Teen Gets 30 Years in Woodley Park Metro Stabbing

Olijawon Griffin was stabbed and killed last year.

Back in November 2012, I blogged about the murder of Olijawon Griffin at the Woodley Park Metro station:

According to the court documents, a police officer who watched Metro security footage saw Griffin engage one teen in a boxing-style fistfight shortly after 1:15 a.m. and then saw Myers sneak behind Griffin with a knife, stab him in the chest and run.

At the time, I wrote:

Myers "snuck up behind Griffin" which would tend to show deliberation and premeditation, no?

I wondered if Myers was actually culpable for first degree murder rather than second. It turns out I was right:

Myers was indicted on a charge of first-degree premeditated murder while armed and the others were indicted on felony murder. All six were indicted on charges of armed robbery, assault with a dangerous weapon, assault causing significant bodily injury and weapons offenses for their roles in attacks on Griffin and his friend...

The District of Columbia, like many other jurisdictions, allows for accomplices to be charged with murder when someone dies in the commission of another (usually dangerous felony). So while Myers's accomplices didn't actually kill Griffin (or, for that matter, are even accused of killing him), they are charged with felony murder--as if they did kill him.

The now 18-year old Chavez Myers and his friends, charged as adults, will spend a considerable amount of time in prison.

According to this article in the Washington Post, Myers pled guilty to first degree felony murder, and was sentenced to 30 years in prison. The other five accomplices, ages 17 to 20, drew sentences ranging from 15 to 19 years for voluntary manslaughter.

So Myers was indeed convicted of first degree murder, but of the felony murder variety (killing while perpetrating certain crimes, probably robbery) as opposed to the purposeful variety. In the end, the distinction is probably not meaningful--Myers will be in prison for a long time.

Six Teens Indicted For November Metro Station Murder

Back in November, I blogged about the murder of Olijawon Griffin at the Woodley Park Metro station:

According to the court documents, a police officer who watched Metro security footage saw Griffin engage one teen in a boxing-style fistfight shortly after 1:15 a.m. and then saw Myers sneak behind Griffin with a knife, stab him in the chest and run.

At the time, I wrote:

Myers "snuck up behind Griffin" which would tend to show deliberation and premeditation, no?

I wondered if Myers was actually culpable for first degree murder rather than second. It turns out I was right:

Myers was indicted on a charge of first-degree premeditated murder while armed and the others were indicted on felony murder. All six were indicted on charges of armed robbery, assault with a dangerous weapon, assault causing significant bodily injury and weapons offenses for their roles in attacks on Griffin and his friend...

The District of Columbia, like many other jurisdictions, allows for accomplices to be charged with murder when someone dies in the commission of another (usually dangerous felony). So while Myers's accomplices didn't actually kill Griffin (or, for that matter, are even accused of killing him), they are charged with felony murder--as if they did kill him.

17-year old Chavez Myers and his friends, charged as adults, may spend most of the rest of their lives in prison.

On WMATA, do whatever you want (because they don't care)

While riding the Metro this afternoon, two gentlemen (and I use that term loosely) got onto the train with food and proceeded to start eating. A (brave) passenger sitting behind me got up and approached them, politely reminding them that eating was not permitted. The two guys laughed in his face, then ignored him and continued to eat (and have a hearty laugh about the whole incident).

They can do this because Metro rarely enforces its own rules. I have ridden the Metro on and off for parts of two decades and never seen these rules enforced. In fact, on more than one occasion, I have seen Metro employees as the ones breaking their own rules. Do as I say, not as I do? More like: do whatever you want, because they don't care.

The DC Metro...and textualism?

This is one of a series of posts about Justice Antonin Scalia and Bryan Garner's Reading Law: The Interpretation of Legal Texts. For similar posts, click here.

I wrote a previous blog post about the ejusdem generis canon. To recap: where general words follow an enumeration of two or more things, they apply only to persons or things of the same general class specifically mentioned.

I was riding the Metro the other day and came across an example of where we might be able to use ejusdem generis in practice:

For the sake of this example, let's focus on the last bullet. So, "[i]n any Metro Station or train it is unlawful to...Carry any animals, flammable liquids or other dangerous articles." (Sorry, no Oxford comma...)

First: what does Carry and any modify? Presumably, it modifies all of the items. In other words, It is unlawful to carry any animals, carry any flammable liquids, or carry any other dangerous articles. It would be odd to suggest that you could bring have flammable liquids or other dangerous articles if you weren't carrying them. Even then, what does it mean to carry? If I have a (non-service) dog on a leash, am I really carrying an animal?

Animals: Without any other guidance, this would seem to mean all animals (but probably not service animals, who are already exempt). It's also a very general term in a list.

