Like Brandon Ellingson, James Bava died at the hands of the Missouri Highway Patrol –but in Bava’s case, those hands were his own. Trooper Bava perished on August 28 when he crashed his patrol vehicle while giving pursuit to a speeding motorcyclist, later identified as twenty-year-old Serghei Pavel Comerzan.
Last week, Comerzan was arrested and charged with resisting a lawful stop, careless and imprudent driving, and failure to register a motor vehicle. Owing largely, if not entirely, to the privileged status of the individual who died while pursuing him, Comerzan was also charged with second-degree murder (or, alternatively, first-degree manslaughter), despite the fact that Trooper Bava’s own actions were the proximate cause of his own death.
Under the well-established legal principle called the “felony murder rule,” an accidental killing that occurs during the course of a “dangerous felony” can be charged as first-degree murder. For example, the driver of a get-away car following an armed robbery can be charged with murder even if he didn’t pull the trigger when the bank teller was shot.
The most recent revision of the Missouri statute dealing with second-degree murder specifies that the charge is appropriate when the accused “knowingly causes the death of another person,” acts “with the purpose of causing serious physical injury to another person,” or “Commits or attempts to commit any felony….” Since the prosecution would have great difficulty proving that Comerzan intended to kill or injure Bava, they would probably rely on a subtle situational sentence enhancement found in one of the misdemeanor statutes the driver is accused of violating.
Both “careless and imprudent driving” and “failure to register a vehicle” are misdemeanors. The same is true of “resisting a lawful stop” – except in circumstances in which “the person fleeing creates a substantial risk of physical injury or death to any person, in which case it is a class E felony,” according to the statute. Unlike other states, Missouri’s version of the felony murder rule doesn’t require that the underlying felony be an “inherently dangerous” offense, such as unlawful discharge of a firearm or arson.
Interestingly, a decade ago the California Supreme Court ruled that driving with “willful or wanton disregard for persons or property while fleeing from a pursuing police officer” is not an “inherently dangerous crime” for the purpose of the felony murder rule.
That ruling was the result of a 2002 case in which an ex-convict named Evert Keith Howard, fleeing from police, plowed a stolen Chevy Tahoe into a car driven by Jeanette Rodriguez, killing the driver and seriously injuring her husband. Noting that the “second-degree felony-murder rule is a court-made rule [without] statutory definition,” the court reversed Howard’s murder conviction under that rule while acknowledging that a trial jury “may well find that the motorist has acted with malice by driving with conscious disregard for the lives of others, and this is guilty of murder.”
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By charging Comerzan with both second degree murder and manslaughter, the prosecution could very well be using the threat of the former to extract a plea agreement to the latter. Under Missouri state law, “the crime of involuntary manslaughter in the first degree” occurs when an individual “recklessly causes the death of another person.”
Although he perceived a duty to conduct a dangerous pursuit of Comerzan, the motorcyclist did not compel Trooper Bava to follow him. Indeed, in the case from California, Fresno Police Officer Anthony Arcelus – who later witnessed the fatal crash at a stoplight – decided to give up the pursuit “fearing that the high-speed chase might cause an accident.”
There is no dispute, however, that the late Trooper Bava’s colleague in the Missouri Highway Patrol, Trooper Anthony Piercy, recklessly caused the unjustifiable death of twenty-year-old Brandon Ellingson. After being arrested on suspicion of boating while intoxicated, Ellingson was handcuffed, placed into a defective life-vest, and then thrown overboard into Lake of the Ozarks, where he drowned.
“Brandon Ellingson didn't have a chance the moment he got on that boat," concludes recently retired MHP Sergeant Randy Henry, who was Piercy’s supervisor at the time and interviewed him hours after the May 2014 incident. "As soon as Brandon Ellingson got onto Tony Piercy's boat, I believe it was a death march." Piercy’s actions amounted to “manslaughter, involuntary manslaughter,” Henry concludes.
"This happened on our watch,” Henry told the Des Moines NBC affiliate, KCCI.” It shouldn't have happened. It was totally preventable and it was covered up. He was totally defenseless in that boat."
The cover-up and predictable pressure campaign resulted in a ruling from a Coroner’s Inquest that Ellingson’s death was accidental – which still left the possibility of an involuntary manslaughter charge. That option was foreclosed when prosecutor Amanda Grellner, who owed the MHP a personal favor after the agency declined to charge her then-18-year-old son with DUI, refused to charge Piercy.
Bava’s death resulted in an elaborate state funeral, during which attendees lamented what they called a pervasive “anti-law enforcement mentality.” Bava’s death was a genuine tragedy that occurred because of his own choices and actions. That was not the case for Brandon Ellingson. Assuming that public hostility toward law enforcement is a genuine problem, the deeply entrenched “Blue Privilege” demonstrated in the disparate treatment of those cases will do nothing to cure it.