       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    United States v. Laton                     No. 02-5185
    ELECTRONIC CITATION: 2003 FED App. 0437P (6th Cir.)
                File Name: 03a0437p.06                    Tennessee, for Appellant. Leslie I. Ballin, BALLIN,
                                                          BALLIN & FISHMAN, Memphis, Tennessee, for Appellee.
UNITED STATES COURT OF APPEALS                              MOORE, J., delivered the opinion of the court, in which
                                                          DAUGHTREY, J., joined. SUTTON, J. (pp. 27-48),
              FOR THE SIXTH CIRCUIT                       delivered a separate dissenting opinion.
                _________________
                                                                             _________________
 UNITED STATES OF AMERICA ,       X
                                   -                                             OPINION
          Plaintiff-Appellant,                                               _________________
                                   -
                                   -  No. 02-5185
            v.                                              KAREN NELSON MOORE, Circuit Judge. Local and
                                   -
                                    >                     state government institutions provide a wide variety of
                                   ,                      services ranging from transportation to economic
 JOHN LATON ,                      -                      development, which can produce ripples in the broader stream
           Defendant-Appellee. -                          of interstate commerce to varying degrees. The general
                                  N                       question presented by the relatively bizarre factual
       Appeal from the United States District Court       background of this case is whether or not a core function of
    for the Western District of Tennessee at Memphis.     municipal government — the provision of firefighting
    No. 01-20235—Robert H. Cleland, District Judge.       services — impacts interstate commerce such that an
                                                          individual can be indicted under a federal anti-arson statute
                Argued: August 1, 2003                    for destroying a fire station. The more precise question, upon
                                                          which we dwell, is whether the Henning, Tennessee Fire
        Decided and Filed: December 10, 2003              Station was used in an activity affecting interstate commerce
                                                          such that the person charged with setting it ablaze can be
Before: DAUGHTREY, MOORE, and SUTTON, Circuit             indicted under 18 U.S.C. § 844(i). We hold that this
                   Judges.                                particular fire station was used in an activity affecting
                                                          interstate commerce and accordingly REVERSE the
                  _________________                       judgment of the district court dismissing the indictment and
                                                          REMAND for further proceedings consistent with this
                       COUNSEL                            opinion.
ARGUED: Jennifer L. Webber, ASSISTANT UNITED                  I. BACKGROUND FACTS AND PROCEDURE
STATES ATTORNEY, Memphis, Tennessee, for Appellant.
Leslie I. Ballin, BALLIN, BALLIN & FISHMAN, Memphis,        Prometheus may have thought twice before handing down
Tennessee, for Appellee. ON BRIEF: Jennifer L. Webber,    the gift of fire to humans had he imagined that those whom
ASSISTANT UNITED STATES ATTORNEY, Memphis,                the mere mortals chose to steward the precious flame would
                                                          use it to decimate the very mechanisms employed to control

                            1
No. 02-5185                       United States v. Laton      3    4     United States v. Laton                        No. 02-5185

its power. We are faced with precisely such an odd event.          Virtually all American insurance companies use the Public
On March 3, 2000, the Henning Fire Station (“HFS”) was             Protection Classification (“PPC”) to calculate fire-insurance
destroyed by fire. Henning is a rural town in the western          premiums in a particular area. The PPC is partially based
Tennessee county of Lauderdale. It lies between Memphis            upon the equipment, staffing, training, and geographic
and Dyersburg on U.S. Route 51 and is approximately twenty         distribution of local fire departments. Fire insurance
miles from the Mississippi River. On September 18, 2001, a         premiums in a community with a “good” PPC are
federal grand jury indicted John Laton (“Laton”), the chief of     considerably lower than in a community with a “bad” PPC,
the Henning Fire Department (“HFD”), on one count of arson         and insureds in an area that lacks fire services altogether will
in violation of 18 U.S.C. § 844(i), the federal anti-arson         have the “worst” PPC and the highest premiums.
statute.
                                                                     The district court granted Laton’s motion to dismiss on the
   Laton subsequently moved to dismiss the indictment in           ground that the HFS was not used in interstate commerce.
October 2001, contending that the district court lacked subject    United States v. Laton, 180 F. Supp. 2d 948 (W.D. Tenn.
matter jurisdiction over the prosecution because the HFS was       2002). It focused its analysis on “whether the [HFS] was
not used in an activity affecting interstate commerce. Both        used in the activities of the [HFD], and whether those
parties agreed upon and submitted to the court a set of            activities substantially affect interstate commerce.” Id. at
stipulations, which established the relevant facts regarding the   952. The court thus bifurcated the purposes of the HFS and
HFS and the HFD. First, the HFS housed firefighting                the HFD, reasoning that it was “not significant that the [HFS]
equipment, including fire trucks, nozzles, uniforms, hoses,        houses the trucks that drive to sites” of fires involving
and other equipment. Additionally, the HFS contained an            business or other instrumentalities of interstate commerce
office, a kitchen, and meeting spaces for members of the           because “[t]his is too attenuated a series of connections to
HFD. Second, the HFD purchased most of its firefighting            constitute a building that is used ‘in any activity’” that affects
equipment from out-of-state vendors, and the HFD in the past       interstate commerce. Id. The district judge then ruled that the
relied upon out-of-state vendors for repairs to this equipment.    purchase of supplies from out of state, the payment of some
Third, the HFD is responsible for responding to fire               wages to the firefighters, the fees billed for out-of-city fires,
emergencies in Henning, which, like any other town, contains       and the impact upon insurance rates did “not indicate any sort
residences, churches, public buildings, and businesses. In the     of active employment, but is again evidence of, at the very
past, the HFD has responded to various emergency calls             least, a passive connection.” Id. at 953. Accordingly, the
involving several businesses in Henning, including a market        court dismissed the indictment, because it ruled that it lacked
and a laundry facility, the Henning Police Department, and         subject matter jurisdiction over the case. Id.
vehicles in distress on U.S. Route 51 and at the U.S. Route 51
rest area. Fourth, when the HFD responds to fire calls outside       The government timely appealed the district court’s ruling.
of the Henning city limits, the HFD charges out-of-state           We have jurisdiction to hear such an appeal pursuant to
insurance companies $500. Fifth, the volunteer firefighters        18 U.S.C. § 3731. See id. (“In a criminal case an appeal by
who compose the HFD are paid wages by the City of Henning          the United States shall lie to a court of appeals from a
based upon the amount of time that they spend at a fire scene.     decision, judgment, or order of a district court dismissing an
The total wages paid to the firefighters generally does not        indictment . . . .”). On review, we reject the reasoning of the
exceed $1,000 per year. Sixth, the firefighting presence of the    district court, reverse its judgment dismissing the indictment,
HFS and the HFD impacts insurance rates in Henning.
No. 02-5185                        United States v. Laton       5    6       United States v. Laton                               No. 02-5185

and remand for further proceedings consistent with this              prosecution, any rational trier of fact could have found the
opinion.                                                             essential elements of the crime beyond a reasonable doubt.”
                                                                     (internal quotations omitted)).
                       II. ANALYSIS
                                                                       We follow Rayborn’s lead and review the merits of the
A. Erroneous Dismissal for Lack of Subject Matter                    district court’s determination that the HFS was not used in an
   Jurisdiction                                                      activity that affected interstate commerce. Because the
                                                                     inquiry into whether the HFS affects interstate commerce is
  As a preliminary matter, we hold that the district court           a mixed question of fact and law, we review the district
erred in dismissing the indictment based on the conclusion           court’s determination de novo. United States v. Salvo, 133
that it lacked subject matter jurisdiction. In United States v.      F.3d 943, 948 (6th Cir.), cert. denied, 523 U.S. 1122 (1998).
Rayborn, 312 F.3d 229 (6th Cir. 2002), which we decided
after the district court’s decision in this case, we held that the   B. Section 844(i) and Its Applicability to Government
interstate-commerce requirement “is simply one of the                   Buildings and Property
essential elements of § 844(i),” even though it is frequently
denoted a “‘jurisdictional element.’” Id. at 231. We                    We start with the plain language of the statute. Section
explained that “[i]t is not jurisdictional in the sense that it      844(i) provides: “Whoever maliciously damages or destroys,
affects a court’s subject matter jurisdiction, i.e., a court’s       or attempts to damage or destroy, by means of fire or an
constitutional or statutory power to adjudicate a case.” Id.         explosive, any building, vehicle, or other real or personal
The district court here, just like the district court in Rayborn,    property used in interstate or foreign commerce or in any
did have subject matter jurisdiction over the indictment under       activity affecting interstate or foreign commerce shall be
18 U.S.C. § 3231.                                                    imprisoned for not less than 5 years and not more than 20
                                                                     years . . . .” 18 U.S.C. § 844(i) (emphasis added).1 The
   This does not end the appeal. We noted in Rayborn that            statute thus covers the arson of any building that is either used
“this court typically vacates a dismissal order when it              in interstate commerce or that is used in any activity affecting
determines that a district court has erred in dismissing a case      interstate commerce.2
for lack of subject matter jurisdiction . . . .” Rayborn, 312
F.3d at 232. Yet, Rayborn also instructs that when the district        Crimes of arson have traditionally been viewed as
court “undertook an evaluation of the merits of the interstate       “paradigmatic common-law state crime[s],” but in 1982
commerce question under the guise of subject matter                  Congress chose to federalize certain arson crimes as an
jurisdiction,” id., we are permitted to determine whether the        exercise of its Commerce Clause power. Jones v. United
evidence produced by the government (or in this case
stipulated to by both parties) is sufficient to permit a rational
jury to find that a particular building was used in an activity
that affected interstate commerce such that the indictment can           1
                                                                           “Interstate commerce” is defined as “commerce between any place
still stand. Id. at 235-36; see also United States v. Latouf, 132    in a State and any place outside of that State.” 18 U.S.C. § 841(b).
F.3d 320, 325-26 (6th Cir. 1997) (“The relevant inquiry when
                                                                         2
reviewing claims of insufficient evidence is whether after                 Affect is “[t]o act upon; influence; change; enlarge o r abrid ge; . . .
viewing the evidence in the light most favorable to the              to act, or produce an effect or result upon; to imp ress or influence . . . .”
                                                                     B LACK’S L A W D IC T IO N A R Y 57 (6th ed. 1991).
No. 02-5185                              United States v. Laton             7    8     United States v. Laton                       No. 02-5185

