Last edited Sun Apr 12, 2020, 05:49 PM - Edit history (1)
Don't rely on Wikipedia for legal definitions; they vary state to state depending on statutes and court decisions. In any event, it's not clear that His Lardship could be charged with a crime arising from his handling (or non-handling) of the COVID-19 outbreak. For one thing, the risk of death or injury is to unknown, unspecified and unidentified persons. Can you be charged with manslaughter (that's what criminal negligence is) if the victims were unknown and unspecified members of the general public? Possibly yes, since if you shoot a gun in the dark without knowing if people are around and you kill someone even without intending to do so, you could be charged. The more important question is whether an ordinary and reasonably prudent person would recognize the conduct as involving a strong probability of injury to others.
In my state, the statute defining manslaughter in the second degree says:
"A person who causes the death of another by any of the following means is guilty of manslaughter in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both: (1) by the person's culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another..." A case interpreting the statute also said: "It is more than ordinary negligence. It is more than gross negligence. It is gross negligence coupled with the element of recklessness. It is intentional conduct which the actor may not intend to be harmful but which an ordinary and reasonably prudent man would recognize as involving a strong probability of injury to others."
The jury instructions in a second-degree manslaughter case require the jury to find, beyond a reasonable doubt, that:
The defendant caused the death of the victim, by culpable negligence, whereby the defendant created an unreasonable risk and consciously took a chance of causing death or great bodily harm.
“To cause” means to be a substantial causal factor in causing the death. The defendant is criminally liable for all the consequences of his actions that occur in the ordinary and natural course of events, including those consequences brought about by one or more intervening causes, if such intervening causes were the natural result of the defendant's acts. The fact that other causes contribute to the death does not relieve the defendant of criminal liability.
“Culpable negligence” is intentional conduct that the defendant may not have intended t0 be harmful, but that an ordinary and reasonably prudent person would recognize as involving strong probability of injury to others. Culpable negligence is more than ordinary negligence. It is more than gross negligence. It is gross negligence coupled with an element of recklessness.
“Recklessness” is conscious disregard of a substantial and unjustifiable risk of
death or great bodily harm to others. This means the defendant consciously committed an act: 1) that created risk; 2) the risk was substantial; 3) there was no adequate reason for taking the risk; 4) the defendant was aware of the risk; and 5) the defendant disregarded it. The defendant need not have intended, however, to cause harm.
So what would a jury do? And would the defense that he acted reasonably because he was following the advice of "experts" (for example, those who promote herd immunity as the solution, like Anders Tegnell of Sweden) be effective if other experts have warned otherwise?
As to civil liability for negligence, there is a doctrine of qualified immunity that would probably get him off the hook. This protects government officials against civil lawsuits based on discretionary actions performed in their official capacity, unless their actions violated clearly established federal law or constitutional rights.
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barr.
