U.S. v. Furrow, Cr 99-838(A) NM.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
Writing for the CourtManella
Citation125 F.Supp.2d 1178
PartiesUNITED STATES of America, Plaintiff, v. Buford O'Neal FURROW, Jr., Defendant.
Docket NumberNo. Cr 99-838(A) NM.,Cr 99-838(A) NM.
Decision Date19 September 2000
125 F.Supp.2d 1178
UNITED STATES of America, Plaintiff,
v.
Buford O'Neal FURROW, Jr., Defendant.
No. Cr 99-838(A) NM.
United States District Court, C.D. California.
September 19, 2000.

Page 1179

Barbara Bernstein, Special Asst. U.S. Attorney, Carolyn Wittcoff, Michael J. Gennaco, Michael Terrell, Asst. U.S. Attorneys Criminal Division, Los Angeles, CA, for plaintiff.

Marilyn E. Bednarski, Seal Kennedy, William H. Forman, Office of the Federal Public Defender, Los Angeles, CA, Judy C. Clarke, Office of the Federal Public Defender, Spokane, WA, for defendant.

ORDER DENYING DEFENDANT'S MOTION TO DISMISS COUNTS 2 THROUGH 16 OF THE INDICTMENT BECAUSE THE UNDERLYING STATUTES ARE UNCONSTITUTIONAL

MANELLA, District Judge.


I. INTRODUCTION

Criminal defendant Buford O'Neal Furrow, Jr. ("Defendant") has been charged in a sixteen-count indictment filed on December 2, 1999 for the alleged murder of a U.S. postal worker, Joseph Ileto, the alleged shooting of five individuals at the North Valley Jewish Community Center ("NVJCC"), and various gun possession offenses. Pending before the court is Defendant's motion to dismiss counts 2 through 16 of the indictment because the underlying statutes are unconstitutional. The statutes at issue in this motion are 18 U.S.C. § 245(b)(2)(F) (violent interference, on account of race or religion, with enjoyment of the services, facilities, and privileges afforded by a place of exhibition or entertainment which serves the public); 18 U.S.C. § 245(b)(4)(A) (violent interference, on account of race or religion, with enjoyment

Page 1180

of right to federal employment); 18 U.S.C. § 924(c) (use of a firearm during commission of a crime of violence); 18 U.S.C. § 922(g) (possession by a convicted felon of a firearm); 18 U.S.C. § 922(o) (possession of a machinegun); and 26 U.S.C. § 5861 (possession of an unregistered firearm).

II. DISCUSSION
A. Legal Framework

Defendant maintains that neither the 14th Amendment nor the Commerce Clause of Article I confers on Congress the power to enact 18 U.S.C. §§ 245, 924(c), 922(g), 922(o), and 26 U.S.C. § 5861. Mot., at 5. Because the government does not invoke Congress's Fourteenth Amendment authority in its defense of the contested statutes, the court focuses its analysis on Defendant's Commerce Clause challenge. Opp., at 3.

The Supreme Court recently stated that "[d]ue respect for the decisions of a coordinate branch of government demands that we invalidate a congressional enactment only upon a clear showing that Congress has exceeded its constitutional bounds." United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 1748, 146 L.Ed.2d 658 (2000). Accordingly, courts apply a "presumption of constitutionality" when reviewing challenges to congressional enactments. Id.

"The powers of the legislature are defined and limited [by the Constitution]." Marbury v. Madison, 1 Cranch 137, 176, 2 L.Ed. 60 (1803). The Commerce Clause of the U.S. Constitution delegates to the federal government the power "to regulate Commerce with Foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const., art. I, § 8, cl. 3. The 20th century has witnessed a gradual judicial expansion of Congress's Commerce Clause authority. In two recent decisions — United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) — the Supreme Court defined the outer limits of that authority.

In Lopez and Morrison, the Supreme Court invalidated two federal criminal statutes as exceeding Congress's Commerce Clause authority and announced a conceptual framework for courts to employ in evaluating Commerce Clause challenges.1 In Lopez, the Supreme Court

identified three broad categories of activity that Congress may regulate under its commerce power. First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.

514 U.S. at 558-59, 115 S.Ct. 1624 (citations omitted). "[T]hese three bases of authority are analytically distinct." United States v. Pappadopoulos, 64 F.3d 522, 526 (9th Cir.1995) (citing United States v. Robertson, 514 U.S. 669, 115 S.Ct. 1732, 131 L.Ed.2d 714 (1995)). Both Lopez and Morrison were decided under the third category.