States, 529 U.S. 848, 858 (2000).3 In seeking to avoid                           counter to the dissent’s belief that § 844(i) suffers from a lack
“render[ing] traditionally local criminal conduct a matter for                   of clarity, Congress made transparent its objective in passing
federal enforcement,” Congress “will not be deemed to have                       § 844(i). It fashioned a statute that covered the arson of “any”
significantly changed the federal-state balance” unless it                       building and included a jurisdictional element limiting its
clearly conveys its purpose. United States v. Bass, 404 U.S.                     reach to buildings that are used in interstate commerce or in
336, 349-50 (1971) (quoted in Jones, 529 U.S. at 858).4                          any activity affecting interstate commerce, such that § 844(i)
Additionally, when Congress fails to speak in clear and                          was “intended to protect all business property, as well as
definite language, “ambiguity concerning the ambit of                            some additional property that might not fit that description,
criminal statutes should be resolved in favor of lenity.”                        but perhaps not every private home.” Russell v. United
Jones, 529 U.S. at 858 (quoting Rewis v. United States, 401                      States, 471 U.S. 858, 862 (1985).
U.S. 808, 812 (1971)). Had Congress been ambiguous in its
formulation of § 844(i), the rule of lenity might apply, but                        We are mindful of our duty to construe a statute so as to
                                                                                 eschew constitutional questions, and the straightforward
                                                                                 application of the jurisdictional element here aids us in
    3                                                                            avoiding any such entanglements. The prominent issue raised
     Congress originally passed § 844(i) as part of the Organized Crime
Control Act of 197 0 to contro l the use and possession of explo sives. See
                                                                                 by this appeal is not constitutional in scope, rather it is an
Russell v. United States, 471 U.S. 858, 860 n.5 (198 5). In 198 2, Congress      exercise in statutory interpretation. In United States v. Lopez,
amended the statute to include the words “fire or” before the words “an          514 U.S. 549 (1995), the Supreme Court remarked that the
explosive.” Jones v. United States, 529 U.S. 848 , 853 n.4 (2000 ).              Gun-Free School Zones Act of 1990 (formerly 18 U.S.C.
    4
                                                                                 § 922(q)) “contain[ed] no jurisdictional element which would
      W e note that the federal prosecution of Laton does not preclude the       ensure, through case-by-case inquiry, that the firearm
state from also prosecuting him if it so desires. See Heath v. Alabama,          possession in question affects interstate commerce.” Id. at
474 U.S. 82, 89-90 (1985) (“‘[A]n act denounced as a crim e by both
national and state sove reignties is an offense against the peace and d ignity
                                                                                 562 (emphasis added). It distinguished § 922(q) from the
of both and m ay be p unished by each.’” (quoting United States v. Lanza ,       former 18 U.S.C. § 1202(a), a statute examined in United
260 U.S. 377, 382 (1922)). Under the federal arson statute, Laton faces          States v. Bass, 404 U.S. 336 (1971), “which made it a crime
a sentenc e of five to twenty years, assuming that no persons were injured       for a felon to ‘receive, posses[s], or transport in commerce or
by the fire. 18 U.S.C. § 844(i). If any persons were injured, Laton faces        affecting commerce . . . any firearm,’” Lopez, 514 U.S at 561-
a sentenc e of seven to forty years, and if any persons were killed by the       62 (emphasis added) (quoting Bass, 404 U.S. at 337). The
fire, Laton is subject to any term of imprisonm ent, includ ing life
imprisonm ent. Id. Under the Tennessee arson statute, the destruction of         Court wrote that “[u]nlike the statute in Bass, § 922(q) has no
a building by fire is a Class C felony, which is punishable by a term of         express jurisdictional element which might limit its reach to
imprisonment of three to fifteen years. See Tenn. Code Ann. §§ 39-14-            a discrete set of firearm possessions that additionally have an
301, 40-3 5-111(b)(3). If any persons were injured in the fire, the arson        explicit connection with or effect on interstate commerce.”
of the HFS would constitute a Class A felony, which is punishable by a           Id. at 562. Unlike § 922(q), § 844(i) does contain a
term of imprisonm ent of fifteen to sixty years. See Tenn. Cod e Ann.
§§ 39-14-302, 40-35-111(b)(1). Any supposed friction, as the dissent             jurisdictional element, and we accordingly follow the lead of
labels it, between the policy choices of the United States Congress and the      previous post-Lopez decisions, which focus on interpreting
Tennessee Legislature regarding the severity of the criminal sanction is         the words of similarly phrased jurisdictional elements. See
a necessary by-product of a federalist republic; a disparity between state       Rayborn, 312 F.3d at 232-33 (applying Jones’s two-part test
and federal sentences, which in this instance is de m inimis, oc curs quite      to determine that the jurisdictional element in § 844(i) was
often in areas of concurrent jurisdiction, such as prosecution for drug-
related offenses.                                                                satisfied and the prosecution could proceed); United States v.
No. 02-5185                            United States v. Laton           9    10       United States v. Laton                           No. 02-5185

Riddle, 249 F.3d 529, 536 (6th Cir. 2001) (RICO provision,18                 them from engaging in interstate commerce,” particularly
U.S.C. § 1962(c); United States v. Napier, 233 F.3d 394, 400                 because “they purchase goods and services in competitive
(6th Cir. 2000) (firearms provision governing those under                    markets, offer their facilities to a variety of patrons, and
domestic-violence court orders, 18 U.S.C. § 922(g)(8));                      derive revenues from a variety of sources, some of which are
United States v. Smith, 182 F.3d 452, 456 (6th Cir. 1999)                    local and some out of State.” Camps Newfound/Owatonna,
(Hobbs Act, 18 U.S.C. § 1951); United States v. Ables, 167                   Inc. v. Town of Harrison, 520 U.S. 564, 585-86 (1997).
F.3d 1021, 1030 (6th Cir. 1999) (money laundering provision,                 Thus, as the Court stated, “[f]or purposes of Commerce
18 U.S.C. § 1956); United States v. Chesney, 86 F.3d 564,                    Clause analysis, any categorical distinction between the
568-70 (6th Cir. 1996) (firearms provision governing                         activities of profit-making enterprises and not-for-profit
convicted felons, 18 U.S.C. § 922(g)(1)). Our responsibility                 entities is . . . wholly illusory.” Id. at 586.
is to decide whether the government can demonstrate that the
HFS was used in commerce or in an activity affecting                           Similarly, government institutions not only can affect
commerce such that any rational juror could find that the                    interstate commerce but also can be direct participants in
jurisdictional element of the crime defined in the statute has               interstate commerce. The Supreme Court has noted on
been satisfied beyond a reasonable doubt.                                    several occasions the impact that certain federal, state, and
                                                                             local government institutions can have on interstate
   On its face, § 844(i) does not distinguish between the arson              commerce. See Garcia v. San Antonio Metro. Transit Auth.,
of traditional for-profit business property, nonprofit                       469 U.S. 528, 537, 547-48 (1985) (holding that application of
organizations’ structures and equipment, or state and local                  Fair Labor Standards Act (“FLSA”) to transportation
government buildings and supplies,5 because the statute                      employees employed by local government does not
simply governs “any building, vehicle, or other real or                      contravene the Commerce Clause because labor conditions of
personal property.” 18 U.S.C. § 844(i). There can be little                  those employees affect interstate commerce).6 Governments
doubt that virtually all edifices and personal property                      in general, and individual government institutions in
employed by for-profit businesses are both used in interstate                particular, can serve in both a sovereign/regulatory capacity
commerce and used in activities that affect interstate                       and a market capacity, and their actions as either can affect
commerce, as they primarily house and make possible the                      interstate commerce. See Lehman v. City of Shaker Heights,
operation of businesses that buy, sell, manufacture, ship, and               418 U.S. 298, 303 (1974) (holding that a municipal transit
finance goods and services. Nonprofit institutions can also                  vehicle is not a public forum for First Amendment purposes
impact interstate commerce. The mere fact that a nonprofit                   because “the city is engaged in commerce” and the
organization differs from its for-profit cousins in its treatment            advertising space in question “although incidental to the
of net earnings does not prevent its buildings or property from
being used in interstate commerce or in an activity affecting
interstate commerce. As the Supreme Court has explained,                          6
                                                                                    The Court also rejected “as unsound in principle and unwo rkable in
“[n]othing intrinsic to the nature of nonprofit entities prevents            practice, a rule of state immunity from federal regulation that turns on a
                                                                             judicial appraisal of whether a particular governmental function is
                                                                             ‘integral’ or ‘traditional.’” Garcia v. San Antonio Metro. Transit Auth.,
    5
                                                                             469 U.S. 528, 546-47 (1985). The Court highlighted “the elusiveness of
      W e use “local” to encompass all political entities within but not     objective criteria for ‘fundamental’ elements of state sovereignty,”
including a state, such as municipalities, counties, and special districts   labeling such obliqueness as “a problem we have witnessed in the search
(water, school, economic develop ment, etc.).                                for ‘traditional governmental functions.’” Id. at 548.
No. 02-5185                       United States v. Laton      11    12       United States v. Laton                             No. 02-5185

