Connecting Hate Crimes to Interstate Commerce

Sometimes bigotry is a sucker punch.

In May 2015, Curtis Tibbs was at work, sorting boxes at an Amazon Fulfillment Center in Chester, Virginia. His arms were full of boxes when a coworker approached him and, without provocation, punched him several times in the face. Tibbs went to the hospital while other employees cleaned his boxes, and his blood, off the warehouse floor.

The perpetrator, James Hill, didn’t say a word during the assault. But afterward, he told an Amazon investigator and a Chesterfield police officer that there was a reason for the attack: Tibbs was gay, and Hill didn’t like gays. They deserve to be punched, he said.

Chesterfield’s Commonwealth’s Attorney brought assault charges but ultimately deferred prosecution to the federal government, proceeding under the Hate Crimes Prevention Act. (Virginia’s hate-crimes law doesn’t cover sexual orientation.) A Richmond jury found Hill guilty. Nevertheless, the district court acquitted him. Why? Congress passed the HCPA under its constitutional power to regulate interstate commerce, and the court held that Hill’s behavior didn’t substantially affect interstate commerce. So the HCPA, District Judge John A. Gibney Jr. held, is unconstitutional as applied to the circumstances of Hill’s attack.

The result: No criminal penalty for the epitome of a hate crime that was captured on video.

Wednesday morning, a panel of the 4th U.S. Circuit Court of Appeals heard argument in the case, focused on the constitutional question of when Congress can – and can’t – make workplace violence a federal crime. After all, the Constitution’s Commerce Clause is famously broad. Why wouldn’t it reach Hill’s attack on an Amazon coworker?

Effect on interstate commerce

The Constitution limits the areas Congress can regulate to those enumerated in Article I, Section 8. Partly in response to the death of Matthew Shepherd, Congress passed the Hate Crimes Prevention Act citing its authority under Clause 3, which gives the legislature the authority “to regulate Commerce with foreign nations, and among the Several States, and with the Indian Tribes.” Using its Commerce power, Congress can regulate (1) use of the “channels of interstate commerce,” like roads and rivers; (2) the “instrumentalities of interstate commerce” or persons or things in interstate commerce; and (3) activities that “substantially affect” interstate commerce.

In Hill’s case, the district court held that the “bias-motivated violence” targeted by the HCPA isn’t economic activity that can be “aggregated” to establish a substantial impact on interstate commerce. The HCPA, the court said, is akin to the Violence Against Women Act, parts of which were previously held unconstitutional by the Supreme Court for exceeding Congress’s Commerce authority. In passing VAWA, Congress had specifically found that gender-based violence deters victims from interstate travel and business, which diminishes national productivity, increases medical costs, and hampers the market for interstate products. Despite these findings, the Supreme Court said it couldn’t meaningfully enforce an enumerated (i.e. limited) power only with such indirect connections between the regulated activity and interstate commerce.

Here, Hill’s assault occurred within just a single state and targeted an individual whose job was simply to move boxes from one part of one facility to another. After the assault, other employees stepped up to cover the affected workload, so Amazon statistics show that the facility ultimately performed as usual that day. If the federal government could regulate non-economic activity with no identifiable effect on interstate commerce, the district court said, then Congress’s reach would be limitless and “could effectively federalize commercial property.” The court reasoned that the HCPA and similar federal laws “could even extend into someone’s home if, for example, they prepared, packaged, and shipped merchandise out-of-state.”

Reversal possible on second appeal

On Wednesday, advocates for the government and Hill had an unusual sneak peak at the appellate panel members’ dispositions. The argument was actually the case’s second appeal on the issue of whether the HCPA could apply to Hill’s assault. The first time around, Judge Dennis W. Shedd (who’s since taken senior status) wrote for a divided panel that it was premature to analyze the constitutional question before the facts had been established, sending the case back to the district court to be tried. Judge G. Steven Agee signed onto Shedd’s opinion.

But Judge James A. Wynn Jr. disagreed, writing that the court could and should answer the constitutional question – the only real question in the case – using the facts as charged. And that answer, he reasoned, was that the HCPA’s relevant provision “easily falls under Congress’s broad authority to regulate interstate commerce.” Just like Congress has criminalized acts of robbery, extortion, and arson that affect or interfere with interstate commerce, it can criminalize crimes of violence that similarly affect or interfere with interstate commerce. Obviously, Congress can regulate the interstate, and indeed international, shipping practices that Amazon depends on, Wynn observed. And early evidence showed that Hill’s attack implicated over 5,000 packages, even if Amazon managed to get them back on track.

Wynn and Agee were back to hear argument on Wednesday. Replacing Shedd was Judge Diana Gribbon Motz, whose questions indicated she might be receptive to the government’s argument. She quickly got government attorney Vikram Swaruup to clarify that the HCPA wouldn’t apply to just any workplace assault and that the shipping-warehouse location was key in bringing Hill’s attack under federal jurisdiction. Swaruup conceded it was even possible that the statute wouldn’t apply to someone who was simply standing around, rather than carrying boxes as part of his job like Tibbs was. “So the government is not espousing a broad ruling of this statute here; the government is espousing a narrow ruling of the statute?” Motz specified. “Yes, your honor,” Swaruup confirmed.

Agee remained skeptical, noting that similar statutes criminalized actions that either were themselves economic activity or that were done to commercial property. Here, though, the criminal act was done to a person who just happened to be in a shipping warehouse. But Swaruup challenged that distinction, noting that in this case the person was clearly engaged in interstate commercial activity. If instead of punching a person Hill had set fire to a box-sorting machine, he could be prosecuted for arson. Like the arson statute, the relevant HCPA provision requires the government to prove as an element of the offense that the violent act “interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct.”

Arguing for Hill, attorney Patrick Bryant said that for Congress to regulate a person’s behavior, the Commerce Clause requires the behavior not just to interfere with interstate commerce but to substantially interfere with it. The facts of Hill’s actions just didn’t rise to that level, Bryant said, since Amazon “didn’t miss a beat.” But Wynn wasn’t persuaded that federal authority should depend on the business’s arbitrary ability to recover from a hate crime. “Let’s just say he beats up three or four people, during Christmas season when Amazon has all these packages going out,” Wynn said, causing a measurable slowdown interstate shipping. Can a future perpetrator commit hate crimes without federal consequence, as long as the company is able to absorb the impact?

With one judge on record as ready to reverse the constitutional ruling and another seemingly more inclined to uphold it, the outcome in Hill’s case likely will be determined by Motz. Despite being relatively quiet during argument, her questions suggested an inclination to reverse the district court’s ruling with an opinion focused narrowly on the facts of this case.

If so, and especially if Agee dissents, I would expect the federal public defender’s office to ask for the full court to hear the issue en banc. Either way, it will be a consequential constitutional holding that likely will be invoked not just in the 4th Circuit but across the nation.

Categories: Essays, News

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