Flammable liquids: On the other hand, "flammable liquids" is a rather specific term that refers to items such as diesel, gasoline, and kerosene. The text suggests that the purpose here is to reduce the fire hazard. But what about that vegetable oil you bought at the store on the way home? It is flammable. What about lighter fluid? In a bottle? In a lighter?

Other dangerous articles: The ejusdem generis canon suggests that "other dangerous articles" should be  of the same general class specifically mentioned. But the classes specifically mentioned aren't necessarily very helpful. All animals and flammable liquids do not necessarily lend themselves to understanding what is meant by "other dangerous articles." Presumably, though, this means firearms (although it seems odd, especially in Washington, D.C., that they don't explicitly mention this), knives or other hand-held weapons. What about nunchuks? Brass knuckles? A baseball bat?

You can see here how a rather simple sounding regulation could be potentially very confusing. The Metrorail Rules and Manners page makes some reference to these rules, but does not provide clarification.

Metro murder: first or second degree?

Chavez Tyrek Myers is a 17-year-old from District Heights charged as an adult with second-degree murder while armed:

Court documents allege that he snuck up behind Griffin during a fight at the Metro station and plunged a knife into his chest.

I thought this was maybe a bit questionable--it seems like this could potentially be a first degree murder, not second? Here's the DC statute for first degree murder (emphasis in bold is mine):

§ 22-2401. Murder in the first degree - Purposeful killing; killing while perpetrating certain crimes.
 Whoever, being of sound memory and discretion, kills another purposely, either of deliberate and premeditated malice or by means of poison, or in perpetrating or attempting to perpetrate an offense punishable by imprisonment in the penitentiary, or without purpose to do so kills another in perpetrating or in attempting to perpetrate any arson, as defined in § 22-401 or § 22-402, first degree sexual abuse, first degree child sexual abuse, first degree cruelty to children, mayhem, robbery, or kidnaping, or in perpetrating or attempting to perpetrate any housebreaking while armed with or using a dangerous weapon, or in perpetrating or attempting to perpetrate a felony involving a controlled substance, is guilty of murder in the first degree. For purposes of imprisonment following revocation of release authorized by § 24-203.1(b)(7), murder in the first degree is a Class A felony.

Now here is the statute for second degree murder:

§ 22-2403. Murder in the second degree.
Whoever with malice aforethought, except as provided in §§ 22-2401, 22-2402, kills another, is guilty of murder in the second degree. For purposes of imprisonment following revocation of release authorized by § 24-203.1(b)(7), murder in the second degree is a Class A felony.

Myers "snuck up behind Griffin" which would tend to show deliberation and premeditation, no? Maybe the issue here is "kills another purposely" (first degree) vs. "kills another" (second degree). It's difficult to understand the distinction here, but it seems that perhaps the prosecutors doubt their ability to prove that Myers actually intended to kill Griffin, rather than just intent to inflict a serious bodily injury that resulted in Griffin's death.

#WMATA's holiday schedule doesn't add up

WMATA's "holiday" schedule on Monday was like politicians' budgets; the math doesn't add up:

@bangnowski @smallz827 our ridership is down compared to a normal weekday. Through 1p today was 189,400 vs 320,400 last Monday
— @wmata (@wmata) November 12, 2012

Rush hour trains are typically 3-4 minutes apart, but this was their plan:

@smallz827 @bangnowski this PM it should be about every 10-12 min.
— @wmata (@wmata) November 12, 2012

So, ridership is down ~1/3 from a normal Monday. But they reduced train service by 2/3.

WMATA, sovereign immunity, and AEDs

Reminder: I am not a lawyer (yet), and this is not legal advice.

Under what conditions might a lawsuit against the Washington Metropolitan Area Transit Authority (WMATA) succeed in overcoming WMATA's sovereign immunity, for failing to properly maintain an installed automated external defibrillator (AED)?

To understand this, we need to review the concept of sovereign immunity and how it applies to WMATA; and more importantly, the associated waivers of sovereign immunity. Essentially, sovereign immunity is a principle that states are immune from being sued without their consent (or, by their own waiver).

See the following from Morris v. WMATA (781 F.2d 218), which is a nice summation of the history of WMATA's sovereign immunity:

On November 6, 1966, Congress consented to, and enacted for the District of Columbia, a compact whose signatories were Maryland, Virginia, and the District of Columbia....The Compact created WMATA to operate a mass transit system for the District of Columbia and the surrounding suburban areas of Maryland and Virginia.

...

WMATA's sovereign immunity exists because the signatories have successfully conferred their respective sovereign immunities upon it. Congress has power to legislate for the District of Columbia and to create an instrumentality that is immune from suit....

