梁彼得的二级过失杀人罪为什么不成立

http://weibo.com/ttarticle/p/show?id=2309403945318000516823

前纽约市警察局官员梁彼得被指控“二级过失杀人”。纽约州的法律对二级过失杀人的定义是“一个人的鲁莽行为导致另一个人死亡”。

Former NYPD Officer Peter Liang was charged with “manslaughter in the second degree.” New York State law states “A person is guilty of manslaughter in the second degree when… [he] recklessly causes the death of another person”.

执法是一个危险的职业，梁彼得2016年2月11日的审判之前7天的事件就可证明这一点。这7天里，美国各地有7名警察被开枪打死。通过在YouTube上用关键字“21 foot rule”（21英尺定理）的搜索，我们可以了解到，训练有素的警员从枪套中取出手枪并向近处的攻击者开枪需要大约2秒钟;然而，在2秒内，攻击者可以跑至少21英尺（7米）、靠近到与警员触手可及的距离。此外，通过在Google上用关键字搜索“pistol stopping power”（手枪停止作用），我们可以也认识到，阻止一个下定决心要拼死一搏的攻击者，区区一两枪是不够的;而在开枪的期间，攻击者可以继续跑一两米，并用刀具对警员进行致死攻击。因此，在面对突然攻击时，室内的近距离环境对警察非常不利。

Law enforcement is a dangerous profession, as evidenced by the events over the 7 days preceding Liang’s trial on February 11, 2016, in which 7 police officers were shot and killed throughout the United States. By performing a search on YouTube with the keyword “the 21-foot rule,” one can learn that it takes approximately 2 seconds for a well-trained officer to draw his pistol from the holster and engage an attacker at close quarters; however, within the 2 seconds, an attacker can cover at least 21 feet of space and come within arm’s reach of the officer. In addition, by performing a search on Google with the keywords “pistol stopping power,” one can also learn that it takes more than a few shots to stop a determined attacker; during the span of these shots, the attacker can continue to cover several feet of space and perform a lethal attack with a knife on the officer. Thus, the close quarters inside a building offer police officers little protection against sudden attacks.

梁彼得在进入楼梯间取出手枪的决定并不“鲁莽”。梁彼得只有区区18个月的经验，却被分配在高犯罪率的地区进行巡逻。在案发时的室内环境里，一个持有武器的攻击者可能会在没有任何征兆的情况下突然出现在他的数米之内，而他的生存率微乎其微。警察大都学习过有关“21 foot rule”和手枪停止作用的知识，所以一个警员在众人皆知的危险环境中准备打开一个门，而这个门通往一个黑暗而狭小的空间，其有理由在开门之前掏枪。

Liang’s decision to draw his pistol prior to entering the stairwell is not “reckless.” Having had only 18 months on the job, Liang was assigned to conduct a patrol in an area known for high crime rates. Since he was inside a building at the time of the incident, an armed threat could suddenly appear within several feet of the officer without any warning, and the officer would have little chance to survive. Given the aforementioned knowledge on the “21-foot rule” and pistol stopping power, an officer would be justified to have his pistol drawn before opening the door leading to a dark confined space in a known dangerous area

梁彼得的误射也很难算是“鲁莽”。一个人若缺乏与人战斗的经验，在其觉得武力对抗有可能发生时，他会非常紧张，从而非常容易把任何突然的移动或噪音当作威胁，尤其是当他不得不在已知的危险环境中开门进入一个通往黑暗而狭小的空间。因此，梁彼得在黑暗中听到的噪音的刹那间，他因为或战或逃的生理反应（fight-or-flight response）扣动了扳机，根本没有机会深思熟虑地判断噪音是否出自威胁。他的格洛克19手枪是否改装过、有较重的单动扳机与当时的情况毫无关系，原因是或战或逃的生理反应会让人用力把扳机扣到底，就算这个枪有需要13磅拉力的双动扳机。因此，人们不能断言梁彼得不考虑后果地故意射入黑暗的楼梯间。

Liang’s accidental discharge of his weapon is also hardly “reckless.” With limited experience in combat with other human beings, anyone would feel extremely nervous when such a confrontation appears possible, and he would become predisposed to interpret any sudden movement or noise as a sign of threat, especially if he had to knowingly enter a dark confined space behind a closed door in an environment known to be dangerous. Thus, it is highly probable that when Liang heard the noise coming out of the darkness, within that split second he immediately pulled the trigger because of his body’s fight-or-flight response, before he was able to make a deliberate determination on whether the noise was a threat. Whether his Glock 19 pistol has a modified, heavier single-action trigger is irrelevant to the situation, because a body undergoing fight-or-flight response will fully compress a trigger even if it is a double-action requiring 13 pounds of pull force. Thus, one cannot assert that Liang deliberately fired into the darkness without regard for the consequences.

既然不能断言梁的行为是“鲁莽的”，人们就不能说他犯二级过失杀人罪。

Since one cannot assert Liang’s actions were “reckless,” one cannot argue he is guilty of second-degree manslaughter.