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Matt Kaplan has prevailed on behalf of his client in a case that will now define what conduct is and what is not kidnapping under District of Columbia law. From now on only conduct that most people would recognize as kidnapping will be considered kidnapping, putting an end to years of prosecutorial abuse. The decision reverses an earlier decision by a panel of the same court and vacates the client’s kidnapping conviction.

The case, United States v. Velasquez Cardozo, was decided by the full (en banc) D.C. Court of Appeals. Because it was sitting en banc the Court had the power to overrule its prior precedents, something that the three-judge panels that normally decide appeals cannot do. Under the case law, as it existed before this decision, virtually any conduct by a person that hinders or restricts the movement of another was deemed to be a kidnapping, a felony punishable by up to thirty years imprisonment. Indeed, at the initial oral argument in this appeal the government’s attorney was asked by one of the judges whether it would be kidnapping under D.C. law if, on the way out of the court, the attorney momentarily grabbed Mr. Kaplan by the shoulder to congratulate him on his argument. He told the judges that it would be.

Mr. Kaplan’s client was convicted of kidnapping because he grabbed another person, a grab that, according to the government’s police officer witness, lasted a “split second.” In recent years D.C.’s federal prosecutors have added charges of kidnapping to assault and robbery cases, which are not punished as severely as kidnapping. According to the government, virtually all such cases were also kidnappings because they almost always involve at least a momentary restriction on a person’s movement. The threat of a 30-year kidnapping sentence gave prosecutors a substantial and unfair advantage in plea negations. Even an innocent defendant would be reluctant to go to trial if doing so exposes him to the risk of three decades of incarceration.

Under the new standard set by the court’s opinion, kidnapping in Washington, D.C. now “means to detain [a person] for a substantial period
of time, so that the perpetrator could fairly be described as holding another captive like a hostage or a prisoner.” Momentarily interfering with the movement of another will no longer constitute the crime of kidnapping. Whether this criteria is met will be determined on a case-by-case basis, but the opinion suggests that a kidnapping conviction will require a detention of at least a half hour.

The decision is eminently reasonable. And it may influence how court’s interpret the federal kidnapping statute, which uses language similar to that in the D.C. statute to define kidnapping.

The opinion in United States v. Velasquez Cardozo, No. 17-CF-0774, (D.C..) was issued on May 23, 2024.