United States v. Howard

UNITED STATES OF AMERICA, Plaintiff, v. ASHTON L. HOWARD, Defendant.

No. 21-CR-28

United States District Court, E.D. Wisconsin

June 3, 2021

REPORT AND RECOMMENDATION

WILLIAM E. DUFFIN U.S. Magistrate Judge

1. Background

During widespread violence and unrest in Kenosha, Wisconsin, on August 23, 2020, Ashton L. Howard allegedly threw a brick that struck a police captain in the head, rendering him unconscious. (ECF No. 31 at 3.) Howard is charged in a two-count Indictment. Count One charges him with having “[o]n or about August 23, 2020, in the State and Eastern District of Wisconsin, ”

knowingly committed an act to obstruct, impede, and interfere with any 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 obstructed, delayed, and adversely affected commerce the movement of any article and commodity in commerce, and the conduct and performance of any federally protected function.

In violation of Title 18, United States Code, Section 231(a)(3).

(ECF No. 12 at 1.)

Howard seeks to dismiss this charge, arguing that 18 U.S.C. § 231(a)(3): (1) exceeds Congress's authority under the Commerce Clause (ECF No. 27 at 11-21); (2) violates the First Amendment (ECF No. 27 at 21-33); and (3) is unconstitutionally vague in violation of the Due Process Clause (ECF No. 27 at 33-38). Alternatively, he argues that this count of the Indictment “fails to fulfill either the notice or presentment requirements of the Fifth and Sixth Amendments.” (ECF No. 27 at 39.)

2. Analysis

Section 231 to Title 18 of the United States Code is entitled “Civil disorders” and in its entirety provides:

(a)

(1) Whoever teaches or demonstrates to any other person the use, application, or making of any firearm or explosive or incendiary device, or technique capable of causing injury or death to persons, knowing or having reason to know or intending that the same will be unlawfully employed for use in, or in furtherance of, a civil disorder which may in any way or degree obstruct, delay, or adversely affect commerce or the movement of any article or commodity in commerce or the conduct or performance of any federally protected function; or

(2) Whoever transports or manufactures for transportation in commerce any firearm, or explosive or incendiary device, knowing or having reason to know or intending that the same will be used unlawfully in furtherance of a civil disorder; or

(3) 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 the conduct or performance of any federally protected function-

Shall be fined under this title or imprisoned not more than five years, or both.

(b) Nothing contained in this section shall make unlawful any act of any law enforcement officer which is performed in the lawful performance of his official duties.

“The term ‘civil disorder' means 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).

2.1. Commerce Clause

The federal government lacks a general police power. See, e.g., Taylor v. United States, 136 S.Ct. 2074, 2082-83 (2016) (Thomas, J., dissenting). But Article I, Section 8, Clause 3 of the United States Constitution grants to Congress the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” “The Commerce Clause enables Congress to regulate and protect the use of the channels of commerce, instrumentalities of interstate commerce, and those activities having a substantial relation to interstate commerce.” United States v. Wehrle, 985 F.3d 549, 557 (7th Cir. 2021) (citing United States v. Lopez, 514 U.S. 549, 558-59 (1995)); United States v. Khan, 771 F.3d 367, 374 (7th Cir. 2014) (citing United States v. Stokes, 726 F.3d 880, 894 (7th Cir. 2013), cert. denied, 134 S.Ct. 713, 187 L.Ed.2d 573 (2013)).

Howard argues that § 231(a)(3) plausibly falls under only the third category of Congress's Commerce Clause power-the power to regulate those activities that have a substantial relation to interstate commerce. (ECF No. 27 at 14.) But, in regulating any act relating to “civil disorder which in any way or degree obstructs, delays, or adversely affects commerce...” (emphasis added), Howard contends that § 231 is not limited to conduct that has a “substantial relation to interstate commerce.” (ECF No. 27 at 17.)

