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December 1, 2010

Attempt actus reus hypo for consideration and reflection

To facilitate our discussion of the actus reus of attempt liability, below is a list of actions by a (troubled?) young man to get you thinking about where a line should be drawn between "mere preparation" and attempt liability:

Joe McAngryTechieNerd of Columbus truly believes Microsoft (MS) is the root of all evil and he often tells his techie friends that computers and the whole world would be better off with MS and Bill Gates.  After watching a documentary about Oklahoma City Bombing, Joe McAngryTechieNerd does the following:

1. E-mails techie friend saying he wished Bill Gates was dead and MS was bankrupt

2. Posts blog comment that he would love to see MS headquarters blown up

3. Does internet research on location of MS headquarters in Redmond, Washington

4. Does internet research about how often and when Gates still goes to his MS office

5. Does internet research on homemade explosives

6. Rents hotel room for two nights in Seattle

7. Rents Ryder truck for driving to Seattle

8. Drives rented truck to Seattle, checks into hotel, sleeps

9. Drives in morning to Redmond and drives around the MS headquarters repeatedly

10. Parks at MS headquarters, walks around asking employees when Gates is there

11. Returns to hotel room in Seattle, does more internet research on bomb-making, sleeps

12. In morning, buys fertilizer/gas/timer and other ingredients for making bomb at hardware store

13.  Drives again to Redmond, now with bomb ingredients in truck

14. Parks in strategic location on MS headquarters

15. Starts building homemade bomb insider rental truck

16. Waits, watches for Gates to arrive at work

17. Drives past security guard following Gates' car

18. Parks truck right next to Gates car as he pulls into spot

19. Jumps out of truck with remote bomb trigger in hand

20. Runs away planning to push trigger after hiding behind stone wall



When SHOULD Joe McAngryTechieNerd be deemed guilty of attempted murder?

        -- When could he be deemed guilty at common law?

        -- When could he be deemed guilty under the MPC?



When do you want police to intervene?

When do you think the police legally can intervene?

When do you think the police will intervene?

December 1, 2010 in Course materials and schedule | Permalink


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I think Joe should be guilty of attempted murder at about step 17. Depending on the amount of explosives he has, and details about his location and its surroundings prior to driving past the security guard, he's not posing a risk to anyone but himself until that point. This is not to say I'm of the opinion that Joe is not guilty of some kind of crime before step 17, maybe 'possession of materials capable of causing harm with an unlawful intent' or something, but just not attempted murder. I think my logic falls in line with the "dangerous proximity" doctrine, and despite the repercussions of such restriction on law enforcement and prosecutors as laid out in class, I still think attempt is a 'slippery slope', so maybe that's why I see a need for it to be checked heavily similar to the way that criminal defenses are.

Common law would probably deem Joe guilty at some point after 17, it not at all. As far as I understand, common law really required a 'complete' attempt, and maybe even running away "planning" to push the detonator wouldn't suffice. I'd like to believe a common law judge would look to the acts leading up to step 20 though, and find the latter half to be unlawful in their own right and serving no social purpose, and ultimately find attempted murder to have taken place at some point between 17 and 20.

It's harder to say when the MPC would deem attempted murder having been committed. Maybe that's the point of MPCs "fuzziness". Given that the 'substantial step' has the strongly corroborative qualification, I could see step 10 being corroborative in that is reconnoitering behavior, I could see 12, 13 and 15 all arguably qualifying as "possession, collection, fabrication of materials intended to be employed in the commission of a crime and in the place of the contemplated crime, with no lawful purpose" thus satisfying a couple more of the MPC considerations. That said though, I am left with the question of whether these acts are strongly corroborative of murder, or simply of setting off a bomb or robbery or trespass, etc?

I would want police to intervene no later than step 9. They may not be able to legally intervene, nor would, until step 12 though. This depends a lot on how much information they have and how reliable it is. Again, to make my humble opinion clear, while I'm all for the intervention of law enforcement at step 9, I definitely don't think a guilty verdict of attempted murder should be rendered based on acts up to that point.

Posted by: Adam Vernick | Dec 2, 2010 5:49:18 PM

It seems that under any of the common law tests, the earliest Joe may be deemed guilty is at step 12 under the abnormal step approach.

It seems that the physical proximity test would parallel the best with what the MPC's answer might be. At step 17, as Adam said, I think that Joe would almost certainly be found guilty - he had been lying in wait, reconnoitering the place contemplated for commission of the crime, unlawful entry of where the crime will be committed, possession of materials, and fabricated the materials. If only one or a few of the MPC's factors in determining a "substantial step" are sufficient, I think that Joe may be guilty as early as step 10, but that may be a stretch to prove in court that is intent was evidenced. I think step 12 would be a solid one to go off of, though.
I think step 12 may be the a sure point at which the police would be allowed to intervene. Buying the materials to assemble the bomb seems like a clear manifestation of his intent and intent to carry out the crime. However, especially if I were Bill Gates, I would probably want the police to intervene closer to steps 9 and 10 in reconnoitering the place contemplated for the crime

Posted by: Mallika Reddy | Dec 2, 2010 7:02:19 PM

I guess my problem with this set of facts is that until Joe sees Gates his intended victim is not present. This brings in the issue discussed in Rizzo. In Rizzo it was said, “Rao was not found, the defendants were still looking for him, no attempt to rob him could be made, at least until he came in sight” (Rizzo p.678). This makes it seem that up until Joe sees Gates he can’t be held liable for attempted murder, he could potentially be held for making a bomb, but not murder. Obviously Rizzo was decided before the introduction of the MPC and thus follows a somewhat common-law physical proximity approach. This would make it seem that according to the Rizzo court when Joe sees Gates, potentially step 17, he could be held for attempt of murder. Although at step 17 all Joe sees is Gate’s supposed car, and it is not known if he actually sees Gates in it.

