Posted on 4/24/17

Imagine patrons enter a club one night in downtown Dallas. People seem to be enjoying themselves after a stressful day at work. As the night continues, the more patrons enter the club. Eventually, the club is full and the patrons are enjoying themselves.

Suddenly, there is an explosion. The ground shakes; the music stops; everyone is momentarily frozen. A person runs out of the men’s room, in disguise, and starts shooting randomly. The killer is holding an automatic weapon and fires shots indiscriminately. Some people come to their senses and jump to cover under the tables. Others are less fortunate.

Someone calls  911. Almost immediately, the Dallas police arrive on the scene. The police burst through the door and fire at the killer, killing him.

The police notice a horrific crime scene. Blood covers the walls; dead bodies are strewn over the floor; broken glass is everywhere. Ambulances and other Dallas emergency personnel arrive and treat the victims. The media arrives shortly after to report on the crime scene. This was the most horrific terrorist attack in Dallas history.

A subsequent police investigation determines that the killer acted alone. The police also discover that the club lacked sufficient exits. The prosecutor prosecutes the club owner for criminally negligent homicide, claiming that the he had reckless disregard of human life. Specifically, the prosecutor claims that the club owner had reckless disregard for human life when not having sufficient exists. This is in light of the Orlando club shooting, which should compel the owner to take all safety precautions when operating a night club.

Subjective v. Objective Standard

When determining liability for recklessness, there is an academic discussion over whether to apply a subjective or objective standard. The subjective standard is whether the person in question had awareness that his behavior or omission was reckless. The objective standard is whether the average person in such a situation would have awareness that such behavior or omission was reckless.

The above scenario may depend on whether the application is subjective or objective. If it is subjective, the club owner can claim that he did not know about the lack of exits or did not view the lack of exists as a safety hazard. As a result, he would not be liable under the reckless standard. If, however, it is objective, then the prosecution can demonstrate that the average club owner would ensure that there are sufficient exits so safety would not be compromised.

Under the Texas Penal Code, a person commits criminally negligent homicide “if he intentionally, knowingly, recklessly, or with criminal negligence causes the death of an individual.” The Texas Penal Code defines reckless as when ”[a] person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.” The language is clear that it depends on the actor’s conduct, or the subjective standard, not what a reasonable person, or objective standard, would do under the circumstances. Therefore, in the above scenario, the defendant would likely have a strong defense.

If you are facing criminal charges, contact the law firm of Christopher Abel, an experienced and knowledgeable criminal defense attorney.


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