provision of public transportation, is part of a commercial            The reality that the core functions of government are not
venture”); United States v. Kokinda, 497 U.S. 720, 725 (1990)       exclusive of interstate commerce does not only hold true
(concluding that federal government acts as proprietor, and         when a government operates a commercial enterprise, such as
not as regulator, for First Amendment purposes when it              a post office, lottery, or liquor store. Government institutions
operates the United States Post Office); Int’l Soc’y for            also can affect interstate commerce when they provide core
Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992)        public services, such as police protection and emergency
(ruling that local government acts as a proprietor when it          services.7 See Prickett v. DeKalb County, 92 F. Supp. 2d
owns and operates an airport).                                      1357, 1362-63 (N.D. Ga. 2000) (determining that labor
                                                                    practices of county fire department impact interstate
  In their operations as a sovereign or as a regulator,             commerce such that the FLSA applies to its employees);
governments may engage in interstate commerce or in                 Persons v. City of Gresham, 704 F. Supp. 191, 193 (D. Ore.
activities that affect interstate commerce, even though the         1988) (applying FLSA to municipal firefighters because the
impetus for their actions is noncommercial because it is            fire department responded to emergencies that involved
motivated by public service. See Garcia, 469 U.S. at 539            instrumentalities of interstate commerce and protected
(“The constitutional distinction between licensing drivers and      businesses engaged in interstate commerce); Conway v.
regulating traffic . . . or between operating a highway             Takoma Park Volunteer Fire Dep’t, 666 F. Supp. 786, 791
authority and operating a mental health facility, is elusive at     (D. Md. 1987) (same). One can imagine dozens of state and
best.”); United States v. Terry, 257 F.3d 366, 369 (4th Cir.        local government institutions that could be used in activities
2001) (“We cannot close our eyes to the commercial nature of        affecting interstate commerce, including but not limited to
an activity solely because non-commercial considerations also       airports, seaports, convention centers, police departments
underlie it.”). In their function as market participants,           auctioning off seized and forfeited property, health care
governments inherently influence interstate commerce. See           centers, and departments of property management, economic
White v. Mass. Council of Constr. Employers, Inc., 460 U.S.         development, and waste collection. Accordingly, Section
204, 207, 214 (1983) (ruling that when a city government            § 844(i) has been invoked in the past to prosecute the arson of
expends its own funds for construction of public projects, it       public buildings; for example, the Tenth Circuit affirmed the
can promote the employment of its own citizens, because it          conviction under § 844(i) of the arsonist of a City Hall.
acts as “a market participant” and “there is no indication of a     United States v. Woodward, No. 93-3123, 1993 WL 498178
constitutional plan to limit the ability of the States themselves   (10th Cir. Dec. 2, 1993) (unpublished). The police
to operate freely in the free market” (quotation omitted));
Four T’s, Inc. v. Little Rock Mun. Airport Comm’n, 108 F.3d
909, 912 (8th Cir. 1997) (defining a local airport commission,           7
which operated the airport and charged concession fees from                Counter to the dissent’s assertion, the fact that city-funded
various vendors, as a market participant); Pic-A-State Pa.,         firefighting constitutes an unbargained-for public service is not relevant
                                                                    to the analysis. That individual citizens do not explicitly contract for
Inc. v. Reno, 76 F.3d 1294, 1301 (3d Cir. 1996) (“It is beyond      firefighting support does not mean that fire stations and fire departments
dispute that state lotteries affect interstate commerce.”)          fail to impact interstate commerce. Individuals do not bargain with non-
(quoting The Lottery Case, 188 U.S. 321, 354 (1903)                 profit organizations in order to receive charity or other forms of
(“[L]ottery tickets . . . are subjects of commerce.”)).             assistance, yet the Supreme Court has made clear that any rigid
                                                                    categorization of non-profits as entities incap able o f affecting interstate
                                                                    commerce is void. Camp s New foun d/Owatonna, Inc. v. Town of
                                                                    Harrison, 520 U.S. 564 , 586 (1997 ).
No. 02-5185                        United States v. Laton      13    14       United States v. Laton                             No. 02-5185

department is not used in an activity affecting interstate           ‘activity’ that affects commerce” and reasoned that “[t]he
commerce simply because it sells “I Support My Local Police          rental of real estate is unquestionably such an activity.” Id. at
Department” stickers, but to believe that such fundraising           862. In its analysis, the Court noted that the original version
sales are the only way that a police building can be used in         of the bill proposing § 844(i) contained the words “for
activities affecting interstate commerce naively ignores a           business purposes,” but that Congress removed such language
police department’s role as reclaimer of stolen property             before enactment “after considering whether the bill as
moving between states, auctioneer of seized goods, and               originally introduced would cover bombings of police stations
perpetuator of the safety necessary to encourage interstate          or churches . . . .” Id. at 860; see also id. at 860-61 nn.5-9
business growth.                                                     (quoting the relevant legislative history).8 The Court read this
                                                                     legislative history to suggest “that Congress at least intended
  The link between government and commerce described                 to protect all business property, as well as some additional
above merely establishes that state and local government             property that might not fit that description, but perhaps not
buildings and property are neither inherently disconnected           every private home.” Id. at 862.9 Because the apartments in
from nor innately intertwined with interstate commerce. Each
piece of real or personal property, taking into account its
function, must be assessed individually to determine the                  8
                                                                           Enacted as part of the “Explosive Control Act” provisions of the
extent to which it impacts interstate commerce. There can be         Organized Crime Control Act of 1970, 84 Stat. 922, 952 , the precursor to
no uniform and inflexible rule that §844(i) covers either all or     § 844(i) provided stiff penalties for “[w]hoe ver maliciously damages or
none of the wide variety of municipal buildings that fill either     destroys, or attempts to damage or destroy, by means of an explosive, any
the largest urban metropolis or the smallest rural hamlet. This      building, vehicle, or other real or personal property used for business
perfectly conforms to Congress’s will as expressed in                purposes by a person engaged in commerce o r in any activity affecting
                                                                     commerce . . . .” H.R. 16699, 91st Cong., 2d Sess. (1970) (emp hasis
§ 844(i); the insertion of a jurisdictional element mandates a       added). During a hearing o n this pro vision, several re prese ntatives
case-by-case, building-by-building inquiry into whether that         expressed conc ern that the statute as word ed would not cover the bombing
particular building is used in an activity that affects interstate   of police stations or churches and suggested leaving out the words “for
commerce, no matter whether it is owned and operated by a            business purposes.” Russell, 471 U.S. at 860 -61 nn.6-7. This phrase was
supermarket, an advocacy group, or a local-government                not included in the statute as enacted.
police department.                                                        9
                                                                           The dissent suggests that a glance at § 844(i)’s code-book neighbor,
                                                                     18 U.S.C. § 844(f) definitively reveals that Congress did not intend for
C. The Supreme Court’s Analysis of 18 U.S.C. § 844(i)                § 844 (i) to reach all government buildings even though § 844(f) governs
                                                                     only the destruction of federal, but not state or local, buildings. Section
  The Supreme Court has had two opportunities to analyze 18          844(f)(1) reads: “Whoever maliciously damages or destroys . . . by means
U.S.C. § 844(i) and to establish a mechanism by which courts         of fire . . . any building, vehicle, or other perso nal or real prope rty in
can assess whether real or personal property is used in              who le or in part owned or p ossessed b y, or leased to, the U nited States,
interstate commerce or in an activity that affects interstate        or any departm ent or a gency thereo f, or any institution or organization
                                                                     receiving Federal financial assistan ce, shall be imp risoned . . . .” This
commerce. In Russell v. United States, 471 U.S. 858 (1985),          provision criminalizes the arson of any federal building, such as the
the Court considered whether the arson of a two-unit                 former Murrah Federal Building in Oklahoma City, or any building
apartment building that was used as a rental property fell           owned by an organization obtaining federal assistance, such as a
within the purview of 18 U.S.C. § 844(i). The Court held that        university research laboratory that receives a federal grant and then
“the statute only applies to property that is ‘used’ in an           markets its technology. The two statutes do not reference each other,
                                                                     although they were passed at the same time in response to the spate of
No. 02-5185                              United States v. Laton           15     16     United States v. Laton                               No. 02-5185

the building were rented to tenants at the time of the fire, the                 for any commercial purpose.” Id. at 852. Justice Ginsburg,
Court concluded that the property was “being used in an                          writing for a unanimous Court, again noted how Congress
activity affecting interstate commerce.” Id.; see also United                    removed the “for business purposes” language from the
States v. Ryan, 9 F.3d 660, 667 (8th Cir. 1994) (ruling that a                   proposed bill in order to indicate “that . . . the provision
closed fitness center affected interstate commerce because the                   should apply to the bombings of schools, police stations, and
building was owned and leased by an individual from a                            places of worship.” Id. at 853 n.5 (citing Russell, 471 U.S. at
different state).                                                                860-61).10 The Court emphasized the “qualifying words
                                                                                 ‘used in,’” which mandates “‘that the damaged or destroyed
  The question that Russell hinted at — whether or not                           property must itself have been used in commerce or in an
§ 844(i) reached the destruction of a private residence —                        activity affecting commerce.’” Jones, 529 U.S. at 854
remained unresolved until 2000. In Jones v. United States,                       (emphasis added) (quoting United States v. Mennuti, 639 F.2d
529 U.S. 848 (2000), the Supreme Court ruled that “§ 844(i)                      107, 110 (2d Cir. 1981)). It then outlined a two-part inquiry
does not reach an owner-occupied residence that is not used                      for assessing the applicability of § 844(i), which entailed an
                                                                                 analysis of “‘the function of the building itself, and then a
                                                                                 determination of whether that function affects interstate
bom bings in the late 196 0s. See United States v. Eichman, 957 F.2d 45,
46 (2d Cir. 199 2) (describing § 8 44(f)’s history). O ne cannot lo gically           10
conclude that the specific mention of federal gov ernment buildings in                   The Supreme Co urt has thus twice relied on this legislative history
§ 844(f) provides definitive evidence of Congress’s intention to draw            in analyzing § 8 44(i). Even if this legislative history did not exist, it
§ 844 (i)’s boundaries just shy of reaching state or local government            wou ld not alter our conclusion because it is the plain language of the
buildings.                                                                       statute that directs us towards the inquiry o f whether the fire station is
     The provisions overlap in som e respects, but they are no t so              used in an activity that affects interstate commerce. However, we need
complimentary that the existence of one negates the purpose of the other.        not ignore the history of § 844(i). W e agree with the dissent that we are
For the arson of the university lab mentioned above, both § 844(i) and           not to “attach decisive significance to the unexplained disappearance of
§ 844(f) apply.        However, the two statutes will not always be              one word from an unenacted bill because ‘m ute interm ediate legislative
interchangeable such that § 84 4(i) is surplusage. The arson of a building       maneuv ers’ are not reliable indicators of congressional intent.” Mead
owned by the federal government or an entity receiving federal assistance        Corp. v. Tilley, 490 U.S. 714 , 723 (1989 ) (emphasis added) (quo ting
that does not in any way affect interstate commerce cannot be prosecuted         Trailm obile Co. v. Wh irls, 331 U.S. 40, 61 (1947)). We also recognize
under § 844(i), but can be under § 84 4(f). Fo r exam ple, if an individual      that “unenacted appro vals, beliefs, and desires are not laws.” Puerto Rico
purchased a single-family residence under a federal program in which the         Dep’t of Consumer Affairs v. ISLA Petroleum Corp., 485 U.S. 495, 501
cost of the home was split between the buyer and a state-run housing             (1988). How ever, the disapp earance o f the words “for business purpo ses”
organization receiving federal funds such that the state government owned        from the proposed, but unenacted, version of the original § 844 (i) in 1970
part of the residence, the arson of that residence would be punishable           was neither unexplained nor mute. Congress explained that it removed
under § 84 4(f), bu t not § 844 (i). Cf. United States v. Da vis, 98 F.3d 141,   the words to ensure that § 844(i) covered more than just traditional
145 (4th Cir. 1996) (affirming prosecution under § 844(f) for the arson of       business properties, although precisely how much more is the question we
a single-family townhouse because a state housing authority that received        address today. Furthermore, the belief or d esire that § 84 4(i) co ver “any”
federal assistance heavily subsidized the rent of the tenant). Similarly, the    type of build ing used in interstate commerce could not be described as
arson of a non-federal building, the owners or possessors of which do not        unenacted. In contrast to the words “for b usiness purposes,” which were
receive federal funds, cannot be prosecuted under § 844(f), but may be           not included in the final bill, § 844(i)’s coverage of “any building . . .
under § 84 4(i) if the building was used in an activity affecting interstate     used . . . in any activity affecting interstate . . . commerc e” (em phasis
commerce. Th us, there are certain arsons that may be prosecuted under           add ed), reflects the desires of Congress to broaden the sco pe of the anti-
§ 844(f), but not § 844(i), and others that may be prosecuted under              arson statute to encompa ss some pub lic institutions, such as police
§ 844(i), but not § 844(f). Each section has a special function to serve.        stations.
No. 02-5185                       United States v. Laton      17    18     United States v. Laton                                  No. 02-5185

