JOHN A. GIBNEY, JR., District Judge.
A jury convicted the defendant, James William Hill, III, of violating the Matthew Shepard-James Byrd, Jr. Hate Crimes Prevention Act (the "HCPA" or the "Act"). The jury found that Hill willfully injured a co-worker, C.T., while C.T. packed boxes at an Amazon facility in Chester, Virginia, due to C.T.'s actual or perceived sexual orientation. Hill now moves for judgment of acquittal, arguing that the government cannot constitutionally prosecute him under the HCPA, and therefore the Court should set aside his conviction.
After considering the facts adduced at trial, the Court finds that, as a matter of law, the HCPA as applied to Hill exceeds Congress's power under the Commerce Clause. Accordingly, Hill's conviction under the Act cannot stand, and the Court grants his motion for acquittal.
On May 22, 2015, Hill and the victim, C.T., worked at the Amazon Fulfillment Center
Amazon shut down the area in which the incident occurred for approximately 30-45 minutes to clean blood off the floor. (Tr. 162, 227, 229.) The assistant manager on duty testified that other areas of the facility absorbed the work, and her team did not miss any "critical pull times," or deadlines by which they needed to package orders to reach the customers in time. (Tr. 218, 227-28, 232.) Although C.T. did not return to the production line, Hill's expert, Dr. Jonathan Whitaker, testified that Amazon performed no differently during the May 22 shift than during any other shift that month.
The Commonwealth of Virginia initially charged Hill with misdemeanor assault and battery in state court. On May 29, 2015, however, the state prosecutor requested the United States "assume prosecution of this case as a hate crime" in part because Virginia's hate crime statute does not cover crimes based on sexual orientation. (Dk. No. 21, Exh. 2.) On July 24, 2015, the United States Attorney General certified that Hill's prosecution under the HCPA "is in the public interest and is necessary to secure substantial justice." (Dk. No. 17, Exh. B.) The Commonwealth dropped the misdemeanor assault charge in favor of federal prosecution, and a federal grand jury indicted Hill under the HCPA.
Hill moved to dismiss the indictment, arguing that the Court should deem the HCPA unconstitutional as an invalid exercise of Congress's commerce power. The Court dismissed the indictment, finding the HCPA unconstitutional as applied to Hill. The Fourth Circuit reversed and remanded that decision, holding that this Court should first develop facts regarding whether Hill's actions substantially affected interstate commerce.
Following remand, this Court held a jury trial beginning on January 22, 2018. During the trial, the Court allowed the government to amend the indictment to charge that, in connection with punching C.T. due to C.T.'s sexual orientation, Hill "interfered with commercial and other economic activity in which C.T. was engaged at the time of the conduct." (Dk. No. 96.) The Court instructed the jury that the government must prove that Hill (1) caused bodily injury to C.T.; (2) willfully; (3) because of C.T.'s actual or perceived sexual orientation; and (4) that the conduct in the first three elements interfered with commercial or economic activity in which C.T. was engaged when the incident occurred. The jury found Hill guilty. Hill moved for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29, again arguing that the HCPA cannot constitutionally apply to his assault on C.T.
The HCPA punishes certain hate crimes. 18 U.S.C. § 249. Section 249(a)(2), at issue in this case, focuses on hate crimes based on "actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability." 18 U.S.C. § 249(a)(2). Congress passed this subsection based on its power under the Commerce Clause. See United States v. Jenkins, 909 F.Supp.2d 758, 766 (ED. Ky. 2012).
To obtain a conviction under § 249(a)(2), the government must prove (1) that the defendant willfully caused bodily injury to another person, or attempted to cause bodily injury by using a dangerous weapon; (2) that the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of the victim served as the "but-for cause" of the assault; and (3) that the conduct falls within a "circumstance described in subparagraph (B)." 18 U.S.C. § 249(a)(2)(A); see United States v. Miller, 767 F.3d 585, 594 (6th Cir. 2014). "[S]ubparagraph (B)" states as follows:
18 U.S.C. § 249(a)(2)(B). In this case, the government prosecuted Hill under subsection (iv)(I), requiring it to prove that Hill's assault interfered with C.T.'s commercial or economic activity.
