                                                           FILED: September 24, 2019

                           UNITED STATES COURT OF APPEALS
                               FOR THE FOURTH CIRCUIT


                                         No. 18-4660
                                   (3:16-cr-00009-JAG-1)


UNITED STATES OF AMERICA,

               Plaintiff – Appellant,

v.

JAMES WILLIAM HILL, III,

               Defendant – Appellee.

------------------------------

MATTHEW SHEPARD FOUNDATION; FREESTATE JUSTICE, INC.; LAMBDA
LEGAL DEFENSE AND EDUCATION FUND, INCORPORATED; THE ANTI-
DEFAMATION LEAGUE; TREVOR PROJECT; PUBLIC JUSTICE CENTER;
JAPANESE AMERICAN CITIZENS LEAGUE,

               Amici Supporting Appellant.


                                        ORDER


        The petition for rehearing en banc was circulated to the full court. No judge

requested a poll under Fed. R. App. P. 35. The court denies the petition for rehearing en

banc.


                                                For the Court

                                                /s/ Patricia S. Connor, Clerk
Statement of Circuit Judge Agee respecting denial of petition for rehearing en banc:

       To ensure that Congress’ regulation of a noneconomic activity falls within its power

to regulate “activities that substantially affect interstate commerce” under the Commerce

Clause, United States v. Lopez, 514 U.S. 549, 559 (1995), and United States v. Morrison,

529 U.S. 598, 609 (2000), the Supreme Court should review this case. The issues here are

of significant national importance and are best considered by the Supreme Court at the

earliest possible date in order to address the essential jurisdictional question under the

Commerce Clause.

       This appeal arose from the Government’s prosecution of James William Hill, III,

under 18 U.S.C. § 249(a)(2)(B) after Hill punched his co-worker at an Amazon distribution

facility. Hill’s prosecution was the first in the country to rely on the so-called jurisdictional

element contained in § 249(a)(2)(B)(iv)(I), which requires proof that the assault

“interfere[d] with commercial or other economic activity in which the victim [was]

engaged at the time of the conduct[.]”

       The case presents a distinct vehicle to address a discrete question of law regarding

the application of Lopez and Morrison. Those cases discussed the possibility that Congress’

inclusion of a jurisdictional element could bring a regulated activity sufficiently within

Congress’ ability to regulate interstate commerce, but because the statutes at issue in those

cases did not contain a jurisdictional element, neither case had occasion to discuss the

matter with any specificity. Instead, they broadly discussed the need for a viable

jurisdictional element to limit the statute’s “reach to a discrete set of [regulated activities]

that additionally have an explicit connection with or effect on interstate commerce.” Lopez,


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514 U.S. at 562 (emphasis added); see also Morrison, 529 U.S. at 613. In other words, the

Supreme Court has held that when a jurisdictional element is the sole basis for concluding

that a particular statute is constitutional, it must independently accomplish what nothing

else in the statute does: compel the Court to conclude that the activity being regulated falls

within Congress’ Commerce Clause power.

       In Hill’s prosecution, the Government relied on just one of the available statutory

subsections purporting to perform this critical function, and that element does not achieve

its necessary purpose. Unique among the various subsections of § 249(a)(2), subsection

(B)(iv)(I) is the only one devoid of any textual nexus to interstate or foreign commerce.

Compare § 249(a)(2)(B)(iv)(I), with § 249(a)(2)(B)(i)–(iii) and (a)(2)(B)(iv)(II). 1 Every

other subsection directly references interstate or foreign commerce, or otherwise plainly

involves travel between the states. In contrast, subsection (B)(iv)(I) requires interference

with only the victim’s unrestricted “commercial or other economic activity.” It thus fails

to require that either the defendant or his victim were engaged in any sort of interstate or

foreign activity at the time of the prohibited conduct.

       This element is unusual, if not unique, within federal law in that it contains non-

restrictive text describing the affected commercial or economic activity at issue, but is also

the sole basis for ascribing the constitutionality of the statute. But because subsection

(B)(iv)(I) does not limit its scope to interstate or foreign activity, it does not restrict



       1
         For reasons known only to the Government, it struck from the indictment the
language charging Hill under § 249(a)(2)(B)(iv)(II), that Hill’s conduct “otherwise
affect[ed] interstate . . . commerce.”

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§ 249(a)(2) to “activities that substantially affect interstate commerce.” Lopez, 514 U.S. at

559; Morrison, 529 U.S. at 609. Put another way, by its plain terms, subsection (B)(iv)(I)

does not require that the class of the victim’s activities affects interstate or foreign

commerce, nor does the statute otherwise limit the class of regulated activities to commerce

over which Congress has authority. This disconnect renders a prosecution under this

subsection outside the scope of Congress’ Commerce Clause power, at least where the

prosecution failed (as it did here) to demonstrate that the specific interference at issue

substantially affected interstate commerce. Prosecutions under § 249(a)(2)(B)(iv)(I),

including Hill’s, are not limited to those over which Congress can validly exercise its

Commerce Clause power due to being “sufficiently tied to interstate commerce [as opposed

to regulating] a wider, and more purely intrastate body of violent crime.” Morrison, 529

U.S. at 613.

       Added to the broad statutory language and inherent disconnect with Lopez and

Morrison is the concern about when the Government can rely on the aggregation of

extraneous acts to reach the requisite connection to interstate commerce. When discussing

the jurisdictional element, Lopez and Morrison indicated that such an element would

provide the requisite connection to interstate commerce by “ensur[ing], through case-by-

case inquiry, that the [activity being regulated] affects interstate commerce.” Lopez, 514

U.S. at 561; see Morrison, 529 U.S. at 611–13. But in this case, the Government could not

prove that Hill’s act of punching his co-worker had any effect on interstate commerce. The

panel majority in this case allowed the Government to satisfy its burden through

aggregation of hypothetical acts. In so doing, it excused the Government from doing what


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the Supreme Court said it must do. The Supreme Court has never authorized aggregation

to satisfy the Commerce Clause’s requirements where the root activity being regulated is

noneconomic in nature. See Morrison, 529 U.S. at 617 (“reject[ing] the argument that

Congress may regulate noneconomic, violent criminal conduct based solely on that

conduct’s aggregate effect on interstate commerce”). Here, under the plain language of the

statute, the root activity being regulated—bias-motivated assaults—is noneconomic,

meaning that aggregation is not a permissible means of demonstrating the required

connection to interstate commerce.

      In the almost two decades since the Supreme Court opined on how a jurisdictional

element could theoretically bring the regulation of noneconomic activity within Congress’

Commerce Clause power, it has not applied the broad principles discussed in Lopez and

Morrison to any specific statutory language. This case provides the clear opportunity for

the Court to revisit those decisions and provide clarity and direction on an essential

constitutional question. Given the number of ways in which the Court’s decision in this

case fails to adhere to the Supreme Court’s holdings in Lopez and Morrison and the unusual

statutory language Congress used in subsection (B)(iv)(I), this case is prime for Supreme

Court review. Because the federal courts, Congress, and the public will be best served

through the benefit of the Supreme Court’s guidance without delay in this important area

of constitutional law, I have decided not to pursue the intermediate step of requesting en

banc review.




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