Federal crimes in Charlottesville

The horrific events in Charlottesville yesterday have prompted a number of important questions associated with the political and moral necessity of condemning the evils of white supremacy and political violence: why did the President fail — once more — to specifically condemn white supremacy and explicitly disavow fascist and racist supporters? Will Republicans condemn the President’s anemic and equivocal response? Should we call this domestic terrorism, and why would that matter? Those are worthy questions.

Now that one person is in custody related to the car crash that killed a 32-year-old woman, however, it is also important to begin looking at the criminal law questions, as well as the political ones. The Justice Department — after an appropriate statement of condemnation from Attorney General Sessions — announced that it has opened a civil rights investigation. It is early, and we need to await more evidence before arriving at any conclusions about charges or guilt. Still, what might the Feds be looking for?

Most likely, investigators will focus on whether there was a conspiracy to violate civil rights of anyone, including the counter-protesters, pursuant to 18 U.S.C. 241. Investigators will also likely focus on 18 U.S.C. 245, which targets actions against those engaged in certain specific federally-protected activities; whether anyone was intentionally obstructed in the free exercise of their religion, pursuant to 18 U.S.C. 247; and whether this was a violent hate crime, pursuant to 18 U.S.C. 249. These latter three charges, in particular, would require evidence that the person had acted with some specifically proscribed animus, such as racial or religious animus. With respect to the car incident specifically, because death resulted from the actions of the driver, capital punishment is available under sections 241, 245, and 247, but not section 249, if those statutes applied.

But the Feds may not need to rely solely upon civil rights enforcement statutes here.  For example, 18 U.S.C. 33 makes it a crime for any person, acting “with intent to endanger the safety of any person on board” or “with reckless disregard for the safety of human life,” to damage, disable or destroy any motor vehicle “used, operated, or employed in interstate or foreign commerce.”  Section 33 also makes it a crime to, “with like intent,” disable or incapacitate “any driver or person employed in connection with the operation or maintenance of the motor vehicle, or in any way lessen[] the ability of such person to perform his duties as such.”  The video and photographic evidence from the scene in Charlottesville strongly suggests that Section 33 is a potential avenue for prosecution, though this would also depend upon other factors, such as evidence to prove the jurisdictional element (though that should ordinarily not prove to be difficult).

Section 33 does not specifically employ capital punishment, but it need not.  Section 33 is a part of Chapter 2. This is important because Section 34 provides that the death penalty applies to anyone convicted of a crime listed in Chapter 2, where the crime has resulted in a person’s death.

Another important question that remains is whether the driver is a member of, or acted on behalf of or at the direction of or in an effort to become a member of or increase status in, some specific entity, organization or association-in-fact. If so, this could potentially implicate the racketeering laws, notably the violent crimes in aid of racketeering (VICAR) statute, 18 U.S.C. 1959.  Unlike the RICO statute (sections 1961 and 1962), VICAR provides for capital punishment.  Of course, in addition to proving the underlying conduct, the Government would need to prove that the entity met the statutory definition of a racketeering “enterprise.”

Finally, it is worth noting that any mention of capital punishment is subject to both the procedural prerequisites of 18 U.S.C. sections 3591 and 3592, as well as the DOJ’s death penalty protocol.

Virginia has proven itself more than capable of handling high-profile homicide cases.  But in recent years, we have also seen the Justice Department take the position that federal action is required when civil rights enforcement is at stake.  It will therefore be important to find out whether investigators can uncover evidence of animus, or other evidence, that would be sufficient to implicate the federal civil rights statutes in Title 18.  But even without the civil rights statutes in play, federal prosecutors still may have an avenue for federal action, depending upon what the investigation reveals.  The question would then be, as it often is, whether the Feds would be content to let Virginia handle the case alone, whether Virginia would defer to the Feds, or whether there would be dual prosecutions, in which case the Feds would have to assert a unique federal interest that would not be vindicated by the state prosecution.  If the civil rights statutes are implicated, and if prior similar cases are any guide, the chances of a federal prosecution are very high.


Hate crimes enforcement continues, but under-reporting remains a concern

Although some questioned whether Attorney General Sessions would make hate crime enforcement a priority, I speculated that — particularly in light of the nature of the federal hate crimes law, which requires proof of willfully-caused bodily injury or an attempt to cause bodily injury through the use of certain dangerous devices or weapons, see 18 U.S.C. 249 — those concerns were likely overstated and that General Sessions would continue robust hate crimes enforcement.  So far, this has proven to be the case.

