Politico reports that the US Attorney in Arizona has indicted Tucson shooter Jared Loughner on a 49-count indictment. While the original indictment was directed at the attempted murder of Rep. Giffords and murder Judge Roll, the new indictment reaches many of the victims who were not federal government employees. This raises certain constitutional questions about the ability of the United States to prosecute crimes with a weak nexus to any federal interest.

For example, here is Count 18 from the indictment:

On or about January 8, 2011 . . . .Jared Lee Loughner . . . did willfully injury, intimidate, and interfere with and attempt to injure, intimidate and interfere with child-victim C-T-G-, becuase she was and had been participating in an enjoying a benefit, service, privilege, facility, and activity provided and administered by the United States, to-wit: Congresswoman Gabrielle D. Giffords’ Congress on your Corner event open to the public, which resulted in the death of child victim C-T-G-. In violation of Title 18 United States Code, Section 245(b)(1)(b)

18 USC 245(B)(1)(b) provides:

(b) Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with—

(1) any person because he is or has been, or in order to intimidate such person or any other person or any class of persons from—

(B) participating in or enjoying any benefit, service, privilege, program, facility, or activity provided or administered by the United States;

and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death. A

I’ll need to do some more homework about this statute. This seems like a bit of a stretch to me.

Politico has a good writeup:

Some lawyers are questioning the wisdom of many of the charges included in the new 49-count federal indictment against Tucson shooting suspect Jared Loughner. The raft of new federal charges was handed up by a grand jury on Thursday and released on Friday.

In addition to a charge of attempting to assassinate Rep. Gabrielle Giffords (D-Ariz.) at her January 8 outreach event in a Tucson Safeway parking lot, Loughner also faces murder charges for allegedly killing Gabriel Zimmerman and U.S. District Judge John Roll at the same event.

The edgier charges are those the feds used to bring the deaths and injuries to non-federal employees into the federal case. The indictment includes five counts of “causing death to participants in a federally provided activity”–one for Roll and four for civilians, including nine year old Christina-Taylor Green. In addition, Loughner faces ten counts of “injuring participants in a federally provided activity.”

Some experts question the validity of this indictment:

“The Justice Department’s strategy in the Loughner case is legally suspect (to say the least) and tactically foolish,” former federal terrorism prosecutor Andy McCarthy wrote this afternoon on National Review Online shortly after I queried him about the issue. He says prosecutors could have trouble proving that Loughner, whose mental state seems to have been shaky to say the least, went to the event and targeted the civilian victims because of their attendance at the Loughner event. McCarthy also questions whether a Congresswoman’s meet and greet in a parking lot is the kind of activity that extends jurisdiction over anything that happens there.

“That’s a stretch. If DOJ’s theory is sound, the question becomes: is there any activity that cannot be spun as federally protected — especially given Leviathan’s ever expanding girth? If I am out enjoying a beautiful day when I get robbed, can it be said that my assailant intended to frustrate my enjoyment of the Clean Air Act? What Justice is doing here will be seen as a dramatic federal intrusion into the realm of state law enforcement,” McCarthy wrote.

“They are playing with fire here,” McCarthy added provocatively. “If I’m Loughner’s lawyer tonight, I’m thinking: we’ve got a real shot here.”

Another former prosecutor I talked to, ex-U.S. Attorney for D.C. Roscoe Howard Jr., also called the edgier new charges a stretch, though he wasn’t as critical as McCarthy.

“My guess is it may not be a good fit,” Howard said, while cautioning that he was not familiar with the details of the indictment. “Ordinarily, you look for some federal touchstone. I don’t think necessarily it’s a bad stretch [but] in a general sense, you will see the federal government getting involved in something like this ordinarily when there’s been a miss by the state.”

Howard noted that if the shooting took place at Giffords’s office, there would be obvious federal jurisdiction. “As you move further away, it gets more complicated,” he said.

Unlike the Reagan assassination, which transpired in the District, this prosecution was in Arizona. What is DOJ’s jurisdictional basis to bring this indictment?  The federal assasination statute:

All the Reagan attempt charges–federal and local were brought in a single case–something that is feasible only in the District of Columbia. In the Tucson case, the feds have used a provision in the federal assassination statute that allows the federal case to take primacy over any state prosecution, which can follow.

The article also touches on the current libertarian movement to restrain the power of the federal government, including its power to prosecute wholly intrastate crimes.

The aggressive assertion of  federal jurisdiction by the Justice Department in the Loughner case will present an interesting test for lawyers at both ends of the political spectrum. Civil libertarians are generally fearful of broadening federal criminal authority and making everything a federal case. However, the law used to charge Loughner with the murders of those other than federal employees is basically a civil rights laws. Civil rights lawyers usually want those broadly construed.

On the other end, small-government conservatives and Tea Party types have been gaining some traction in recent months with their calls for limited federal power in the context of the debate over the constitutionality of the new health care law. It will be interesting to see how many of them are willing to run the risk of angering victims in the Tucson shooting by saying the deaths and injuries of non-federal employees should be left out of the federal case.

 

I have been writing for some time about what I call original crime–when did the federal government begin prosecuting people for crimes that transpired within one state, without a connection to any federal interest. This case may provide some insights into this topic, and perhaps provide me with some incentive to continue working on it.

Update: More from Adler and Washington Post here.

“I am unfamiliar with that legal theory,” said Aitan D. Goelman, a former federal prosecutor who helped prosecute Oklahoma City bombers Timothy McVeigh and Terry Nichols. “In Oklahoma, we charged McVeigh and Nichols with eight counts for the federal agents who were killed. We did not charge 168 murder counts for the other 160 people who were inside the federal building.”

…

“They clearly have the congresswoman, her staff and a federal judge covered by federal law, and for everyone else they could prosecute him in state court,” said Saltzburg, a former deputy assistant attorney general in the criminal division of the Justice Department. “You don’t need to stretch it and try to argue that everyone was in a federally protected area. That is a really sweeping view of the federal law.”