commerce.’” Jones, 529 U.S. at 854-55 (quoting United               those that are used in an activity that affects interstate
States v. Ryan, 9 F.3d 660, 675 (8th Cir. 1993) (Arnold, C.J.,      commerce.
concurring in part and dissenting in part)). In exploring
whether § 844(i) covered the destruction of a private               D. The Application of Jones to Laton’s Indictment
residence, the court reasoned that for a building to be used in
an activity affecting interstate commerce requires “active             We now turn to the application of Jones’s two-part analysis
employment for commercial purposes, and not merely a                to the destruction of the HFS.11 The first step is to identify
passive, passing, or past connection to commerce.” Jones,           the function of the HFS and the equipment that the building
529 U.S. at 855. The Court ultimately ruled that a private          housed. A building and the personal property within that
residence does not fit within § 844(i) where its only               building can have multiple functions. See Jones, 529 U.S. at
relationship to interstate commerce is the receipt of natural       856 (distinguishing the private home at issue from a residence
gas, a mortgage, or an insurance policy because such a limited      that was also used as a home office or for a commercial
nexus did not constitute “active employment.” To hold               enterprise). Accordingly, a “building’s function is not limited
otherwise would mean that “hardly a building in the land            to its primary use.” Rayborn, 312 F.3d at 233. Churches, for
would fall outside the federal statute’s domain” because            example, primarily serve a religious function, but churches
“[p]ractically every building . . . is constructed with supplies    can also have secondary and important economic purposes.
that have moved in interstate commerce, served by utilities         Terry, 257 F.3d at 369 (holding that a church “can have both
that have an interstate connection, financed or insured by          a religious aspect and an economic one” when the church
enterprises that do business across state lines, or bears some      operated a daycare center); United States v. Grassie, 237 F.3d
other trace of interstate commerce.” Id. at 857.                    1199, 1209-10 (10th Cir. 2001) (acknowledging that a
                                                                    church’s activities can be both religious and commercial);
   This two-part inquiry must be conducted in every federal         United States v. Odom, 252 F.3d 1289, 1294 (11th Cir. 2001)
arson case to determine whether the jurisdictional element of       (“Churches are not commonly considered a business
§ 844(i) has been met. This case-by-case analysis is                enterprise; nonetheless, churches can and do engage in
mandated by Congress’s inclusion of a jurisdictional element,       commerce.”).
which, as mentioned previously, distinguishes § 844(i) from
the Gun-Free School Zones Act of 1990 that the Supreme                 Similarly, the HFS performed one ancillary function and
Court struck down in Lopez. See Lopez, 514 U.S. at 562              one main function. It fulfilled an ancillary function of
(“[Section] 922(q) has no express jurisdictional element            assuring the homeowners and businesses of Henning that their
which might limit its reach to a discrete set of firearm            property was safe. The HFS was a municipally owned
possessions that . . . have an explicit connection with or effect   building that stood alongside the police department and the
on interstate commerce.”). The evidence of Congress’s               city hall as a public institution and a visible public safety
intention to permit federal prosecution of arson of police          shield for the citizens of Henning. More significantly, the
stations strongly implies that arson of fire stations is also
covered, because police stations and fire stations provide
                                                                         11
similar public safety services.          Naturally, Congress’s              The complicity of the Henning Fire Chief in the arson of the HFS
envisioning of § 844(i) prosecutions for the arson of schools,      does not facto r into the analysis. The application of § 844(i) does not turn
police stations, and churches does not mean that the arson of       on the identity of the arsonist. It is a bitterly ironic tw ist that an official
                                                                    employed by the local government, in fact the official in charge of fire
all such institutions is covered by the statute, but rather only    safety, destroyed the fireho use, bu t it is not legally pertinent.
No. 02-5185                       United States v. Laton      19    20    United States v. Laton                       No. 02-5185

HFS made the HFD possible; fire departments cannot exist            traditional for-profit business, particularly in the service
without fire stations. The HFS facilitated the provision of fire    sector, into a building that does not in itself affect interstate
protection services necessary for the economic development          commerce and a service performed elsewhere that most
and prosperity of Henning because the station and the               certainly does affect interstate commerce, but such division
equipment in the building provided the HFD with the                 only obfuscates the true impact of the business as a whole.
implements necessary to combat fires. The function of the
building and the trucks, hoses, boots, hats, and                       The second step of the Jones analysis involves determining
communication devices was to permit the HFD to battle ably          whether the function of the HFS affects interstate commerce.
any conflagration within the jurisdiction of the HFD, whether       We must analyze whether the HFS, in its role as a municipal
it be a small brush fire or a major truck or automobile             building that enables firefighting, is “used” in an activity that
accident on U.S. Route 51.                                          affects interstate commerce:          does it enjoy “active
                                                                    employment for commercial purposes” rather than “a passive,
  We reject the district court’s conclusion that the functions      passing, or past connection to commerce”? Jones, 529 U.S.
of the HFS can be separated from the functions of the HFD,          at 855. A single relationship to interstate commerce or the
such that the HFD’s firefighting efforts affected interstate        conjunction of several different ties to interstate commercial
commerce, but the HFS, an edifice containing firefighting           activity can support a finding that a building was actively
equipment, did not. The district court wrote that “most of the      employed in commerce. For example, in Rayborn we
facts to which the parties stipulate involve the purposes of the    affirmed a conviction under § 844(i) for the arson of a church.
Henning Fire Department, not the Henning Fire Station” and          Rayborn, 312 F.3d at 234. The church broadcasted radio
ruled that “[i]t is not significant that the Henning Fire Station   messages by renting out time from various stations in order to
houses the trucks that drive to the sites that require service,     increase the attendance and contributions of out-of-state
even though those sites are sometimes businesses that are           parishioners, it drew members from three states, it paid
involved in activities that themselves affect interstate            salaries, it hosted gospel concerts featuring out-of-state talent
commerce.” Laton, 180 F. Supp. 2d at 951-52. This analysis          for which it requested donations, and it owned several
too finely atomizes the roles of the HFS and the HFD and            vehicles. Id. at 234-35. On this basis, we concluded that
ignores the inseparability of their functions. Neither the HFD      “[t]he church’s interstate connections were direct, regular, and
nor any other fire department in the country can operate            substantial.” Id. at 234. Other courts have similarly found
without trucks, hoses, axes, flashlights, fire-retardant            churches to affect interstate commerce where the church has
uniforms, meeting spaces, and communication systems. To             some active commercial connection. See United States v.
hold that the HFD could affect interstate commerce by putting       Terry, 257 F.3d 366, 369-70 (4th Cir. 2001) (finding that a
out fires at businesses in Henning or along U.S. Route 51, but      church daycare center “was actively engaged in commercial
that the HFS could not because it only houses the trucks that       activity” because it provided childcare services for payment);
combat those fires, is no less erroneous than the conclusion        United States v. Grassie, 237 F.3d 1199, 1209 n.7 (10th Cir.
that a garage housing a towing service does not affect              2001) (holding that a Mormon church in rural New Mexico
interstate commerce because the tow trucks perform their            affected interstate commerce because the revenues of the
commercial function on the road or the conclusion that a radio      church and the tithed incomes, goods, and services of church
studio does not affect interstate commerce because the
intangible radio waves emanated from the studio are diffusely
captured by listeners. One could fracture nearly any
No. 02-5185                             United States v. Laton         21     22   United States v. Laton                       No. 02-5185

