PD-0589-22 12/21/2022
“For attempt crimes against persons—like capital murder of police—does attempt law require ‘striking distance’ proximity and weapons display and positioning or movement toward the intended victim to constitute ‘an act amounting to more than mere preparation that tends but fails to effect the commission of the offense’?”
Swenson, a member of the anti-government and anti-law-enforcement Boogaloo movement, posted threats to kill police on Facebook. In April 2020, armed with loaded firearms and a sword, Swenson live-streamed himself driving around and looking for police to kill. Police became aware of the live stream and mobilized to find Swenson. Swenson spotted an officer in a patrol car on the opposite side of the highway, and he exited and turned around to pursue him. The officer believed he might be Swenson’s target, so he drove away. Swenson looked for him for nine minutes while asking his viewers if he should use a TEC-9 or shotgun. Shortly after, Swenson spotted another officer in a patrol car. Though he intended to follow the officer, Swenson was then pursued by all available officers in the area. After a short, uneventful standoff at Sonic, Swenson led police through an area he knew well. His truck was eventually disabled after spike strips punctured a tire. After a twenty-five-minute standoff on a public street surrounded by police, Swenson peacefully surrendered. A jury convicted Swenson of attempted capital murder of police, an offense that requires “an act amounting to more than mere preparation that tends but fails to effect the commission of capital murder.”
The court of appeals held that the evidence was insufficient to prove “he went beyond mere preparation and crossed over into an act constituting attempt.” For attempt crimes against persons involving a weapon, the court observed: “the line separating preparation from an act of attempt appears to be at least grasping a weapon and in some way directing the grasped weapon toward the intended victim.” Here, there was no evidence that Swenson had a weapon in hand and directed it at police while he was within striking distance.
The State contends that the evidence is sufficient under Court of Criminal Appeals’ attempt precedent that: (1) allows for police intervention and a margin of safety when the intent is apparent and (2) does not require the last proximate cause. The striking distance, weapons-display, and positioning-or-movement-toward-the-victim requirements for attempted person offenses is an exacting crime-type-specific standard contrary to precedent. Further, intent is not divisible from conduct, as the court of appeals concluded. Swenson’s stated intent to kill was the impetus for his conduct and occurred concurrently with his act of hunting and luring law enforcement while armed. The only reason Swenson failed to find the first officer was that the officer took evasive action; Swenson did not abandon his plan and continued to look for police. Finally, when pursued by numerous officers, a rational jury could have concluded that Swenson lured them to inflict the mass casualty he intended.