The relevant portion of the WMATA Compact is Section 80. The section in bold below is important because this identifies WMATA's partial waiver of immunity:

80. Liability for Contracts and Torts

The Authority shall be liable for its contracts and for its torts and those of its Directors, officers, employees and agent committed in the conduct of any proprietary function, in accordance with the law of the applicable Signatory (including rules on conflict of laws), but shall not be liable for any torts occurring in the performance of a governmental function. The exclusive remedy for such breach of contracts and torts for which the Authority shall be liable, as herein provided, shall be by suit against the Authority. Nothing contained in this Title shall be construed as a waiver by the District of Columbia, Maryland, Virginia and the counties and cities within the Zone of any immunity from suit.

So the distinction here is a matter of function: WMATA cannot be sued for "governmental" functions but it can be sued for "proprietary" functions. So, what is the difference? Let the courts answer (all citations omitted for clarity):

Federal courts...interpreting the WMATA Compact have adopted certain tests

to aid in their determination of which functions are “governmental” and thus immune from suit.

Activities that are “quintessentially governmental” fall within the scope of § 80's grant of

immunity. Such functions have been defined as those activities exclusively within the purview of the government by way of its legal and authoritative nature. The oftcited prototypical governmental function as pertains to WMATA is the act of maintaining a police force.

So, immunity applies to governmental functions but not proprietary ones. If a function is proprietary, a second test must be applied:

If it is not discretionary, as where a “statute, regulation, or policy specifically prescribes a course of action for an employee to follow,”  the activity is “ministerial” and not protected by governmental immunity. If, on the other hand, the activity is “discretionary,” the court must decide whether it falls within what the Supreme Court has termed the “exception for discretionary governmental functions,” commonly referred to, by the federal appellate courts, as the “discretionary function exception.” If the discretionary function exception applies to the challenged activity, then that activity, like activity falling within a quintessential governmental function, “constitute[s] [a] ‘governmental’ activit[y] within the meaning of the ‘governmental/proprietary’ test” of section 80 of the WMATA Compact, and is thus shielded from tort liability.

Got it? Good (yeah, it's a little confusing to say the least!).

Essentially, the function must be both proprietary and also ministerial or WMATA's sovereign immunity applies.

Here's an example. In this case, "WMATA failed to maintain, repair, inspect, or operate the escalators at the Anacostia station such that they became wet and icy, and second, that WMATA failed to warn the public of the wet and icy escalators...WMATA concedes that its actions were not 'quintessentially governmental activities.'" So the first part of the test is conceded; the function of maintaining, repairing, inspecting and operating of escalators is not a governmental function, but a proprietary one. However, the court found that "discretion exercised over the maintenance, repair, inspection, and operation of the escalators is 'subject to policy analysis' and thus discretionary." So escalator maintenance fails the second test because it is discretionary and not ministerial. Thus, WMATA's sovereign immunity applies.

Can we assume that AEDs are similar to escalators in that the function of maintaining, repairing, and inspecting of AEDs is not a governmental function, but a proprietary one? I don't see any reason why not. Absent a strong argument otherwise, the first test appears to be met.

WMATA has much less of an argument if they want to suggest that function of maintaining, repairing, and inspecting AEDs is subject to discretion. There may be differing methods of dealing with escalators in cold and wet weather, but the maintenance of AEDs seems pretty straight forward. In fact, to have AEDs installed without a specific maintenance procedure seems negligent, no?

To establish that the function of  maintaining, repairing, and inspecting of AEDs as a ministerial function rather than a discretionary one, an argument would be bolstered by specific instructions, or policies, to check AEDs on a regular basis. A further example would be the District of Columbia's AED law which states in part that:

The defibrillator is maintained and tested according to the manufacturer’s operational guidelines, and written records of the maintenance and testing are maintained...

(For the record, I know the action took place in the Pentagon Metro Station in Virginia, I am simply citing the DC law as an example of a positive duty to maintain the AED device. I haven't found related laws in Virginia or Maryland yet).

This DC law (whether or not it is truly applicable to WMATA remains to be seen) seems to suggest a positive duty to maintain the AED device; such would make it (in my opinion) a ministerial function. Even absent specific laws in MD or VA, some cases suggest that certain organizations may have a duty to maintain.

In such a case, the function of maintaining AEDs would be both proprietary and ministerial and thus not subject to WMATA's sovereign immunity; as such, WMATA could be sued for failing to maintain the AED (this post does not elaborate on whether or not such failure contributed to the death of the passenger, although common sense suggests it is probable).

I am curious to hear your thoughts and opinions.

What a weird commute

In the wake of Hurricane Irene, Amtrak service was canceled between Washington, DC and Boston on Sunday giving rise to the real possibility that MARC service on Monday would also be affected (the MARC Penn Line, which I ride to work, uses the same Northeast Corridor as Amtrak). Indeed, the MTA made an announcement on Sunday which told riders to expect the possibility and said further news would come by 6PM.

