定罪），并且近因状态可能允许对警察、旁观者或受害者的刑事杀人罪承担重罪谋杀责任.