What is a kill zone?

Consider this scenario: You want to kill Justice Menetrez, but you don't know what Justice Menetrez looks like. You don't even know his/her race, gender or approximate height, weight or age. But you learn that Justice Menetrez will be speaking at an event at a local park. So you make a plan: In order to kill Justice Menetrez, you will go to the event and kill everyone on the speakers' platform.

You bring an automatic rifle with a large, fully loaded magazine. You attack as soon as everyone is on the dais, spraying the entire crowd on the platform with bullets. You succeed in killing some of them, including Justice Menetrez, but others manage to survive. Later you are caught and charged with the murder of those who died, as well as the attempted murder of those who were on the dais but lived.

You had confided everything to your diary, which the prosecution introduces at trial, so the facts are largely undisputed -- you didn't know what Justice Menetrez looked like, so you planned to kill everyone on stage as a means of killing him/her. But your lawyer presents the following clever argument to the jury on the attempted murder counts: "Attempted murder requires specific intent to kill. But my client didn't intend to kill those other people -- my client didn't care one way or another whether they lived or died. My client only intended to kill Justice Menetrez. So you must acquit on the attempted murder counts."

Defense counsel's argument relies on three sound premises. First, attempted murder does require specific intent to kill.

Second, the doctrine of transferred intent applies to murder but not to attempted murder. So your intent to kill Justice Menetrez transfers to any other victims you kill in the course of your attack, regardless of whether you actually intended to kill them. But your intent to kill Justice Menetrez does not transfer to anyone you do not kill. Rather, in order to be guilty of attempting to murder a particular victim, you must have specifically intended to kill that particular victim.

Third, it is true that in some sense you didn't really care about the other people on the stage. The only one you really cared about was Justice Menetrez.

Despite its sound premises, however, defense counsel's argument is a slam-dunk loser. The Supreme Court identified the argument's flaw in People v. Bland, 28 Cal. 4th 313 (2002), which approved the kill zone theory.

The court reasoned that even when a lethal attack has only one primary target, it does not follow that the assailant did not specifically intend to kill anyone else. In my hypothetical, Justice Menetrez was your only primary target, so in some sense you didn't care about the other people on stage. But it does not follow that you did not specifically intend to kill them. On the contrary, you did specifically intend to kill all of them. That was your intended means of killing Justice Menetrez, because you didn't know which one he/she was.

Similarly, if you know Justice Menetrez will be on a particular airplane and you put a bomb on the plane in order to kill the justice, then you can be convicted of attempting to murder everyone on board. It doesn't matter that you don't know how many people are on board, don't know who they are, and might never have laid eyes on any of them. You intended to kill Justice Menetrez by blowing up the plane and killing everyone on board, so you specifically intended to kill everyone on board. If any of them survive -- perhaps they all survive, because the bomb fails to detonate -- then you are guilty of attempting to murder every single one of them. That is the kill zone theory.

Cases that actually fit the kill zone theory are probably rare. For the theory to apply, there must be evidence that the defendant intended to kill everyone in the primary target's vicinity as a means of killing the primary target. To my knowledge, that doesn't happen every day.

But case law suggests that the kill zone theory is commonly misunderstood and, as a result, broadly misapplied. Indeed, some lawyers and judges seem to think that every case that involves shooting at a crowd is a kill zone case. There are several potential sources of this confusion.

One such source is the Supreme Court's use of the words "nontargeted" and "untargeted" when discussing the kill zone. For example, People v. Stone, 46 Cal. 4th 131 (2009), describes the kill zone theory as allowing a defendant "charged with the murder or attempted murder of an intended target" to be convicted, in addition, "of attempting to murder other, nontargeted, persons." Viewed in isolation, that language could be taken to mean that the kill zone theory allows a defendant to be convicted of the attempted murder of persons whom the defendant did not intend to kill.

Another potential source of confusion lies in the terminology that Bland borrowed from a Maryland case, Ford v. State, 625 A.2d 984 (1993). Bland introduced the kill zone theory by explaining that, although the doctrine of transferred intent does not apply to attempted murder, a person who shoots at a group of people while primarily targeting only one of them might still be guilty of the attempted murder of everyone in the group on the basis of "'what is essentially concurrent intent,'" quoting Ford.

"Concurrent" just means "at the same time" or "simultaneous." In context, the references to "concurrent intent" in Bland and Ford mean nothing more than that a defendant who specifically intends to kill a primary target might at the same time (i.e., concurrently) specifically intend to kill other people in the vicinity, as in my hypothetical.

But to someone aware of criminal law's numerous intent concepts, Bland's quote from Ford might seem to introduce yet another type of intent -- "concurrent intent" -- that operates as an exception to the specific intent requirement for attempted murder. On this interpretation, attempted murder liability in a kill zone case does not require specific intent. It requires only concurrent intent (whatever that is).

One final source of confusion likewise traces to the Supreme Court's reliance on Ford. As quoted in Bland, Ford described kill zone cases as involving a "zone of harm" around a "primary victim." The phrase "zone of harm" makes it seem like every case of shooting toward a crowd is a kill zone case. The people in the crowd could be harmed or killed. The shooter has created a zone of harm, and everyone in it is in mortal danger. So they're all in a kill zone.

All of those interpretations would seem to be mistaken, for at least two reasons. First, the Supreme Court has always stressed that specific intent to kill is an element of attempted murder. That was an emphatic holding of Bland, and the court has reiterated the specific intent requirement throughout its decisions in this area. The kill zone theory is not an exception to that requirement. To my knowledge, the Supreme Court has not recognized any exceptions.

Second, the Supreme Court has repeatedly explained that jury instructions on the kill zone theory are never required. Stone, 46 Cal. 4th at 137-38; People v. Smith, 37 Cal. 4th 733, 746 (2005); Bland, 28 Cal. 4th at 331, n.6. But if it were true that the kill zone theory authorizes convicting a defendant of the attempted murder of a person whom the defendant did not specifically intend to kill, then kill zone instructions would have to be given whenever the theory applied, because the theory would actually modify the elements of attempted murder.

Consequently, when the court in Stone and elsewhere says that the kill zone theory allows a defendant to be convicted of attempting to murder nontargeted or untargeted persons, the court presumably does not mean persons whom the defendant did not intend to kill. Rather, the court appears to be referring to persons who were not the primary target. When the court speaks of concurrent intent, it apparently just means more than one specific intent at the same time. And when Bland refers to a "zone of harm," it would seem to mean a zone of specifically intended death.

In part two of this article, I will discuss the Supreme Court's most recent kill zone opinion. 