United States v. Bowers

• Decision Date: 15 October 2020
• Docket Number: Criminal No. 18-292
• Citation: 495 F.Supp.3d 362
• Court: U.S. District Court — Western District of Pennsylvania
• Parties: UNITED STATES of America v. Robert BOWERS, Defendant.

495 F.Supp.3d 362

UNITED STATES of America

v.Robert BOWERS, Defendant.

Criminal No. 18-292

United States District Court, W.D. Pennsylvania.

Filed October 15, 2020

Soo C. Song, Troy Rivetti, United States Attorney's Office, Pittsburgh, PA, for USA.

Elisa A. Long, Michael J. Novara, Federal Public Defender's Office, Pittsburgh, PA, for Defendant.

OPINION AND ORDER

AMBROSE, Senior District Judge

Synopsis

On January 29, 2019, the Government filed a superseding indictment charging the Defendant, in part, with violations of the Hate Crimes Prevention Act ("HCPA"), 18 U.S.C. § 249(a)(1) (Counts 12s-22s, 36s, 37s) and of the Church Arson Act, 18 U.S.C. § 247(a)(2) (Counts 1s-11s, 34s, 35s, 40s-51s). (ECF No. 44) The Defendant has filed a Motion to Dismiss Counts of the Indictment Charging Offenses Under the Hate Crimes Prevention Act and the Church Arson Act. (ECF 239) Challenging the exercise of federal authority with respect to both Acts, the Defendant suggests that each Act infringes on a general police power reserved to the states by the Constitution. He also raises both facial and as-applied constitutional challenges to the HCPA and the Church Arson Act. Finally, he contends that the certifications submitted under both § 249(b)(2) and § 247(e) are procedurally and substantively flawed. The Government has responded (ECF 249) and the Defendant has replied. (ECF 251). For the reasons set forth below, the Motion is DENIED.

Opinion

I. Federalism and Police Power

The Defendant argues that the HCPA and the Church Arson Act unconstitutionally usurp traditional state police powers in violation of the Tenth Amendment, which reserves to the states those "powers not delegated to the United States by the Constitution, nor prohibited by it to the States." U.S. Const., Amend. X . I disagree. This argument ignores the dual-sovereign concept. Federal laws often criminalize conduct that falls within traditional areas of state law. See United States v. Johnson , 114 F.3d 476, 481 (4th Cir. 1997) Further, by its text, the Tenth Amendment explicitly permits Congress to exercise those powers delegated to it by the Constitution. "[W]hen the Constitution explicitly grants Congress authority to Act, the Tenth Amendment gives way...." United States v. Hatch , 722 F.3d 1193, 1202 (10th Cir. 2013). See also, United States v. Roof , 225 F. Supp. 3d 438, 444 (D. S.C. 2016), citing, United States v. Comstock , 560 U.S. 126, 143-44, 130 S.Ct. 1949, 176 L.Ed.2d 878 (2010) ("[P]owers the Constitution grants to Congress necessarily are not powers the Constitution exclusively reserves to the states.") Congress derives its power to enact the HCPA and the Church Arson Act from the Thirteenth Amendment and the Commerce Clause. Consequently, as have others, I reject the Defendant's challenges. See United States v. Beebe , 807 F. Supp. 2d 1045 (D. N.M. 2011) (finding that the HCPA does not impermissibly encroach on state authority to punish crimes in violation of the Tenth Amendment), aff'd. 722 F.3d 1193 (10th Cir. 2013) ; United States v. Diggins , 435 F. Supp. 3d 268 (D. Me. 2019) (rejecting argument that the HCPA violates the Tenth Amendment by transferring police power, which is reserved to the states, to the federal government); United States v. Metcalf , Cr. No. 15-1032, 2016 WL 827763, at *5 (N.D. Iowa 2016) ("because the Constitution granted Congress the power to enact § 249(a)(1), the statute does not improperly intrude on the state police power and comports with the Tenth Amendment."); and United States v. Henery , 60 F. Supp. 3d 1126, 1131-32 (D. Idaho 2014) (rejecting federalism concerns about the enactment of the HCPA).¹

II. HCPA²

A. Facial Challenge:

The Defendant seeks the dismissal of the charges under § 249(a)(1) of the HCPA as an unconstitutional exercise of Congress’ power under the Thirteenth Amendment of the United States Constitution. Section 249(a)(1) provides:

Whoever, whether or not acting under color of law, willfully causes bodily injury to any person, or through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person [shall be subject to punishment].

18 U.S.C. § 249(a)(1). Section 249(a)(1) "rests solely on Congress's authority under § 2 of the Thirteenth Amendment." United States v. Cannon , 750 F.3d 492, 498 (5th Cir. 2014).

