Depraved Indifference Murder
The count is Murder in the Second Degree.
(NY State Penal Law § 125.25 — Similar laws exist in every state)
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Under (NY State) law, a person is guilty of Murder in the Second Degree when, under circumstances evincing a depraved indifference to human life, he or she recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of that person [or of a third person].
A person recklessly engages in conduct which creates a grave risk of death to another person when he or she:
- Engages in conduct which creates a grave and unjustifiable risk that another person’s death will occur
- When he or she is aware of and consciously disregards that risk
- When that grave and unjustifiable risk is of such nature and degree that disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation
[However, reckless conduct that results in death is not enough to constitute this crime. Reckless homicide cannot be elevated into depraved indifference murder merely because the actions of the defendant created a risk of death, however grave or substantial that risk may have been.]
To constitute this crime, the evidence must also show that the defendant acted under circumstances evincing a depraved indifference to human life.
Depraved indifference to human life refers to a person’s state of mind in recklessly engaging in conduct which creates a grave risk of death.
A person has a depraved indifference to human life when that person has an utter disregard for the value of human life — a willingness to act, not because he or she means to cause grievous harm [to the person who is killed], but because he or she simply DOES NOT CARE whether or not grievous harm will result.
Depraved indifference to human life reflects a wicked, evil or inhuman state of mind, as manifested by brutal, heinous, and despicable acts. It is evinced by conduct that is wanton, deficient in a moral sense of concern, devoid of regard for the life or lives of others, and so blameworthy as to justify the same criminal liability that the law imposes on a person who intentionally kills.
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I would argue that interfering in the conduct of a hospital, conduct which prevents medical and EMS personnel from conducting their duties, and which thereby results in the death of one or more people, constitutes Depraved Indifference Murder.
The relevant phrase is: because he or she simply does not care whether or not grievous harm will result.
This is the obvious state of mind in evidence. These people are so intent on their political ends they absolutely do not care whether their actions result in the loss of human life.
Blocking the roads leading to a hospital, impeding the access of EMS ambulances, engaging in activities which interfere with the medical duties of hospital personnel actively contributes to the quality and immediacy of the medial care which is provided at that facility, and therefore contributes materially to any deaths which occur during the period of terroristic obstruction.
The U.S. Code of Federal Regulations defines terrorism as "the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives" (28 C.F.R. Section 0.85).
Actions which impede medical personnel in the performance of their duty and which result in the deaths of one ore more people — with the intention of coercing political and/or social policy — constitute terrorism under the law.
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I would argue that the actions being taken by the protestors are terrorism under law, are therefore felonious and, as a result, make them culpable for depraved indifference murder in the second degree for any deaths which occur at the medical facility at which they are interfering, whether those deaths are due to COVID-19 or not. Any death which occurs during the occupation is a death that occurs during the commission of a felony and applies.
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As a note:
Reckless homicide is a crime in which the perpetrator was aware that their act (or failure to act when there is a legal duty to act) creates significant risk of death or grievous bodily harm in the victim, but ignores the risk and continues to act (or fail to act), and a human death results.
Reckless homicide does not apply because the issue at hand is the unimpeded state of mind. Typically, reckless homicide occurs when the person is in an altered state of mind, intoxicated, etc.
The actions being taken by these right wing terrorists are specifically and politically intended to intimidate and, through the threat of violence (evidenced by the presence of openly carried firearms) influence social and political policy.
Thus the charge of Depraved Indifference Murder in the second degree.
As a final note: This charge would not apply when protestors are conducting actions at a state capitol, court house, or public square, etc. They would only apply when such actions impede medical personnel in the performance of their duties.