A Look At The Legal Consequences Of Swatting After Police Shoot Innocent Man

Jan 2, 2018
Originally published on January 2, 2018 6:46 pm
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ARI SHAPIRO, HOST:

We're going to talk now about the legal consequences for a prank in Wichita, Kan., that went horribly wrong. Swatting is when someone makes a false report of a serious crime in progress so a SWAT team or large group of officers shows up. Hackers and gamers sometimes do it to each other. Here's an excerpt of the emergency call that went to Wichita police last Thursday night. A man claimed that he had shot his father and was holding other family members hostage.

(SOUNDBITE OF ARCHIVED RECORDING)

TYLER BARRISS: I'm just pointing the gun at them, making sure they stay in the closet, my mom and my little brother.

SHAPIRO: Police didn't know at the time that the call was coming from more than a thousand miles away in Los Angeles. When they showed up at the house in Wichita, an unarmed man came to the door. Police opened fire and killed 28-year-old Andrew Thomas Finch, a father of two. The man who's alleged to have placed the call, Tyler Barriss, is now under arrest, and he's expected to make his first court appearance this week.

Neal Katyal is a legal expert who has studied these kinds of cases and joins us now. Hi there.

NEAL KATYAL: Hi. How are you?

SHAPIRO: Good. There are not any federal swatting laws, so walk us through the kinds of federal charges that could be filed in this case.

KATYAL: Well, when you have a circumstance like this involving murder, murder is quintessentially, as the federal courts have said, a state crime. And there are some ways in which there's federal court jurisdiction, but the first thing that I think everyone will be looking at is the possibility of state charges. And, you know, if we were to take those off the table for a second and ask, what could the federal government do, there are probably a couple of things the federal prosecutors could look to.

One is obstruction of justice. When you have these kind of horrible situations that divert law enforcement resources and divert justice from being done, there is the possibility of an obstruction charge. There's also a federal statute, the so-called murder-for-hire statute, which might be applicable. And what that says is that if you use interstate communication facilities to facilitate the intentional death of another person, that that's a federal crime.

SHAPIRO: Even if no one was hired in the sense of being paid for this.

KATYAL: Correct, as long as you're soliciting it. Now, the problem is, you know, that does require intent to kill. And here at least there is the possibility that any of the relevant players here, the gamers or the person who allegedly called 911, they may say, hey, this was all a prank. I didn't intend to commit murder.

SHAPIRO: The LA County Sheriff's Department lists the charge against the suspect in this case as a felony but has not said what the charge is specifically. Does that tell you anything?

KATYAL: Well, it tells me that they're all struggling with how to think about something like this. The law hasn't totally caught up to this type of thing, which is obviously not just a prank gone awry but something that is really despicable behavior and diverting, you know, some of our nation's most important kind of first responders' assets away from serious crimes and to something else. And obviously the tragedy here just speaks volumes.

SHAPIRO: You say the law hasn't quite caught up. What do you think would be useful?

KATYAL: Well, California does have a law against swatting. And the person who has been arrested has been arrested in California, so that law may apply. But of course, swatting doesn't usually typically result in a death as it did here. And so just using a swatting law to say that this person committed a crime doesn't capture the real tragedy that occurred here. So I think both at the federal and state levels we need statutes about swatting that think through the degrees of swatting.

SHAPIRO: I know that you have used these kinds of scenarios in law courses that you've taught at Georgetown. What makes these swatting cases such challenging legal problems?

KATYAL: Well, they're challenging because essentially you have a lack of total intent. I mean, no one, I think, could be said - at least on the facts that we have - to have intentionally brought about the killing. But what they have done, at least arguably, is act with extreme indifference to the value of human life.

And so as we think about what the most likely charge is - and this is something we use in law school, hypotheticals, all the time - you have what is known as a second-degree murder case. You have a case in which someone has acted not intent to kill, not in cold blood or something like that, but they've acted so willfully, with such disregard for the value of life, that we want to treat that not as manslaughter but as murder.

SHAPIRO: That's Georgetown law professor Neal Katyal, who's also a partner with the law firm Hogan Lovells. Thank you very much.

KATYAL: Thank you. Transcript provided by NPR, Copyright NPR.