All federal charges under the Seamen’s Manslaughter Act arising from the fatal duck boat incident on Table Rock Lake have been dismissed for lack of admiralty jurisdiction. The Government has appealed.
The gCaptain forum twice attempted to block me from creating a new thread for this topic, and to force me to post to an old thread.
gCaptain did block me from posting the court’s order dismissing the case (too many characters).
Can you post a link to the order?
No, I cannot.
I tried to post the full text of the 23 page order, but gCaptain does not want Mariners to see such things.
Of course, it’s a U.S. District Court decision, so its probably “unpublished.”
If anyone has access to Westlaw, Lexis, or similar subscription commercial law reporting services they can get it. I don’t have that access.
No doubt, it will eventually find its way into the mainstream media.
By precedent, navigable waters of the United States must form “a continued highway over which commerce is or may be carried on with other states or foreign countries” (The Daniel Ball, 77 U.S. 557, 19 L. Ed. 999 (1870)). The Eighth Circuit has previously ruled - twice - that Table Rock Lake specifically does not meet this test, and Rush determined that his court should follow this precedent. Finding no federal jurisdiction over the alleged crime, Judge Rush recommended dismissing the charges.
I guess it’s asking too much to expect federal prosecutors to understand the concept of jurisdiction before filing charges and wasting the court’s time and taxpayer money.
I searched the December news articles for a link to Judge Harpool’s order, and the US Western MO District court order history and can’t find it.
Care to enlighten us on where you have this 23 page order that “gCaptain” won’t let you post, you don’t have a link for, might be “unpublished”, and that you “don’t have that access” to?
gCaptain won’t allow the entire text of the 23 page order to be published on the forum because it has more characters (it’s bigger than the rather low limit ) set for gCaptain.
Most U.S. District Court orders are “unpublished,” (which means that they do not create a precedent, cannot be cited by lawyers in other cases, and will not appears in the Fed Supp. Case books), but the orders will usually be available in the court’s docket on PACER, the court system’s subscription service. I don’t have a PACER subscription. They will also be available with a paid subscription on Westlaw and Lexis, but I don’t have subscriptions to those either.
I searched Findlaw, a free to the pubic legal service, but could not find the order there.
A friend with a paid subscription thought I might be interested in the case, so he emailed the text of order to me. So I don’t have a link to the order. I just have the text.
@Kennebec_Captain posted an article from Maritime Executive that is apparently about the case. But I have not yet followed the link or read that article.
@shipengr. Do you have anymore smartass comments? If so, just put them where the sun doesn’t shine.
At this point, I wish I had not even bothered to create the topic.
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHWESTERN DIVISION
UNITED STATES OF AMERICA, ) ) Plaintiff, ) )
v.
) Case No. 18-CR-05043-01/03-MDH
) KENNETH SCOTT MCKEE, et al., ) ) Defendants. )
ORDER
Before the Court are Defendants’ Joint Motions to Dismiss (Docs. 53-59) and Defendant McKee’s Motion to Suppress Statement (Doc. 52). Pursuant to 28 U.S.C. § 636(b) and Rule 72.1 of the Local Rules of Procedure of the United States District Court for the Western District of Missouri the motions were referred to the United States Magistrate Judge for preliminary review. The Magistrate has completed his review and submitted his Report & Recommendation to the undersigned. (Doc. 93). The parties have filed their exceptions and responses to the Report & Recommendation and the matter is now ripe for review.
The Court has conducted an independent review of the record, including the hearing transcript, the parties’ briefing and the applicable law. Upon careful and independent review of the pending motions, the Court ADOPTS the Magistrate’s Report & Recommendation. The Court hereby GRANTS Defendants’ Joint Motion to Dismiss the Second Superseding Indictment for Lack of Admiralty Jurisdiction (Doc. 54). The Second Superseding Indictment is dismissed in its entirety. The Court further DENIES AS MOOT the remaining pending motions (Docs. 52-53, 55-59). Finally, the Court ORDERS that the Magistrate’s Report & Recommendation be attached to and made a part of this Order
IT IS SO ORDERED. DATED: December 3, 2020
/s/ Douglas Harpool
DOUGLAS HARPOOL
UNITED STATES DISTRICT JUDGE
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHWESTERN DIVISION
UNITED STATES OF AMERICA, ) ) Plaintiff, ) )
v.
) Case No. 18-05043-01/03-CR-SW-MDH
) KENNETH SCOTT MCKEE, et al., ) ) Defendants. )
REPORT & RECOMMENDATION OF U.S. MAGISTRATE JUDGE
The Court referred this matter to the undersigned for preliminary review pursuant to 28 U.S.C. § 636(b) and Rule 72.1 of the Local Rules of Procedure of the United States District Court for the Western District of Missouri. This matter is currently before the Court on Defendants Kenneth Scott McKee, Charles V. Baltzell, and Curtis P. Lanham’s (“Defendants”) seven jointly filed motions to dismiss (Docs. 53 through 59) and Defendant McKee’s Motion to Suppress Statement (Doc. 52). For the reasons set forth below, it is hereby RECOMMENDED that Defendants’ Joint Motion to Dismiss the Second Superseding Indictment for Lack of Admiralty Jurisdiction (Doc. 54) be GRANTED, and that the remaining pending motions be DENIED as moot.
