Shortly after midnight on Jan. 11, 2019, Phoenix police pulled over a car filled with four people suspected of committing an armed robbery earlier that evening. Three seconds after one of them, Jacob Harris, hopped out and started running, officers Dave Norman and Kristopher Bertz opened fire, fatally striking him in the back.
The officers didn’t face any consequences for the shooting. Instead, prosecutors laid the blame on Harris’s three friends in the car. Even though none of them had fired a single shot, 19-year-old Sariah Busani, 20-year-old Jeremiah Triplett, and 14-year-old Johnny Reed were charged with first-degree murder. More than two years later, they remain in jail awaiting trial.
Prosecutors charged them under a legal provision unavailable in most of the country. Most states have the “felony murder” rule, which dictates that a person can be held liable if, while they are committing certain felonies, someone dies as a result of their actions or those of a coconspirator. But in at least 13 states, including Arizona, liability for deaths under the felony murder rule is extended even further: A person can be tried for the fatal actions of a third party, such as a police officer, if the death is deemed a reasonably foreseeable outcome of the crime. In Harris’s shooting, prosecutors argued that the four young adults were fleeing an armed robbery, establishing a chain of events that led to the death. Since 2010, at least 22 people nationwide have been charged with felony murder for deaths directly caused by police, according to a BuzzFeed News review. At least 13 have been convicted.
In recent months, in the aftermath of racial justice protests seeking accountability for police officers who kill, some defense attorneys and victims’ advocates have called for an end to this expanded application of felony murder law. One state, Illinois, eliminated it earlier this year. To those who oppose the practice, holding people liable for deaths caused by third parties allows prosecutors to look past the decisions and actions of law enforcement agents in fatal shootings — and lets officers who have killed people get away with minimal scrutiny.
“Charging the co-felons in these cases all too often provides police officers with cover in cases where the shootings are in violation of departmental policies or are otherwise unjustified,” said Steve Drizin, a professor at Northwestern University’s law school. “The laws are used to justify decisions not to discipline police officers.”
Five years before he opened fire on Harris, Norman fatally shot another man, Craig Uran, whose girlfriend was then arrested for felony murder.
“It helps the state cover up its own atrocities,” said Will Knight, a civil rights and criminal defense attorney in Phoenix.
In cases around the country, fatal police shootings for which no officers are charged have led to murder charges against civilians who in some cases were unarmed or not even present when officers arrived.
In 2012, 23-year-old Kody Roach was charged with murder after a stray bullet fired by police during a confrontation with him killed a bystander in Orlando. He pleaded no contest to carrying a concealed firearm in exchange for the dismissal of the murder charge and was sentenced to five years in prison.
Masonique Saunders, 16, pleaded guilty to a reduced charge of involuntary manslaughter in 2019 and was sentenced to three years after she was arrested for setting up a robbery that ended in an undercover Columbus police officer fatally shooting her 16-year-old boyfriend, Julius Tate. She was initially charged with felony murder even though she was not at the scene when Tate was killed.
Wyatt Cheatham, a 17-year-old, was charged with murder in December of last year when Oklahoma police killed Stavian Rodriguez after they had allegedly robbed a convenience store. Both teens had fled the store, but Rodriguez returned and was exiting a second time with a pistol when five officers shot him.
Lakeith Smith was 15 when he participated in a home robbery in Millbrook, Alabama, that ended in a shootout between a police officer and his friend, A’Donte Washington, who was killed. Smith and three other boys were charged as adults with burglary, theft, and felony murder in 2015.
Smith, who didn’t fire any shots and was attempting to flee at the time of the shooting, declined a plea deal for 25 years and decided to fight the murder charge. At trial, he was convicted and sentenced to 65 years, though an appeal reduced his sentence to 55 years. Now 21, he has been incarcerated the entirety of his 6-year-old daughter’s life.
“To turn around and charge the guys who’s running from the cops that’s shooting ... and try to say that they foresee this kind of thing happening at 15 or 16, like they’re psychic, that’s kind of crazy,” his mother, BronTina Smith, told BuzzFeed News. “The time should match the crime. He should have got time for what he done. Absolutely. But 65 years? No way.”
The 13 states where civilians can be charged with felony murder in police killings, according to an analysis by legal scholar and author of Felony Murder, Guyora Binder, are Alabama, Alaska, Arizona, Florida, Georgia, Indiana, Missouri, New Jersey, New York, Ohio, Oklahoma, Texas, and Wisconsin.
Illinois, which was previously among those states, changed its law in February as part of a sweeping criminal justice reform bill that narrowed its felony murder rule to prohibit first-degree murder charges in cases where a third party, like a police officer, causes the death. A 2016 investigation by the Chicago Reader found at least 10 such cases in Cook County between 2010 and 2016.
However, the bill did not apply retroactively. Among those imprisoned under the previous felony murder statute is Tevin Louis, who participated in the robbery of a restaurant in Chicago’s South Side with his cousin, 19-year-old Marquise Sampson, in 2012.
Chicago police officer Antonio Dicarlo shot and killed Sampson as he was running away. Sampson was carrying a gun. Louis, who was then 19 and unarmed, had left the scene earlier and wasn’t present during the shooting, but was arrested and charged with felony murder.
“There is only one killer, and it is the officer,” said Femi Soyode, Louis’s lawyer. “What normally would have been an armed robbery for Mr. Louis turned into a murder.”
The Chicago Police Department confirmed that Dicarlo is still employed by the department but declined to comment on Sampson’s shooting.
Louis was sentenced to 32 years for armed robbery and an additional 20 years for murder. Dicarlo received a Superintendent's Award of Valor after the shooting, according to the Citizens Police Data Project.