Finally, to "ensure the federal government will assert its . . . hate crimes jurisdiction only in a principled and properly limited fashion," Jenkins, 909 F. Supp. 2d at 773 (quoting H.R. 86, 111th Cong. (1st Sess. 2009)), Congress included a certification requirement. Specifically,
18 U.S.C. § 249(b)(1).
In his motion to dismiss the indictment, Hill challenged the certification in this case, and asked the Court to find that the government failed to meet the requirement that this prosecution "is in the public interest and necessary to secure substantial justice." 18 U.S.C. § 249(b)(1)(D). His Rule 29 motion did not address this argument, but Hill confirmed at the hearing that he does not waive his challenge to the certification requirement. The Court decides the issue the same way it did when Hill moved to dismiss the indictment, and incorporates its prior ruling in this Opinion for purposes of appeal. The Court finds that it can review the HCPA's certification requirement, and concludes that the government meets that requirement in this case.
The Fourth Circuit has not addressed the reviewability of certification under the HCPA. In a similar case, however, the Fourth Circuit held that courts can review the certification of a juvenile for trial in federal court. United States v. Juvenile Male No. 1 (Juvenile Male), 86 F.3d 1314, 1319 (4th Cir. 1996). The juvenile transfer statute requires the Attorney General to certify the propriety of proceeding against a juvenile in federal court. 18 U.S.C. § 5032; Juvenile Male, 86 F.3d at 1317. Specifically, the Attorney General must:
18 U.S.C. § 5032. In Juvenile Male, the Fourth Circuit held that courts "can and must first satisfy [them]selves that [their] jurisdiction has been properly invoked. [Courts] do so by reviewing the stated reasons underlying the government's decision to proceed in federal court." 86 F.3d at 1321. The court found that the "prongs of the certification statute act as limits on the federal courts' jurisdiction to act in this sphere." Id. at 1319.
While § 5032 and § 249 are not identical, the similarities in the statutes matter more than the differences. As an initial matter, the certification requirements in both statutes reflect congressional intent "to limit the types of cases that the executive should bring in federal court." Juvenile Male, 86 F.3d at 1319; see Jenkins, 909 F. Supp. 2d at 773 ("One of the stated purposes of [the certification] requirement [in the HCPA] was to, `ensure the federal government will assert its new hate crimes jurisdiction only in a principled and properly limited fashion.'" (quoting H.R. 86)). Further, the structures of the statutes mirror each other, listing a handful of specific reasons justifying certification followed by a catch-all. The language of the catch-all provisions varies slightly in that § 5032 looks for "a substantial Federal interest," 18 U.S.C. § 5032, while § 249 requires that the prosecution "[be] in the public interest and necessary to secure substantial justice," 18 U.S.C. § 249(b)(1)(D). Nevertheless, Juvenile Male puts the possible reasons justifying certification in § 5032 on the same level, concluding that,
86 F.3d at 1320-21. Regardless of the slight differences in the statues, Juvenile Male opens the door to review the Attorney General's certification under the HCPA.
The scope of review, however, is limited. "In our criminal justice system, the Government retains `broad discretion' as to whom to prosecute." Wayte v. United States, 470 U.S. 598, 607 (1985) (quoting United States v. Goodwin, 457 U.S. 368, 380 n.11 (1982)). "[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." Id. (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)).
The Attorney General's decision to certify this case deserves great deference. As Juvenile Male recognized, "[w]hether there is a `substantial Federal interest' [under § 5032]. . . comes closer to the sort of discretionary decision more commonly thought of as the type of prosecutorial decisions that are immune from judicial review." 86 F.3d at 1319. Accordingly, the Court must "give the government's decision in that regard more deference." United States v. TM, 413 F.3d 420, 425 (4th Cir. 2005) (citing Juvenile Male, 86 F.3d at 1319).
