722 F.3d 1193 (10th Cir. 2013), 12-2040, United States v. Hatch

Docket Nº:12-2040.
Citation:722 F.3d 1193
Opinion Judge:TYMKOVICH, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. William HATCH, Defendant-Appellant. Thirteenth Amendment Scholars, Amicus Curiae.
Attorney:Richard A. Winterbottom, Assistant Federal Public Defender, Albuquerque, New Mexico, for Appellant. Thomas E. Chandler, Attorney, Civil Rights Division (Thomas E. Perez, Assistant Attorney General, and Jessica Dunsay Silver, Attorney, Civil Rights Division, with him on the brief) Department of Ju...
Judge Panel:Before MURPHY, O'BRIEN, and TYMKOVICH, Circuit Judges.
Case Date:July 03, 2013
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1193

722 F.3d 1193 (10th Cir. 2013)

UNITED STATES of America, Plaintiff-Appellee,

v.

William HATCH, Defendant-Appellant.

Thirteenth Amendment Scholars, Amicus Curiae.

No. 12-2040.

United States Court of Appeals, Tenth Circuit.

July 3, 2013

Page 1194

Richard A. Winterbottom, Assistant Federal Public Defender, Albuquerque, New Mexico, for Appellant.

Thomas E. Chandler, Attorney, Civil Rights Division (Thomas E. Perez, Assistant Attorney General, and Jessica Dunsay Silver, Attorney, Civil Rights Division, with him on the brief) Department of Justice, Appellate Section, Washington, DC, for Appellee.

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George Bach, Counsel of Record, and Dawinder S. Sidhu, University of New Mexico School of Law, William M. Carter, Jr., Pittsburgh, PA, Alexander Tsesis, Chicago, IL, and Rebecca E. Zietlow, Toledo, OH on the brief for Amicus Curiae.

Before MURPHY, O'BRIEN, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

Three New Mexico men kidnaped a disabled Navajo man and branded a swastika into his arm. The United States charged the assailants with committing a hate crime under the recently enacted Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, Pub.L. No. 111-84, Div. E, 123 Stat. 2835 (2009), codified in relevant part at 18 U.S.C. § 249. As relevant here, the Hate Crimes Act makes it a felony to physically attack a person because of that person's race.

The three assailants contended in district court that the Hate Crimes Act is unconstitutional, claiming Congress lacks the authority to criminalize purely intrastate conduct of this character. The government countered that the Thirteenth Amendment, which abolished slavery in the United States, gave Congress the necessary authority. The district court agreed with the government, holding that Congress's power to enforce the Thirteenth Amendment authorized it to enact 18 U.S.C. § 249(a)(1), the portion of the Hate Crimes Act under which the three men were charged.

One of those men, William Hatch, then pleaded guilty while reserving his right to appeal. He now renews his challenge to the constitutionality of the Act. Like the district court, we conclude that Congress has power under the Thirteenth Amendment to enact § 249(a)(1). Although the Thirteenth Amendment by its terms applies to slavery and involuntary servitude, Supreme Court precedent confirms Congress's authority to legislate against slavery's " badges and incidents" as well. In particular, the Supreme Court held in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968)— a case permitting a federal private right of action against private individuals for housing discrimination— that Congress itself has power to determine those badges and incidents.

Section 249(a)(1) rests on the notion that a violent attack on an individual because of his or her race is a badge or incident of slavery. Congress reached this conclusion by accounting for the meaning of " race" when the Thirteenth Amendment was adopted, the state of mind of the attacker, and the attack itself. By so doing, and under the authority of Jones, we conclude Congress rationally determined that racially motivated violence is a badge or incident of slavery against which it may legislate through its power to enforce the Thirteenth Amendment.

We therefore affirm.

I. Background

Hatch and two of his friends, Paul Beebe and Jesse Sanford, worked together at a restaurant in Farmington, New Mexico. All three are white.

In April 2010, a mentally disabled Navajo man— whom the record identifies only as " V.K." — came to the restaurant. Beebe convinced V.K. to come to Beebe's apartment. Hatch and Sanford later joined Beebe there.

At Beebe's apartment, the three white men drew on V.K.'s back with markers. They told him they would draw " feathers" and " native pride" but actually drew satanic and anti-homosexual images. They then shaved a swastika-shaped patch into V.K.'s hair. Finally, they heated a wire hanger

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on the stove and used it to brand a swastika into V.K.'s arm.

Based on these actions, the State of New Mexico charged Beebe, Sanford, and Hatch under state law with kidnaping, aggravated battery, and conspiracy to commit both of these crimes.