“This application does nothing to deter crime and does nothing to prevent these sorts of tragedies,” said Shobha Mahadev, a professor at Northwestern University’s law school. “What it does do is hold people responsible for acts they do not commit instead of the acts they do.”
Filing felony murder charges can give prosecutors leverage in efforts to negotiate plea bargains with defendants. To proponents of the doctrine, it is a helpful tool to warn against the consequences of violent crimes.
Rick Romley, who headed the Maricopa County Attorney’s Office from 1989 to 2004, said the provision is necessary but that prosecutors should exercise judgment about when it’s appropriate.
“You’ve got to be very, very selective when you enforce the felony murder rule,” Romley said. “Even in the traditional cases — you know, bank robbers kill somebody in their getaway car — you still have to be real careful when you utilize it because it’s an extraordinary remedy.”
But many legal scholars and criminal justice advocates have criticized felony murder laws — particularly in cases when its application diverts accountability from officers.
“When police officers use unreasonable force and kill someone in the course of the felony,” this way of interpreting felony murder “allows prosecutors to shift blame onto the felons,” said Binder, professor at the University at Buffalo School of Law. “Prosecutors work with police every day and have to depend on them as witnesses. So we might suspect that when police make bad decisions, prosecutors feel pressure to deflect blame onto the felon.”
In March 2014, Norman, the Phoenix officer, arrived at the denouement of a police pursuit that began when 26-year-old Craig Uran stole a truck and pointed a gun at a detective, according to a police report. Jessica Hicks, Uran’s 23-year-old girlfriend, was in the passenger seat. The two ditched the vehicle, carjacked an SUV from a parking garage, and attempted to flee before an armored police vehicle rammed them, the report states. When Uran accelerated in an attempt to evade police, Norman fired his assault rifle, striking and killing him.
Hicks was charged with felony murder. Following two years in pretrial detention, she took a deal, pleading guilty to auto theft and armed robbery, and got out on supervised probation.
Investigators cleared Norman of any criminal wrongdoing, and he remained on the Phoenix police force.
On Jan. 11, 2019, he was among the officers pursuing Busani, Triplett, Reed, and Harris. Phoenix police had been surveilling them for about six hours after a string of suspected robberies, when the four pulled up to a Whataburger in Avondale, west of Phoenix, according to police records. Officers watched as Triplett and Reed climbed through the store’s drive-thru window and let Harris in the front door. With a pellet gun, they demanded the cashier open the safe in the back, police alleged.
They left the Whataburger, tailed by unmarked police cars and a fixed-wing aircraft. Norman stopped their car using a grappling device on his cruiser. An officer threw a flash grenade. That’s when Harris got out of the car and ran. Officers Norman and Kristopher Bertz opened fire, hitting him in the back. Though the police report from that night said that Harris turned around and pointed a gun at officers before he was shot, prosecutors later retracted this statement in court but maintained that Harris did have a gun.
He was pronounced dead at the hospital about an hour later.
A Phoenix Police Department spokesperson declined to comment on Uran’s and Harris’s shootings, citing pending litigation. Bertz is still employed by the department, the spokesperson said. Norman retired in 2020, according to a disability claim he filed with the city.
Norman didn’t respond to BuzzFeed News’ questions regarding his career and record of killings. But on July 18 of this year, he appeared on an episode of Blue Line Millennial, a podcast about law enforcement hosted by an unnamed Phoenix police officer, to reflect on his 23-year career on the force.
“When you’re out being proactive, that’s when you get your big uses of forces; that’s when you get involved in your shootings,” Norman tells the host. “But we were young, dude, and I didn’t always do it right.”
During his years with the department, Norman shot four people, killing three. Bertz fatally shot two people, according to a police shooting database compiled by the Arizona Republic.
“The majority of my career, you get an officer-involved shooting and get three days off. So you kind of hope it’s on your Friday,” Norman jokes on the podcast.
Norman now runs a company that provides tactical training to law enforcement officers.
Meanwhile, Busani, Triplett, and Reed remain incarcerated, facing charges that could put them in prison for life.
In the two years since the shooting, Harris’s father, Roland Harris, said he has refused to help county attorneys prosecute the case.
“Why would I want to participate in you guys convicting innocent kids instead of going after the people that did it?” he told BuzzFeed News. “Call me when you’re convicting the police officers.”
Harris is currently suing the city of Phoenix for alleged civil rights violations in his son’s killing. The lawsuit claims that the city is liable because both Norman and Bertz were involved in previous shootings and were neither trained nor disciplined properly. Of the more than 240 police shootings in Phoenix since 2011, only once has the county attorney charged an officer with a crime. Earlier this month, the Department of Justice announced an investigation into use of force by the Phoenix Police Department.
Jennifer Liewer, a spokesperson for the Maricopa County Attorney’s Office, said that the current county attorney, Allister Adel, takes a different approach than her predecessor, Bill Montgomery, who oversaw the charging of Busani, Jeremiah, and Triplett: “Just because you can, doesn’t mean you should,” Liewer said of Adel’s position on the use of felony murder charges.
However, while dismissing the charges against them would be within the discretion of Adel’s office, Liewer said that would be “a pretty drastic move” and declined to comment on whether the county attorney was considering doing so.
Harris’s father said he will continue to call for the officers who shot his son to be charged.
“They took my son’s life away. I’m not going to stand by idly and watch them take away the life of three other kids,” he said. “Not in my son’s name.” ●
Correction: Officers fatally shot Jacob Harris on Jan. 11, 2019. A previous version of this post misstated the date.