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4th Circuit Revives Gay Hate Crime Prosecution

Posted on: August 22nd, 2017 by Art Leonard No Comments

The Richmond-based U.S. Court of Appeals for the 4th Circuit has revived a federal hate crime prosecution against a man who physically assaulted a gay co-worker without provocation at an Amazon Fulfillment Center in Chester, Virginia. U.S. District Judge John A. Gibney, Jr., had dismissed the case, accepting defendant James William Hill, III’s argument that prosecuting him would violate Congress’s constitutional authority to enact legislation under the Commerce Clause, because his conduct was not motivated by any desire to interfere with interstate commerce and was a purely private dispute.  United States v. Hill, 20176 U.S. App. LEXIS 15678, 2017 WL 3575241 (August 18, 2017).

According to the opinion for the appeals court by Judge Dennis W. Shedd, the indictment against Hill alleges that he “willfully caused bodily injury to C.T. because of C.T.’s actual and perceived sexual orientation” in violation of the Hate Crimes Prevention Act of 2009, and that this was sufficient to withstand a motion to dismiss the indictment. An opinion agreeing that the case can be prosecuted but dissenting from the “basis for the judgment” by the panel, was written by Judge James A. Wynne, and provides more factual details about the case.  Wynne charged the majority with failing to confront an important question about the application of the federal hate crimes law that was directly presented by this case.

C.T. was preparing packages for interstate shipment when Hill assaulted him around 7:00 p.m. on May 22, 2015. According to Wynne, “Defendant approached C.T. from behind and – without provocation or warning – repeatedly punched him in the face.  As a result of the attack, C.T. sustained numerous injuries, including a bloody nose, abrasions on his nose and cheeks, and lacerations and bruising around his left eye.  Following the incident, neither Defendant nor C.T. returned to their work stations for the remainder of their ten-hour shifts.  Their absences affected more than 5,500 items, which were either not shipped or not ‘re-binned’ during that time.”  After the incident, Hill provided a statement to Amazon’s staff and subsequently to the Chesterfield County police.  Both times, he stated that he “felt disrespected by C.T. because C.T. was a homosexual; that he does not like homosexuals; and that C.T. deserved to be punched because he was a homosexual.”  “Hill offered no other explanation for the assault,” wrote Judge Wynne.

Because Virginia’s hate crimes law does not cover sexual orientation, the local prosecutor referred the case to the U.S. Attorney. Six months later, the Attorney General (at that time Eric Holder) certified that prosecuting Hill under the federal law “is in the public interest and is necessary to secure substantial justice.”  The case was presented to a federal grand jury, which returned an indictment alleging one count of a violation of the federal hate crime law.  The indictment states that Hill “interfered with commercial and other economic activity in which C.T. was engaged at the time of the conduct” and that the assault “otherwise affected interstate and foreign commerce.”

These statements about commerce may seem strange, but they are necessary in order for the federal Hate Crimes Prevention Act to apply. Congress does not have broad power to enact criminal statutes.  Its power is limited by the categories listed in Article I of the Constitution, which do not include general power to pass criminal statutes.  Congress does have power to regulate interstate commerce, so it justified passing the federal hate crime law by providing that it applies to crimes that somehow affect interstate commerce.

In relation to this case, the crucial language is that the conduct “interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct; or otherwise affects interstate or foreign commerce.” Judge Gibney concluded, mistakenly, that only an economic crime would fit this jurisdictional requirement.

Writing for the majority of the panel, Judge Shedd found that “the indictment specifically alleges that Hill’s conduct had an effect on interstate commerce,” and as such “is legally sufficient and does not present an unconstitutional exercise of Congressional power.”

Hill’s motion to dismiss the indictment was not a facial challenge to the constitutionality of the law, but rather an “as-applied” challenge, arguing, in effect, that Congress could not constitutionally turn an assault in a private business establishment involving co-workers into a federal offense. The factual question, wrote Shedd, is “whether Hill’s conduct sufficiently affects interstate commerce as to satisfy the constitutional limitations placed on Congress’s Commerce Clause power” and this “may well depend on a consideration of facts, and because the facts proffered here” in the indictment “may or may not be developed at trial, it is premature to determine the constitutional issues.”  Shedd noted prior cases holding that “an indictment that tracks the statutory language is ordinarily valid.”