General Sessions recently delivered these encouraging remarks at a national hate crime summit, in which he said “hate crimes are violent crimes.  No person should have to fear being violently attacked because of who they are, what they believe, or how they worship.”  Moreover, the Justice Department announced back in April the creation of a special hate crimes subcommittee as part of its Task Force on Crime Reduction and Public Safety.   And in recent months, the Civil Rights Division has announced several new hate crime indictments (see, e.g., here and here and here).

Still, less encouraging news came recently, regarding the under-reporting of hate crimes.  According to this new report from the Bureau of Justice Statistics, 54% of violent hate crimes were not reported.  Some media coverage here and here.  There are a variety of explanations for the under-reporting, as noted in the report.

I hope that by making hate crimes an enforcement priority, the Department can incentivize greater reporting participation and provide the public, and law enforcement partners around the country, with more accurate information about the frequency of, and risks associated with, hate crime behavior.  Any comprehensive national approach to violent crime should, as the Sessions Justice Department has thus far acknowledged, include attention to bias-motivated violence.



Transgender killing results in federal hate crime conviction

Several of my recent posts have addressed issues related to hate crimes.  Obviously, the Roof conviction and upcoming federal death penalty hearing has made that case the leading hate crime story nationally of late.  But it seems helpful to note the latest hate crime story of interest, also from the deep South.  Like others, it raises important questions about the federal role in prosecuting violent crimes committed with a bias-motivation.  As the Justice Department announced here, a Mississippi man yesterday pleaded guilty to brutally killing his former romantic partner because she was transgender, and in order to avoid the wrath of a violent street gang.

According to the DOJ and the defendant’s statements at the plea hearing, Joshua Vallum had been dating Mercedes Williamson, then 17.  Vallum knew that Williamson was transgender but he kept this a secret from his family and friends.  Vallum was also a member of the Latin Kings.  The relationship ended and for about nine months, Vallum had no contact with Williamson.  Vallum learned, however, that one of his friends found out that Williamson was transgender.  Believing that he would be harmed if the Latin Kings also discovered that he had been dating a transgender person (the gang has strict rules about homosexuality, and Williamson’s birth gender was male), Vallum decided to kill Williamson.

After driving her from Alabama to Mississippi, he shocked her with a stun gun, and stabbed her repeatedly with a pocket knife.  Williamson was able to escape from the car where Vallum had stabbed her, but Vallum gave chase and stabbed her again in the head (he believed he had “hit brain”).  Although Williamson was still able to stumble into some woods, Vallum again caught up to her and hit her repeatedly with a hammer, killing her.

This case gained special national prominence after Caitlyn Jenner remembered Williamson during Jenner’s 2015 speech at the ESPY awards.

Vallum had already been convicted in Mississippi state court of murder and received a life sentence.  But, as has been true in other cases, the Feds believed that it was necessary to pursue a federal prosecution because Mississippi does not have a hate crimes statute for which gender identity is a protected category.  Thus, in the language of both the relevant statute (the Shepard-Byrd Act, 18 U.S.C. 249) and the DOJ’s Petite Policy, the state prosecution left the specific federal interest “unvindicated.”  It is an open question whether the Trump Administration will take a similar view of how federal interests become vindicated by state prosecutions.

Vallum now faces another life sentence, this time in the federal system.  As I have discussed elsewhere, there is no death penalty under the Shepard-Byrd Act, though I believe this case and others demonstrate why there ought to at least be that option for federal juries in section 249 cases involving brutal killings like this one.

But that raises another question: why not also charge Vallum with murder in aid of racketeering (18 U.S.C. 1959)?  The VICAR statute reaches murder committed for the purpose of “maintaining or increasing position” in a racketeering enterprise.  If the Government’s theory is that Vallum killed Williamson not simply to avoid harm by the Latin Kings (surely a “racketeering enterprise” as defined in VICAR), but in order to remain a member of the Latin Kings, then this would seem to provide sufficient evidence to charge the VICAR offense.  That is notable because a killing under VICAR – unlike the Shepard-Byrd Act – does permit the death penalty.

I have not seen the Vallum indictment.  Perhaps it does contain a VICAR charge, and that charge was dismissed as part of the plea agreement to the hate crime.  If it was not included, perhaps the theory would be that Vallum committed the killing not on behalf of the Latin Kings, or because of a desire to maintain his position in the Latin Kings, but only because of Williamson’s gender identity and his fear of the gang’s enforcement.  But it seems hard to neatly separate his killing of Williamson on account of her gender identity from his interest in maintaining a place within the gang – arguably, he did one to preserve the other.  And that is precisely what VICAR forbids.