In this case, the government meets the certification requirement. The government's decision takes into account the fact that Virginia's hate crime statute does not cover crimes based on sexual orientation, leaving the Commonwealth with the sole option of charging simple assault—an option that does not consider Hill's discriminatory intent. Considering this statutory difference, and giving appropriate deference to the Attorney General's decision to certify this case, this prosecution qualifies as "in the public interest and necessary to secure substantial justice." 18 U.S.C. § 249(b)(1)(D).
A jury convicted Hill of violating the HCPA, but the legal question of whether the government could constitutionally prosecute Hill under this statute in the first place remains. See Taylor v. United States, 136 S.Ct. 2074, 2080 (2016) (noting that, although the government must prove that a defendant's actions satisfy the commerce element of a statute, a court must decide the meaning of that commerce element as a matter of law). Viewed within the proper constitutional framework, Hill's HCPA conviction cannot stand.
The Commerce Clause gives Congress the power "No regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const. art. I, § 8, cl. 3. The Supreme Court has identified three categories of activity that Congress may regulate under its commerce power: (1) "the use of the channels of interstate commerce," such as highways, railroads, ships, and rivers; (2) "the instrumentalities of interstate commerce, or persons or things in interstate commerce," like vehicles and aircraft; and (3) "those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce." United States v. Lopez, 514 U.S. 549, 558-59 (1995) (internal citations omitted); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 271 (1964) (Black, J., concurring).
Section 249(a)(2) does not fall under the first two categories. It addresses violent crime, which does not qualify as a use of interstate commerce channels, an instrumentality of interstate commerce, or a person or thing in interstate commerce. See United States v. Morrison, 529 U.S. 598, 609 (2000). The analysis turns, then, on the third category: whether, in Hill's case, the HCPA regulates "activities that substantially affect interstate commerce." Lopez, 514 U.S. at 559. In Lopez and Morrison, the Supreme Court prescribed the framework for analyzing statutes falling within the third category. To determine whether the regulated activity substantially affects interstate commerce, courts should consider the statute's (1) economic nature, (2) legislative findings, (3) connection to interstate commerce, and (4) express jurisdictional elements (the "substantial effects test"). See Morrison, 529 U.S. at 610-13; Lopez, 514 U.S. at 559-65. This test does not create a bright line, but rather provides factors courts should weigh to determine whether a statute, as a whole, regulates activity substantially affecting commerce. See Morrison, 529 U.S. at 609-19 (considering the four Lopez factors together to determine whether the Violence Against Women Act ("VAWA") substantially affected commerce).
A statute's economic nature can, by itself, render the statute constitutional under the Commerce Clause. See Lopez, 514 U.S. at 559-60. In Morrison, the Supreme Court observed that it had sustained federal regulation of intrastate activity pursuant to the substantial effects test only when the activity was "some sort of economic endeavor." 529 U.S. at 611. Examples included coal mining, extortionable credit transactions, tourism with interstate components, and production and consumption of homegrown wheat. Lopez, 514 U.S. at 559-60. Accordingly, Lopez defined the Gun-Free School Zones Act as "a criminal statute that by its terms ha[d] nothing to do with `commerce' or any sort of economic enterprise, however broadly one might define those terms." Id. at 561. Similarly, when considering the VAWA, Morrison held that "[g]ender-motivated crimes of violence are not, in any sense of the phrase, economic activity." 529 U.S. at 613.
Where a statute does regulate economic activity, the government need only show a de minimis effect on commerce for individual violations. See Gonzales v. Raich, 545 U.S. 1,17 (2005) ("[W]hen `a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.') (quoting Lopez, 514 U.S. at 558). Moreover, while Morrison declined to adopt "a categorical rule against aggregating the effects of any noneconomic activity . . . our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature."
