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4th Circuit Court of Appeals Rejects Constitutional Challenge to Gay Hate Crime Conviction

Posted on: June 16th, 2019 by Art Leonard No Comments

A divided panel of the U.S. Court of Appeals for the 4th Circuit rejected a constitutional challenge by James William Hill, Jr., to his conviction under the federal Hate Crimes Act for assaulting a gay co-worker.  United States of America v. Hill, 2019 U.S. App. LEXIS 17731, 2019 WL 2454848.  According to Circuit Judge James A. Wynn, Jr., this was the first appellate case to take up the question whether the federal statute can be used to prosecute somebody “for an unarmed assault on a coworker engaged in commercial activity at his place of work.”  Circuit Judge G. Steven Agee argued strenuously in dissent that this application of the Hate Crimes Law exceeds Congress’s legislative authority.

Judge Wynn was appointed to the 4th Circuit by President Barack H. Obama.  Dissenting Judge Agee was appointed by President George W. Bush.  Circuit Judge Diana Gribbon Motz, who voted with Wynn, was appointed by President William J. Clinton.

The facts of the case are simple and stark.  Curtis Tibbs was at work as a “packer” in the Amazon Fulfillment Center in Chester, Virginia, on May 22, 2015, loading items from bins into boxes, scanning them and placing them on a conveyor belt to the shipping department.  The defendant, Hill, worked as a “re-binner,” moving items from conveyor belts and placing them into bins along the wall.  The incident was caught on surveillance video which shows Hill, unprovoked, approaching Tibbs from behind and repeatedly punching him in the face.  Tibbs suffered significant bruising, cuts to his face, and a bloody nose.  Tibbs went to Amazon’s in-house clinic and then to the hospital for treatment, and did not return to work during the shift.

Amazon closed down the workstation to clean up the bloody mess and redistributed work to other areas in the center.  A witness from Amazon testified at Hill’s trial that the incident did not cause Amazon to miss any “critical pull times” or packaging deadlines, and notwithstanding the brief closure of that work station and Tibbs’ absence for the balance of the shift, the fulfillment center met its normal performance as a whole for the shift.

Hill was arrested and told the police that he hit Tibbs because Tibbs is gay.  Hill said that “his personal belief is he didn’t like [homosexuals]” and that Tibbs “disrespected him because he is a homosexual,” and that Hill “does not like homosexuals so he punched him.”  (The bracketed word is supplied by the court, undoubtedly substituted for a derogatory term for gay people.)

Because Virginia’s hate crimes law does not include sexual orientation, the local prosecutor could not prosecute Hill for a hate crime, just for ordinary assault and battery.  The prosecutor decided to refer this case to the U.S. Justice Department for potential prosecution under the federal Hate Crimes Law.  The Attorney General certified, as required by the federal law, that prosecution of Hill “is in the public interest and is necessary to secure substantial justice.”  The local prosecutor dismissed state charges and a federal grand jury indicted Hill, finding, among other things, that Hill “interfered with commercial and other economic activity in which Tibbs was engaged at the time of the conduct, and which offense otherwise affected interstate and foreign commerce.”

This finding was necessary because Congress’s authority under the Constitution does not extend to ordinary criminal activity, which is generally the province of state law.  The basis of Congress’s authority for the federal Hate Crimes Act is some connection to interstate commerce, which Article I specifically authorizes Congress to regulate.  Thus, not every hate crime is subject to federal prosecution, just those that come within the sphere of the Commerce Clause by their effect on commerce between the states.  If Hill had shot Tibbs using a gun that had moved interstate, the required connection could easily be made.

Hill defended against the charges by arguing that the federal Hate Crime Law is unconstitutional both on its face and as applied to him.  U.S. District Judge John A. Gibney, Jr., focused on the “as applied” challenge, and granted Hill’s motion to dismiss the indictment, concluding that an assault by Hill using only his fists – not a weapon that had moved in interstate commerce – in the packing department of an internet retailer did not have sufficient effect on interstate commerce to come within Commerce Clause jurisdiction.

The Justice Department appealed to the 4th Circuit, which reversed, 2-1, in an unpublished opinion on August 18, 2017, stating that the question whether the Commerce Clause requirement was met required factual findings that could not be decided on a motion to dismiss but required development at trial.  The court sent the case back to Judge Gibney for trial, where a jury convicted Hill, based on the prosecution’s argument that Hill’s assault on Tibbs “interfered with commercial or other economic activity in which the victim was engaged at the time of the conduct.”

Hill filed a motion to set aside the verdict, renewing his argument that the government could not constitutionally prosecute him under the Hate Crimes Law, and again Judge Gibney agreed with him, setting aside the verdict.  The Justice Department appealed again, and the majority of the three-judge 4th Circuit panel voted to reverse the dismissal and order the district court to reinstate the verdict against Hill.

“The Government argues that, by ‘interfering’ with Tibbs’s packaging and shipping of products, Defendant’s conduct ‘substantially affected interstate commerce,’ as that phrase has been interpreted in decisions upholding federal prosecutions for robbery and extortion under the Hobbs Act, 18 U.S.C. Section 1951(a), and arson under 18 U.S.C. Section 844(i),” wrote Judge Wynn.  “We agree,” he continued, finding that Supreme Court rulings under other statutes had made clear that jurisdiction could be based on the cumulative effect of incidents that, by themselves, may not have had a significant commercial impact.

