What the anger at the verdict in the Kate Steinle case is really about

I want to kick in my two cents on this since the verdict is apt to be a big deal politically, starting with the looming shutdown this month. Trump was already reportedly telling advisors that a shutdown might be *good* for him since it presents an opportunity to show his base how serious he is about immigration. If Democrats won’t play ball on better enforcement, he’s prepared to turn off the lights until they are. He’s apt to lose more public approval than he gains by doing that given the bad politics that shutdowns inevitably present for Republicans, but a lot of border hawks are furious about the verdict and will want to see congressional action. Ryan and McConnell may have little choice but to dig in. A shutdown is more likely now than it was yesterday.

The question is why border hawks are furious. Sarah Rumpf makes a compelling case at Red State that they shouldn’t be if they care at all about the actual facts.

So, we have a defendant with zero connection to Steinle. He had a history of drug crimes but no known violent crimes. The bullet that killed Steinle hit the ground and then ricocheted upwards. There was a video possibly showing another group of people disposing of the gun where Garcia Zarate said he found it.

Reviewing the SIG Sauer website shows these handguns cost $1,000 or more. You can see how defense counsel could easily argue that a homeless illegal immigrant would be unfamiliar with one.

All of this adds up to the defense presenting a plausible explanation for how Garcia Zarate could have fired the gun and killed Steinle by accident. That’s reasonable doubt.

It’s mighty hard to get a murder conviction, which is all about the intent to kill, on a fatal gunshot that ricocheted. But the prosecution tried for it anyway to satisfy the public’s outrage about Steinle’s death. They may have spent so much time at trial trying to convince the jury that Zarate had intentionally killed her that they didn’t give them much to think about by way of a more credible charge like involuntary manslaughter. Once the jurors decided Zarate hadn’t committed murder, the whole thing fell apart. And even involuntary manslaughter is no easy lift in California. Patrick “Patterico” Frey, a prosecutor in L.A., notes that state law requires a showing that the defendant behaved recklessly in causing the victim’s death, not just negligently. Negligence is when you’re careless, recklessness is when you’re really, unusually careless. Was Zarate unusually careless in handling the gun given the points made by Rumpf? Hard to say. And when something’s hard to say, “beyond a reasonable doubt” is difficult.

But in a sense all of this is beside the point. The point, simply, is that Zarate shouldn’t have been here in the first place. Steinle should be alive because Zarate had no right to be present in the United States (and in fact has been deported no fewer than five times previously). But for his decision to break the law by crossing the border, there’s no shooting, accidental or not. That’s why Americans are outraged that he got to skate on her death. Intuitively they believe that crimes or torts committed by illegals should carry a standard of strict liability: Instead of negligence or recklessness, which requires a showing of carelessness by the defendant, strict liability says the defendant is guilty even if he exercised due care. An example of a strict liability criminal offense in some jurisdictions is statutory rape. Doesn’t matter if you reasonably believed your partner was over 18. You’re guilty if she’s a minor, period. Strict liability in that case creates an incentive for men to stay away from teen girls who might plausibly be underaged whether they claim to be older or not.

Strict liability for criminal offenses by illegals would create a similar incentive to stay out of the U.S. If you want to break the law by crossing the border, you take your chances liability-wise with any damage you might cause here, even if you exercised due care. Your presence is creating a risk to citizens that the government hasn’t agreed to absorb by admitting you legally. If you want to risk going to prison for picking up a gun and having it accidentally fire and kill a woman, that’s on you. Conceptually it’s a bit like felony murder (which is a complicated subject, as Patterico notes in his post): If you commit a crime that creates a situation in which someone ends up dead, e.g., a bank robbery in which a bystander is accidentally killed in the crossfire with a security guard, you can be held liable for that death. Zarate didn’t commit a crime as serious as that in crossing the border but the logic is similar — but for his initial criminal act, the innocent bystander wouldn’t be dead. Why shouldn’t he pay a price for that?

There’s an obvious problem with that scheme, though, which is that grave crimes like murder always require some showing of serious criminal intent. It would offend some people’s basic sense of justice, and probably the Constitution’s due process clauses, if Zarate got life for an incident in which a jury found he wasn’t even reckless in his behavior. A more interesting constitutional test would be if he was held liable under the lowest lesser included offense by dint of him being here illegally — i.e. if California had a law that substituted strict liability for negligence or recklessness in cases where the defendant is an illegal. When I proposed that on Twitter this morning a few lefties harrumphed that it would mean separate systems of justice for the same crime based purely on who the defendant is. What about equal justice under the law? But illegals aren’t being singled out here because of their “status” or their “identity.” They’re being singled out for something they’ve done, namely, entering the country without government permission or overstaying a visa that was lawfully granted. (An exception for DREAMers, who weren’t old enough to form legal consent when they entered the U.S., would obviously make sense.) They’ve assumed the risk of a different liability standard by choosing to break the law, just as the defendant convicted of felony murder has.

Probably a pipe dream legally, but that’s also beside the point. Whether or not any state government institutes a strict liability standard for illegals under their penal code, that’s the standard that a lot of Americans believe should apply as a matter of common sense. On the charge of killing a U.S. citizen while having no lawful right to be here, Zarate’s guilty as sin. That’s enough. In lieu of an exit question, here’s his lawyer with a reminder that’s unusually timely in light of other news this morning.