The Court's holding in Lopez rested on three grounds: 1) the Gun-Free School Zones Act ("GFSZA") was "a criminal statute that by its terms had nothing to do with `commerce' or any sort of economic enterprise"; 2) "[the GFSZA] contain[ed] no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affect[ed] interstate commerce"; and 3) there were "no congressional findings [that] would enable [the Court] to evaluate the legislative judgment that the activity in

Page 1181

question substantially affected interstate commerce." 514 U.S. at 561-63, 115 S.Ct. 1624. The Court rejected the government's "costs of crime" and "national productivity" theories as imposing virtually no limits on federal legislative authority:

Under the theories that the Government presents in support of § 922(q), it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.

Id. at 564, 115 S.Ct. 1624.

Morrison affirmed and elaborated on the principles announced in Lopez. Unlike the GFSZA, the Violence Against Women Act ("VAWA") was supported by abundant findings concerning the impact of gendermotivated violence on commerce. However, "the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation." Morrison, 120 S.Ct. at 1752. The Court proceeded to dismissed the congressional findings as relying primarily on the national productivity and costs of crime theories the Court had rejected in Lopez: "If accepted, petitioners' reasoning would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption," thereby potentially "obliterat[ing] the Constitution's distinction between national and local authority." Id. at 1752-53.

"The Constitution requires a distinction between what is truly national and what is truly local." Id. at 1754. The statutes at issue in Lopez and Morrison were found unconstitutional because they regulated activity that had "only a tenuous connection to commerce and infringe[d] on areas of traditional state concern." Gibbs v. Babbitt, 214 F.3d 483, 491 (4th Cir.2000). With these general principles in mind, the court turns to the particular issues presented by this case.

B. Application

1. 18 U.S.C. § 245

Counts 3 through 8 of the First Superseding Indictment charge Defendant with violations of 18 U.S.C. § 245, which subject to criminal penalties anyone who "knowingly, willfully, and unlawfully, by force or threat of force willfully injures, intimidates or interferes with" federally protected rights.2 The federally protected rights at issue here are 1) the right to be free from injury, intimidation, or interference because of one's race, color, religion, or national origin and because one is "enjoying the goods, [or] services ... of any [] place of exhibition or entertainment which serves the public,"3 and 2) the right to "participat[e], without discrimination on account of race, color, religion or national origin, in [the enjoyment of employment by an agency of the United States]."4 The government urges the court to sustain the statute as a regulation of "use of the channels of interstate commerce,"5 and "activities that substantially affect interstate commerce." Opp., at 16; Lopez, 514 U.S. at 558-59, 115 S.Ct. 1624. Because the court concludes that Section 245 regulates activities having a substantial effect on interstate commerce, it does not address whether the statute also governs the channels of interstate commerce.

Page 1182

Defendant challenges the constitutionality of Section 245 on the ground that the Commerce Clause does not empower Congress to regulate private, non-economic conduct. Mot., at 6. The government attempts to distinguish Section 245 from the statutes that have been found to exceed Congress's Commerce Clause power on three grounds: (1) it regulates economic conduct affecting commerce; (2) it criminalizes only racially or religiously discriminatory conduct intended to interfere with an individual's federally protected rights; and (3) it is "part of a larger, distinctively federal, statutory regime." Opp., at 13, 20.

a. Economic Nature of Regulated Activity

Courts have adopted and continue to use a broad definition of economic activity. "Indeed, a cramped view of commerce would cripple a foremost federal power and in so doing would eviscerate national authority." Gibbs, 214 F.3d at 491 (upholding Fish and Wildlife Service regulation under Commerce Clause). Although the outcome in Lopez hinged on the "non-economic, criminal nature of the conduct at issue," the Supreme Court has never suggested that Congress may not regulate any criminal activity. Morrison, 120 S.Ct. at 1750. Rather, Congress violates the principles of federalism when it attempts to regulate intrastate violence with only an attenuated connection to interstate commerce. Id. at 1754. Defendant maintains that Section 245...

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  • U.S. v. Allen, 02-30079.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
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    ...a matter of purely local concern."), cert. denied, 537 U.S. 835, 123 S.Ct. 145, 154 L.Ed.2d 54 (2002); United States v. Furrow, 125 F.Supp.2d 1178, 1185 (C.D.Cal.2000) ("Far from intruding into a matter of purely local concern, [§ 245] regulates matters that Congress and the courts have rec......
  • U.S. v. Swida, 3:CR-98-295.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
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    ...Circuit's decision in Kenney that § 922(o) was a valid exercise of commerce clause authority); see also United States v. Furrow, 125 F.Supp.2d 1178, 1187 (C.D.Cal. 2000)(post-Morrison decision finding that § 922(o) was a permissible "regulation of the use of channels of interstate commerce ......

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