Indicting Jared Loughner with 18 U.S.C. 245(B)(1)(b): “Whoever . . . by force or threat of force willfully injures, intimidates or interferes with . . . any person from . . . participating in or enjoying any benefit, service, privilege, program, facility, or activity provided or administered by the United States”

March 5th, 2011

18 U.S.C. 245(B)(1)(b) is the jurisdictional hook for 49 new indictments against Jared Loughner, the Tucson shooter. This statute provides, in short:

(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.

And what is the “benefit, service, privilege, program, facility, or activity provided or administered by the United States”? Well in this case it was the participants visiting Rep. Gifford’s “Congress on your Corner.”

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)

First, a factual question. Were all of the people shot actually visiting Gifford’s “Congress on your Corner,” or were some of the victims caught in the line of fire while at the grocery store. Just curious.

Second, a constitutional question. Does this statute possess a sufficient constitutional nexus to federal interests to warrant a federal prosecution. A few experts interviewed by Politico and WaPo shed doubts on this, but do not provide too much detail.

I did a little research. Not too many cases on point, but there are a few.

This seems to be a statute that originated based on Congress’ 13th Amendment power to eliminate any badges or incidents of slavery, and is primarily directed at punishing people who interfere with voting and other federal rights.

I found one case directly on point considering 18 U.S.C. (b)(1)(B), U.S. v. Pimental, 979 F.2d 282 (1992). Here are the facts:

In this appeal from convictions for interfering with the federally protected rights of an informant by killing him and for bail-jumping, the appellant contends that the statute under which he was convicted for interference with federally protected rights, 18 U.S.C. § 245(b)(1)(B) (1988), requires a racial or discriminatory motive which was neither alleged nor proved, and that the district court erroneously instructed the jury on both the § 245 and bail-jumping counts. We reject these contentions and affirm the convictions.

Unlike the other provisions of this statute, there is no requirement of any racial animus.

A. Nothing in this language even suggests, let alone requires, that there must be a discriminatory motive for interference with the victim’s federal rights. The provision covers “[w]hoever” willfully and forcefully injures “any person” because that person has been participating in any federally protected or administered activity-here Guerrero’s participation as an informant in a counterfeiting investigation. There is no reference to any discriminatory *284 motive in this provision. The focus of subsection (b)(1) is on conduct and not, like subsection (b)(2), discussed below, upon motive.

Congress thus added subsection (b)(1) to cover actions against persons based upon their exercise of federally protected rights, whether or not those actions had a discriminatory motive and included the same standard in the protection it provided in subsection (b)(4).

There are many more cases dealing with 18 U.S.C. 245(b)(2) which focus on violations of civil rights in the states.

There seems to have been a constitutional challenge to this statute, which failed on commerce clause ground in US v. Furrow, 125 F.Supp.2d 1178 (C.D.Cal. 2000):

Here are the facts:

Criminal defendant Buford O’Neal Furrow, Jr. (“Defendant”) has been charged in a sixteen-count indictment filed on December 2, 1999 for the alleged murder of a U.S. postal worker, Joseph Ileto, the alleged shooting of five individuals at the North Valley Jewish Community Center (“NVJCC”), and various gun possession offenses. Pending before the court is Defendant’s motion to dismiss counts 2 through 16 of the indictment because the underlying statutes are unconstitutional. The statutes at issue in this motion are 18 U.S.C. § 245(b)(2)(F) (violent interference, on account of race or religion, with enjoyment of the services, facilities, and privileges afforded by a place of exhibition or entertainment which serves the public); 18 U.S.C. § 245(b)(4)(A) (violent interference, on account of race or religion, with enjoyment*1180 of right to federal employment); 18 U.S.C. § 924(c) (use of a firearm during commission of a crime of violence); 18 U.S.C. § 922(g) (possession by a convicted felon of a firearm); 18 U.S.C. § 922( o) (possession of a machinegun); and 26 U.S.C. § 5861 (possession of an unregistered firearm).

Here is the nut paragraphs about the Lopez-styled commerce challenge, which fails:

Counts 3 through 8 of the First Superseding Indictment charge Defendant with violations of 18 U.S.C. § 245, which subject to criminal penalties anyone who “knowingly, willfully, and unlawfully, by force or threat of force willfully injures, intimidates or interferes with” federally protected rights.FN2 The federally protected rights at issue here are 1) the right to be free from injury, intimidation, or interference because of one’s race, color, religion, or national origin and because one is “enjoying the goods, [or] services … of any [ ] place of exhibition or entertainment which serves the public,” FN3 and 2) the right to “participat[e], without discrimination on account of race, color, religion or national origin, in [the enjoyment of employment by an agency of the United States].” FN4 The government urges the court to sustain the statute as a regulation of “use of the channels of interstate commerce,” FN5 and “activities that substantially affect interstate commerce.” Opp., at 16; Lopez, 514 U.S. at 558-59, 115 S.Ct. 1624.Because the court concludes that Section 245 regulates activities having a substantial effect on interstate commerce, it does not address whether the statute also governs the channels of interstate commerce.

