[Cross-posted at Balkinization]

Grafton Thomas is accused of committing the horrific, anti-Semitic attacks in Monsey, New York last Saturday.  The State of New York presumably could have brought charges against him (e.g., attempted murder).  On Monday, however, the federal government filed a criminal Complaint against him instead.  One might have expected (I did) that the United States would have charged Thomas with violations of the Matthew Shepard Hate Crimes Prevention Act, 18 U.S.C. 249(a), given that Thomas allegedly used a dangerous weapon (a machete) to cause bodily injury to several persons because they were Jewish.

For some reason, however, the government has instead elected to charge Thomas pursuant to a different criminal statute, 18 U.S.C. 247(a)(2), which makes it unlawful to “intentionally obstruct[], by force or threat of force, … any person in the enjoyment of that person’s free exercise of religious beliefs” where “the offense is in or affects interstate or foreign commerce.”

Unless there’s something unusual about the case that’s not immediately apparent, the government’s decision to use Section 247 but not Section 249 will probably make successful prosecution more difficult, for several reasons.

First, under Section 247(a) the government will have to prove that Thomas intentionally obstructed his victims’ religious exercise.  Presumably the government will try to prove Thomas was trying to obstruct the congregation’s celebration of the holiday of Chanukah and the end of Shabbat (which included prayers).  To be sure, Thomas’s handwritten journals indicate (according to the Complaint) that he planned to attack “Hebrew” Jews because of their race–proof that would have been sufficient for purposes of Section 249(a).  For a conviction under Section 247(a), however, the government will have to prove that Thomas was intentionally obstructing his victims’ religious exercise–and the Complaint doesn’t appear to recite any evidence that would establish that particular state of mind.  (It doesn’t, for example, allege that Thomas knew he was intruding upon a Sabbath or holiday celebration.)

Second, if the government had chosen to prosecute under Subsection 249(a)(1) of the Matthew Shepard Hate Crimes Prevention Act, it wouldn’t have to prove any connection to interstate or foreign commerce because that provision is an exercise of Congress’s enforcement power under Section 2 of the Thirteenth Amendment–an authority that can be applied to violence directed at Jews.  See pdf pp. 2-5 and 8-9 of this DOJ analysis, on which I worked, and United States v. Nelson, 277 F.3d 164, 176-80 (2d Cir. 2002).

Third, if if the government had chosen to prosecute under Subsection 249(a)(2) of the Matthew Shepard Hate Crimes Prevention Act–which does require proof of one or more particular kinds of connections to interstate or foreign commerce–it would have been more straightforward for the government to prove the requisite connections, because of the particular jurisdictional commerce “elements” found in Section 249(a).

The government will likely be able to satisfy the commerce element of Section 247(a)(2), too–proof that the offense was “in or affects interstate or foreign commerce”–but that’ll likely be a more difficult challenge than it would have been under Section 249(a)(2).

The government alleges three relevant aspects of the offense that could be relevant to a showing of a “commerce” hook:

i. That Thomas planned the attack using his cell phone’s internet browser;

ii. That Thomas used a machete that had traveled in foreign commerce (it was manufactured in China); and

iii. That Thomas fled the crime by traveling interstate—from Rockland County, New York through New Jersey and then back to New York across the George Washington Bridge, where he was apprehended in Manhattan.  (It’s possible to get to Manhattan from Monsey without crossing into New Jersey–by crossing the Hudson over the Tappan Zee Bridge–but it’s often quicker to go through Jersey across the GW Bridge (and in any event, Thomas would have had to traverse an interstate highway to cross the Tappan Zee).)

Congress certainly has the constitutional power to punish an attack under either of the first two circumstances, and probably the third, as well.  See pdf pp. 5-6 and 12-14 of the DOJ analysis.  (As for the third aspect:  Congress can punish offenses facilitated by interstate travel.  Virtually all of the reported, on-point cases in which the government has relied upon such interstate travel by the offender have involved crossing state lines on the way to (i.e., preceding) the crime scene.  I’m not familiar with any cases where the interstate travel has occurred in fleeing from the crime (there might be some–I’m simply not aware of them); but where, as alleged here, the ability to move freely interstate (or over interstate highways) helps to facilitate the offense by being a means of avoiding capture, I can’t see why Congress wouldn’t be empowered to address it.)

The interesting legal issue here, then, isn’t constitutional but whether the prosecution will be able to prove the statutory requirement in question beyond a reasonable doubt.  Each of the three alleged facts involving a commerce connection to Thomas’s crime would satisfy at least one of the commerce “elements” of the Hate Crimes Act–subsections 249(a)(2)(B)(ii) and/or (iii).  Again, however, the government hasn’t invoked that law; it’s opted instead to prosecute under Section 247(a)(2), which requires proof that Thomas’s offense was “in” interstate or foreign commerce.  (It doesn’t appear the government is trying to prove any “effect” on interstate commerce in this case.)

Which of the three facts in question, if proved, would be sufficient to show that Thomas’s offense was “in” interstate or foreign commerce?