Finally, because this prosecution was based on section 249(a)(2), which is justified only under the Commerce Clause, there is a reasonable question as to whether the federal government properly had jurisdiction in the case.  But the statute easily answers that problem, at least as a matter of statutory application.  It specifically permits federal jurisdiction where there was travel across state lines, see 18 U.S.C. 249(a)(2)(B)(i)(I), and that was the case here.  Perhaps Vallum could have argued that the travel from Alabama to Mississippi was too attenuated from the killing to be justified under the Commerce Clause, but I doubt such an argument would go very far.  The statute also permits federal jurisdiction where the defendant uses a dangerous weapon or other weapon that has traveled in interstate commerce, or where the defendant used a “channel, facility, or instrumentality” of commerce “in connection with” the prohibited conduct, or where the prohibited conduct otherwise affects commerce.  See 18 U.S.C. 249(a)(2)(B)(ii)-(iv).

Still, in a different case, depending upon the facts, it could make sense to question whether some of these jurisdictional elements are enough to satisfy the Commerce Clause.  Watch for a hate crime case presenting a viable challenge to the jurisdictional element and the scope of congressional power.

Hate crime stats for 2015

In light of the start of the Dylann Roof trial in South Carolina, I thought this would be a good time to highlight the hate crime statistics from 2015, which are now up on the DOJ’s website here.

These are the stats from across jurisdictions, and are not unique to the distinctive federal statutes that cover bias-motivated crimes (e.g., 18 U.S.C. sections 245, 249).  Rather, the reporting program uses incidents in which there is “sufficient evidence” that would lead a reasonable and prudent person to conclude that the offender’s actions where motivated “in whole or in part” by bias against the victim based on race, gender, gender identity, religion, disability, sexual orientation, or ethnicity.  The reports include crimes against the person, against property, and against society, according to the FBI’s explanation of the methodology.  Additional explanations about methodology are here.

A few numbers are especially noteworthy.  The number of reported incidents was 5,850, with 7,173 victims. Of those, 3,310 were based on bias against race/ethnicity, 1,244 were based on religious bias, 1,053 based on sexual orientation, 74 based on disability, 23 based on gender, and 114 based on gender identity.  There were 32 incidents involving multiple forms of bias.  Of those incidents based on race, a majority were committed based on bias against African-Americans (1,745).  Anti-White/Caucasian incidents were reported at 613.  Of those based on religion, a majority were Anti-Jewish (664); 257 were Anti-Muslim; and 53 against Catholics, 37 against Protestants, 8 against Mormons.  In the gender identity category, 73 incidents were based on bias against transgendered persons, while 41 were based on gender non-conformity.

Incidents were far more likely to be committed in a home or on a street, road, or sidewalk (2,861).  Still, a substantial percentage were committed in a parking lot or garage (328) or a place of worship (259).  An especially disturbing stat shows that 184 were committed at an elementary or secondary school.

Among offenses (6,885), most were instances of intimidation (1,853), simple assault (1,696), and destruction, damage, or vandalism to property (1,698).  There were 882 aggravated assaults reported, 13 rapes (including both the traditional definition of rape and a revised modern definition), and 18 reports for murder or non-negligent manslaughter.  Of those 18 criminal homicides, 10 were based on bias against African-Americans (9 of which were reported by South Carolina, so, attributable to the Roof case), 4 were based on Anti-Islamic bias (the only category of bias against religion that fell into the criminal homicide category), one was based on anti-gay bias, and one was based on anti-transgender bias.

Among participating jurisdictions, California reported more offenses (1,017) than any other state.  New York reported 515, Massachusetts 483, Ohio 470, Michigan 373, and New Jersey 349.

There is a substantial amount of data to be found in these reports, some of it quite interesting and helpful.  Of course, it cannot account for incidents that went unreported, so in that sense (as well as others) it is imperfect.  And it does not break down the data based on specific hate crime statutes across the country (so, for example, are reports higher in places that have hate crime statutes like those at the federal level?).  But the information remains beneficial.  I will also be very interested in seeing the data from 2016.


Mistrial in Slager state prosecution

In previous posts, I have noted the Michael Slager case out of South Carolina.  See, e.g., here.  Slager is the North Charleston Police officer who was recorded shooting and killing a man named Walter Scott, who had been the subject of a traffic stop and who was seen running away from Slager.  Slager argues that he shot in self-defense.  Scott was African-American, Slager is white, and the case received extensive attention nationally.  Today, a state trial court judge in South Carolina declared a mistrial in Slager’s case.  CNN story here.  On Friday, a single juror sent the judge a note saying that the juror “could not in good conscience” convict Slager.  The jury was deadlocked through the weekend, culminating in today’s declaration of a mistrial.  It is possible that multiple jurors became holdouts.