The provisions of Section 245 at issue here enforce the rights guaranteed by Tide II (nondiscriminatory access to public accommodations) and Title VII (nondiscriminatory enjoyment of federal employment) of the Civil Rights Act of 1964. Congress could rationally find that a federal criminal prohibition of violent acts intended to interfere with access to public services and federal employment was necessary to secure the federal rights created by Title II and Title VII pursuant to its Commerce Clause power. See Lane, 883 F.2d at 1492 (upholding Section 245 under Commerce Clause, as applied to religiously motivated killing of talk show host engaged in private employment). As the contested provisions form an integral part of the federal statutory regime to protect individuals from racial and religious discrimination, invalidating them would, to an unprecedented degree, cripple the power of the federal government to promulgate laws enforcing such civil rights.

Section 245‘s requirement that a defendant have intended to interfere with federally protected rights serves the same function as a jurisdictional element: it distinguishes “what is truly national [from] what is truly local.” Id. at 1754. Section 245 does not purport to regulate all crime, only violent bias-motivated crime that implicates a federally protected right. The *1185 Supreme Court invalidated the GFSZA because it represented an intrusion into an area “where States historically have been sovereign.” Lopez,514 U.S. at 564, 115 S.Ct. 1624 (commenting that by sustaining such a statute, the court would effectively abrogate any limitation on federal power).

This prosecution only implicates 18 U.S.C. § 245(b)(2)(F) and 18 U.S.C. § 245(b)(4)(A), not 18 U.S.C. 245(B)(1)(b), the statute Loughner was indicted with.

This language from the opinion may be interesting:

The statute at issue here is distinguishable from both the VAWA and the GFSZA because it regulates only offenses that occur within recognized areas of federal concern, such as civil rightsSee Mitchum v. Foster, 407 U.S. 225, 242, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972) (affirming role of federal courts “as guardians of the people’s federal rights”). Section 245 prohibits racially or religiously motivated violence that interferes with a federally protected right, in this case, the right to frequent a place of exhibition or entertainment that serves the public, or to hold federal employment. Far from intruding into a matter of purely local concern, the statute regulates matters that Congress and the courts have recognized as “truly national.” Morrison, 120 S.Ct. at 1754; cf. Mitchum, 407 U.S. at 242, 92 S.Ct. 2151; Gibbs, 214 F.3d at 492. As a result, this limiting factor favors a determination that Section 245 is a proper exercise of Congress’s Commerce Clause power.

A similar case is U.S. v. Lane, 883 F.2d 1484 (10th Cir. 1989), a pre-Lopez/Morrison challenge rests on similar footing, though this case also considers 18 U.S.C. (b)(2) and not 18 U.S.C. (b)(1)(b).

Another case may be on point. U.S. v. White, 846 F.2d 678 (11th Cir. 1988). It seems that members of the KKK were arrested and prosecuted under 18 U.S.C. 245(b)(2)(b) for interfering with an anti-Klan rally. Note again, this was not under 18 U.S.C. (b)(1)(b). Defendant asserted that the government failed to establish that the parade was “provided or administered by” the city of Decatur within the meaning of Section 245(b)(2)(B). On appeal, the Court rejected this argument. Even though the city did not require parade permit and did not “direct” parade, where Decatur had enacted three ordinances to respond to continuing civil rights demonstrations, including ordinance granting chief of police authority to regulate unlawful public assemblies to prevent breaches of peace, and chief of police had been closely involved with details of parade and provision of security, there was a sufficient nexus to establish that the parade was “provided or administered” by the City. I could not find any similar cases interpreting whether an event was “provided or administered by” the United States, though with this lax reasoning, I think it is possible to establish that.

However, the White Court, like the Furrow Court makes clear that this statute is animiated by an aim to protect federally protected civil rights (presumably under section 5 of the 13th and 14th amendments)

More importantly, this holding ignores the legislative history of Section 245. “Racially motivated violence during parades, marches, and demonstrations was precisely what this act was designed to redress.”Griffin, 585 F.Supp. at 1446. The statute must be construed to achieve its broad remedial purpose. United States v. Gilbert, 813 F.2d 1523, 1527 (9th Cir.) cert. denied, 484 U.S. 860, 108 S.Ct. 173, 98 L.Ed.2d 127 (1987). As the Senate Report on this act stated, “The purpose of the legislation is to strengthen the capability of the Federal Government to meet the problem of violent interference, for racial or other discriminatory reasons, with a person’s free exercise of civil rights.” S.Rep. No. 721, 90th Cong., 1st Sess. 3 (1967), reprinted in 1968 U.S.Code Cong. & Admin.News 1837, 1838. Sponsors and opponents of the bill agreed that the protection of the act was very broad. See 114 Cong.Rec. 319 (1968) (statement of Sen. Hart). The sponsors of the bill intended to address a wide range of racially motivated violence and intimidation. See 114 Cong.Rec. 533-36 (1968) (statement of Sen. Javits). This was recognized by opponents of the bill. As Senator Holland stated, “It is very clear to me that when people demonstrate under [Section 245(b)(2)(B) ] … they are certainly brought under this law.” 114 Cong.Rec. 333 (1968) (statement of Sen. Holland).

There are a few other cases, all dealing with interfering parades, all motivated by racial animus. See U.S. v. Creekmore, N.D.Ala.1986, 648 F.Supp. 1369, U.S. v. Handley, N.D.Ala.1986, 644 F.Supp. 1165, U.S. v. Griffin, M.D.N.C.1983, 585 F.Supp. 1439.

There is an ALR article on 18 U.S.C. 245(B) at 76 A.L.R. Fed. 816. There is nothing about 245(B)(1)(b).

Just some initial research. I’ll dig some more.