By amending the statute in 1996 to reach all covered conduct “in” interstate commerce–an amendment designed in large part to clarify and ensure the law’s constitutionality in the wake of the Supreme Court’s 1995 decision in United States v. Lopez–Congress plainly intended to cover at least the first, and probably the third, circumstance alleged in the Thomas Complaint.  The House Report explains:

Under this new formulation of the interstate commerce requirement, the Committee intends that where in committing, planning, or preparing to commit the offense, the defendant either travels in interstate or foreign commerce, or uses the mail or any facility or instrumentality of interstate or foreign commerce, the statute will be satisfied.  These are but two examples of the many factual circumstances which would come within the scope of H.R. 3525’s [amended] interstate commerce requirement.

It’s well-established that the Internet is (in the words of Lopez and other cases) an “instrumentality” of interstate commerce, thereby subject to Congress’s Commerce Clause authority, and that Thomas’s phone, which he allegedly used to connect to the internet in planning or preparing to commit the offense, is a “channel” of such commerce that Congress can also regulate.  Thomas also allegedly traveled in interstate commerce in fleeing from the crime scene, which the government presumably will argue was an integral part of his “commission” of the offense.

The possible catch is that Congress didn’t specifically refer to interstate travel, or to the use of the channels or instrumentalities of commerce, in the amended words of Section 247–instead, it used the catch-all term of art “in … interstate commerce” to encompass the “many factual circumstances” it was trying to capture.

The U.S. Court of Appeals for the Eleventh Circuit has already held (by a 10-3 vote) that Section 247’s “in commerce” element covers a case in which the defendant crosses state lines in order to commit the offense.  United States v. Ballinger (2005), 395 F.3d at 1230-1242.  Similar reasoning would probably also cover a case, such as Thomas’s, in which the defendant allegedly crossed state lines to avoid apprehension, and/or used the internet to plan his crimes.*  It’s not as obvious, however, that Thomas’s use of the Internet to plan his crime is sufficient to show that the offense itself was “in” interstate commerce.

What about the fact that Thomas allegedly used a weapon made in China?  That would certainly be sufficient proof if Congress had specified in Section 247(a) that the use of such a weapon would satisfy the “commerce” element–as it has in several other statutes, including Section 249(a).  But Congress didn’t did do so here, preferring instead to stick with the more amorphous (and in some respects broader) “in commerce” language.  Arguably, proof that the machete traveled in foreign commerce before Thomas used it wouldn’t be sufficient to make the offense itself one that occurred “in” foreign commerce.

The government might have a decent argument even as to that aspect of the case, however, based upon the Supreme Court’s 1977 decision in Scarborough v. United States, 431 U.S. 563 (1977).  Scarborough held that a statute making it a crime for a convicted felon to possess a firearm “in commerce or affecting commerce” was satisfied by proof that the possessed firearm had previously traveled in interstate commerce.  Courts of appeals have uniformly applied Scarborough’s rationale to similar, follow-on felon-in-possession statutes containing the same or a similar commerce “element.”  See, e.g., United States v. Palozie (2d. Cir 1999).

The element in Section 247(a) is slightly different—it requires proof that an attack, rather than a firearm-possession itself, was “in or affecting” foreign or interstate commerce.  In light of Scarborough, however, perhaps it would be fair to attribute to the 1996 Congress the understanding that if an attack is committed with a weapon that had traveled across state or national lines, that fact would satisfy the jurisdictional element.  (I haven’t studied this question closely.)

It’s therefore likely the government will be able to satisfy the commerce element of Section 247(a)(2)–but it would’ve been much easier for the government to satisfy the different commerce element prescribed by Section 249(a)(2).  Moreover, the prosecution might have difficulty showing that Thomas intentionally tried to obstruct his victims’ religious exercise–a showing it would not have had to make if it had brought charges under Section 249(a) instead of under Section 247(a).


* In another well-known, recent case of an attack upon religious observers, the government convicted Dylann Roof of, inter alia, section 247 offenses for his murders of African-American worshippers at the “Mother Emanuel” Church in Charleston in 2015.  The district court judge there upheld those convictions in part on the ground that Roof “used the internet to conduct research and identify Mother Emanuel as his target, a telephone to contact the church directly, and GPS navigation satellites to navigate interstate highways on his multiple trips to and from the vicinity of the church,” and that he used weapons that had moved in interstate commerce.  The court found that “a rational factfinder viewing the evidence in the light most favorable to the Government could conclude that the Government established an interstate commerce nexus.”  That was undoubtedly correct, but it appears that the district court didn’t specifically consider whether that evidence was sufficient to prove that the attack occurred “in” interstate commerce (an argument that Roof’s counsel might not have clearly raised or preserved).  Roof’s brief in his appeal to the U.S. Court of Appeals for the Fourth Circuit is due on January 20.  His counsel has informed the court that he’ll likely argue, among other things, that “the government failed to prove a sufficient nexus to interstate commerce.”