I. Preliminary Statement & Background
Defendants are charged in a 47-count Second Superseding Indictment alleging violations of 18 U.S.C. § 1115 (commonly called the Seaman’s Manslaughter statute) and 46 U.S.C. § 2302(b) (a misdemeanor charge for gross negligent operation of a vessel). Defendants Baltzell and
Lanham’s charges under the Seaman’s Manslaughter statute and misdemeanor negligent operation of a vessel are premised on 18 U.S.C. § 2 (aiding and abetting). (Doc. 42).1
On July 19, 2018, 17 people died on Table Rock Lake when the vessel Stretch Duck 7 sank during a storm. On the day in question, Defendant McKee captained Stretch Duck 7, Defendant Baltzell was the operations supervisor and manager on duty, and Defendant Lanham was the general manager of Ride the Ducks Branson. (Doc. 42, ¶¶ 7-9). Table Rock Lake’s shores extend into both Missouri and Arkansas. The indictment alleges the incidents took place in the Western District of Missouri and within the admiralty jurisdiction of the United States. (Doc. 42, ¶¶ 47, 51, 56).
The undersigned heard oral argument on Defendants’ Motion to Dismiss the Second Superseding Indictment for Lack of Admiralty Jurisdiction (Doc. 54). See Transcript of July 17, 2020 Hearing (Doc. 90). The parties requested that they be able to present evidence, which they submitted in writing at the hearing pursuant to stipulation (Doc. 86); the parties called no live witnesses. The undersigned has reviewed the evidence the parties submitted. (Government’s exhibits 1 through 35; Defendants’ exhibits A through M).
II. Parties’ Arguments
Defendants have asked the Court to dismiss the Second Superseding Indictment arguing the Court lacks subject matter jurisdiction. (Doc 54). Specifically, Defendants contend that the Second Superseding Indictment alleges only admiralty jurisdiction, and that the Court’s admiralty jurisdiction does not extend to crimes occurring on Table Rock Lake because the lake is not
IM NOT GOING TO MAKE 23 POSTS TO POST THE ENTIRE ORDER.
If gCaptain wants to increase the size limit, I’ll post the entire order in one post, otherwise I’m not going to spend anymore time on it.
So now the charges would be civil negligence rather then criminal manslaughter?
State criminal law controls. Remedies are not restricted to civil cases.
Also, it is inaccurate to say that unpublished opinions are without precedential value. They may have less value for various reasons, but they are nevertheless part of the body of law.
Doesn’t seem likely that Missouri has the equivalent of the Seamen’s Manslaughter Statute so presumably it’s less likely the state could obtain a criminal conviction.
Or put differently the fact that the SMS doesn’t apply means finding criminal liability under state law is more difficult.
Court rules generally prohibit citing unpublished opinions.
Yes and no I suppose. I get that Admiralty cases probably don’t come up too often for the average Missouri prosecutor, but I’d agree thats a poor excuse. It seems looking at cases cited in the decision of this one clearly explain the precedent for the decision made regarding navigable waters, so the information was out there.
re @tugsailor not a smartass comment: Federal court orders are public domain documents, if you have the document text just save the file and upload it using the forums upload button.
Very generally speaking, most criminal laws require the element of “intent”, or a substitute for intent like “recklessness” or “gross negligence.” Intent is that you intend for it to happen. Recklessness is that you know something bad is apt to happen, but you don’t care. Ordinary “negligence” is that you simply screwed up.
Seamen’s Manslaughter is the only law I have ever heard of that criminalizes ordinary negligence. Thats why it’s controversial. I wonder if that is even Constitutional?
All federal criminal charges have been dismissed. Period.
State criminal charges could be brought. I certainly wouldn’t know any Missouri law, but presumably, like most states, they have some sort of “Negligent Homicide” or “Criminal Negligence” statute that requires “gross negligence” for a conviction. Obviously, gross negligence is more difficult to prove than ordinary negligence.
Yes. Federal Court orders are public domain documents. It’s undoubtedly on the PACER system. I don’t know what PACER means, but if I had to guess, I’d go with something like Public Access to Court Electronic Records. But since you’re an expert on this, I’ll leave it to you to obtain the order and post it.
I’ve read the order, I made a good faith effort to post it for others, but now I’m all done.
I’ve seen prior strong opinions on Seamen’s Manslaughter on here. Were it not for the jurisdictional issue, (ie: if this incident had happened on a legally navigable waterway) do people generally feel that Seamen’s Manslaughter would otherwise be appropriate here?
The burden of proof differs but criminal negligence charges can be brought forward in State laws.
Civil negligence occurs when a person fails to exercise ordinary care, sometimes referred to as “due diligence”. The standard is measured by what a reasonable person - sometimes referred to as a person of ordinary prudence - would do under the same or similar circumstances.
Criminal negligence occurs when a person fails to be aware of a substantial and unjustifiable risk The risk must be of such nature and degree that the failure to be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.
Criminal negligence can rise to the level of a felony if it results in homicide or manslaughter.