By 5:30PM, the MTA announced full service for all lines. Good news...for a while. Soon thereafter, the MTA retracted that announcement and said that full service would indeed occur on the Camden and Brunswick lines, but possibly not the Penn Line. Amtrak was inspecting the line and encountered enough issues to warrant the possibility of no service (or at least decreased service) on Monday. And as of 9:30PM last night, that was the story. The MARC Penn Line would run on the "S" schedule, which is the several weather schedule that amounts to about 2/3 of the normal trains. The notice also included some specific issues at stations, including power outages. I checked BWI: no issues; so far, so good.

Numerous traffic lights were out on Aviation Boulevard, and indeed as I headed down Amtrak Way to the BWI parking garage, the power to Garage 1 was out entirely. Other people were leaving. I managed to make my way through an open gate into Garage 1 and parked in my usual area. the "flashlight" feature of my phone came in handy since it was pitch black in the garage!

In the time I arrived, I realized by talking to some fellow passengers that the situation had changed a few more times. People were leaving because the station told people that the entire MARC schedule was canceled. Then, the 5:18 train (not on the S schedule) was just delayed, not canceled. Then, an announcement that MARC was operating on a holiday schedule (note: MARC doesn't operate on holidays!). In reality, it was back to the "S" schedule. The station manager at the BWI MARC station seemed to be suffering from a severe lack of communication. I have no doubt the situation did not change that many times; indeed, it is highly likely MARC was on the "S" schedule since last night, only the station manager didn't know.

Despite the reduced schedule, passenger volume seemed slightly below normal overall (on the other hand, it seems later trains are packed). The train ride was entirely uneventful: BWI, Odenton, Bowie State, Seabrook...until we got to New Carrollton.

A bit of background: the MARC trains have entrances on both ends of the car, and then a door leading into the passenger compartment. The area between those doors is a vestibule, and signs tell people not to stand in the vestibule. Conductors also tell people not to stand there.

That being said, there are occasions when people will stand in the vestibule. After the usual conductor checks tickets after the Bowie State stop, he moves toward the center of the train and passengers in the first two cars begin to queue up in the vestibule as to people to get off the train quickly (and so goes the rat race, but that's for another post). Nine times out of ten, the conductor does not come back and nothing happens. Occasionally, if the conductor does see someone standing in the vestibule, he or she will ask them to move and they do.  Additionally (and usually in the afternoon), some conductors are a bit lax in enforcing the vestibule policy, so instead of a hard-and-fast rule, it becomes a wait-and-see rule. People end up following the idea that it's easier to ask for forgiveness rather than permission.

This morning being this morning, the usual conductor was not onboard and the alternate guy just happened to make his way back to the first two cars by New Carrollton. He passed through the vestibule and asked the passengers to move...and nothing. I was standing just inside the door of the the first car and he walked past in frustration, saying that he was giving up because no one listens to him. He even made an announcement of the same manner, explaining it was a safety requirement (it is), but no one moved. We arrived at Union Station without further incident. The passengers had won.

Or had they?

According to Md. TRANSPORTATION Code Ann. § 7-705  (2011):

(f) Obstruction, hinderance or interference with operation of transit vehicle or railroad passenger car. --
   (1) It is unlawful for any person to obstruct, hinder, or interfere with:
      (i) The operation or operator of a transit vehicle or railroad passenger car; or
      (ii) A person engaged in official duties as a station agent, conductor, or station attendant who is employed by:
         1. The Administration;
         2. An entity that provides transit service under contract with the Administration;
         3. A local government agency or public transit authority;
         4. A private entity that provides public transit service; or
         5. An entity that provides transit service under a transportation compact under Title 10 of this article.
   (2) Any person who violates this section is guilty of a misdemeanor and is subject to a fine of not more than $ 1,000, imprisonment not exceeding 90 days, or both, for each offense.

Now, I've never seen anyone threatened with this provision (although there are multiple signs posted identifying it), I think you could easily make the argument that not following a conductor's safety instructions is a violation.

I've stood in the vestibule before so I'm just as guilty as everyone else, but in the times that a conductor has asked me to return to the car, I've done so. On the other hand, outward defiance of the conductor is another thing altogether.

The last leg of my commute, the Metro, was (perhaps  surprisingly) the least noteworthy because all the trains were back to normal (frequent riders know what "normal" means!). In fact, WMATA never even reduced or changed their schedule at any time during the hurricane. Pretty impressive given shutdowns in other cities and WMATA's past track record.

This afternoon's commute should be interesting to say the least. The "S" schedule only provides for, on average, about one train an hour when I normally travel home, instead of two of three. I may go home early to avoid the expected mess.