Applying these principles to the HCPA, discriminatory crimes of violence do not constitute economic activity. Although the HCPA contains a jurisdictional hook requiring a connection to commercial activity, 18 U.S.C. § 249(a)(2)(B), the statute itself regulates "biasmotivated violence," much like the "noneconomic" VAWA at issue in Morrison. Jenkins, 909 F. Supp. 2d at 768. Because the HCPA does not regulate economic conduct, the government cannot aggregate the effects of the regulated conduct in this case and cannot successfully argue that a de minimis effect on commerce suffices to convict Hill constitutionally.
In an attempt to characterize the HCPA as economic and avoid these hurdles, the government analogizes the HCPA to the decidedly economic Hobbs Act. "Congress' purpose in adopting the Hobbs Act" was "to protect commercial, interstate activity from criminal disruption." United States v. Taylor, 754 F.3d 217, 222 (4th Cir. 2014). Unlike the HCPA, the Hobbs Act "criminalizes the `fundamentally economic' crimes of robbery and extortion." United States v. Powell, 693 F.3d 398, 402 (3d Cir. 2012). Because the statute itself regulates commercial activity, the government need only show a minimal effect on commerce in Hobbs Act cases. E.g., Taylor, 136 S. Ct. at 2081 (finding that the market for illegal drugs is in itself "commerce over which the United States has jurisdiction," so the government need only show a minimal effect in drug-related robbery cases). In contrast, the HCPA regulates noneconomic, hate-driven violence, which simply does not compare to robbery's "fundamentally economic" nature. See Powell, 693 F.3d at 402.
The government also compares this case to arson cases under
The HCPA regulates "bias-motivated" violence, and the Court cannot characterize that activity as economic. Jenkins, 909 F. Supp. 2d at 768. Therefore, the government cannot constitutionally apply the HCPA to Hill by relying on the statute's economic nature.
The Court next considers Congress's legislative findings. "[C]ongressional findings . enable [the court] to evaluate the legislative judgment that the activity in question substantially affected interstate commerce." Lopez, 514 U.S. at 563. "But the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation." Morrison, 529 U.S. at 614.
Morrison considered legislative findings almost identical to those accompanying the HCPA. In passing the VAWA, Congress found that gender-motivated violence has long tentacles. It deters victims from traveling interstate, from working in interstate business, from transacting interstate business, and from going to places involved in interstate commerce. Id. at 615 (citing H.R. Conf. Rep. No. 103-711, at 385 (1994), reprinted in 1994 U.S.C.C.A.N. 1803, 1853). This, Congress said, diminishes national productivity, increases medical costs, and decreases the supply of and demand for interstate products. Id. Morrison rejected these legislative findings, noting that "[t]he reasoning . . . seeks to follow the but-for causal chain from the initial occurrence of violent crime (the suppression of which has always been the prime object of the States' police power) to every attenuated effect upon interstate commerce." Id. The Court found this method of reasoning "unworkable if [the Court is] to maintain the Constitution's enumeration of powers." Id.
In passing the HCPA, Congress made nearly identical findings regarding how violence based on discriminatory animus substantially affects interstate commerce:
HCPA, Pub. L. No. 111-84, Div. E, § 4702, 123 Stat. 2190, 2835-36 (2009) (codified at 18 U.S.C. § 249 Note). While Congress did not use the exact same language in the HCPA as it did in the VAWA—presumably based on the lessons learned from Lopez and Morrison—the flaws remain the same. Just because Congress says something is so does not make it so.