The Hobbs Act involves robberies and burglaries that affect interstate commerce.  Judge Wynn wrote that Taylor v. United States, a 2016 Supreme Court decision under the Hobbs Act, “establishes that, pursuant to its power under the Commerce Clause, Congress may proscribe violent conduct when such conduct interferes with or otherwise affects commerce over which Congress has jurisdiction.  Importantly, Congress may regulate violent conduct interfering with interstate commerce even when the conduct itself has a ‘minimal’ effect on such commerce.”  Judge Wynn reviewed in detail the Supreme Court’s rulings under several different federal criminal statutes to hammer home the point, concluding, “if individuals are engaged in ongoing economic or commercial activity subject to congressional regulation – as Tibbs was at the time of the assault – then Congress also may prohibit violent crime that interferes with or affects such individuals’ ongoing economic or commercial activity, including the type of bias-motivated assaults proscribed by the Hate Crimes Act.”

Hill’s argument turned on the clear evidence that his assault did not result in Amazon’s productivity being compromised during that shift.  Wynne responded, “That Amazon was able to absorb the impact of Tibbs’ absence without missing any key shipping deadlines and that the fulfillment center’s performance during the shift impacted by Tibbs’ assault was in-line with its performance during other shifts does not call into question this determination.  On the contrary, the Supreme Court and this Court repeatedly have clarified that congress may regulate interference with commerce, even if the effect of the interference on interstate commerce in an individual case is ‘minimal.’”

The rest of Wynn’s opinion expands in these ideas with numerous examples intended to counter Judge Agee’s dissenting arguments.

Judge Agee argued that the issue is not whether Tibbs was engaged in commercial activity at the time of the assault, but rather whether the bias-motivated “punch” in this case was “inherently economic activity,” which he argued it was not.  By comparison, burglary and arson were, in his view, inherently economic crimes, and thus their regulation when they affected interstate commerce came appropriately within Congress’s Commerce Clause power.  He also criticized Congress’s wording of the relevant statutory provision, arguing that it “does not limit the class of activities being regulated to acts that fall under Congress’s Commerce Clause power,” and thus exceeded Congress’s authority.  Judge Agee appeared to be reviving Hill’s argument that the hate crimes provision is unconstitutional on its face, not just as applied to Hill.  Judge Wynn explicitly rejected Agee’s argument that only “inherently economic activity” by a defendant could be regulated by Congress, citing examples from several cases.

The different views of Wynn and Agee are rooted in sharp differences on the Supreme Court as to the scope of the Commerce Power, which was dramatically shown by the famous decision upholding the constitutionality of the Affordable Care Act (“Obamacare”), National Federation of Independent Business v. Sebelius (2012).   Challengers of the ACA claimed that Congress did not have power under the Commerce Clause to pass a statute requiring individuals to purchase health insurance coverage.  Defending the law, the Obama Administration argued that both the Commerce Clause and the Taxing Power could support Congress’s authority, since the ACA imposed various financial requirements akin to taxes, administered by the Internal Revenue Service.   In his opinion for the Court, Chief Justice John Roberts was joined by the four Republican appointees in finding that Congress did not have power to enact ACA under the Commerce Clause, but joined by the four Democratic appointees (with the other Republican appointees dissenting), Roberts found that the Taxing Power would support the ACA.

Roberts’ Commerce Clause ruling was in line with decisions by the Supreme Court during the 1990s, under the leadership of Chief Justice William H. Rehnquist, narrowing the Court’s interpretation of Commerce Clause jurisdiction, most notably striking down a federal law banning the possession of firearms within a certain proximity to public schools and voiding a key provision of the Violence Against Women Act.

The Court’s decisions narrowing Commerce Clause jurisdiction, usually by 5-4 votes, replay a dispute of the 1930s, when a narrow view of the Commerce Clause by conservative justices was used to strike down key statutes of President Franklin Roosevelt’s New Deal, leading the president to propose expanding the membership of the Court so that he could appoint some liberal justices who would vote to uphold New Deal legislation.  While the controversial legislation was pending in Congress, one of the conservative justices changed his position and voted to uphold some important New Deal legislation, taking the wind out of the sails of Roosevelt’s “Court Packing” bill. From then until the Rehnquist Court rulings, the Supreme Court allowed wide-ranging Commerce Clause jurisdiction.

President Donald J. Trump has placed three judges on the 4th Circuit, two of whom occupy seats previously held by Bush appointees, and one by a Clinton appointee.  President Obama placed six judges on the Circuit, giving it a decided center-left tilt that has not been substantially affected by Trump’s appointments, so an en banc 4th Circuit, if Hill seeks such review, is likely to reaffirm the panel decision.

As Judge Wynn observed, this ruling is the first by a federal appeals court to deal with the arguments about jurisdictional support for the Hate Crimes Law in a case involving an assault without weapons in a workplace, and the Supreme Court usually does not grant review on a constitutional issue where there is not “split” of circuit court authority, so an attempt for Supreme Court review by Hill would most likely not be granted.  If it were, however, consideration of this case by the Supreme Court could signal trouble for survival of the Hate Crimes Act and, depending how Justice Brett Kavanaugh votes, might provide more evidence about the degree to which his appointment has moved the Court on its Commerce Clause jurisprudence.  It is worth noting, however, that the man Kavanaugh replaced, Justice Anthony Kennedy, agreed with Chief Justice Roberts’ Commerce Clause holding in the Obamacare case, so Kavanaugh’s appointment would not necessarily move the needle on the Court, assuming he would agree with Chief Justice Roberts’ Commerce Clause holding, endorse by all the Republican appointees on the Court.

Since this is a criminal prosecution of a defendant without substantial means, the case was argued by the Justice Department’s appellate branch and the federal public defender in Virginia.  But the significant of the case drew amicus briefs, including one from Lambda Legal supporting the validity of the Hate Crimes Act.

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.