Two quick reactions.  First, I think it likely–a virtual certainty–that South Carolina will retry Slager.  Second, recall that Slager is also facing federal criminal charges, including depriving Scott of his civil rights and use of a firearm during a crime of violence.  The United States is not seeking the death penalty.

I am often asked why, if the State is pursuing serious charges against someone, the Feds would essentially duplicate the charges and spend time and taxpayer money on an indictment, pre-trial proceedings, and trial.  That problem becomes even more perplexing, on the surface, when the State case is a very strong one.  The answer to that question consists of several factors, but the Slager case is Exhibit A as to why the Feds decide to move in a case like this: first, there is a substantial federal interest here with respect to the enforcement of laws against violating someone’s constitutional rights; and second, you just never know what will happen in the State case.

Until Slager is convicted in State court, the federal interest (which seems undeniable) remains unvindicated.


Hate crime prosecutions in the new administration

A story out of West Virginia this past week reminded me of an issue that has arisen with respect to the Trump Justice Department, and, in particular, the President-Elect-to-be’s choice for Attorney General.  According to local and national news reports, a 62-year-old man has been accused of murder under West Virginia law, after he shot and killed a 15-year-old boy.  Police say that William Pulliam, who is white, shot James Means, who is African-American, after the two bumped into each other outside of a store near Charleston. Reports say that Pulliam shot Means, then had dinner and visited a friend’s home, where a firearm was found.  Pulliam claims the killing was self-defense.  Now, the United States Attorneys Office confirms it is involved in the case, investigating whether the killing might be a federal hate crime.

There is consternation among many critics of both Trump and Senator Jeff Sessions, who Trump has tapped for AG.  One of the major criticisms of a Sessions-led Justice Department, it is said, is that the DOJ will not make civil rights cases a priority.  That, presumably, could include weak enforcement of the federal hate crimes law. The Pulliam case could be an early test of this theory for the Trump DOJ.

Still, I wonder whether this particular criticism is overstated.  While I think it likely that the new administration’s Civil Rights Division will take a much different view of some civil rights matters (e.g., voting) than the current Civil Rights Division, it is also likely that a Trump Justice Department will make violent crime an enforcement priority.  Federal hate crimes under the Hate Crime Prevention Act are, by definition, violent crimes.  The Shepard-Byrd Act requires that the defendant either willfully cause bodily injury or – through use of fire, firearm, dangerous weapon, explosive or incendiary device – attempt to cause bodily injury. 18 U.S.C. 249.  Because of the double mens rea (that the act be done willfully and that it be done because of certain kinds of animus), the defendant’s state of mind is often the contested issue in the case.  I suspect that will be the issue in the Pulliam case, as well, as there seems to be no question that he used a firearm to kill Means (though there remains the issue of justification).

If the Sessions DOJ makes violent crime an enforcement priority (as I suspect it will, and should), then there is little reason to think that it will categorically refuse to enforce the Shepard-Byrd hate crimes law.  Of course, there remains the question of whether the DOJ should prosecute in cases where the state is also prosecuting, or whether the alleged act involves the kind of animus required by the statute, but those are already barriers to enforcement now.  Neither is a sticking point unique to the Trump Administration.

It is also worth noting that during the debate on the hate crimes bill, Senator Sessions proposed an amendment that would have allowed the death penalty for certain hate crimes resulting in the death of the victim.  Though some described the Sessions Amendment as a poison pill, there were – and remain – considerable arguments for making a hate crime that results in death a capital offense.  Several other criminal statutes relating to civil rights already provide for capital punishment.

There has been an understandable sensitivity to bigotry in the wake of the presidential campaign and the election.  But not every act of bigotry is a federal hate crime, detestable as the act may be.  Merely shouting offensive words, for example, is not a violation of section 249.  The statute requires a highly culpable mental state, combined with personal animus, combined with the infliction or attempted infliction of bodily injury.  And until Congress broadens the law, every Administration – Republican or Democrat – must wrestle with the limits on its enforcement.  Of course, hate crimes may also be prosecuted under Section 245, but again, there are limits: that statute’s narrow hate crime provisions are limited to injury, intimidation, or interference based only on race, color, religion, or national origin, and only with respect to certain federally protected activities.

Still, the new Trump Justice Department could help allay some of the public’s concerns if it demonstrates a proper appreciation for the virtues of the Shepard-Byrd Act, the federally protected activities statute, and the idea of treating animus-based violence as a particularly insidious form of criminality.  I am hopeful that an Attorney General Sessions and his Civil Rights Division will enforce it, sensibly, as part of a wider policy that both attacks violent crime and sustains the Department’s tradition of defending civil rights.

