U.S. v. Bird

• Decision Date: 28 February 2005
• Docket Number: No. 03-20884.,03-20884.
• Citation: 401 F.3d 633
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Frank Lafayette BIRD, Jr., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

401 F.3d 633

UNITED STATES of America, Plaintiff-Appellant, v. Frank Lafayette BIRD, Jr., Defendant-Appellee.

No. 03-20884.

United States Court of Appeals, Fifth Circuit.

February 28, 2005.

Peter D. Keisler (argued), Mark Bernard Stern, Sushma Soni, U.S. Dept. of Justice, Civ. Div., Washington, DC, for Plaintiff-Appellant.

Marjorie A. Meyers, Fed. Pub. Def., Brent Evan Newton, Asst. Fed. Pub. Def. (argued), Houston, TX, for Defendant-Appellee.

Maria T. Vullo, Paul, Weiss, Rifkind, Wharton & Garrison, Jennifer K. Brown, NOW Legal Defense & Educ. Fund, New York City, for American Civ. Liberties Union, Center for Reproductive Rights, Nat. Abortion Fed., NOW Legal Defense and Educ. Fund and Planned Parenthood Fed. of America, Amici Curiae.

Arthur B. Mark, III, John H. Findley, Pacific Legal Found., Sacramento, CA, for Pacific Legal Found., Amicus Curiae.

Walter M. Weber, American Center for Law & Justice, Washington, DC, for American Center for Law & Justice, Amicus Curiae.

Appeal from the United States District Court for the Southern District of Texas; Kenneth M. Hoyt, Judge.

Before GARZA, DeMOSS and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

In United States v. Bird ("Bird I") this Court held that the Freedom of Access to Clinic Entrances Act (FACE) is a valid exercise of Congress's authority under the Commerce Clause. 124 F.3d 667, 678 (5th Cir.1997). Notwithstanding that holding, the district court in the present case held that under United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) "passage of [the FACE Act] was beyond Congress' Commerce Clause authority." United States v. Bird, 279 F.Supp.2d 827, 838 (S.D.Tex.2003).

We do not find that the Supreme Court's decision in Morrison materially affects our holding in Bird I.¹ Our decision in that case is therefore binding.² Cf. United States v. Pettigrew, 77 F.3d 1500, 1511 n. 1 (5th Cir.1996) ("While ... one panel of this Court is generally powerless to overrule the previous decision of another panel..., an exception to this rule arises when there has been an intervening decision by the United States Supreme Court overriding the earlier decision.").

Accordingly, we VACATE the district court's order and REMAND for further proceedings not inconsistent with this opinion.

DeMOSS, Circuit Judge, dissenting:

In March 2003, Bird drove a van through the front door of a Planned Parenthood facility in Houston, Texas. A federal grand jury indicted Bird on one count of violating 18 U.S.C. § 248(a) and (b)(2). Bird filed a pretrial motion to dismiss the indictment, contending that Congress impermissibly exceeded its power under the Commerce Clause when it enacted FACE and citing the Supreme Court's decision in United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), as effecting a change in the Commerce Clause analysis that now renders moot our previous decision in United States v. Bird, 124 F.3d 667 (5th Cir.1997) ("Bird I"). The district court agreed and granted Bird's motion to dismiss the indictment, concluding that its ruling was in line with the Supreme Court's decisions in both United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and Morrison.

On appeal, the Government argues the district court incorrectly concluded that the Supreme Court's decision in Morrison preempted this Court's previous decision in Bird I.¹ Meanwhile, Bird maintains that Morrison clearly rejected the "national commercial market" theory of aggregation espoused in Bird I and argued here by the Government. The majority has concluded that Morrison does not "materially affect[ ]" our decision in Bird I.

As a preliminary matter, I incorporate by reference here the discussion and reasons I offered in my dissent in Bird I. 124 F.3d at 685-92. Because I believe the holding in Morrison dictates even more clearly that Congress exceeded its Commerce Clause authority when it enacted FACE, I again respectfully dissent.

Just as Lopez, the then most recent Supreme Court exegesis on the bounds of Congress's Commerce Clause authority, guided this court in Bird I, so too Morrison charts our course here.

