kellybeatingvideo [Editor’s note: Mr. Cabaniss is an attorney from Kelseyville, CA. He has worked as both a public defender and a prosecutor. Listen to the Sept. 1 interview with him on Greater Long Beach Radio with Dave Wielenga]

Was Kelly Thomas murdered by the six Fullerton Police Deparment officers who beat and tasered him on July 5?  Or would a charge of manslaughter be more appropriate?  Under the law, the facts of each case are looked at to determine the appropriate charge.  To analyze the legal options  available to Tony Rackaukus, the Orange County District Attorney who will determine whatever charges may be filed against all or any of the Fullerton police officers who beat Kelly Thomas, it is necessary to hypothosize.

For that purpose, then, let us assume that the general consensus of media reports of the Kelly Thomas case are true: that six Fullerton Police Department officers began beating a man, continued beating him even after he was helpless, and ended up beating him to death.

If that were so—if this were basically a case of a gang beating that got out of control, and if the killing was unintentional and unplanned—then there would be two obvious ways to prosecute the killing: as involuntary manslaughter, or as felony murder. (Voluntary manslaughter isn’t really applicable to this fact situation, as it is meant to cover “heat of passion killings,” such as catching your spouse with another, etc.)

Looking at the facts as I have just stated them—that this was an unintentional killing coming from a gang beating that got out of control—it is my belief that this case would more properly be charged as a felony murder than as an involuntary manslaughter.

One definition of involuntary manslaughter, possibly applicable to these facts, is unintentionally killing someone while doing something lawful, but in an unlawful way—a situation legally described as, “without due caution and circumspection.”

Example: a barber gives a shave while simultaneously engaged in a telephone argument with his girlfriend. Not paying attention, he accidentally slits the customer’s throat, killing him. The barber could be convicted of involuntary manslaughter.

kellythomasbefore In the Kelly Thomas case, Rackaukus could say (and indeed, has said) that he has seen no evidence of intent to kill. Furthermore, Rackaukus might come to believe that the police were doing something lawful—arresting someone, but in an unlawful way—by using excessive force. The case could then be charged as involuntary manslaughter, the least serious form of homicide. If a few months later the police were to plead guilty to involuntary manslaughter for a light sentence, the whole mess might go away.


In the Kelly Thomas fact situation, the big problem with an involuntary manslaughter charge is that it would depend on what may well be an extremely flimsy verbal sleight of hand—asserting that the police were “doing something lawful,” in this case, “arresting someone.” But depending on how the facts turn out, this may be simply a naked assertion, a quick and bland misstatement of the facts, an approach that could be used in any murder case.

Example: You are a lawyer, and your client is charged with felony murder for accidentally shooting some guy while waving a gun around during a bank robbery. You argue (with a straight face; that’s why you get the big bucks) that your client is actually only guilty of involuntary manslaughter, since he was doing something lawful (withdrawing money from a bank), but in an unlawful way (while carelessly waving a gun around).

Do you think this argument will be a winner with the jury? The key to the analysis is whether the accused was doing something lawful in the first place. kellythomasafter

Going back to the Kelly Thomas case: were the police actually doing something lawful—arresting someone? Assuming that the accounts of witnesses that have appeared in the media are true—that the police kept beating Kelly Thomas even after he lost consciousness—then at that time they were no longer making a lawful arrest, if they ever they had been.

Instead, a more accurate characterization of what they were doing was committing (at minimum) a gang battery, which battery got out of control, unintentionally killing Kelly Thomas.

An alternative definition of involuntary manslaughter is an unintentional killing arising out of misdemeanor criminal conduct.

Example: you are in a bar fight that’s taking place out in the parking lot. You hit the guy one time—with your fist, on the jaw, fair and square. Unluckily for you (and him), he falls and hits his head on the curb and bleeds to death before an ambulance can arrive.

This is a textbook case of involuntary manslaughter, because simple battery is a misdemeanor offense.

As should be obvious from the preceding example, it would be almost impossible to characterize what happened to Kelly Thomas as simple battery. Instead, the 6-on-1 police beating of an unconscious man, leading to severe bodily injuries, could be characterized as any of a number of different felonies: battery with serious bodily injury, mayhem, (basically maiming, cutting off, or rendering useless or permanently and severely impaired, a part of the body) or torture, as examples. Any of these felony charges would, coupled with Kelly Thomas’ subsequent death, serve as the predicate felony for a felony murder case.

What exactly is felony murder? Any death that arises out of the commission of certain dangerous felonies—and in California, all “inherently dangerous” felonies amount to felony murder. Again: a death is felony murder when the death arises from a felony. There does not have to be any intent to kill; it is irrelevant; luckily for the district attorney who perhaps needs political cover for prosecuting police officers, the death is still legally murder.

Example: You have kidnapped someone. You don’t want to hurt him—you merely want the ransom money. While you are driving down the road, the victim is bound and blindfolded in the back seat of your car. Somehow, he gets the door open and jumps out while the car is going 50 miles an hour. He dies.

You are guilty of felony murder because the death arose out of your felony—kidnapping, which is a dangerous crime. You are not merely guilty of murder; you are guilty of first-degree murder. Your lawyer isn’t even allowed to argue that there is no evidence of intent to kill; the judge won’t let him, because such evidence is irrelevant.

An actual illustration of felony murder: in a recent California case, People V. Wilkins, a burglar was driving away with stolen goods when some of them fell off the truck onto the roadway, causing the driver behind the burglar to swerve, wreck, and die. The burglar was convicted of first-degree felony murder because the death was caused by the commission of his felony—burglary.

In sum, an analysis of the Kelly Thomas case—again, assuming the details that have appeared in the media are true—suggests there are many different felonies that could be charged to obtain a felony murder conviction. Since there has been a death, and since that death obviously arose out of the police officers’ actions, the only question is whether the officers committed a felony against Kelly Thomas. Either a charge of mayhem or torture would make the case first-degree murder; a charge of mayhem would make it a capital case.

Again, the question of an intent to kill is legally irrelevant to the case—all six police officers could get the death penalty.