Looking at the MPC, different steps apply to different subsections. However, the earliest MPC application appears to be step 9. MPC 5.01 (2) (c) would apply here “ reconnoitering the place contemplated for the commission of the crime”. At step 9 Joe repeatedly drove around the intended crime scene.

However, I would actually hope the police would not step in and make the arrest until Joe pulls up next to Gates in the parking lot. Or to be sure of Gate's safety, when Joe pulls into the parking lot following him. At that point we would have a lot of evidence to go to the jury with, showing Joes intention to specifically harm Gates.

Posted by: Christina Heithaus | Dec 2, 2010 7:46:56 PM

The question of when police should intervene raises some interesting issues. It seems that the appropriate time for intervention requires a balancing of two principles: public safety and the protection of individual liberty. We certainly want police officers to have the power to investigate suspicious activity and, if possible, to prevent harm; however, we are also concerned about police officers taking this power too far and invading our rights.

This issue draws my attention to situations such as 9/11. When catastrophes such as this actually occur, the immediate reaction people seem to have is: "why didn't the government do more to prevent this from happening?". Now, roughly 9 years after 9/11, people seem frustrated with airport security and feel the power has been taken too far.

I am in favor of giving police officers broad discretion to decide when it is appropriate to intervene. I agree with the comments above that the police are not likely to intervene until around step 12. However, like Adam, I would want the police to intervene no later than step 9 to prevent a potentially dangerous situation from taking place before serious, irreparable harm occurs.

Posted by: Todd Seaman | Dec 3, 2010 12:10:21 AM

Another potential question not only goes with when we want the police to step in and stop the crime, but when do we want them to step in and begin doing investigation. Should this person be on the radar once he posts the blog post? What about when he does the research? Does it have to be both? Ultimately, I think it comes down to the discretion of the police officers, but it is a tricky question to grapple with because we don't want the police to violate our Constitutional rights, but we also can't expect cops to know of terrorist plots without doing any research.

Step 9 is what gives me the most problems. Here, I feel like police intervention may at the very least convince Joe that his plot may be more difficult to pull off than he anticipated, and may cause him to abandon it, but I also don't want to give the police discretion to pull people over when they are being "suspicious." It is the classic case of, "sure, it works when the cops are pulling over terrorists, but do I really want them to be able to pull ME over?" I also think our analysis of step 9 is skewed slightly because we know that he continues with his plot. If the facts stopped at step 9, I'm not so sure I would be as comfortable with police intervention at step 9 as I am now.

Like Todd above me, I like intervention at step 12.

Posted by: Justin Joyce | Dec 3, 2010 1:02:03 PM

What about the hardware store? If Joe's bomb were successful, shouldn't the hardware store face some sort of liability (civil/criminal)? In step 12, they sell him fertilizer, gas, and a timer--all of his necessary bomb-making ingredients. Isn't this negligent on their part? (I think so.)

In "real life," I'd imagine it'd be a lot harder to procure the necessary ingredients for a bomb...especially the fertilizer component...and there's no way someone could purchase everything at one place--that would--or should!--set off some alarms, I'd think.

Posted by: Katie Zeitler | Dec 6, 2010 7:48:47 AM

I recently came across an article on CNN that I believe is an incredibly interesting – albeit terrifying – piece that may pertain to many of us. The article details how students (especially law students) may be in jeopardy of losing job opportunities with the federal government or in the private sector if they have read, commented on, or distributed any of the WikiLeaks documents and cables that have been released. The article can be found here: http://www.cnn.com/2010/CRIME/12/08/wikileaks.students/index.html?hpt=T1

Setting aside the constitutional arguments and bringing this interesting topic back to something relevant to this class, I’m curious about what relevance “attempt” could play in future criminal prosecutions against individuals who have either distributed the documents or even just read them. Could posting a link to such documents be considered an attempt to illegally distribute classified material?

Consider an even more intriguing example: I read daily articles about WikiLeaks and its founder, and recently was very interested in the “Insurance file” that Julian Assange had posted online in case of his death or imprisonment. The file is over 1.5 GB, and no one truly knows what the file contains; however, it is clear that the file is uncrackable, and will only be revealed if and when he releases the code to access the files. After reading briefly about it, I did a Google search on the insurance file to find out more. Could my mere search for this file that likely contains classified materials be construed as attempting to download or read classified materials? Or, taking it a step further, what about those who actually did download this “insurance file”? I think it is clear that the “last act” in this situation will only occur once Julian Assange releases the necessary code to read the documents, but is distributing this file or downloading it a substantial enough step to classify it as an attempt? I think this is an incredibly interesting topic; but I must admit I am a little worried about where this may lead in the future.

Posted by: Branden A. | Dec 9, 2010 12:16:10 PM

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