Fourth Circuit Upholds Federal Hate Crimes Statute Against As-Applied Commerce Clause Challenge

The Fourth Circuit this week rejected an as-applied Commerce Clause challenge to the Matthew Shepard & James Byrd, Jr. Hate Crimes Prevention Act of 2009. The divided court (2-1) ruled that the Act, which criminalizes certain hate-crimes based on sexual orientation, fell within Congress's Commerce Clause authority.

Steven D. Schwinn, John Marshall Law School

As the court noted, this is the first federal appeals court ruling on "[w]hether the Hate Crimes Act may be constitutionally applied to an unarmed assault of a victim engaged in commercial activity at his place of work . . . ."

The case, United States v. Hill, turned on the Act's "jurisdictional element," which requires a commercial connection--but, importantly, by its plain terms not necessarily a "foreign" or "inter-state" commercial connection. It's that lack of a textual "foreign" or "inter-state" commercial connection that divided the majority and dissent. The majority held that the jurisdictional element, as applied to this case, fell within Congress's Commerce Clause authority, even without a specific textual required a "foreign" or "inter-state" commercial connection. The dissent said not.

The case arose when James Hill III physically and violently assaulted Curtis Tibbs, a co-worker at an Amazon fulfillment center, because Tibbs is gay. (Hill didn't deny this; indeed, he boasted about it.) Hill repeatedly punched Tibbs in the face, causing significant bruising, cuts, and a bloody nose. Tibbs left his shift to go to the hospital for treatment, and the facility shut down the area of the assault for 30 to 45 minutes to clean blood off the floor.

Because Tibbs worked as a "packer," preparing goods for interstate shipment, and because Virginia doesn't have a hate-crimes law that criminalizes assault because of sexual orientation, the federal government charged Hill under the Shepard & Byrd Act. The government relied on a "jurisdictional element" in the Act that requires that the defendant's behavior "interfere[d] with commercial or other economic activity in which the victim [was] engaged at the time of the conduct."

Hill was convicted, but the district court granted is motion for a judgment of acquittal, holding that the Act was unconstitutional as applied to Hill. The Fourth Circuit reversed.

The court ruled that the Hill's assault met the jurisdictional element (because Tibbs was packing goods for shipment in commerce), and that the jurisdictional element fell within Congress's Commerce Clause authority.

[W]hen Congress may regulate an economic or commercial activity, it also may regulate violent conduct that interferes with or affects that activity. Hence, if individuals are engaged in ongoing economic or commercial activity subject to congressional regulation--as Tibbs was at the time of the assault--then Congress also may prohibit violent crime that interferes with or affects such individuals' ongoing economic or commercial activity, including the type of bias-motivated assaults proscribed by the Hate Crimes Act.

The court rejected Hill's argument that the assault didn't have a substantial effect on commerce because the facility as a whole still met its shipments:

That Amazon was able to absorb the impact of Tibbs' absence without missing any key shipping deadlines and that the fulfillment center's performance during the shift impacted by Tibbs' assault was in-line with its performance during other shifts does not call into question this determination. On the contrary, the Supreme Court and this Court repeatedly have clarified that Congress may regulate interferences with commerce, even if the effect of the interference on interstate commerce in an individual case is "minimal." . . . .

Similarly, this Court has held that, in as-applied Commerce Clause challenges, "the relevant question . . . is not whether one particular offense has an impact on interstate commerce, but whether the class of acts proscribed has such an impact."

The court acknowledged the importance of the jurisdictional element in the case--and, by extension, to any congressional act--writing that the "Defendant has not identified any case--nor have we found any such case--in which a federal criminal statute including an interstate commerce jurisdictional element has been held to exceed Congress's authority under the Commerce Clause."

Judge Agee dissented, arguing that the jurisdictional element "does not limit the class of activities being regulated to acts that fall under Congress' Commerce Clause power" and that "the root activity . . . regulated in this case--a bias-motivated punch--is not an inherently economic activity." As to the jurisdictional element, Judge Agee argued that it is different than other jurisdictional elements in this statute and in other statutes, and that it sweeps beyond Congress's power to regulate inter-state or foreign commerce:

In contrast, [the jurisdictional element here] is a distinct outlier without an interstate or foreign commerce statutory nexus. Nor is the unrestricted phrase "commercial or other economic activity" one of the categories the Supreme Court has identified as an area Congress can regulate under its Commerce Clause power. By [the jurisdictional element's] plain terms, it contains no jurisdictional nexus to Congress' authority under the Commerce Clause that thus fails under Lopez to be a "jurisdictional element" that has "an explicit connection with or effect on interstate commerce." This textual difference is meaningful . . . .