Thus, it was inappropriate for District Judge Gibney to dismiss an as-applied challenge to the prosecution when the indictment, tracking statutory language, asserted that the assault had “interfered with commercial and other economic activity in which C.T. was engaged at the time of the conduct” and that the assault “otherwise affected interstate and foreign commerce.” This, according to Shedd’s opinion, was sufficient to meet the requirement that a federal indictment inform the defendant of the nature of the crime and allege facts sufficient to meet the statute’s jurisdictional requirement.

“Facts outside of an indictment should not be used to conclusively decide whether an element of a criminal offense is satisfied during a pretrial motion,” wrote Shedd, “and a Congressional statute should not be overturned on an incomplete record.”

This was too timid to satisfy Judge Wynne. “On review to this Court,” he wrote, “the majority opinion now ignores the district court’s basis for dismissing the indictment and instead concludes that, because the government’s indictment sets forth the charged offense in the language of the statute, it satisfies the specificity requirement imposed by Fifth and Sixth Amendments.”

To Wynne, the question posed is: “Whether Congress can enact a statute, pursuant to its authority to regulate interstate commerce, proscribing the physical assault of a victim whose job involves packing products for interstate sale and shipment and who is doing that job at the time of the assault?” Wynne argued that a proper answer to this question would lead to the conclusion that the statute “easily falls under Congress’s broad authority to regulate interstate commerce.”  He cited a recent Supreme Court decision, Taylor v. United States (2016), holding that “Congress has the authority to regulate criminal conduct that interferes with ongoing commercial activity.”

“Cavalierly, the majority ducks the only issue in this case and instead decides an issue that was neither presented by the parties nor addressed by the district court,” he charged. “The only issue in this case is one of first impression and of great importance – it was addressed by the district court and has now been placed squarely before us by the parties.  We should not, on our own volition, create a basis for avoiding it.”

Judge Wynne makes an important point. The 2009 enactment of this statute was the first successful legislative achievement of the Obama Administration’s LGBT rights agenda, and the focus of much agitation by LGBT political groups, but there was always a question whether it would have significant application in the real world beyond a symbolic declaration by Congress that committing a violent crime because of a victim’s sexual orientation was wrong, precisely because of the constitutional limitation on Congress’s authority.

The main practical purpose of the statute was to fill the gap left by the many states that have balked at including sexual orientation in their state hate crimes laws, as is the case with Virginia. Thus far, there have actually been few successful prosecutions under this law, despite the continuing epidemic of anti-gay violence in many parts of the country, because of the limitation that the statute applies only if the jurisdictional requirements are met, and only where local prosecutors are not empowered specifically to prosecute anti-gay hate crimes.  Successful prosecutions have involved crimes committed with cars traveling on interstate highways, or using weapons that had been sold across state lines, but, as Judge Wynne points out, this is the first case to present the question whether a physical assault of one worker against another in a private (that is, non-governmental) workplace is covered by the law.

And, as Judge Wynne pointed out, in a certain sense this case is a no-brainer. This workplace is an Amazon Fulfillment Center, selecting and packaging thousands of goods for shipment to on-line customers in many different states.  Any interruption in workplace activity would clearly affect the shipment of goods in interstate commerce, and an assault that at least temporarily disables the victim from performing his job will clearly interfere with commerce.  Wynne pointed to the cases in which the Supreme Court has found that even a slight interference with commercial activity can provide the basis for applying a federal regulation.  Missing several hours of a shift, delaying the dispatch of thousands of parcels, would clearly seem to qualify.

Hill argued that his assault was not motivated by any attempt to interfere with commerce, and thus did not come within the statute, but, wrote Wynne, “the Supreme Court has recognized that the economic or non-economic nature of proscribed conduct turns on whether the conduct can be shown to affect economic activity subject to congressional regulation – and therefore interstate commerce – and not whether the perpetrator of the conduct was motivated by economic interest. Indeed, we have consistently rejected the argument that a defendant must intend for his criminal conduct to affect interstate commerce for such conduct to be susceptible to congressional regulation under the Commerce Clause.”

 

For example, he wrote, “this Court and other circuits have concluded that federal arson statutes may be applied against defendants who set fire to property used in interstate commerce, notwithstanding that such defendants were motivated by purely personal reasons, and not any economic interest.” He insisted that “there is no constitutional or logical basis to conclude that the Commerce Clause authorized Congress to regulate interference with one factor of production (capital in the form of real property), but not another (labor).  On the contrary, the Supreme Court’s longstanding recognition that Congress may pervasively regulate the labor market and the terms and conditions of employment indicates that Congress may proscribe conduct that interferes with labor as well as capital.”