Section 1 of the Thirteenth Amendment abolishes slavery and involuntary servitude.³ Section 2 provides that "Congress shall have power to enforce this article by appropriate legislation." U.S. Const. Amend. XIII. Referencing § 2, the Supreme Court observed that "the power vested in Congress to enforce the article by appropriate legislation, clothes Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States...." The Civil Rights Cases , 109 U.S. 3, 20, 3 S. Ct. 18, 27 L.Ed. 835 (1883) (emphasis added). It is Congress's role to "rationally ... determine what are the badges and the incidents of slavery, and ... to translate that determination into effective legislation." Jones v. Alfred H. Mayer Co. , 392 U.S. 409, 440, 88 S. Ct. 2186, 20 L.Ed.2d 1189 (1968).⁴ Thus, "if Congress rationally determines that something is a badge or incident of slavery, it may broadly legislate against it through § 2 of the Thirteenth Amendment." Hatch , 722 F.3d at 1201. Thirteenth Amendment caselaw "afford[s] Congress ample deference in defining what private actions qualify as ‘badges’ and ‘incidents’ of slavery." Cannon , 750 F.3d at 501. See also, United States v. Metcalf , 881 F.3d 641, 645 (8th Cir. 2018) ("Congress rationally determined that racially motivated violence constitutes a badge and incident of slavery") (emphasis added); United States v. Cannon , 750 F.3d 492, 505 (5th Cir. 2014) (finding Jones controlling and applying rational basis test); Hatch , 722 F.3d at 1204-05 (following Jones and employing rational basis scrutiny); Diggins , 435 F. Supp. 3d at 273 (D. Me. 2019) ; Henery , 60 F. Supp. 3d at 1131 (" Jones is controlling"); Beebe , 807 F. Supp. 2d at 1049 (" Jones remains the controlling relevant precedent in interpreting § Two of the Thirteenth Amendment."); and United States v. Nelson , 277 F.3d 164, 185 n. 20 (2d Cir. 2002).

Each federal court to have considered the constitutionality of § 249(a)(1) has found it to be a valid exercise of Congressional power under the Thirteenth Amendment. See Metcalf, supra ; Cannon, supra ; Hatch, supra ; United States v. Maybee , 687 F.3d 1026 (8th Cir. 2012) ; Diggins, supra ; Roof, supra ; Henery, supra ; and Beebe, supra, aff'd sub. nom Hatch, supra. In adopting § 249(a)(1), Congress noted that:

...

(7) For generations, the institutions of slavery and involuntary servitude were defined by the race, color, and ancestry of those held in bondage. Slavery and involuntary servitude were enforced, both prior to and after the adoption of the 13^th amendment to the Constitution of the United States, through widespread public and private violence directed at persons because of their race, color, or ancestry, or perceived race, color, or ancestry. Accordingly, eliminating racially motivated violence is an important means of eliminating, to the extent possible, the badges, incidents, and relics of slavery and involuntary servitude.

(8) Both at the time when the 13^th, 14^th, and 15^th amendments to the Constitution of the United States were adopted, and continuing to date, members of certain religious and national origin groups were and are perceived to be distinct "races." Thus, in order to eliminate, to the extent possible, the badges, incidents, and relics of slavery, it is necessary to prohibit assaults on the basis of real or perceived religions or national origins, at least to the extent such religions or national origins were regarded as races at the time of the adoption of the 13^th, 14^th, and 15^th amendments to the Constitution of the United States.

Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act , Pub. L. No. 111-84, 123 Stat. 2836 (2009), § 4702.

The Tenth Circuit found that Congress satisfied the rationality test by narrowly focusing § 249(a)(1) on three considerations: "(1) the salient characteristics of the victim, (2) the state of mind of the person subjecting the victim to some prohibited conduct, and (3) the prohibited conduct itself." Hatch , 722 F.3d at 1205. As to the first consideration, the Tenth Circuit understood "the salient characteristics of the victim" to include race, color, religion, or national origin as those concepts were understood by Congress in the 1860s "and therefore sought to protect these categories ‘at least to the extent such religions or national origins were regarded as races’ in the 1860s." Id. As for the second consideration, the court noted that Congress sought to punish only those who acted "because of" the victim's actual or perceived race. Id. at 1206. As to the third consideration, the court observed that "[j]ust as master-on-slave violence was intended to enforce the social and racial superiority of the attacker and the relative powerlessness of the victim, Congress could conceive that modern racially motivated violence communicates to the victim that he or she must remain in a subservient position, unworthy of the decency afforded to other races." Id. Consequently, the Tenth Circuit found that "Congress could rationally conclude that physically attacking a person of a particular race because of animus toward or a desire to assert superiority over that race is a badge or incident of slavery." Id.

I find the Hatch decision, as well as the many others upholding the constitutionality of § 249(a)(1), to be persuasive. "Under the expansive view of ‘badges and incidents’ articulated in Jones and Griffin , Congress's identification of racially motivated violence as a badge and incident...