The government responds that the Hobbs Act, 18 U.S.C. § 1951(a), also uses the “in any way or degree” language (“Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion. . . .shall be fined under this title or imprisoned not more than twenty years, or both.”). (ECF No. 31 at 12); see also 18 U.S.C. § 1956 (defining “financial transaction” in the money laundering statute, in part, as “a transaction which in any way or degree affects interstate or foreign commerce ..”). And the Court of Appeals for the Seventh Circuit has repeatedly rejected Commerce Clause challenges to the Hobbs Act, holding that only a de minimis effect on commerce need be shown. United States v. Carr, 652 F.3d 811, 813 (7th Cir. 2011) (citing United States v. Griffin, 493 F.3d 856, 861 (7th Cir. 2007); United States v. Sutton, 337 F.3d 792, 796 (7th Cir. 2003); United States v. Peterson, 236 F.3d 848, 852 (7th Cir. 2001); United States v. Watson, 525 F.3d 583, 590 n.3 (7th Cir. 2008)). Consistent with this long line of cases, the government argues that § 231(a)(3) is a valid exercise of Congress's power under the Commerce Clause provided the civil disorder had at least a de minimis effect on interstate commerce.

In Carr, the court explained why United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740 (2000), and United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624 (1995), two cases relied upon by Howard, did not require the court reconsider its holding that a de minimis effect on interstate commerce is sufficient to invoke Congress's Commerce Clause power:

In this case, there is no similar risk that the Hobbs Act will obliterate all limits on federal power. Although robbery itself is not necessarily economic activity, Carr's crime targeted a business engaged in interstate commerce. And unlike the statutes at issue in Lopez and Morrison, the Hobbs Act contains a jurisdictional element which requires the government to prove the interstate nexus. [Peterson, 236 F.3d at 852] (“[The Hobbs Act] does not federalize all robberies because all robberies per se affect interstate commerce; rather, it applies only to robberies with the proven effect.”). An act of violence against even one business, like the convenience store in this case, could conceivably deter economic activity and thus harm national commerce. The economic harm would not necessarily depend upon the amount of money with which any particular defendant absconds. If retail stores, in the aggregate, have a substantial effect on commerce (which they undoubtedly do, see [Sutton, 337 F.3d at 796 n.2]), then the federal government has a legitimate interest in preventing any crime like the one in this case.

Carr, 652 F.3d at 813-14.

In an attempt to distinguish this authority, Howard emphasizes that the jurisdictional element in § 231(a)(3) applies to the “civil disorder, ” not to Howard's conduct. (ECF No. 27 at 16; see also ECF No. 34 at 16.) Thus, the government must prove only that the civil disorder affected interstate commerce “in any way or degree” but need not prove that Howard's alleged obstruction (throwing the brick) affected commerce.

Howard's understanding of the statute is correct but unhelpful to his argument. In the interest of safeguarding interstate commerce, Congress is permitted to regulate conduct that may “obstruct, delay, or adversely affect” such commerce. It is easy to recognize how civil disorder may plausibly have more than a de minimis effect on interstate commerce, and for present purposes it is sufficient to note that the government alleges that, as a result of the unrest that consumed parts of Kenosha on August 23, 2021, certain businesses closed or suspended services. (ECF No. 31 at 3, fn. 3.)

Proof that the underlying civil disturbance affected interstate commerce is a sufficient jurisdictional hook for Congress to proscribe conduct that stands to exacerbate or aggravate such disorder. A person who “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” acts to interfere with officials' efforts to quell that disorder, and thus stands to, at a minimum, extend the effect on interstate commerce. In the interest of protecting interstate commerce, Congress may proscribe conduct that interferes with efforts to address threats to such commerce.

In this regard, the operation of § 231(a)(3) is similar to how 18 U.S.C. § 924(c) operates in that under § 924(c) it is unnecessary to prove that the brandishing of a firearm affected interstate commerce. Rather, it is sufficient to prove that the underlying crime of violence, e.g., a Hobbs Act robbery, see United States v. Fox, 878 F.3d 574, 579 (7th Cir. 2017), affected interstate...