members flowed across state lines for distribution by the                     that the destruction of the police car had “a significant impact
church’s headquarters in Salt Lake City).12                                   on interstate commerce” because the deputy patrolled traffic
                                                                              and made arrests on an interstate highway, issued citations to
  Churches are not the only buildings that we and other                       out-of-state drivers, participated in interstate narcotic
courts have found to be used in an activity affecting interstate              investigations, assisted out-of-state authorities in
commerce. In United States v. Sherlin, 67 F.3d 1208, 1213                     apprehending suspects, recovered stolen property from other
(6th Cir. 1995), we held that the arson of a dormitory at a                   states, and attended law enforcement training sessions in other
private college was punishable under § 844(i). The college                    states. Id.
was a nonprofit institution, but its dormitory was used in an
activity that affected interstate commerce because the college                  The Supreme Court’s decision in Jones made clear that the
received payments from students in return for educational                     mere receipt of inputs or services from an out-of-state vendor
services, it advertised out of state, and almost all of the                   is not a sufficient connection to interstate commerce to
students living in the destroyed dorm hailed from other states.               support an indictment under § 844(i). Jones, 529 U.S. at 856.
Id. In Bellflower v. United States, 129 F.3d 1459, 1462 (11th                 Accordingly, a purely private residence, which is only
Cir. 1997), the Eleventh Circuit held that § 844(i) covered the               connected to interstate commerce through the material used
bombing of a police vehicle, which a local sheriff’s deputy                   to construct it, the supplies used to heat it, or the monetary
used in his law enforcement responsibilities. That court held                 instrument used to finance its purchase, is not used in an
                                                                              activity affecting interstate commerce. However, when the
                                                                              government relies on other connections to interstate
    12
                                                                              commerce to establish the jurisdictional element of § 844(i),
        Several courts have ruled that § 844(i) does not cover churches       the purchase of supplies from out of state can offer additional
where the connection to interstate commerce is limited to purchasing          support for the conclusion that a building or property is used
supplies, sending dues and contributions across state lines, acquiring
insurance, or providing services and religious educ ation. See United
                                                                              in an activity affecting interstate commerce. See Rayborn,
States v. Lamont, 330 F.3d 12 49, 1256 -57 (9th Cir. 2003) (rejecting         312 F.3d at 234-35 (mentioning, in addition to other factors,
gove rnment’s contention that § 844(i) applied where church purchased         that a church affected interstate commerce because it
gas, insurance, and supplies from out of state and several church attendees   purchased local goods, such as groceries and flowers);
came from out of state); United States v. Rea, 300 F.3d 95 2, 962 (8th Cir.   Sherlin, 67 F.3d at 1214 (noting that a college dorm affected
2002) (concluding that § 844(i) did not cover a church annex that only        interstate commerce partially because it purchased “numerous
housed Sund ay scho ol classes and after-school tutoring because the
purchase of supplies for the annex by itself had only “fleeting effects on    supplies” from out of state, including food services).
interstate commerce”); United States v. Odom, 252 F.3d 1289, 1296-97
(11th Cir. 20 01) (dismissing church’s rec eipt of donations from out-of-        When it crafted § 844(i) to encompass the arson of police
state donors, utilization of Bibles purchased from out-of-state vendors,      stations, Congress recognized that the provision of emergency
and contributions to various out-of-state nonprofit organizations as “too     services by municipalities can affect interstate commerce in
passive, too minimal and too indirect” to affect interstate commerce);
United States v. Johnson, 246 F.3d 749, 752 (5th Cir. 2001) (holding that
                                                                              the active sense of the phrase. See Jones, 529 U.S. at 853 n.5;
earlier decisio n, United States v. Johnson, 194 F.3d 657 , 662 (5th Cir.     Russell, 471 U.S. at 860-61. Fire stations provide similar
1999), which was vacated and remanded by the Supreme Court, 530 U.S.          emergency services and undoubtedly can affect interstate
1201 (2000), correctly concluded that contribution of funds by church         commerce. See Benson v. Universal Ambulance Serv., 675
members to a national organization and paym ent of an insurance claim by      F.2d 783, 786 (6th Cir. 1982) (affirming lower court’s
an out-of-state insurer did not suffice to show that the jurisdictional
element of § 844(i) had been met).
                                                                              determination that the FLSA applies to private ambulance
No. 02-5185                       United States v. Laton      23    24     United States v. Laton                              No. 02-5185

employees because responding to emergencies on streets and          belief that this is an easier case than Jones sidesteps
highways affects interstate commerce given that it removes          fundamental differences between Jones and this case, for
obstructions to the free flow of interstate commerce);              much more than the mere purchase of supplies from out of
Bellflower, 129 F.3d at 1462 (upholding conviction under            state ties the HFS into the web of interstate commerce. As
§ 844(i) for the arson of a police vehicle because the officer’s    demonstrated below by the final three links to interstate
responses to emergencies affected interstate commerce). The         commerce, we find it persuasively clear that the HFS was
issue, though, is not whether all fire stations and fire            used in an activity affecting interstate commerce.
departments affect interstate commerce; the jurisdictional
element of § 844(i) requires us to focus our attention only on         Fourth, the HFD is charged with responding to fire
whether the HFS is used in an activity affecting interstate         emergencies within the Henning city limits. In the past, the
commerce.                                                           HFD has responded to emergency calls from several
                                                                    businesses in Henning, including a market and a laundry
   We conclude that a rational juror could find beyond a            facility. In the future, it is certain that the HFD will be called
reasonable doubt that the HFS was used in an activity that          upon to fight fires at other businesses in Henning.13
affected interstate commerce because its role in fighting fires     Preventing the destruction of commercial establishments
constituted an active, rather than a passive, employment in         strikingly affects interstate commerce by preserving entities
interstate commerce. See Latouf, 132 F.3d at 325. Six               directly engaged in interstate commerce.
aspects of the HFS demonstrate this connection. First, the
HFS housed firefighting equipment, including trucks, hoses,            Fifth, the HFD serves to protect both the channels of
nozzles, and uniforms, which the HFD purchased from out of          commerce and the instrumentalities of commerce because it
state, which the HFD sent for repairs out of state, and which       is the primary emergency services provider for the stretch of
perished in the fire. The precise dollar amount of this             U.S. Route 51 going through Henning. The HFD has
equipment is not known, but given that the equipment                responded (and will respond in the future) to incidents and
destroyed included at least one fire vehicle, it was not trivial.   accidents both on U.S. Route 51 and at the U.S. Route 51 rest
Second, the HFD charged $500 to out-of-state insurance              area. The HFD’s role in extinguishing fires, saving lives, and
companies for fighting fires outside of the Henning city            keeping U.S. Route 51 clear impacts interstate commerce.
limits, although it only did so a few times annually. Third,        The HFD protects passenger vehicles carrying tourists and
the HFD paid its volunteers wages based on the amount of            travelers voyaging through western Tennessee, it safeguards
time spent on a fire scene, although these wages generally          the interstate shipments of goods, and it permits the freeflow
have not exceeded $1000 annually.
  On their own, these first three factors may not form an
adequate nexus to interstate commerce under Jones. If the
purchase of equipment from out-of-state were the only link
between the HFS and interstate commerce, the dissent might
                                                                         13
be right that this case is easier than, or at least as easy as,             The town of Henning is the site of the Alex Haley Museum, several
Jones given that the acquisition of a mortgage, natural gas,        antique shop s, a restaurant, two beau ty salons, two grocery stores, a bank
and insurance from out-of-state providers was the extent of         branch, an auto parts store, twenty churches, 161 renter-occupied housing
                                                                    units, and a clothing manu facturer that employed seventy-five peo ple in
the interstate commerce connection in Jones. The dissent’s          2002.
No. 02-5185                              United States v. Laton           25     26   United States v. Laton                      No. 02-5185

of trucks and buses through the area.14 The HFD’s                                more than passive or passing. Taken together, along with the
firefighting capabilities in this regard affect interstate                       first three factors, they show that the connection of the HFS
commerce, because insuring that the channels of commerce                         to interstate commerce resembles the links between interstate
are kept open and the instrumentalities of commerce are                          commerce and the church in Rayborn, the dormitory in
protected is not a passive or passing connection to interstate                   Sherlin, and the police car in Bellflower. The HFS and the
commerce.                                                                        HFD have a definite impact upon the economy of Henning
                                                                                 that is no less significant than a church purchasing radio time
  Sixth, and finally, the presence of the HFS and the HFD                        or a nonprofit college attracting students from other states.
impacts insurance rates in Henning. The absence of the HFS,                      The HFS permits local businesses to operate, enables the free
and the impact on the HFD’s competency that is wrought by                        flow of goods and passengers through the state of Tennessee,
the loss of the HFS, directly alters the PPC, which helps                        lowers the costs of doing business by decreasing fire
insurance companies calculate fire insurance premiums. As                        insurance premiums, and directly engages in commercial
a result of the fire, Henning will have a worse PPC, and                         transactions, in a more minor way, through the purchase of
insurance premiums will rise. The presence of an active fire                     supplies and the billing of insurance companies.
department in Henning thus significantly impacts the                             Accordingly, any rational juror could conclude beyond a
insurance rates of all the businesses (and homes) in Henning,                    reasonable doubt that the jurisdictional element was met here
which in turn influences the commercial transactions of those                    because the HFS is actively used in an activity that affects
businesses, both in the sense of their relationships to their                    interstate commerce.
insurers and their profit margins.15
                                                                                                     III. CONCLUSION
   Any of these last three factors by itself demonstrates
sufficiently that the HFS was used in an activity that affected                    Because we conclude that both parts of the Jones test have
interstate commerce, because its connection to commerce was                      been satisfied, we hold that there is sufficient evidence to
                                                                                 support the indictment as the HFS was used in an activity
                                                                                 affecting interstate commerce. We thus REVERSE the
    14                                                                           judgment of the district court and REMAND for further
       Not only commercial shipping and passenger vehicles pass through
Henning, but also passenger buses ope rated by Greyhound, In c., shuttle
                                                                                 proceedings under § 844(i) consistent with this opinion.
between Mem phis and Dyersburg (and to points further south and north).
Additiona lly, active railroad tracks owned by the Illinois Central Railroad
run para llel to U.S. Route 51 through Henning. Freight trains frequent
these tracks and AMT RAK runs passenger service along this route,
connecting Chicago to New Orleans, with stop s in Dye rsburg to the north
and Me mphis to the south. Any fire emergency in Henning involving a
bus or a train would require the assistance of the HFD.