 

Thus, Wynne decisively rejected Judge Gibney’s holding that because Hill’s conduct was not an economic crime, it could not be constitutionally prosecuted in federal court, or that allowing the prosecution to go forward would violate Hill’s constitutional right to a presumption of innocence until proven guilty.

 

“The immediate impact of Defendant’s assault of C.T. on ongoing commercial activity demonstrates a sufficient relationship to interstate commerce to support Defendant’s prosecution under the Hate Crimes Act,” wrote Wynne, and because Hill had failed to make a plain showing to the contrary, the case should be allowed to go forward. Of course, in order to secure a conviction, the government will have to prove actual interference with commerce by presenting relevant evidence at trial.  Wynne rejected the argument that because the indictment did not specifically state how much interference had taken place, it was jurisdictionally defective, noting that so long as any interference could be shown, the jurisdictional requirement would be satisfied.

Ending his dissent, Wynne chided the majority for producing an opinion that “elides” the important issue of whether anti-gay violence in the workplace in the form of an assault with fists (rather than a weapon such as a pistol that has moved across state lines) can be prosecuted under the federal Hate Crimes law. The question remains unanswered, but at least Wynne’s dissenting opinion is published and can provide some persuasive support for a future prosecution.

West Virginia Supreme Court Sharply Split on State Hate Crimes Law Interpretation

Posted on: May 15th, 2017 by Art Leonard No Comments

A sharply-divided West Virginia Supreme Court of Appeals voted 3-2 on May 9 to reject the application of the state’s Hate Crimes Law to the criminal prosecution of Steward Butler, who reacted to two gay men kissing each other on a sidewalk in Huntington, West Virginia, in the early hours of April 5, 2015, by exiting his car and slugging both men in the face. State v. Butler, 2017 WL 1905948, 2017 W. Va. LEXIS 333 (May 9, 2017).

W.Va. Code Section 61-2-9(c), which was enacted in 1987, makes it a felony to willfully injure somebody because of their “race, color, religion, ancestry, national origin, political affiliation or sex.” According to the opinion for the majority of the court by Chief Justice Allen H. Loughry, II, since 1987 members of the legislature have introduced 26 bills to amend the law to add “sexual orientation” to the list, but none has succeeded.

Butler was positively identified as the perpetrator because one of the victims managed to record part of the assault on his cellphone. “That video recording,” wrote the court, “as well as the statements taken from the defendant’s companions, were used to identify the defendant as the alleged perpetrator.”  The Cabell County prosecutor presented the case to a grand jury, which charged Butler with two counts of battery and two violations of the Hate Crimes Law.  Butler moved to dismiss the Hate Crimes counts, arguing that the statute did not apply to assaults motivated by the sexual orientation of the victim.

Circuit Judge Paul T. Farrell granted Butler’s motion, dismissing the hate crime counts. He found that “sex” and “sexual orientation” are “two distinct categories of potential discrimination” and that the legislature’s decision not to add “sexual orientation” to the statute, when many other states had done so, clearly signified its intention, so the court “cannot expand the word ‘sex’ to include ‘sexual orientation.’”

The local prosecutor appealed this ruling. Perhaps not surprisingly, West Virginia Attorney General Patrick Morrisey’s office filed a brief supporting the dismissal, while Lambda Legal, which has been actively litigating the issue whether “sex” includes “sexual orientation” in discrimination statutes, filed a brief supporting the local prosecutor.

A bare majority of the Supreme Court agreed with Judge Farrell that the hate crime counts must be dismissed. Chief Justice Loughry rejected any contention that the word “sex” as used in the statute was “ambiguous.”  As such, he wrote, it was not subject to “interpretation” but must be applied according to its “plain meaning.”

“Affording the undefined term ‘sex’ its common and ordinary meaning,” he wrote, “we find the word to be clear and unambiguous and to have a very different meaning and import than the term ‘sexual orientation.’” To support this proposition, he cited definitions from four dictionaries, noted that all but a five states have passed hate crimes laws but that no court has ever before interpreted those that do not specifically mention “sexual orientation” to apply to crimes committed because a victim was lesbian or gay.  He also repeated several times that the failure of the legislature to pass any of the 26 bills proposed to add “sexual orientation” to the statute evidenced legislative intent not to include it.  Furthermore, he wrote, in a criminal case the court should use the “rule of lenity” to ensure that people have clear notice of what conduct is condemned by the statute.  He also insisted that the court’s ruling did not imply approval of Butler’s conduct, and pointed out that Butler is still charged with two counts of battery.