Thoughts on Birchfield: search incident okay for breath, but not for blood

On a busy Thursday at the Supreme Court, the decisions on affirmative action and the President’s immigration executive order overshadowed an important Fourth Amendment case, Birchfield v. North Dakota (and a somewhat less important Armed Career Criminal Act case, Mathis v. United States).

In an effort to combat the national scourge of drunk driving, every state has implied consent laws that govern the refusal of a BAC test upon suspicion of drunk driving.  That is, when a person obtains a license and uses public thoroughfares, they are deemed by the state to have implicitly consented to having their BAC tested.  Many states impose civil or administrative penalties (e.g., license suspension) for refusing such a test.  Several states, though – including North Dakota and Minnesota – go further and make it a crime to refuse such a test after the person has been arrested for a drunk driving offense.

When a person is subjected to a lawful arrest, the police may search the arrestee’s person, any items or containers associated with the person, and anything within the arrestee’s grabbing area or wingspan.  See Chimel v. California; Robinson v. United States.  If a person is arrested upon a traffic stop or after being inside a car, police may then search the passenger compartment of the vehicle if the arrestee is left unsecured and the passenger compartment is within his literal grabbing area, or if there is reason to believe evidence relevant to the crime of arrest will be found inside.  See Arizona v. Gant.  But in Riley v. California, the Court held that the search incident doctrine does not extend to the contents of cell or smart phones, finding that a balancing of the privacy and governmental interests favored the requirement of a warrant.  Using a similar analysis, the Court this week held that the search incident doctrine permits a state to require a person – on pain of criminal penalty if he refuses – to take a breath test after being arrested for a drunk driving offense.  Breath tests, the Court repeated, “do not ‘implicate significant privacy concerns.'”  (quoting Skinner v. Railway Labor Executives’ Assn.).  But, the Court said, “[b]lood tests are a different matter.”  The Fourth Amendment does not allow the state to criminalize the refusal to take a blood test.  Blood tests are substantially more invasive than breath tests, and so the individual’s interests – like those in Riley – militate in favor of mandating a warrant for blood, absent some other legal justification.

The Court also examined whether the blood test refusal statute could survive based not on the search incident doctrine, but on the consent doctrine.  Consent to a search, when voluntary, makes the search per se reasonable under the Fourth Amendment.  The Court, however, held that the consent doctrine did not justify requiring consent to a warrantless blood test, at least where the refusal amounts to a crime.

This, I think, is an important point.  The Court did not consider the constitutionality of these implied consent laws generally.  That issue was not before the Court, and Justice Alito’s opinion stated that the Court had cited these laws approvingly in other cases (though those are cases that did not themselves consider the constitutionality of implied consent as a Fourth Amendment matter).  He further said that nothing in Birchfield should be read to cast doubt on these laws.  Rather, Justice Alito was content to simply hold, more narrowly, that a criminal penalty for refusal went beyond what the Fourth Amendment would permit, saying simply that there must be “a limit” on the consequences to which a person consents when they drive on public roads.  Presumably, then, it is unreasonable to imply consent to a blood test and to criminalize refusal to do so merely because the person uses public roads.

But the Court’s holding on this point was terse and lacked much explanation.  Is this the only “limit”?  Why would implied consent to a blood test be invalid when there is a criminal penalty, but the very same conduct constituting implied consent would be valid consent when the State simply takes away one’s license?  In other words, what – for purposes of interpreting the Fourth Amendment – is the difference between criminal penalties and civil or administrative penalties when it comes to refusing consent to a blood test?  I wonder whether these implied consent laws with non-criminal consequences are ripe for a Fourth Amendment challenge at the Court, notwithstanding Birchfield’s observation that nothing in the case “should be read” as making implied consent laws constitutionally dubious.

Which brings me to another takeaway from Birchfield.  For those wondering about the scope of the case, remember that it applies only in the context of a search incident, i.e., where there is an arrest.  If a driver is pulled over and subjected to a BAC test before being arrested, Birchfield does not govern.  It is in these situations that the state would have to rely upon either consent doctrine or exigency to justify the demand for a test.  We know from Missouri v. McNeely that the natural metabolization of alcohol in the blood does not amount to a categorical exigency, but rather must be judged case-by-case.  And if the exigency could not be established, that would leave consent as the basis for a warrantless search, which brings me back to my previous point about whether treating this as implied consent is constitutionally valid under the Fourth Amendment.

For readers interested in federal criminal law specifically, the Court will likely issue its decisions in McDonnell and Voisine on Monday.  We also expect to see the Court’s ruling in Whole Women’s Health, the Texas abortion restriction case.