The Volokh Conspiracy
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"Reckless, to Be Sure. Stupid." "But Mere Reckless Stupidity Does Not a Malicious Federal Arsonist Make"
A court sets aside a federal arson conviction (which would have carried a "mandatory minimum sentence" of "seven years") for a fan's throwing flares at a soccer stadium and causing minor damage and a minor injury.
From today's decision by Judge Roy Dalton (M.D. Fla.) in U.S. v. Ramirez Reyes:
In this arson case brought under 18 U.S.C. § 844(i), Ramirez was charged with maliciously damaging Inter&Co Stadium by throwing two flares during an Orlando City soccer match. The flares landed in the "Supporters Terrace" section of the stadium, where they burned for sixty seconds before going out. The flares caused discoloration of the aluminum bleachers and minor deterioration of the concrete floor. A four-year-old girl, E.Z., also sustained a superficial burn when one of the flares burned a hole in her jacket; medics at the stadium gave her an ice pack, and she recovered after applying burn gel at home for a few days.
No emergency response was requested, the match was not paused, and no one evacuated the stadium. After throwing the flares, Ramirez removed his hat and jacket, went back to his seat, and put the hat and jacket back on before exiting the stadium.
At trial, Ramirez moved for a judgment of acquittal ("JOA"), which the Court denied, and the jury then found Ramirez guilty of damaging the stadium and injuring E.Z. Ramirez now renews his JOA motion, seeks a new trial, and objects to the mandatory minimum sentence—seven years—as cruel and unusual under the Eighth Amendment. The Government opposes. The Court concludes that the Government's evidence was insufficient to prove that Ramirez had the requisite malicious intent….
"A motion for judgment of acquittal is a direct challenge to the sufficiency of the evidence presented against the defendant." Courts must "view the evidence in the light most favorable to the Government, with all reasonable inferences and credibility choices made in the Government's favor." But mere speculation is insufficient to support a conviction. If "a reasonable trier of fact could not find that the evidence establishes guilt beyond a reasonable doubt," the jury's verdict cannot stand.
First let's look at what the Government was required to prove on intent. 18 U.S.C. § 844(i) criminalizes "maliciously damag[ing] or destroy[ing], or attempt[ing] to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property." Malice requires that a defendant acted "intentionally or with deliberate disregard." Malice's deliberate disregard is more than mere recklessness, which requires only conscious disregard of a risk. See MODEL PENAL CODE § 2.02(2)(c) (1985) (defining recklessness as conscious, not deliberate, disregard); United States v. Lung'aho (8th Cir. 2023) ("A reckless act involves consciously disregarding a substantial and unjustified risk, but unlike a malicious one, the risk need not come anywhere close to a likelihood …. Malice may be close to recklessness, but it is not the same."). This difference, subtle but crucial, is about the degree of risk the defendant disregards: malice requires deliberate disregard of a very high risk equivalent to a likelihood of damage, while mere recklessness requires only conscious disregard of a lesser risk of damage. The conclusion that mere recklessness is not enough to show malice under the statute is supported by Congress's intent in enacting § 844(i): combatting serious planned bombings and organized arsons during the turbulent 1970s.
Now let's look at the evidence that Ramirez possessed the requisite malice. The Government's evidence on this point consisted of video footage of Ramirez surveying sections of the stadium before the game, throwing the flares, departing the area hurriedly after throwing the flares, moving to another section of the stadium presumably to see the result of the thrown flares, and then putting on a hat and jacket before exiting the stadium. The Government argues that this evidence is sufficient because "[t]he natural and probable consequence" of Ramirez's conduct "was that something would get damaged and someone would get hurt."
This evidence is certainly sufficient to establish that the flares were intentionally thrown, and that it was reckless to throw lighted flares into a crowded stadium. But this argument improperly conflates mere recklessness with malice, which requires a very high degree of risk not present here. What the video shows is Ramirez's intent to throw the flares and his awareness that doing so was against stadium rules, but it does not show his intent to maliciously damage or destroy the stadium.
Rather, a plethora of evidence shows that Ramirez did not intend to maliciously damage anything. He used flares that self-extinguished within sixty seconds, a choice incongruous with malice. He was an avid Orlando City fan, strongly suggesting he lacked any motive to damage their stadium. He threw the flares into the Supporters Terrace, a known rowdy part of the stadium where diehard fans dance and sing, indicating celebratory (albeit reckless) intent, not malicious intent. Indeed, supporters who are given permission may set off smoke flares (unlike the flares Ramirez used) near that area for celebratory purposes.
To be sure, the jury was free to discount the Defendant's proposition that these acts are common in soccer culture, and the notion that this was a misguided choice borne of exuberance. But eliminating a possible exculpatory explanation does not fill the void of proof required that the act was committed maliciously with the express intent of causing damage to the physical structure of the stadium. When confronted about the incident, Ramirez initially denied involvement—consistent with knowing flares were against the rules—but then clarified that he threw them as part of soccer tradition, not out of intent to hurt anything or anyone. Whether this purported explanation was credible or not, it stands in contrast to typical arsonists who make a malicious plan to burn things down.
On this record, even construing the evidence in the light most favorable to the Government, the jury could only improperly speculate that Ramirez had the necessary malicious intent to damage or destroy the stadium. And speculation is not enough to sustain a conviction for this serious crime.
At the end of the day, Ramirez is not the malicious federal arsonist § 844(i) was intended to punish. He did not bomb an occupied apartment complex, or burn down a church, or attach an incendiary device to a police car. He threw two short-lived flares into a rowdy area of a concrete stadium, causing scuffmarks and superficial burns that healed in a few days.
Reckless, to be sure. Stupid. A disregard for some risk. But mere reckless stupidity does not a malicious federal arsonist make. This Court is no apologist for arson, and the exercise of prosecutorial discretion is in the purview of the Executive, not the Judiciary. But the crime the prosecutors charged here does not match the evidence. This deeply serious crime—maliciously bombing and burning buildings down—carries a corresponding deeply serious mandatory minimum sentence of seven years.
And to prove this crime, the Government must "be put to its constitutionally mandated task," because the "doctrine of proof beyond a reasonable doubt, though of ancient vintage, has not yet been discarded." Because the Government presented insufficient evidence of Ramirez's malicious intent, Ramirez's JOA motion must be granted.
The Court now "must also conditionally determine whether any motion for a new trial should be granted if the judgment of acquittal is later vacated or reversed." The standard on a motion for new trial is more discretionary because "the court need not view the evidence in the light most favorable to the verdict." Though Ramirez did not directly challenge intent in his request for a new trial, the Court necessarily concludes for the same reasons that the jury's finding of intent was against the weight of the evidence under this more lenient standard. So the request for a new trial is conditionally granted on this ground only.
{The Court rejects Ramirez's … de minimis defense…. [T]he Court remains persuaded by the predecessor judge's analysis denying Ramirez's request to present a de minimis defense and is within its discretion not to reconsider that ruling.}
Vitaliy Kats represents Ramirez.