Federal Court: Matthew Shepard Hate Crime Law Can Be Used to Address Unarmed Assault on Gay Amazon Employee
By Eric Lesh. This article appears in the July issue of LGBT Law Notes.
Does an unarmed antigay hate crime assault in a workplace interfere with interstate commerce?
In U.S. v. Hill, 2019 WL 2454848, 2019 WL 2454848 (4th Cir., June 13, 2019), a 4th Circuit panel upheld the constitutionality of the federal Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (Hate Crimes Act), as applied to such an assault, following the conviction of a defendant who violently beat his Amazon coworker because of his coworker’s sexual orientation.
The 4th Circuit ruling reversed a decision by U.S. District Judge John A. Gibney, Jr., 2018 WL 3872315 (E.D.Va., Aug. 15, 2018), who held that it was unconstitutional for a jury to convict defendant, James Hill of a hate crime due to his unprovoked unarmed attack on his coworker, Curtis Tibbs, whom he perceived to be gay. The case of whether the federal statute can be used to prosecute a defendant “for an unarmed assault on a coworker engaged in commercial activity at his place of work” was one of first impression for a federal appellate court. At its core, the case revolves around the Commerce Clause — one of Congress’ enumerated powers under the Constitution — and whether “bias-motivated violence” is categorically noneconomic activity and thus outside the scope of Congress’ power to regulate and the government’s power to prosecute.
Hill and Tibbs were co-workers at an Amazon Fulfillment Center in Chester, Virginia, where they worked on a conveyor belt where items were being selected, sorted and packed for shipment to customers around the United States. On May 22, 2015, shortly after the beginning of Tibbs’ shift, Hill approached Tibbs from behind as they were both preparing boxes and — “without provocation or warning repeatedly punched him in the face,” causing significant bruising, facial lacerations, and a bloody nose. Tibbs was sent to a hospital for treatment, and the shipping activity was shifted elsewhere in the Center while the blood was being cleaned up in Tibbs’ work area. Tibbs was sent home from the hospital, missing most of his scheduled shift. Hill readily admitted that he assaulted Tibbs because he thought Tibbs was gay. The explanation Hill offered to police for the attack was his personal belief that he “didn’t like homosexuals,” that Tibbs “disrespected him because he is a homosexual,” and that Defendant “does not like homosexuals.”
The local Virginia prosecutor initially charged Hill with misdemeanor assault and battery in state court, but later referred the case to federal prosecutors because, outrageously, the Commonwealth of Virginia does not recognize violence based on sexual orientation as a hate crime. After Hill’s indictment under the Hate Crimes Act, he moved to dismiss, arguing that the Act, both on its face and as applied to him, exceeded Congress’s power under the Commerce Clause, because the assault did not affect interstate commerce. District Judge Gibney agreed with Hill’s as-applied challenge and dismissed the indictment with stating a conclusion as to the facial challenge. The 4th Circuit panel reversed and remanded, finding that Hill’s constitutional defense could not be resolved without a trial of the facts relevant to the commerce issues.
On remand, the district court held a two-day trial, during which a witness from Amazon testified that despite Hill missing the balance of the shift and the need to close down his work area to clean up blood, other areas of the Center picked up the slack and production for the shift was normal. Judge Gibney instructed the jury that the government must prove beyond a reasonable doubt that “(1) Defendant caused bodily injury to Tibbs; (2) Defendant did so willfully; (3) Defendant did so because of Tibbs’s actual or perceived sexual orientation; and (4) Defendant’s conduct ‘interfered with the commercial or economic activity in which Tibbs was engaged at the time of the conduct.’” The jury convicted Hill. Then Judge Gibney granted Hill’s motion for acquittal, on the ground that the Hate Crime Act, as applied to his conduct, exceeded Congress’s authority under the Commerce Clause.
The Commerce Clause empowers Congress “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. art. I, § 8, cl. 3. Circuit Judge James A. Wynn Jr.’s opinion for the court said, “Congress paid close attention to the scope of its authority under the Commerce Clause when it enacted the Hate Crimes Act, which was designed to strengthen federal efforts to combat violent hate crimes — crimes targeting victims based on certain enumerated characteristics.” To ensure that conduct criminalized under the Hate Crimes Act would have “the requisite connection to interstate commerce,” Congress highlighted several Supreme Court decisions setting the scope of their authority under the Commerce Clause — including United States v. Lopez, 514 U.S. 549, 552 (1995), which held that a federal statute proscribing possession of guns in school zones violated the Commerce Clause, 514 U.S. at 567, for failure to require the necessary nexus with interstate commerce, and United States v. Morrison, 529 U.S. 598 (2000), also holding that a federal statute providing a civil remedy for victims of gender-motivated violence violated the Commerce Clause for failing to require the requisite federal nexus.
To avoid the Commerce Clause problem, Congress included legislative findings in the Act describing how bias-motivated violence interferes with commercial activity, and included specific circumstances under which the Act could apply, including when the prosecution shows that the conduct “interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct.”
The 4th Circuit panel found that Hill’s attack interfered with Tibbs’ ability to prepare boxes for shipment in interstate commerce at the time of the brutal assault, falling squarely within the circumstances specified in the Act. The court rejected the core of Hill’s argument, which was that there was no proof that Amazon’s production was significantly affected as a result of his assault of Tibbs. Judge Wynn found this argument irrelevant to the issue of interference with commerce, noting cases holding that any interference, however small, could serve to meet the requirement that the prosecuted conduct affected commerce.
The court further found that Congress has the power to regulate violent conduct “when it interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct,” including bias-motivated assaults under the Hate Crimes Act. In sum, the court wrote, “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.”
Finally, the court reject Hill’s alternative argument that the district court reversibly erred in refusing to give the jury his proposed instructions regarding the Hate Crime Act’s interstate commerce element.
In a dissenting opinion, Judge G. Steven Agee wrote that applying the statue in in this instance violated Congress’ legislative power for two reasons. First, that the Hate Crimes Act did not on its face limit the class of activities to those that fall under Congress’ Commerce Clause authority, and second, that “the root activity regulated in this case — a bias-motivated punch — is not an inherently economic activity and therefore not within the scope of Congress’ Commerce Clause authority.” Judge Agee, in common with some critics of the Act when it was being considered in Congress, argued that the Commerce power should be limited to regulating commercial activities, and should not be relief upon as the basis of enacting statutes governing other than economic crimes.
The court’s characterization of the case as involving an “unarmed” assault goes to the core of the Commerce element. In some past applications of the Act involving assaults with weapons, jurisdiction was predicated on proof that the weapons had moved in commerce. There were also past cases where the commerce element was satisfied by defendants having used vehicles on the interstate highways in their commission of the hate crime.
Because of its potential significance for the viability of the federal Hate Crimes Act as a prosecutorial tool, the case attracted amicus briefs from Lambda Legal, Consumer Litigation Associates, and Freestate Justice Inc. Hill was represented by the Office of the Public Defender in Alexandria, VA.