    15
       W e do not conclude in this opinion that because every
com munity’s PPC depends on the training and geographic distribution of
fire companies, all fire stations are automatically used in an activity
affecting interstate commerce. Given Congress’s explicit instruction that
the application of § 844(i) depends on the specific circumstances of a
particular fire station, we limit our analysis to the fire station in Henning.
No. 02-5185                      United States v. Laton     27    28   United States v. Laton                       No. 02-5185

                     _______________                              a passive, passing, or past connection to commerce.” Id. at
                                                                  855. Fire stations are no more “active[ly]” used for
                        DISSENT                                   “commercial purposes” than residential homes are. In point
                     _______________                              of fact, this would seem to be the easier case—as firefighting
                                                                  represents the epitome of an unbargaining public service and
  SUTTON, Circuit Judge, dissenting.                              the arsonist in this instance represents the epitome of a local
                                                                  public official. To conclude otherwise is to embrace the view
  “Some say the world will end in fire, Some say in ice.”         that even the most attenuated connections to commerce will
Robert Frost, Fire and Ice, in The Poetry of Robert Frost 220     suffice in prosecuting individuals under this statute, a
(Edward Connery Lathem ed., 2002). From what the 970              perspective that by my reading of Jones is no longer an option
residents of Henning, Tennessee have seen of John Laton,          for the lower courts. For these reasons and those elaborated
their fire chief, one could certainly understand why they         below, I would affirm the judgment of the district court
would “hold with those who favor fire.” Id.                       dismissing this case.
   Yet the incompatibility of this crime with this alleged                                       I.
criminal merely serves as a prelude to other oddities of this
case. Consider what happened after the fire chief set fire to       On March 3, 2000, John Laton allegedly set fire to the
the Henning Fire Station. While arson is a state-law felony in    Henning, Tennessee Fire Station. At the time, Laton served
Tennessee, as in all States, neither the local prosecutors nor    as the Chief of the Henning Volunteer Fire Department, a city
the Attorney General of Tennessee indicted this defendant.        government position. Henning, Tenn. Mun. Code §§ 7-301,
While the federal crime of arson applies just to property “used   7-305. Under Tennessee law and the Henning Municipal
in” interstate commerce, 18 U.S.C. § 844(i), the National         Code, Laton’s job qualified him as a state officer, specifically
Government indicted this defendant for destroying a building      an assistant to the state fire marshal, subject to all of the
that has a uniquely public, non-commercial and sovereign          duties and obligations imposed on state officers under
purpose. And while the United States acknowledged at oral         Tennessee’s fire-prevention laws. Tenn. Code Ann. § 68-
argument that it was not aware of a single other prosecution      102-108; Henning, Tenn. Mun. Code § 7-308.
under § 844(i) for the arson of a local public building, the
United States Attorney for the Western District of Tennessee         Henning is a small rural town located in western Tennessee.
invoked this statute in response to the destruction of a rural    It has a population of 970 and sits in Lauderdale County
fire department by a local fire chief.                            (population 27,101). U.S. Census Bureau, Census 2000,
                                                                  Table DP-1. Henning lies about fifty miles north of Memphis
  This case, however, is not just unusual as a matter of fact,    and can be found at the crossroads of State Routes 87 and
law, or history; it is also unusual as a matter of precedent.     209. (The author Alex Haley grew up in Henning.)
Three Terms ago, in a 9-0 decision, the United States
Supreme Court held that § 844(i) does not apply to the              On September 18, 2001, a federal grand jury indicted Laton
burning of residential homes. Jones v. United States, 529         for arson in violation of 18 U.S.C. § 844(i). Laton moved to
U.S. 848 (2000). In doing so, the Court made clear that the       dismiss the indictment, arguing that § 844(i) did not
provision applies only to the destruction of buildings with an    encompass this incident because the Henning Fire Station was
“active employment for commercial purposes, and not merely        not “used in” interstate commerce or a commerce-affecting
No. 02-5185                      United States v. Laton    29    30   United States v. Laton                       No. 02-5185

activity. Before ruling on Laton’s motion, the district court    According to the Municipal Code, the mayor and aldermen
received a stipulation from the parties agreeing on several      determine the compensation for Fire Department personnel.
pertinent facts.                                                 Henning, Tenn. Mun. Code § 7-305.
  The stipulation contains few surprises. The parties agree,       The parties lastly agree about the general economic impact
for example, that the function of the Fire Station building is   of the loss of a fire station. In calculating property-insurance
to “house[] the fire fighting equipment including trucks, as     premiums, virtually all insurers of homes and businesses use
well as the office, kitchen and meeting spaces for the Henning   a designation made by the Insurance Services Office called
Volunteer Fire Department.” The Henning Municipal Code           the Public Protection Classification (PPC). A community’s
adds that “[a]ll [such] apparatus, equipment, and supplies”      PPC depends on the ability of fire departments to respond to
must be “purchased by or through the town” and “remain the       calls. Property owners in areas with no fire service receive
property of the town.” Henning, Tenn. Mun. Code § 7-301.         the highest PPC, and they accordingly pay substantially
                                                                 higher premiums than those paid by similarly-situated
   The parties agree that the Fire Department responds to        property owners who live in areas with a lower PPC.
firefighting calls in a rural area of Tennessee that includes
numerous residences, churches, public buildings, several           The district court granted Laton’s motion to dismiss the
businesses and one U.S. highway. In some instances, the Fire     indictment. In doing so, the court concluded that the Henning
Department has provided emergency services to vehicles on        Fire Station is not “used in” interstate commerce or in “an
fire and/or involved in accidents on the highway.                activity affecting interstate commerce,” but is used for the
                                                                 non-commercial purpose of housing the City’s Fire
   The parties agree that the Fire Department has occasional     Department. To the extent that the activities of the Fire
connections to three types of economic transactions. First,      Department have any effects on commerce—through
the Department has purchased equipment from, and had             responding to fires, purchasing fire equipment, paying wages,
equipment repaired by, out-of-state vendors. Second, the         receiving fees or affecting insurance rates—the district court
Department charges a fee when it responds to calls outside the   added that they are merely “incidental” and “passive, at best.”
city limits, which it does on average no more than three times   That attenuated connection to interstate commerce, the court
a year. According to the Henning Municipal Code, the Fire        concluded, did not suffice to bring this arson within the
Department responds to such calls only when a fire outside       compass of § 844(i) or of the Supreme Court’s recent
the city limits threatens property within the city limits or     interpretation of the provision in Jones v. United States, 529
when the mayor and aldermen grant the Fire Department            U.S. 848 (2000).
permission to respond to the call. Henning, Tenn. Mun. Code
§ 7-307. City employees working at City Hall bill these fees,                                  II.
which amounted to $300 per call in March 2000, and have on
occasion billed these fees directly to out-of-state insurance      The text of the statute does not provide a natural home for
companies. The total amount billed in a year, the parties        this prosecution. Section 844(i) provides in pertinent part:
agree, does not exceed $1,000. Third, the City of Henning        “Whoever maliciously damages or destroys, or attempts to
pays wages to the “volunteer” fire fighters based on the         damage or destroy, by means of fire or an explosive, any
amount of time they spend at the scene of a fire. Total wages    building, vehicle, or other real or personal property used in
paid by the City in a typical year do not exceed $1,000.         interstate commerce or foreign commerce or in any activity
No. 02-5185                           United States v. Laton   31    32   United States v. Laton                     No. 02-5185

affecting interstate or foreign commerce shall be imprisoned           In determining whether an alleged arson fits within the
. . . .” 18 U.S.C. § 844(i).                                         terms of the statute, Jones instructs lower courts to ask (and
                                                                     answer) two questions. First, a court must determine “‘the
   By its terms, § 844(i) combines a broad grant of statutory        function of the building itself.’” Id. at 854 (quoting United
authority (to federalize the arson of “any” property) with a         States v. Ryan, 9 F.3d 660, 675 (8th Cir. 1993) (Arnold, C.J.,
broad limitation on that language (to do so only with respect        concurring in part and dissenting in part)). Second, a court
to property “used [1] in interstate or foreign commerce or [2]       must “‘determin[e] whether that function affects interstate
in an activity affecting interstate or foreign commerce”).           commerce,’” id., mindful that this requires “active
Congress defines “interstate or foreign commerce” for these          employment for commercial purposes, and not merely a
purposes to mean “commerce between any place in a State              passive, passing, or past connection to commerce,” id. at 855
and any place outside of that State, or . . . between places         (emphasis added).
within the same State but through any place outside of that
State.” 18 U.S.C. § 841(b).                                             The burning of the Henning Fire Station does not satisfy
                                                                     these requirements. Viewed from any angle, the Fire Station
   As commonly understood, these words do not cover the              served sovereign rather than commercial ends. The Fire
arson of a rural fire station by a local fire chief. Fire stations   Station constitutes municipal real property (a building and
are not naturally referred to as property used in interstate         land), used to store municipal personal property (firefighting
commerce or in commerce-affecting activity. By everyday              equipment), deployed by a municipal entity (the Fire
standards of language, common sense and tradition, local             Department), to perform a uniquely municipal function
governments build fire stations to put out fires and save lives,     (firefighting). Local governments simply do not “sell” fire
activities that serve distinctly intrastate public-safety            services “in the ordinary commercial sense.” Cleveland v.
objectives, not interstate commercial ends.                          United States, 531 U.S. 12, 23–24 (2000) (a State “does not
                                                                     ‘sell’ video poker licenses in the ordinary commercial sense”
                               III.                                  and a State’s interest in them “surely implicates the
                                                                     Government’s role as sovereign, not as property holder”).
  Precedent reinforces this conclusion. Three years ago,             They instead provide an eminently useful, sovereign and
Jones v. United States, 529 U.S. 848 (2000), construed the           necessary public service. Id.; see also Goldstein v. Chestnut
same statute and determined that it does not apply to a typical      Ridge Volunteer Fire Co., 218 F.3d 337, 344, 348 (4th Cir.
private residence. Id. at 850–51.                                    2000) (stating that “it is difficult to conceive of a service
                                                                     associated more closely with the state than the provision of
   The Court initially explained that Congress did not “invoke       fire protection services,” and holding that a Maryland
its full authority under the Commerce Clause” in enacting            volunteer fire department that was formed as a non-profit
§ 844(i). Id. at 854. While Congress might have “‘define[d]          corporation is a state actor for § 1983 purposes); Tenn. Code
the crime . . . as the [destruction] of a building whose damage      Ann. § 29-20-102(3)(A) (for purposes of governmental
or destruction might affect interstate commerce,’” it instead        immunity, the term “governmental entity” includes
required “‘that the damaged or destroyed property . . . itself       “municipalit[ies]” and “nonprofit volunteer fire department[s]
have been used in commerce or in an activity affecting               receiving funds appropriated by . . . a municipality”); cf.
commerce.’” Id. at 854 (quoting United States v. Mennuti,            United States v. Monholland, 607 F.2d 1311, 1316 (10th Cir.
639 F.2d 107, 110 (2d Cir. 1981) (Friendly, J.)).                    1979) (rejecting the argument that a pickup truck used by a
No. 02-5185                      United States v. Laton     33    34   United States v. Laton                       No. 02-5185

state court judge to drive back and forth from court was used                                   IV.
in a commerce-affecting activity just because state court
proceedings may have some effect on commerce).                                                  A.

