United States v. Betts, Case No. 20-20047
| Decision Date | 28 December 2020 |
| Docket Number | Case No. 20-20047 |
| Citation | 509 F.Supp.3d 1053 |
| Parties | UNITED STATES of America, Plaintiff, v. Shamar BETTS, Defendant. |
| Court | U.S. District Court — Central District of Illinois |
Eugene L. Miller, U.S. Atty, Urbana, IL, for Plaintiff.
Elisabeth R. Pollock, Federal Public Defender, Urbana, IL, Karl W. Bryning, Federal Public Defender, Peoria, IL, for Defendant.
Now before the Court is Defendant's Motion to Dismiss Indictment. (ECF No. 39). For the reasons stated below, the Motion is DENIED.
On July 7, 2020, a one-count indictment was filed charging Defendant Shamar Betts with inciting a riot in violation of 18 U.S.C. § 2102. (ECF No. 15). The indictment alleges that on or about May 30 and 31, 2020, Defendant posted a flyer on Facebook to incite, promote, and encourage a riot at Market Place Mall and businesses in Champaign, Illinois. Id. at 1. The flyer stated, "RIOT @MarketPlace Mall" and "[a]fter the mall we hitting the whole PROSPECT and NEIL." (ECF No. 1 at 9). The flyer featured an image of a burning vehicle and asked people to "[b]ring friends& family, posters, bricks, bookbags etc." Id. at 9-10. The time of the riot was listed simply as "3." Id. at 9. Defendant also posted the following message to his Facebook account:
I'm just the messenger We're literally sitting on our ass watching the whole country and even others fight for our black rights Y'all think we don't suffer through inequality here EVERYDAY We gotta put Champaign/Urbana on the map mfs gone hear and fear us too. SLIDE let's get busy Justice for George FUCK12.
At approximately 2:36 p.m. on June 1, 2020, a group of about fifty to seventy-five people gathered at the Market Place Mall, and at approximately 3:12 p.m., the group began damaging property and looting stores at the mall. Id. at 5. The indictment alleges that as the riot began, Defendant further incited, promoted, and encouraged the riot by posting a video on Facebook Live stating, (ECF No. 15 at 2). Defendant allegedly participated in the rioting and looting by taking clothing from the vandalized businesses at the mall. Id. As he walked from the direction of the mall carrying clothing he had looted, Defendant approached an individual who was recording the event on a telephone and stated: "I started this s[**]t." Id.
Law enforcement were deployed to the Market Place Mall in response to the riot and attempted to control the group, which also vandalized and looted other businesses in the area, including Gordman's, Kohls, and TJ Maxx. (ECF No. 1 at 6). The group then continued to businesses on North Prospect Avenue in Champaign and vandalized and/or looted numerous stores in that area, including Meijer, Best Buy, Shoe Carnival, and Walmart. Id. By the end of the night, approximately fifty businesses were vandalized, looted, or both throughout May 31, 2020, and into the early morning hours of June 1, 2020. (ECF No. 15 at 2).
After the riot, Defendant fled to Mississippi. (ECF No. 1 at 8). On June 5, 2020, the United States Marshals Service arrested him on a state warrant for burglary and a federal warrant for inciting a riot. Id. by On October 1, 2020, Defendant filed a Motion to Dismiss Indictment under Federal Rule of Criminal Procedure 12(b)(3), arguing that the Federal Anti-Riot Act, 18 U.S.C. § 2101, is (1) unconstitutional on its face because it criminalizes protected speech under the First Amendment; (2) unconstitutionally void-for-vagueness; and (3) unconstitutional as applied to Defendant under the Commerce Clause. (ECF No. 39 at 3). On October 23, 2020, the Government filed a Response. (ECF No. 42). On December 18, 2020, defense counsel filed a Position Statement Regarding Oral Argument on Pending Motion to Dismiss, stating that after consultation with Defendant, he agreed to waive oral argument on the Motion and proceed with the Court ruling on the pleadings. (ECF No. 49). This Order follows.
