United States v. Phomma

• Decision Date: 15 September 2021
• Docket Number: 3:20-cr-00465-JO
• Citation: 561 F.Supp.3d 1059
• Parties: UNITED STATES of America, Plaintiff, v. Kevin PHOMMA, Defendant.
• Court: U.S. District Court — District of Oregon

561 F.Supp.3d 1059

UNITED STATES of America, Plaintiff,

v.Kevin PHOMMA, Defendant.

No. 3:20-cr-00465-JO

United States District Court, D. Oregon, Portland Division.

Signed September 15, 2021

Thomas Steven Ratcliffe, U.S. Attorney's Office, Portland, OR, for Plaintiff.

Gerald M. Needham, Public Defender, Office of the Federal Public Defender, Portland, OR, for Defendant.

OPINION AND ORDER

Robert E. Jones, Senior United States District Judge

Defendant Kevin Phomma is charged with committing civil disorder in violation of 18 U.S.C. § 231(a)(3) by obstructing, impeding, and interfering with law enforcement officers on August 26, 2020, during a protest at the Immigration and Customs Enforcement (ICE) building on Macadam Avenue in Portland. Defendant now moves to dismiss the indictment, contending that § 231(a)(3) violates the Commerce Clause, the First Amendment, and the Fifth Amendment. Defendant also contends that the indictment does not give him the notice required by the Fifth Amendment. For the following reasons, I deny Defendant's Motion to Dismiss.

BACKGROUND

The indictment charges Defendant with violating § 231(a)(3), which is part of the Civil Obedience Act of 1968. The indictment alleges:

On or about August 26, 2020, in the District of Oregon, during a civil disorder, defendant KEVIN PHOMMA, knowingly committed a violent act for the intended purpose of obstructing, impeding and interfering with law enforcement officers who were lawfully engaged in the lawful performance of their official duties incident to and during the commission of a civil disorder, and that such civil disorder in any way or degree obstructed, delayed and adversely affected commerce and the movement of any article or commodity in commerce ....

Indictment, ECF No. 9. The affidavit supporting the criminal complaint against Defendant contains detailed allegations about Defendant's conduct and the circumstances of his arrest. ECF Nos. 1 (Complaint) and 2 (supporting affidavit).

The parties have submitted additional background information about the charge against Defendant. Defendant states in his Motion to Dismiss that on August 26, 2020, he "was involved in the protest against racial injustice at the Immigration and Customs Enforcement (ICE) building located at 4310 S.W. Macadam Avenue, Portland." ECF No. 18, at 18. Defendant states that Portland Police officers arrested him at the protest "and charged him with misdemeanor offenses alleging Interfering with a Peace Officer, Disorderly Conduct, Harassment, and Use of Pepper Spray." Id. Defendant also states that an indictment against him in Multnomah County Circuit Court alleges "Assaulting a Public Safety Officer, Unlawful Use of Deleterious Agent in the First Degree (three counts), Riot, Interfering with a Peace, Parole or Probation Officer, and Disorderly Conduct in the Second Degree." Id. The state charges against Defendant, which are based on "the same conduct as alleged in the federal indictment," are pending. Def.’s Unopposed Mot. Continue Trial 1, ECF No. 35.

According to the government, on the night of August 26, Defendant "sprayed several Portland Police Officers with bear spray. The officers were wearing gas masks, but one officer noted that his neck and arms ‘started to burn.’ When he and the others removed their gas masks, their faces felt the same burning sensation." Gov't Resp. 5, ECF No. 24. The government states that "protesters filled the street, making passage by cars or delivery vehicles impossible." Gov't Resp. 5-6.

LEGAL STANDARD

This court is "bound by the four corners of the indictment" when "ruling on a pre-trial motion to dismiss an indictment for failure to state an offense." United States v. Boren , 278 F.3d 911, 914 (9th Cir. 2002). The court "must accept the truth of the allegations in the indictment in analyzing whether a cognizable offense has been charged." Id. A motion to dismiss the indictment is not "a device for a summary trial of the evidence." Id. The court may resolve a motion to dismiss an indictment before trial "if it involves questions of law rather than fact." United States v. Shortt Accountancy Corp. , 785 F.2d 1448, 1452 (9th Cir. 1986).

DISCUSSION

I. Defendant's Constitutional Challenges to the Civil Disorder Statute

Section 231(a)(3) provides,

Whoever commits or attempts to commit any act to obstruct, impede, or interfere with any fireman or law enforcement officer lawfully engaged in the lawful performance of his official duties incident to and during the commission of a civil disorder which in any way or degree obstructs, delays, or adversely affects commerce or the movement of any article or commodity in commerce or performance of any federally protected function--

Shall be fined under this title or imprisoned not more than five years, or both. The statute defines "civil disorder" as "any public disturbance involving acts of violence by assemblages of three or more persons, which causes an immediate danger of or results in damage or injury to the property or person of any other individual." 18 U.S.C. § 232(1).