   That the Fire Station served sovereign rather than               Other interpretive guidelines, each of which Jones endorsed
commercial objectives should be dispositive here. For while       in construing § 844(i), point to the same conclusion. In
§ 844(i) does not necessarily require the property at issue to    determining whether a federal criminal statute applies to the
be used for an interstate purpose, it does require the property   arson of a local public building by a local public official,
to be used for a commercial purpose. Only buildings, Jones        Jones reminds us that we do so in the shadow of several
instructs, “active[ly] employ[ed] for commercial purposes,”       constitutional considerations. First of all, “where a statute is
529 U.S. at 855, “affect[] interstate or foreign commerce”        susceptible of two constructions, by one of which grave and
within the meaning of § 844(i). Buildings offered for rent and    doubtful constitutional questions arise and by the other of
those from which goods and services are sold fall within          which such questions are avoided, [a court’s] duty is to adopt
§ 844(i)’s compass because they serve commercial purposes,        the latter.” Jones, 529 U.S. at 857 (quotation omitted). See
whether or not the commercial enterprises that use them have      also United States v. Bass, 404 U.S. 336, 349 (1971)
a profit motive. Russell v. United States, 471 U.S. 858, 862      (applying this principle, as in Jones, to a setting where one
(1985) (rental property); United States v. Rayborn, 312 F.3d      construction of a statute would “define as a federal crime
229, 234 (6th Cir. 2002) (church building used to record radio    conduct readily denounced as criminal by the States”). In
messages to be broadcast out of state on commercial radio);       applying this constitutional-avoidance principle to the arson
United States v. Sherlin, 67 F.3d 1208, 1213 (6th Cir. 1995)      of a private residence, Jones emphasized “that the area was
(private college dormitory); United States v. Terry, 257 F.3d     one of traditional state concern and that the legislation [was]
366, 369–70 (4th Cir. 2001) (church building with daycare         aimed at activity in which neither the actors nor their conduct
center); cf. Camps Newfound/Owatanna, Inc. v. Town of             has a commercial character.” 529 U.S. at 858 (citation and
Harrison, 520 U.S. 564, 584 (1997) (holding that the dormant      quotation omitted). See United States v. Lopez, 514 U.S. 549,
Commerce Clause applies to the not-for-profit sector of the       567 (1995) (holding that the Gun-Free School Zone Act
economy). But see United States v. Lamont, 330 F.3d 1249,         exceeds Congress’s authority to regulate commerce).
1259 (9th Cir. 2003) (Reinhardt, J.) (church building “used
. . . in ordinary religious activities” is not covered); United      Jones likewise teaches that federal courts should not
States v. Rea, 300 F.3d 952, 962 (8th Cir. 2002) (church          casually read a statute in a way that alters the federal-state
annex with de minimis commercial functions is not covered).       balance. When the National Legislature wishes to regulate an
In marked contrast to the activities at issue in every one of     area traditionally regulated exclusively by the States, it must
these cases, governmental buildings in general and local fire     “convey[] its purpose clearly.” Jones, 529 U.S. at 858
stations in particular are not “active[ly] employ[ed] for         (citation and quotation omitted). In Jones, a unanimous Court
commercial purposes.” Jones, 529 U.S. at 855.                     held that Congress had not clearly conveyed a desire to
                                                                  criminalize the arson of a private dwelling. Id. Not long after
                                                                  Jones, Cleveland v. United States, 531 U.S. 12 (2000),
                                                                  reached a similar conclusion in construing the mail-fraud
                                                                  statute. There, the Court (again unanimously) declined to
                                                                  “approve a sweeping expansion of federal criminal
No. 02-5185                       United States v. Laton      35    36    United States v. Laton                       No. 02-5185

jurisdiction in the absence of a clear statement by Congress”       a limited one. Not until 1982 did Congress enact the first
and refused to extend the statute to cover “a wide range of         federal law prohibiting the arson of a “building” “by fire.”
conduct traditionally regulated by state and local authorities.”    See Jones, 59 U.S. at 852–53 & n.4.
Id. at 24. See id. at 27 (“Absent clear statement by Congress,
we will not read the mail fraud statute to place under federal         Indeed, this case appears to be not just an awkward exercise
superintendence a vast array of conduct traditionally policed       of federal power, but a nearly unprecedented one. At oral
by the States.”). See also Gregory v. Ashcroft, 501 U.S. 452,       argument, counsel for the Federal Government could not
467 (1991) (“We will not read the ADEA to cover state               identify a single other federal prosecution for arson of a
judges unless Congress made it clear that judges are                governmental building under this provision. The majority
included.”).                                                        cites a single unpublished decision, United States v.
                                                                    Woodward, No. 93-3123, 1993 WL 498178 (10th Cir. Dec. 2,
  Jones finally explains that these rules have special              1993), decided before Jones, to counter this admission. But
application in the context of criminal statutes. “[W]hen            Woodward, which concerned an arson arising from a botched
choice has to be made between two readings of what conduct          robbery, does not address any of the issues raised here or in
Congress has made a crime,” courts should not “choose the           Jones. Even the most charitable reading of Woodward, at any
harsher alternative . . . [unless] Congress [has] spoken in         rate, suggests that it is a solitary and unexplained exception to
language that is clear and definite,” and, accordingly, any         the traditional rule that the Federal Government does not
“ambiguity . . . should be resolved in favor of lenity.” Jones,     construe § 844(i) as applying to the arson of government
529 U.S. at 858; see Cleveland, 531 U.S. at 26 (“[W]e decline       buildings and as displacing the criminal-law choices of local
to attribute to [the mail-fraud statute] a purpose so               governments in this area.
encompassing where Congress has not made such a design
clear.”); id. at 25 (“[T]o the extent that the word ‘property’ is      In contrast to the minimal federal interests in this case, the
ambiguous . . . , we have instructed that ‘ambiguity                state interests would seem to be at their apex. Surely the
concerning the ambit of criminal statutes should be resolved        commission of “a paradigmatic common-law” crime (Jones,
in favor of lenity.’”) (quoting Rewis v. United States, 401         529 U.S. at 858) by a Henning official involving Henning
U.S. 808, 812 (1971)); Bass, 404 U.S. at 348 (“This policy          property is a matter traditionally taken up, if not in Henning,
embodies ‘the instinctive distastes against men languishing in      at least in Nashville. Tennessee imposes criminal sanctions
prison unless the lawmaker has clearly said they should.’”)         on state fire officials (such as the Chief) who fail in their
(quoting H. Friendly, Mr. Justice Frankfurter and the               official duties. Tenn. Code Ann. § 68-102-139. And
Reading of Statutes, in Benchmarks 196, 209 (1967)).                Tennessee, of course, makes arson a felony. Id. § 39-14-301.
                                                                    That there is friction between the policy choices of the
  These principles assuredly apply here. “[A]rson,” Jones           National Legislature and the Tennessee Legislature over the
reminds us, “is a paradigmatic common-law state crime.” 529         appropriate criminal sanction for this felony only underscores
U.S. at 858. It is a felony in all States, and that has been true   the sensitivity of the issue and the inter-branch tension raised
since colonial days. See John Panneton, Federalizing Fires:         by the United States’ position. Compare 18 U.S.C. § 844(i)
The Evolving Federal Response To Arson Related Crimes, 23           (providing for a five-year minimum sentence and twenty-year
Am. Crim. L. Rev. 151, 151 (1985). See generally Arthur F.          maximum sentence under these circumstances), with Tenn.
Curtis, A Treatise on the Law of Arson (1936). And the              Code Ann. §§ 39-14-301(b)(1), 40-35-111(b)(3) (providing
Federal Government’s role in this area historically has been        for a shorter three-year minimum sentence and fifteen-year
No. 02-5185                       United States v. Laton     37    38   United States v. Laton                       No. 02-5185

maximum sentence under these circumstances). See Jones,            has questioned the ability of local prosecutors to enforce state
529 U.S. at 859–60 (Stevens, J., concurring, joined by             law in this area. No one has questioned Tennessee’s ability
Thomas, J.) (such a disparity “illustrates how a criminal law      adequately to investigate and prosecute a local arsonist at the
like this may effectively displace a policy choice made by the     state level, if for some reason it cannot be done at the local
State” and, for this reason, courts “should interpret narrowly     level. See Tenn. Code Ann. § 8-7-106(b)(4) (permitting a
federal criminal laws that overlap with state authority unless     district attorney to “specially appoint” the state attorney
congressional intention to assert its jurisdiction is plain”).     general “to conduct specific criminal proceedings”); Tenn.
The Federal Government’s policy choice to authorize a 5–20         Const. art. VI, § 5 (permitting a court to appoint a special
year sentence for this crime effectively displaces the State’s     prosecutor if the district attorney fails to prosecute). And,
policy choice to authorize a 3–15 year sentence for the same       consistent with the United States Attorneys’ Manual, no one
crime, and that is true whether the State opts not to prosecute    has identified a “specific Federal interest” in this case, just
Laton in the future or exercises its discretion to prosecute him   exceedingly local ones.
under state law as well (and potentially create an 8–35 year
sentence). See Heath v. Alabama, 474 U.S. 82, 93 (1985)                                          B.
(holding that a double jeopardy violation does not result from
prosecutions by different sovereigns arising from the same            Because the National Government seeks to apply § 844(i)
act).                                                              to a traditional state-law crime in a setting where no apparent
                                                                   federal interest exists, Jones requires the Government to show
   The Federal Government’s own prior guidance in this area        that the provision unambiguously extends to this arson. It has
to United States Attorneys shows respect for many of these         not done so.
concerns. The Department of Justice recognizes that
Congress intended “Restraint in [the] Exercise of Federal            First, the arson of a local fire station does not naturally—or
Jurisdiction” under this statute. 9 United States Attorneys’       plainly—cover a building “used in interstate commerce” or
Manual § 63.902 (Mar. 2001). When Congress enacted the             commerce-affecting activity. 18 U.S.C. § 844(i). Still less
federal explosives statute in 1970, and amended it to cover        does such an arson concern a building with an “active
arson by fire in 1982, it made clear that “[n]o provision of       employment for commercial purposes.” Jones, 529 U.S. at
[the statute] shall be construed as indicating an intent on the    855. But even if one disagrees with this analysis, the best that
part of Congress to occupy the field in which such provision       can be said in response is that the provision remains
operates to the exclusion of the law of any State on the same      ambiguous about its extension to the arson of a fire station.
subject matter.” 18 U.S.C. § 848. The Criminal Division of         And that conclusion requires the application of the Jones
the Justice Department “interprets [this provision] as a           default principles and the narrowing interpretation that they
statement of congressional intent that the Federal                 compel.
government—absent a specific Federal interest—will not
become involved in bombing matters that can be adequately            Second, Congress does not generally regulate governmental
investigated and prosecuted by local authorities.” 9 United        entities in such an opaque manner. Instead of casting a wide
States Attorneys’ Manual § 63.902 (emphasis added).                net of regulation, indirectly picking up local governmental
                                                                   activities that happen to be involved in interstate commerce
  In view of this guidance, the Federal Government’s               while leaving out those that happen not to be, Congress
decision to prosecute here is difficult to understand. No one      generally regulates its sovereign sisters with much greater
No. 02-5185                       United States v. Laton      39    40    United States v. Laton                        No. 02-5185

