Lindberg
Final Approach
The elements of Murder under the California penal code:Ok:
1. Fact: the youngster was found in a vacant building. There were no victims present.
2. Fact: the youngster turned toward the officer, unarmed
3. Fact: the officer shot him, with the intent to kill (as trained, they do not shoot to maim)
4. Fact: while the youngster lay, crying for his mother's comfort as he was dying after being shot, after the police had determined that he was unarmed and likely was a bad shoot, he was denied the attention of his mother while he died alone
Fact 4 is to illustrate the "monster" part. Facts 1-3 illustrate that the officers murdered him. Satisfies:
1. Intent to kill
2. No valid self defense argument
3. No valid defense of others argument
So - now you tell me, why is it not murder?
187. (a) Murder is the unlawful killing of a human being, or a
fetus, with malice aforethought.
(b) This section shall not apply to any person who commits an act
that results in the death of a fetus if any of the following apply:
(1) The act complied with the Therapeutic Abortion Act, Article 2
(commencing with Section 123400) of Chapter 2 of Part 2 of Division
106 of the Health and Safety Code.
(2) The act was committed by a holder of a physician's and surgeon'
s certificate, as defined in the Business and Professions Code, in a
case where, to a medical certainty, the result of childbirth would be
death of the mother of the fetus or where her death from childbirth,
although not medically certain, would be substantially certain or
more likely than not.
(3) The act was solicited, aided, abetted, or consented to by the
mother of the fetus.
(c) Subdivision (b) shall not be construed to prohibit the
prosecution of any person under any other provision of law.
188. Such malice may be express or implied. It is express when
there is manifested a deliberate intention unlawfully to take away
the life of a fellow creature. It is implied, when no considerable
provocation appears, or when the circumstances attending the killing
show an abandoned and malignant heart.
When it is shown that the killing resulted from the intentional
doing of an act with express or implied malice as defined above, no
other mental state need be shown to establish the mental state of
malice aforethought. Neither an awareness of the obligation to act
within the general body of laws regulating society nor acting despite
such awareness is included within the definition of malice.
I'll leave for the reader to find the standard for self defense in California. In particular, the question of objective vs. subjective reasonableness and mistakes of fact are always interesting.