I. The regulated activity is intrastate and noncommercial.

The Supreme Court's decision in Lopez set forth three broad categories under which Congress could regulate intrastate activities through its Commerce Clause powers. 514 U.S. at 558, 115 S.Ct. 1624. The third category, and the one at issue here, provides that Congress can regulate certain intrastate activities that have a substantial effect on interstate commerce. Id. at 558-59, 115 S.Ct. 1624. In Lopez, the statute made the subject of the Court's review was the Gun-Free School Zones Act of 1990 ("GSA"), a criminal statute that made it a federal offense to knowingly possess a firearm in a school zone. See 18 U.S.C. § 922(q)(1)(A) (1994). The Court determined that the GSA was "a criminal statute that by its terms has nothing to do with `commerce' or any sort of economic enterprise, however broadly one might define those terms." Id. at 561, 115 S.Ct. 1624. Accordingly, the Lopez Court concluded that the GSA was unconstitutional in part because it regulated an activity that was noneconomic and therefore could not be justified under the third prong of Congress's Commerce Clause authority. Id. at 551, 560-61, 115 S.Ct. 1624, (noting that "[e]ven Wickard [v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942)], which is perhaps the most far reaching example of Commerce Clause authority over intrastate activity, involved economic activity in a way that the possession of a gun in a school zone does not"), at 566, 115 S.Ct. 1624.

Then, in Morrison, the Supreme Court again was faced with a federal statute, the Violence Against Women Act ("VAWA"), 42 U.S.C. § 13981, that sought to regulate criminal activity, this time in the form of gender-motivated violence. The Court first observed that "a fair reading of Lopez shows that the noneconomic, criminal nature of the conduct at issue was central to our decision in that case." 529 U.S. at 610, 120 S.Ct. 1740 (emphasis added). The Morrison Court further explicated that requiring the regulation to be of an economic activity is essential to the limitations set forth in the Commerce Clause, noting that "Lopez's review of Commerce Clause case law demonstrates that in those cases where we have sustained federal regulation of intrastate activity based upon the activity's substantial effects on interstate commerce, the activity in question has been some sort of economic endeavor." Id. at 611, 120 S.Ct. 1740 (emphasis added) (citing Lopez, 514 U.S. at 559-60, 115 S.Ct. 1624). Using the lack of an economic element in the activity being regulated as partial justification, the Court subsequently struck down VAWA as an impermissible exercise of Congress's Commerce Clause. Morrison, 529 U.S. at 617-18, 120 S.Ct. 1740.

As in Lopez and Morrison, the criminal activity at issue here, the intentional damaging and destroying of a facility that provides reproductive health services, is neither an economic nor a commercial activity. To so conclude is not a novel interpretation of the statute or the underlying conduct, as the question of how to define the activity proscribed by FACE was previously answered by this court in Bird I. This court expressly stated that FACE is "a federal criminal statute regulating intrastate, noncommercial conduct."² 124 F.3d at 675. Therefore, the analysis here embraces the binding determination that the regulated conduct in this case is noncommercial in nature.

The Court in Morrison further suggested that Congress could not, in the absence of a regulated activity which is economic or commercial, simply exercise a general police power, stating:

The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States. Indeed, we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.

529 U.S. at 618, 120 S.Ct. 1740 (internal citation omitted). Moreover, as the Court in Lopez noted: "Under our federal system, the `States possess primary authority for defining and enforcing the criminal law.'" 514 U.S. at 561 n. 3, 115 S.Ct. 1624 (internal quotation marks and citations omitted). Congress itself has noted that state statutes, including criminal trespass, criminal contempt, disorderly conduct, resisting arrest, and unlawful assembly are more than adequate to address the activities sought to be regulated by FACE. See H.R.Rep. No. 103-306, at 22 (1993), reprinted in 1994 U.S.C.C.A.N. 699, 717.

Because Congress does not have a general police power, it surely cannot have the authority to define as criminal conduct under federal law private acts that are intended to interfere with another person's exercise of some constitutional right, whether that right is to be free from gender-based violence as in VAWA or to choose to access reproductive health services, such as abortion, as in FACE.³ Purely criminal activities that are not premised in economic or commercial contexts are subject to an entirely different scheme of congressional regulations, none of which is justifiable under the Commerce Clause.

II. Morrison expressly precludes the aggregation of noncommercial, criminal activity.

Having concluded that the criminal, intrastate activity proscribed by FACE is neither commercial nor economic in nature, this analysis focuses on how the Supreme Court's decision in Morrison expressly rejects the contention that such activity can be aggregated in order to create a substantial effect on interstate commerce.

Morrison refutes the concept of an aggregate effect on a national market when the conduct proscribed is violent criminal conduct. 529 U.S. at...