Federal Rule of Criminal Procedure 12(b)(3)(B) permits a party to make a pretrial motion that challenges the sufficiency of an indictment or information. An indictment must include all essential elements of the crimes alleged, and each basis for conviction must be clearly set out in the indictment. United States v. Palumbo Bros. , 145 F.3d 850, 860 (7th Cir. 1998). Generally, an indictment that uses the words of the statute to set forth the elements of the charged crime is sufficient. United States v. Smith , 230 F.3d 300, 305 (7th Cir. 2000) ; United States v. Agostino , 132 F.3d 1183, 1189 (7th Cir. 1997). The indictment must also contain sufficient factual particulars to "sufficiently apprise the defendant of what he must be prepared to meet." Russell v. United States , 369 U.S. 749, 763, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). This includes providing enough detail that the defendant can plead the resulting judgment as a bar to any future prosecutions for the same offense. Id. at 763-64, 82 S.Ct. 1038. A motion to dismiss an indictment does not challenge the strength of the government's case or the sufficiency of the evidence. United States v. Moore , 563 F.3d 583, 586 (7th Cir. 2009). Rather, when ruling on a motion to dismiss, the Court must determine "whether it's possible to view the conduct alleged" as constituting the crime charged. Id.
In his Motion to Dismiss Indictment, Defendant argues that the Federal Anti-Riot Act, 18 U.S.C. § 2101, is unconstitutional on its face because it criminalizes protected speech under the First Amendment. (ECF No. 39 at 8-40). Second, Defendant claims that the Act is unconstitutionally void-for-vagueness. Id. at 40-49. Finally, he argues that the indictment should be dismissed because the Act is unconstitutional as applied to him specifically. Id. at 49.
Defendant's primary argument is that the indictment should be dismissed because the Act is unconstitutionally overbroad. (ECF No. 39 at 8-40). He asserts that the Act criminalizes a substantial amount of protected speech and assembly and that much more than rioting is criminalized; the Act runs afoul of the Supreme Court's decision in Brandenburg v. Ohio , 395 U.S. 444, 447, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969), because it has no imminence requirement; the Act proscribes expression that does not rise to the level of a "true threat;" the Act creates an impermissible "Heckler's Veto;" the Act criminalizes a substantial amount of expression compared to its legitimate sweep; the Seventh Circuit's decision in United States v. Dellinger , 472 F.2d 340 (7th Cir. 1972), regarding the constitutionality of the Act has been so severely undercut that this Court is no longer bound by it; and the Act is a content-based, viewpoint discriminatory restriction on protected expression.
The Government argues that Defendant's claims are without merit because the Seventh Circuit has already held that the Act is not overbroad under the First Amendment. (ECF No. 42 at 7) (citing Dellinger , 472 F.2d at 354-64 ). Additionally, the Government asserts that the Act does not prohibit a substantial amount of protected speech. (ECF No. 42 at 7). The Government argues that the First Amendment does not protect all speech. Id. at 8. Specifically, the Supreme Court held in Brandenburg v. Ohio , 395 U.S. 444, 447, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969), that the First Amendment does not protect speech that "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Id. at 8-9. Under the appropriate narrowing construction, the Government asserts that this is precisely the type of unprotected speech the Anti-Riot Act addresses. Id. at 9. Even if limited portions of the Act are found to be overbroad under the First Amendment, the Government claims that those portions can be severed and the remainder of the Act enforced. Id.
"The doctrine of overbreadth applies when a statute lends itself to a substantial number of impermissible applications, such that it is capable of deterring protected conduct, when the area affected by the challenged law substantially involves first amendment interests, and when there is not a valid construction which avoids abridgment of first amendment interests." Dellinger , 472 F.2d at 357. "The first step in overbreadth analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers." United States v. Johnson , 875 F.3d 360, 366 (7th Cir. 2017) (quoting United States v. Williams , 553 U.S. 285, 293, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) ). After construing the statute, the court must then ask if the statute "criminalizes a substantial amount of protected expressive activity." Williams , 553 U.S. at 297, 128 S.Ct. 1830 ; see Dellinger , 472 F.2d at 359 (). If the statute is "impermissibly overbroad," a court must then consider whether "the unconstitutional portion" is "severable" from the remainder. New York v. Ferber , 458 U.S. 747, 769, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). "Altogether, these efforts to preserve a statute from facial invalidation reflect the notion ‘that the overbreadth doctrine is strong medicine,’ to be applied ‘only as a last resort,’ in cases where it is ‘truly warranted.’ " United States v. Miselis , 972 F.3d 518, 531 (4th Cir. 2020) (quoting Ferber , 458 U.S. at 769, 102 S.Ct. 3348 ).
The Act was passed in response to civil unrest in the 1960s and consists of two sections. Dellinger , 472 F.2d at 357. Section 2101(a)(1) states:
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