State v. PHILLIPS

Fernando Rodriguez died after Henry County and Hampton police officers held him face down on the ground, applying pressure to subdue him during a struggle. A grand jury indicted five officers on multiple charges, including felony murder based on the theory that they violated their oaths of office as police officers by asphyxiating him. A Henry County trial judge dismissed that felony murder count, reasoning that violating an oath of office is not the kind of dangerous felony that can support a felony murder charge. The State appealed. The Supreme Court of Georgia agreed with the State that a felony does not have to be dangerous in every case to support felony murder; it can qualify if the specific circumstances created a foreseeable risk of death. Because the indictment described officers pinning a man face down and applying pressure until he stopped breathing, the court held the charge should not have been thrown out on that basis. The case goes back to the trial court, which still must rule on other undecided challenges to the indictment.

A felony that is not dangerous in every instance, including violation of a public officer's oath, can still serve as the predicate felony for felony murder if the specific circumstances of how it was committed created a foreseeable risk of death; here, the indictment's factual allegations of asphyxiation did not rule that out.

The ruling means Georgia prosecutors can pursue felony murder charges against police officers (or any public officer) based on oath violations when the facts show a foreseeable risk of death, potentially affecting how in-custody death cases involving law enforcement are charged and defended statewide.

Vacated and remanded

1. The court explained that Georgia's felony murder statute (O.C.G.A. § 16-5-1) itself does not limit which felonies can be predicates, but case law has added an 'inherently dangerous felony' rule requiring that the underlying felony be either dangerous in itself or, based on how it was actually committed, create a foreseeable risk of death.
2. Reviewing past cases, the court noted that felonies like being a felon in possession of a firearm are not automatically dangerous but have still supported felony murder convictions when the specific facts, such as pointing a loaded gun at someone, created a real risk of death.
3. Applying that same approach, the court reasoned that violating a public officer's oath of office, while not dangerous in every situation, could still count as a predicate felony for murder if the way it was carried out created a foreseeable risk of death.
4. On a general demurrer, which asks whether the indictment's facts, even if entirely true, would still leave the accused innocent, the court found that the indictment's description of officers asphyxiating Rodriguez by holding him face down and applying pressure did not rule out a foreseeable risk of death.
5. Because the trial judge based the dismissal solely on the mistaken view that oath violations can never support felony murder, the court concluded that ruling was legal error and sent the case back for the trial court to resolve other pending, unaddressed challenges to the same charges.

• felony murder
• police use of force
• oath of office violation
• in-custody death
• general demurrer