Tuesday, November 26, 2013

The Knockout Game: What Crimes are Committed?

The big story this past week in criminal law is the “knockout game.”

Last things first – I’ve heard several people say this is not a “game” because it is dangerous/reckless/a terrible idea.  I submit that the fact that something is dangerous or reckless does not preclude it from being a game.  Take Russian Roulette, for example.  It’s a horrible idea, and just about as dangerous as games come – but it’s a game.  If people play it for the purpose of gambling or amusement, it can be a game.

According to various news sources I am too lazy to cite, there are groups of young people (mostly guys) who make a game out of knocking out strangers.  One of the aggressive youngsters will turn to another aggressive youngster and dare (or bet) him to knock out some nearby person.  The really messed up part of the game is that they don’t necessarily “pick on someone their own size.”  The victims of the game have been men, women, and even children and elderly people.

Then the stranger gets punched.

Videos have surfaced wherein the victim falls to the ground, unconscious and seemingly lifeless.  There have also been multiple stories regarding the intended victim using force, sometimes deadly, to defend themselves.

Today we’re going to talk about the legal ramifications of the knockout game.

As you've probably already guessed, this type of behavior is clear cut “Assault.”  But we’re going to turn to the Kentucky Revised Statutes to figure out what type of assault we are dealing with, and whether it could be a higher crime.

I’ll go ahead and spoiler alert Assault in the 4th Degree for you.  As long as there is some sort of injury received by the victim, it counts as Assault 4th.  Assault in the 3rd Degree (for the purposes of this conversation) is reserved for assault on public servants like police officers, fire fighters, etc.  The real question for today is whether the actions in the knockout game would constitute Assault in the 1st or 2nd Degree – because they are felony offenses.

Since we’re not dealing with deadly weapons the real question is: did the victim receive a “serious physical injury?”  And that depends on the circumstances.  Serious Injury is defined in the KRS under 500.080(15) and states:

"Serious physical injury" means physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ.”

So basically, yes, playing the knockout game could constitute a felony assault offense – but it depends on how bad the victim gets hurt.

Let’s say the victim is one of these little old ladies, and she is struck hard enough to cause death.  If the youngster playing the game did not intend for her to die, would it be murder?  After all, the point of the game is just to knock people out and not to kill them.

The answer to that question is maybe.  It could still constitute Murder depending on how reckless or wanton a jury thought the conduct of the "knockout game" was.  I think most everyone would agree that playing the knockout game is reckless behavior.  But reckless conduct only gets us to Reckless Homicide – which carries 1-5 years in prison because it’s a class D Felony.

The question is whether the conduct rises to the level of wanton conduct with conscious disregard for human life.  The “depraved heart” section of the Kentucky Murder statute states that the actions can constitute murder if “under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person.”

Personally, I think this is where defining the conduct as a “game” would help convict the participant of a higher crime.  It sounds horrible.  To take something so dangerous as punching an elderly woman in the face or head, and call it a “game” makes the conduct seem more reckless and could cause jurors to believe it rises to the level of wanton conduct.

So the answer to the murder question is, yes – if a jury believes the game is wanton conduct and that the assailant acted with extreme indifference to human life – the knockout could constitute murder in some cases.

As a side note, some people have asked whether this could be a "hate crime" if committed by members of one race against members of another race.  And that type of thing depends on the motives of the attacker.  From what I understand the choosing of a victim in the knockout game is somewhat arbitrary and on the fly.  It isn't based on race, age, or some protected class.  If that is the case, it most likely wouldn't constitute a "hate crime."  

But that doesn't mean the conduct would go unpunished.

If you have any more questions about Assault, Murder, or other homicide crimes, please let me know.  My door is always open.  Feel free to give me a call.

Greg Simms
Louisville DUI Lawyer
Murphy & Powell, PLC.

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