The Volokh Conspiracy

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Criminal Law

6th Cir. Reverses Conviction for Attempted Kidnapping


Prof. Jonathan Witmer-Rich (Cleveland State) posted this to a discussion list that I'm on, and graciously allowed me to forward it; it's about today's U.S. v. Ferguson (6th Cir.):

Great case from the Sixth Circuit today on attempt, reversing a conviction for attempted kidnapping. The majority (2-1) holds that there was insufficient evidence of a "substantial step." … The first paragraph sets the scene:

Ferguson, a black man from Cleveland, then 20 years old, aroused FBI suspicion in March 2020 with his internet postings. Ferguson led an online chat room on the Discord platform known as the 75th Spartans. In this chatroom, Ferguson, whose moniker was "Grinch75R," described his desire to create a militia group and revolt against tyranny. On March 18, 2020, Ferguson wrote that he wanted to organize the Spartans into "centurions to orchestrate raids for supplies such as weapon and armor." On April 7, 2020, Ferguson asked a member of the chatroom, a 14-year-old with the moniker "SecretAgentRandyBeans," whether he could drive because Ferguson wanted to do a "small claim" with the cops and "leave a calling card with the Spartans name." Ferguson stated he had not found any recruits yet. In response, SecretAgentRandyBeans stated he could "kinda drive."

… Pretty soon two government agents get involved and play a pretty active role, and the group discusses various possible plans to call a police car to a remote location and then ambush the officers, steal their weapons and radios, and then let them go—a way to "get the spark going" for their group.

The two FBI CIs persuaded Ferguson to show up on May 8 at an abandoned house in the Cleveland area to scope out the area. Ferguson brings his AR-15 (at the request of the FBI CI). Upon arrival the CI proposes (and Ferguson agrees) to do a "dry run" and call some cops to see how long it would take them to get there. They place a call for service, the cops arrive, Ferguson and the two FBI CIs all flee, the cops catch them and arrest all three (pretending to arrest the two CIs as well).

The majority analysis includes the following:

Ferguson's idea for an attack against law enforcement was at most in its planning stage. Ferguson had much more planning to do and was not, at the time of his arrest, ready to execute his plan. His early cyber communications with the Spartan channel indicated only a desire to commit a strike at some vague point in the future and the need to have recruits before doing so….

Ferguson had no timeline for his plan let alone an intent to execute it imminently. On May 2, Ferguson vaguely stated the possibility of organizing for a raid more than a month into the future. On May 8, Ferguson stated "right now, I'm just trying to get more people." As FBI confidential source "Steve" admitted at trial, Ferguson never provided a date or timeline for the plan. The government pointed us to no Sixth Circuit case in which an attempt conviction was predicated on a plan as far in the future as Ferguson's here. Every case we have found that sustained an attempt conviction for an offense to take place more than a few days in the future involved a set time and date between well-resourced drug dealers….

To commit attempted kidnapping, Ferguson had to take a substantial step not only in furtherance of the global concept of his plan, but also toward a holding of the officers against their will and for an appreciable period of time. None of his acts prior to May 8 meet this mark. He had no recruits, no location, no date or deadline, and not even a consistently expressed goal regarding how he intended to treat any responding officers.

The majority consists of one of the most senior Sixth Circuit judges, Alice Batchelder (took the bench in 1991), plus one of the most junior judges, Stephanie D. Davis (took the bench in June of 2022). Judge John K. Bush dissents.

Some highlights from the dissent:

On the one hand, Christian Ferguson could be viewed as simply a youth engaged in fantasy role play. Today's Tom Sawyer, if you will, "Busy at War" playing "General of one of the armies" in "the public square of the village where two 'military' companies of boys had met for conflict, according to previous appointment." Mark Twain, The Adventures of Tom Sawyer 20–23 (New York: Harper & Bros. 1920) (1875).

But, on the other hand, Ferguson could be viewed as much more than a pretend soldier. He was not playing with wooden guns. Instead, he packed an AR-15 rifle….

Ferguson did no harm here because the FBI intervened before he had any chance to carry out his planned criminal activity. But the majority seems to fault the agency for not waiting until something worse had materialized. I do not. If any second-guessing of law enforcement is to be done here, that is the role of the jury, not us.