The parties have not cited, and I have not found, a Ninth Circuit decision construing § 231(a)(3). Cf. Nat'l Mobilization Comm. to End the War in Viet Nam v. Foran , 411 F.2d 934, 937 (7th Cir. 1969) ; United States v. Casper , 541 F.2d 1275, 1276 (8th Cir. 1976) ; United States v. Mechanic , 454 F.2d 849, 854 (8th Cir. 1971). Recently, several district courts have addressed challenges to the statute similar to those raised by Defendant here, including United States v. Rupert , No. 20-cr-104 (NEB/TNL), 2021 WL 1341632, at *16-*20 (D. Minn. Jan. 6, 2021) ( Report & Recommendation), adopted , 2021 WL 942101 (D. Minn. Mar. 12, 2021) ; United States v. Pugh , No. 1:20-cr-73-TFM, slip op. (S.D. Ala. May 13, 2021) (copy submitted by the government here); United States v. Wood , No. 20-cr-56 MN, 2021 WL 3048448 (D. Del. July 20, 2021) ; and United States v. Howard , No. 21-cr-28-pp, 2021 WL 3856290 (E.D. Wis. Aug. 30, 2021). I have found these recent district court decisions helpful in resolving the issues here.

A. Commerce Clause

The Commerce Clause provides that "Congress shall have Power ... [t]o regulate Commerce ... among the several States." U.S. Const. art. I, § 8, cl. 3. Defendant argues that § 231(a)(3) exceeds Congress's authority under the Commerce Clause and intrudes into the States’ role in law enforcement because the statute applies to purely local conduct and requires only an attenuated connection to interstate commerce. The government responds that the statute is within Congress's Commerce Clause authority to protect the flow of interstate commerce from improper interference caused by a civil disorder.

Defendant cites two Supreme Court decisions that struck down federal statutes for regulating non-economic activity unconnected to interstate commerce: United States v. Morrison , 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), which struck down portions of the Violence Against Women Act; and United States v. Lopez , 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), which struck down the Gun-Free School Zones Act prohibiting firearm possession in school zones. Lopez outlined three categories of activity that Congress may regulate under the Commerce Clause: (1) channels of interstate commerce; (2) instrumentalities of interstate commerce, or persons or things in interstate commerce; and (3) activities that substantially affect interstate commerce. Lopez , 514 U.S. at 558-59, 115 S.Ct. 1624. Here, I focus on the third category, activities that substantially affect interstate commerce. The Court in Morrison identified four factors to consider when determining whether a regulated activity substantially affects interstate commerce: (1) whether Congress made findings regarding the regulated activity's impact on interstate commerce; (2) whether the statute contains an "express jurisdictional element" that limits its reach; (3) whether the regulated activity is commercial or economic in nature; and (4) whether the link between the prohibited activity and the effect on interstate commerce is attenuated. Morrison , 529 U.S. at 610-12, 120 S.Ct. 1740.

I conclude that § 231(a)(3) is within Congress's Commerce Clause authority because the statute includes an express jurisdictional element, requiring that the defendant's obstruction or interference with a law enforcement officer or firefighter must occur "during the commission of a civil disorder which in any way or degree obstructs, delays, or adversely affects commerce." 18 U.S.C. § 231(a)(3). The Ninth Circuit has upheld statutes that contain similar jurisdictional elements. For example, the court upheld an amended statute banning guns in school zones because the amended version required that the firearm had traveled in interstate commerce. United States v. Dorsey , 418 F.3d 1038, 1045-46 (9th Cir. 2005), abrogated on other grounds, Arizona v. Gant , 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). "This new version of § 922(q) resolves the shortcomings that the Lopez Court found in the prior version of this statute because it incorporates a ‘jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce.’ This jurisdictional element saves § 922(q) from the infirmity that defeated it in Lopez. " Dorsey , 418 F.3d at 1046 (quoting Lopez , 514 U.S. at 561, 115 S.Ct. 1624 ).

Here, Defendant has not cited any decision that struck down a statute on Commerce Clause grounds when the statute contained an express jurisdictional element linking the prohibited conduct to interstate commerce. See Wood , 2021 WL 3048448, at *6 (the defendant "failed to cite any case in which a statute with an explicit jurisdictional hook was invalidated based on the Commerce Clause, nor has this Court found one in its own independent research"); Pugh , at *9 ("courts have held that despite Lopez and Morrison , the Government need only show a...