Six months later— while the state prosecution was still pending— the federal government charged Beebe, Sanford, and Hatch with violating (and conspiracy to violate) 18 U.S.C. § 249(a)(1), a portion of the Hate Crimes Act making it unlawful to subject a person to physical violence on account of the person's race.

In May 2011, Hatch was convicted in New Mexico state court of conspiracy to commit aggravated battery, but otherwise acquitted. That same month, Beebe, Sanford, and Hatch filed a motion in federal court to dismiss the federal indictment, claiming that 18 U.S.C. § 249(a)(1) is unconstitutional. The district court rejected that argument in a thorough opinion. United States v. Beebe, 807 F.Supp.2d 1045 (D.N.M.2011). Hatch then entered a conditional guilty plea on the federal conspiracy charge, preserving his right to appeal the constitutional question.

In September 2011, the State of New Mexico sentenced Hatch to eighteen months' imprisonment. In February 2012, the district court sentenced Hatch to the lesser of fourteen months' imprisonment or time served, running concurrently with his state sentence.

II. Analysis

The sole question before us is whether the portion of the Hate Crimes Act under which Hatch was convicted, 18 U.S.C. § 249(a)(1), is a constitutional exercise of Congress's power to enforce the Thirteenth Amendment. We review challenges to the constitutionality of a statute de novo. United States v. Carel, 668 F.3d 1211, 1216 (10th Cir.2011), cert. denied, __ U.S. __, 132 S.Ct. 2122, 182 L.Ed.2d 881 (2012).

A. The Thirteenth Amendment Enforcement Power

Although this case centers on the Thirteenth Amendment, some of Hatch's arguments rely on cases arising under the other two Reconstruction Amendments— the Fourteenth and Fifteenth Amendments. We therefore begin with a brief description of all three Reconstruction Amendments, and then turn to our analysis of the Thirteenth Amendment and the Hate Crimes Act specifically.

1. The Reconstruction Amendments

The Thirteenth Amendment prohibits slavery and involuntary servitude, while extending power to Congress to enforce its provisions:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

Congress approved the Thirteenth Amendment in January 1865 as the Civil War drew to a close. With the Confederacy's surrender and President Lincoln's assassination the following April, twenty-seven states ratified the amendment by December 1865 and it came into force that same month.

Two other amendments soon followed, forming a trilogy referred to as the Reconstruction Amendments. The Fourteenth Amendment resulted in part from lingering doubts that the Thirteenth Amendment authorized civil rights legislation enacted under its auspices. See Jennifer Mason McAward,

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The Scope of Congress's Thirteenth Amendment Enforcement Power After City of Boerne v. Flores, 88 Wash. U.L.Rev. 77, 115-16 (2010) (" McAward, Enforcement Power " ). Congress accordingly proposed the Fourteenth Amendment, which the states adopted in 1868. As is well known, the Fourteenth Amendment protects persons against various state-sponsored intrusions and discriminations. It also contains an enforcement clause similar to Section 2 of the Thirteenth Amendment: " The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." U.S. Const. amend. XIV, § 5.

The states adopted the third of the Reconstruction Amendments, the Fifteenth Amendment, in 1870. In addition to guaranteeing the right to vote regardless of " race, color, or previous condition of servitude," U.S. Const. amend. XV, § 1, the Fifteenth Amendment contains an enforcement provision similar to those found in the Thirteenth and Fourteenth Amendments: " The Congress shall have power to enforce this article by appropriate legislation," id. § 2.

2. The " Badges and Incidents" of Slavery

At issue here is the first of the Reconstruction Amendments, the Thirteenth. On its face, it appears simply to abolish slavery and give Congress power to enforce that abolition. The Supreme Court soon clarified, however, that Congress's enforcement power under Section 2 also extends to eradicating slavery's lingering effects, or at least some of them.

In 1875, Congress acted under both the Thirteenth and Fourteenth Amendments to pass what was knows as the Civil Rights Act. That act aimed to guarantee " [t]hat all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of" public facilities such as inns, theaters, and rail cars, " subject only to ... conditions and limitations ... applicable alike to citizens of every race and color." 18 Stat. 336. Any person refusing to abide by this guarantee, including private citizens, could be guilty of a misdemeanor. Id.

In 1883, five cases arising under this act came to the Supreme Court in an appeal consolidated as the Civil Rights Cases. All five involved private citizens or entities denying African Americans access to public accommodations on equal terms with other races. Civil Rights Cases, 109 U.S. 3, 4, 3 S.Ct. 18, 27 L.Ed. 835 (1883).

" Has Congress...

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