We’ve all seen or heard of the dystopic, zombie-apocalypse cable series and movies. The zombie horror genre has been with us for quite some time. For example, AMC's The Walking Dead, now going into Season 4 and resuming February 9, 2014, shows a level of verisimilitude that makes a virus-fueled zombie apocalypse a bit less far-fetched than previously thought. Who knows? In our volatile era, with the ever-present threat of terrorism and biological warfare, who knows what entities are capable of what evil? Will a giant corporation in the defense industry concoct a lethal virus that will get out of control and lead to symptoms like those featured in movies and cable shows?
But, really, that is all tangential to the theme of this article and ripe for a separate discussion. I’m here to discuss what would happen, in the imaginative and vivid world of “hypothetical scenarios” if, against a zombie outbreak backdrop, an “uninfected” person would be charged with the murder of a zombie. For example, imagine this situation. A zombie virus outbreak occurs, turning any number of people into zombies (e.g., tens or hundreds of thousands, millions). You kill the zombies in self-defense, or so you think. You swing your axe or use your handy shotgun to pick off the offending flesh-seekers. You succeed in fending off the virus because you were an effective zombie-killer. The outbreak is contained and civilization returns to it’s previous order. In the aftermath of the plague, you think you can return to your normal life and routine because you and your family survived the cataclysm.
Then you get a knock on the door. It’s the police. You are arrested for murder.
You come to my office. I, too, have managed to survive the zombie apocalypse and my office is back in business. Your murder charge is set for trial and I start to prepare your defense.
First of all, what is Murder in the State of California?
Murder is defined (under California Penal Code Section 187(a)) PC as follows:
“(The) unlawful killing of a human being or a fetus with malice aforethought.”
You may be wondering what on Earth “malice aforethought” means. That’s perfectly understandable given the various legal complexities surrounding the elements of murder. “Malice aforethought” simply means that you acted in a manner that was highly probable to result in the victim’s death. It does not mean the layman’s definition, that is, that you harbored ill will or malicious intent. Rather, it is an objective test of whether your actions resulted in the victim’s death.
Let’s go through some of the applicable elements and then the defenses.
Killing of a Human Being
In the middle of our consultation, you say, “Wait a minute, counselor. I couldn’t have ‘killed’ any zombies because they were already dead.” Indeed, that is a quandary to ponder. Could you have killed something that was already dead? In horror fiction, zombies are also referred to as the “undead” because their infection has already resulted in their death and they are only operating in a state of suspended animation. Thus, I would argue that the zombie(s) you killed were already dead from a virus transmitted by the bite of other zombies. So you could not have actually killed a being that was already dead.
I would anticipate the prosecutor would probably have the coroner or other expert testify that the zombie was not dead because, even though he may not have been in control of his mental faculties, the zombie's internal organs or autonomic functions were in order.
I would probably enlist the help of a private coroner to conduct an independent autopsy, if at all possible. My defense expert would probably testify that the zombie lacked brain function and/or other indicia of human life (e.g., cognition, consciousness, etc.). The trial could end up being a battle of the experts as to whether the zombie was physically “alive” at the time he was “cut down” by my client. But this, alone, could help establish reasonable doubt as to my client’s guilt and help get him an acquittal.
Is a Zombie a Human Being?
The prosecutor would argue that, in spite of the victim’s zombified state, he was still a human being. I think our stronger argument, of course, would rest on the issue of whether the victim was “alive versus dead” or “dead versus undead.”
Defenses
First, there are the “affirmative defenses,” These include self-defense and defense of others. In other words, it’s a way of telling the jury, “Yes, I did it. But here’s why.” Then, there are the defenses in mitigation, such as having acted “in the heat of passion,” which serve to bring down the seriousness of the offense from murder to voluntary manslaughter.
Self-Defense and Defense of Others
As you are sitting in my office, you ask me, “but counselor, how can I be guilty of murder? I killed those zombies in self-defense!” Then I ask you to tell me more about the facts surrounding the killings.
You take me back to the night in question.
You are hunkered down in your house with the shades drawn, or, for dramatic effect, with your windows boarded up with wooden planks. The power has gone out in your house, as it has everywhere, and you are operating by flashlight and candlelight. Your family is huddled around the kitchen table in fear. You are standing guard by a window with your rifle. Imagine the famous image of Malcolm X with his AK-47, peering out the window. You are in a similar position. You are peering out through one of the gaps in the wooden planks, scanning for zombies. You hear glass break elsewhere in the house. The eyes of your wife and children are upon you, expecting you to act with all deliberate speed in defense of their lives. You see the pale, venous arm of a zombie break through one of the boarded-up windows. The growl of the creature grows louder and your children are screaming. The zombie is lurking inside with his arms extended. You take aim. You blast him with a clean shot to the head and he falls dead...or more dead than he was before you shot him. Your family is safe.
In this scenario, the prosecutor would argue that your use of lethal force was unnecessary, excessive and not commensurate with the threat you faced. Of course, he would probably lose. If you reasonably believe that you or a third person were in imminent danger of getting killed, sustaining great bodily, or being maimed, robbed, raped or made to suffer some other heinous crime, you can use deadly force. A zombie, even a slow one, presents the threat of maiming, disemboweling and ultimately killing it’s victim. Under these circumstances, a reasonable jury would decide in my client’s favor and acquit him.
On the other hand, if my client had been out for blood, seeking out zombies to kill, it may be harder to invoke such a defense. Even then, however, the argument could be made for defense of others. In the midst of a zombie apocalypse, when humanity is beset by the ubiquitous menace of death, killing zombies before they could hurt others would constitute defense of others. It is unclear how a jury would react to this affirmative defense in this kind of scenario but the argument could certainly be made.
This entire scenario may sound ridiculous but it is discussed to illustrate the law and defenses surrounding the charge of murder.
Nothing in this article or any other article in this blog is intended to be legal advice or counsel of any way, shape or form.
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