Congress's findings about the HCPA contrast with findings regarding statutes that have satisfied the substantial effects test. For instance, when considering the child pornography statute, 18 U.S.C. § 2252A, Congress found federal control of intrastate child pornography "essential to the effective control of the interstate market in child pornography." United States v. Miltier, 882 F.3d 81, 89 (4th Cir. 2018) (quoting Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, § 501(1)(F), 120 Stat. 587, 624 (codified as amended at 18 U.S.C. § 2251)). Courts have confirmed that "intrastate receipt, production, and possession of child pornography" substantially affect the interstate child pornography market. Id. at 89-90 (citing cases). Unlike the receipt and possession of child pornography, Congress could not find intrastate discriminatory violence inextricably and directly linked to a broad interstate market.
Because of the similarities, Morrison's legislative findings evaluation applies here. To accept Congress's findings regarding interstate commerce and the HCPA would allow Congress to regulate virtually any crime. "Indeed, if Congress may regulate gender-motivated violence, it would be able to regulate murder or any other type of violence[.]" Morrison, 529 U.S. at 615. Thus, the legislative findings do not provide a basis to find the HCPA constitutional as applied to Hill.
Courts should also consider a statute's connection to interstate commerce when determining whether the activity that the statute regulates substantially affects interstate commerce. Id. at 612. Morrison considered the connection between a statute regulating violence based on discriminatory animus and interstate commerce, and found such a connection insufficient. Id. at 615-16. Similarly, the attenuated connection between an assault based on sexual orientation and interstate commerce in this case does not support applying the HCPA to Hill.
The facts revealed at trial support this conclusion. Hill assaulted C.T. while C.T. was pulling items from bins, putting them into boxes, and placing the boxes on a conveyor belt for further processing in another department. This incident occurred within one state, and prevented a victim from completing a shift in which he placed items from bins into boxes. Those boxes then traveled by conveyor belt to other departments for further preparation and shipment. Although C.T. did not return to his shift after the incident, trial testimony indicated that the fulfillment center performed as usual, and other areas of the facility absorbed the work while cleaning crews restored the area where Hill struck C.T. Thus, whether the Court looks at C.T.'s activity of putting items into boxes or Amazon's unaffected performance, any connection between the HCPA violation and interstate commerce is too attenuated to justify applying the statute to Hill.
The HCPA comes closest to passing constitutional muster as applied to Hill through its jurisdictional element, which requires the offense to interfere with the victim's commercial or economic activity. A jurisdictional element "may establish" or "lend support to the argument" that Congress validly enacted a statute pursuant to its commerce power. Morrison, 529 U.S. at 612-13 (emphasis added). Indeed, the Fourth Circuit has upheld other criminal statutes because they included a jurisdictional element. United States v. Gibert, 677 F.3d 613, 626 (4th Cir. 2012) (finding that the jurisdictional hook in an animal fighting statute quells the concerns in Lopez and Morrison); United States v. Wells, 98 F.3d 808, 811 (4th Cir. 1996) ("The existence of this jurisdictional element . . . under § 922(g)[] distinguishes Lopez and satisfies the minimal nexus required for the Commerce Clause."). Nevertheless, "the case law does not suggest that the talismanic use of jurisdictional element language can transform a law otherwise regulating violent activity into a law regulating channels or instrumentalities of interstate commerce." Jenkins, 909 F. Supp. 2d at 767; see also Powell, 693 F.3d at 402 (finding that the Hobbs Act passes the substantial effects test both because it contains a jurisdictional element and because it criminalizes "fundamentally economic" activity).
A jurisdictional element requires proof that the criminal conduct affected interstate commerce. See Lopez, 514 U.S. at 561. The jurisdictional element of the offense also merges with the constitutional requirement. United States v. Rodia, 194 F.3d 465, 473 (3d Cir. 1999) ("A jurisdictional element is only sufficient to ensure a statute's constitutionality when the element either limits the regulation to interstate activity or ensures that the intrastate activity to be regulated falls within one of the three categories of congressional power."). In this case, pursuant to the amended indictment, the HCPA's jurisdictional hook required the government to prove that the offense interfered with commercial or economic activity "in which the victim [was] engaged at the time of the [offense]." 18 U.S.C. § 249(a)(2)(B)(iv)(I). The jury found Hill guilty, meaning the jurors determined that the government met its burden of proof on this jurisdictional element.