“It is imperative to remember that it is not for this Court arbitrarily to read into a statute that which it does not say,” wrote Loughry. “Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obligated not to add to statutes something the legislature purposely omitted.”

Justice Margaret L. Davis, joined by Justice Robin Jean Workman, dissented in an opinion that brought together the recent opinions accepting the proposition that discriminating because of a person’s sexual orientation necessarily involves sex discrimination. As far as the dissenters are concerned, the term “sex” in the statute is not ambiguous but the prohibition of willfully injuring somebody because of their sex clearly includes the facts of this case.

Justice Davis built her argument by running through the developing case law, starting with the U.S. Supreme Court’s 1989 Price Waterhouse decision and ending with 2nd Circuit Chief Justice Katzmann’s recent concurring opinion in Christiansen v. Omnicom Corporation.  This summary culminated with the following bold assertion:  “If a man stands on a corner kissing a man and is beaten because he is kissing a man, has he been assaulted because of his sex?  Yes, but not simply because he possesses male anatomical parts; rather, the crime occurred because he was perceived to be acting outside the social expectations of how a man should behave with a man.  But for his sex, he would not have been attacked.”

“The indictment in this case properly alleged the attack occurred because of the victims’ sex,” she continued. “Certain individuals are targeted for violence because they are perceived to violate socially-established protocols for gender and sex roles.  The perpetrators in such instances have drawn conclusions that the victim has contravened certain unspoken rules, and the bias-motivated crime thus ensues.”

Quoting from the 7th Circuit’s recent decision in Hively v. Ivy Tech Community College, she wrote, “While the majority might find the crime was actually committed ‘because of sexual orientation,’ it is a ‘common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.’”

She accused the majority of concluding its analysis “prematurely. Simply finding the absence of those two magic words fatal to the State’s contention is the most effortless answer this Court could conjure. But while an answer without more in-depth analysis may be the path of least resistance, it also gives the shortest shrift to critical thinking. . .  The pertinent question is not whether the statute contains the words ‘sexual orientation.’  Rather, it is whether the crime was committed because of the victims’ sex.  The phrase ‘because of sex’ encompasses the actions taken against the victims in this case.”

Justice Davis rejected any argument that the developments in discrimination law could not be carried over to the criminal law context. She pointed out that developments in discrimination law and criminal law have been intertwined over the years.  “Anti-hate legislation has typically taken the form of either penalty enhancement or independent legislation,” she wrote.  “Both types generally define the unlawful acts as acts motivated ‘because of’ (‘based on,’ ‘on the basis of,’ ‘by reason of,’ etc.) . . . [certain protected statuses]. This form is similar to Title VII, the federal employment discrimination statute, a point Chief Justice Rehnquist invoked in upholding the Wisconsin [criminal] statute” in Wisconsin v. Mitchell in 1993.

She also pointed out that allowing the hate crime counts to proceed did not put the Supreme Court in the position of “both judge and jury,” as it would still be up to the prosecutor to prove the assertions of discriminatory intent required by the statute. “Allowing Counts I and III to stand would provide the prosecution ample time to prove the assertions, the jury would be properly instructed on evidentiary requirements and burdens of proof, and the State would be required to prove its allegations of statutory violation beyond a reasonable doubt.  At this juncture, however, the evaluation must concentrate upon the sufficiency of the indictment for a hate crime, and it is my firm belief that the majority of this Court adopted an overly narrow focus, metaphorically missing the forest for the trees.”

Because this decision did not address any federal constitutional issues, it cannot be appealed by the prosecutor to the U.S. Supreme Court. Theoretically, one might argue that the majority’s decision violates the equal protection rights of gay victims, as the court has interpreted the statute to protect straight people from being attacked because of their sex but to deny the same protection to gay people, for no reason other than the legislature’s repeated rejection of amendments to extend such protection to gay people.  But as far as one can tell from reading the majority and dissenting opinions, nobody made that argument in the West Virginia courts, so it was not preserved for review.