Although the jury necessarily found that Hill's conduct interfered with C.T.'s commercial activity, the jury's finding does not resolve the constitutional question of law—whether the conduct in this case substantially affected interstate commerce. Just because a statute contains a jurisdictional hook does not mean a court can constitutionally apply it to every case and every defendant. See Jenkins, 909 F.Supp.2d 758. If the Court applied the HCPA to Hill, the reach of the HCPA would barely have an end, as the statute could cover any conduct that occurs anywhere, as long as the government can show that the victim was "engaged" in some sort of economic activity. 18 U.S.C. § 249(a)(2)(B)(iv)(I). This could effectively federalize commercial property, even when the conduct—here, violence based on discriminatory animus— has no connection to the commercial nature of the premises. The HCPA could even extend into someone's home if, for example, they prepared, packaged, and shipped merchandise out-of-state.
The government asserts that Congress can regulate employment, and therefore can regulate the conduct in this case because Hill struck C.T. in the course of their employment. This argument, however, incorrectly supposes that Congress can regulate all workplace conduct. Additionally, it could extend the HCPA into private homes, where many people work. In Jenkins, the court noted, "If wholly intrastate non-economic activity can be transformed into conduct that the federal government may punish simply because the defendant used a car or a road to get there," Congress's commerce power would "cast a very large shadow, indeed, and very little activity [would] remain[] in the exclusive province of the police powers of the state." 909 F. Supp. 2d at 773. This notion evokes even more concern if Congress can reach conduct simply because it occurs at a place of employment; at least vehicles and highways are instrumentalities and channels of interstate commerce. Thus, the employment argument does not persuade the Court because it too has no bounds.
Furthermore, to the extent the government argues that interfering with a victim's economic activity affects the broader economy or productivity, Lopez has already rejected these "costs of crime" and "national productivity" arguments. 514 U.S. at 564; see also Brzonkala v. Va. Polytechnic Inst. & State Univ., 169 F.3d 820, 838 (4th Cir. 1999), affd sub nom. Morrison, 529 U.S. 598 (rejecting the notion that "national productivity (including reduced employment, production, and demand) . . . ultimately affect[s] the national economy, and presumably interstate commerce as well" (emphasis added)). Although C.T.'s absence from the production line presents a stronger productivity argument than Lopez and Morrison, the problem remains the same: where such an argument ends. See Brzonkala, 169 F.3d at 905 (Wilkinson, J., concurring) (noting that the argument that violence adversely affects the economy could be made regarding all assaults, batteries, and murders). In any event, an argument that C.T.'s brief absence had a substantial effect on the broader economy fails. See id. (dismissing the contention that murder removes a productive citizen from the economy).
Although the government proved at trial that Hill's assault satisfied the HCPA's express jurisdictional element, the HCPA must regulate activities that bear a substantial relation to interstate commerce to pass constitutional muster. Hill's case simply does not meet this requirement. Accordingly, as applied to Hill, the HCPA's jurisdictional element does not save the constitutionality of this prosecution because it does not "either limit[] the regulation to interstate activity or ensure[] that the intrastate activity . . . falls within one of the three categories of congressional power." Rodia, 194 F.3d at 473.
A jury found Hill guilty of violating the HCPA. The Court finds, however, that as a matter of law, the government cannot constitutionally apply the HCPA to Hill. Viewing the facts of this case within the Lopez and Morrison framework, the HCPA does not regulate an activity— Hill's assault on C.T.—that substantially affects interstate commerce. The HCPA as applied to Hill exceeds Congress's authority under the Commerce Clause, and the Court therefore cannot sustain Hill's conviction. The Court will grant Hill's motion for acquittal.
The Court will enter an appropriate Order.