specificity—either by regulating them by name or by                 governments. See 18 U.S.C. § 844(f)(1) (“Whoever
referring directly to entities that receive federal funds.          maliciously damages or destroys . . . by means of fire or an
Several other statutes (too many, in fact, to list) demonstrate     explosive, any building . . . owned or possessed by . . . the
that when Congress wishes to regulate sovereign activities or       United States, or any department or agency thereof, or any
property, it tends to say so far more explicitly. See, e.g., Fair   institution or organization receiving Federal financial
Labor Standards Act, 29 U.S.C. §§ 203(d) (“‘Employer’ . . .         assistance, shall be imprisoned.”). If it is true that a statute is
includes a public agency.”), 203(r)(2) (“For purposes of            “known by the company it keeps,” Gustafson v. Alloyd Co.,
[defining ‘enterprise’], the activities performed by any person     513 U.S. 561, 575 (1995), then § 844(f) illustrates that
or persons . . . in connection with the activities of a public      Congress knew how to criminalize the destruction of all
agency shall be deemed to be activities performed for a             manner of public buildings when it wished to do so and
business purpose.”), 203(e)(2) (“In the case of an individual       suggests that § 844(i) was designed to reach commercial
employed by a public agency, such term [‘employee’] means           rather than governmental buildings. Nor, in view of the
. . . any individual employed by a State, political subdivision     United States’ sweeping construction of § 844(i), which
of a State, or an interstate governmental agency . . . .”),         would cover all governmental buildings, does the prohibition
216(b) (providing for enforcement against “any employer             of burning federal governmental buildings in § 844(f)(1) have
(including a public agency)”); Age Discrimination in                any independent office. We generally construe statutes to
Employment Act, 29 U.S.C. § 630(b) (“‘[E]mployer’ means             avoid such redundancy, not accentuate it. See, e.g., Jones,
. . . a State or political subdivision of a State.”); Family and    529 U.S. at 857; Kungys v. United States, 485 U.S. 759, 778
Medical Leave Act, 29 U.S.C. §§ 2611(4)(A) (“‘[E]mployer’           (1988).
. . . includes any public agency.”); 2611(4)(B) (“For [these
purposes], a public agency shall be considered to be a person          All of this goes to prove one point. If it is true that federal
engaged in commerce or in an industry or activity affecting         regulation of the arson of a private home implicates these
commerce.”). Against this legislative backdrop, Congress’s          three expectations of clarity (constitutional avoidance,
decision not to mention governmental property more                  alteration of the federal-state balance, and the rule of lenity),
specifically in § 844(i) at a minimum establishes ambiguity         as Jones holds, then assuredly the torching of the local fire
about the scope of the provision. See generally Cleveland,          station does so as well. For here we have not just a matter of
531 U.S. at 23–25 (concluding that the mail-fraud statute,          traditional local concern (arson), but two other factors as
which covers “property” obtained by “fraudulent pretenses,”         well—property uniquely amenable to local regulation (a city
18 U.S.C. § 1341, does not apply to a State’s sales of video        building) and an actor (the fire chief) uniquely at the beck and
poker licenses because, among other reasons, the meaning of         call of the local citizenry. Jones, in short, was the harder
“property” is “ambiguous” in this setting).                         case. And if Jones applied each of these ambiguity default
                                                                    principles, then I would do so as well. In this instance, the
  Third, § 844 itself confirms that Congress knew how to            application of those principles all points in one direction: A
distinguish between eminently sovereign activities and run-         federal arson statute that does not mention public buildings by
of-the-mine commercial activities. One of the statutory             name, that is juxtaposed with a provision that does mention
neighbors to § 844(i) specifically criminalizes arson of certain    public buildings by name, and that requires the public
governmental buildings—all buildings occupied by the                property to be actively used for commercial purposes does not
Federal Government or those occupied by entities receiving          unambiguously cover the burning of a local fire station by the
federal assistance, which will frequently be local                  local fire chief.
No. 02-5185                        United States v. Laton   41    42    United States v. Laton                       No. 02-5185

                              V.                                  does not ‘sell’ video poker licenses in the ordinary
                                                                  commercial sense.”). That is especially true when the
   In the face of these considerations, the United States         revenue arrives, as here, after the fact. See id. at 22 (“The
counters that at least some activities that take place at the     State receives the lion’s share of its expected revenue . . . only
Henning Fire Station are commercial in nature and that these      after [the licenses] have been issued to licensees.”). No one
activities suffice to legitimate this prosecution. The Federal    suggests that the Fire Department would decline to extinguish
Government cites three activities in particular: (1) that the     a fire until and unless the fee was paid. Firefighters do not
Fire Department sometimes purchases equipment from, or has        haggle over fees. In this instance, in fact, they are not even
equipment repaired by, out-of-state vendors; (2) that the Fire    the ones who charge the fee; it is billed by City Hall.
Department charges a $300 fee (billed through City Hall) on
the few occasions each year when it responds to a call outside      At all events, this argument proves too much. Were the
city limits; and (3) that the City of Henning pays wages to the   collection of revenue sufficient to trigger § 844(i), then
“volunteer” fire fighters based on the amount of time they        presumably tax collection would suffice as well, leaving no
spend at a fire scene.                                            public property untouched. And the separate provision
                                                                  covering buildings occupied by entities “receiving Federal
  The Fire Department’s purchases and repairs do not              assistance,” 18 U.S.C. § 844(f), “would have no office,”
advance the United States’ position. A fire station is no more    Jones, 529 U.S. at 857, because receiving a federal grant is an
“used” in the “activity” of purchasing interstate fire            economic transaction. “‘Judges should hesitate . . . to treat
equipment than a residence is used in the activity of             statutory terms in any setting as [surplusage],’” Jones
purchasing interstate natural gas, mortgages, or                  instructs, “‘and resistance should be heightened when the
insurance—all activities that the Court rejected as               words describe the element of a criminal offense.’” Id. at 857
jurisdictional hooks in Jones. See 529 U.S. at 856.               (quoting Ratzlaf v. United States, 510 U.S. 135, 140–41
                                                                  (1994)).
  Neither does the fee occasionally charged by the Fire
Department support this prosecution. The size of the fee             The Federal Government’s reliance on the fact that the
($300) and the infrequency with which it is charged (one to       Henning Fire Department occasionally “pays wages” to its
three times per year, when the Department responds to fires       “volunteer” firefighters fails for much the same reason.
outside town limits) hardly suggest active employment for         Congress, to be sure, may as a matter of power regulate the
commercial purposes—which is what Jones requires. If de           wages paid to firefighters, which is itself an economic
minimis activity of this sort transformed every governmental      transaction. See Garcia v. San Antonio Metro. Transit Auth.,
building into one used for commercial purposes, then all          469 U.S. 528, 555–56 (1985). But that does not mean
public property in this country would be one bake sale away       Congress sought in this instance to regulate criminal conduct
from federal jurisdiction. No fair reading of the statute         with respect to the buildings that house firefighters or sought
suggests that this is what Congress meant to do.                  to do so on this basis. Teachers also receive wages, but that
                                                                  does not necessarily permit Congress to make possessing a
  More importantly, a State does not engage in traditional        gun in a school zone a federal crime. See Lopez, 514 U.S. at
commercial activities every time it receives a sum of money       567. Indeed, if federal wage-and-hour laws have any
in exchange for something or for that matter any time it          relevance in this context, it is to show that Congress views
imposes a tax. See Cleveland, 531 U.S. at 23 (“Louisiana . . .    firefighting and the nominal wages paid by the government to
No. 02-5185                       United States v. Laton     43    44   United States v. Laton                       No. 02-5185

these volunteers differently from ordinary commerce. See           “active[ly] employ[ed]” in commerce, id. at 855—cannot be
Fair Labor Standards Act, 29 U.S.C. §§ 203(e)(4)(A)                squared with the United States’ reliance on the economic
(exempting individuals who volunteer to serve a public             impact of destroying the building or on the non-commercial
agency even when paid “nominal” wages), 207(k) (exempting          activity (fighting fires) performed by the occupants of the
firefighters from the Act’s overtime provisions).                  building.
   Nor, for similar reasons, does it make any difference that         But, perhaps most critically, this argument has no logical
fire stations house fire trucks, which (like police cars) may be   stopping point. All governmental services affect commerce
used in interstate commerce and indeed are instrumentalities       at some level, whether those services are legislative,
of interstate commerce. See Belflower v. United States, 129        executive or judicial. Asked at oral argument to identify a
F.3d 1459, 1462 (11th Cir. 1997) (concluding that § 844(i)         single governmental building beyond the reach of § 844(i)
covered the bombing of a police car). See also Lopez, 514          under the Government’s theory, counsel for the United States
U.S. at 558 (“Congress is empowered to regulate and protect        could not name one. Whether the state building at issue
the instrumentalities of interstate commerce, or persons or        houses the Department of Commerce or the Ministry of
things in interstate commerce, even though the threat may          Uneconomic Affairs, it would seem, makes no difference.
come only from intrastate activites.”); United States v.           Either way, what goes on there first and foremost is a public
McHenry, 97 F.3d 125, 126 (6th Cir. 1996) (“[C]ars are             and sovereign service, which in the main will rarely (if ever)
themselves instrumentalities of commerce.”) (quotation             be deemed “actively” “commercial” in any traditional sense
omitted). The same of course could have been said in Jones:        of the terms—even if all such activities eventually affect
It is the rare private residence that does not house a car.        commerce in one way or another. It is precisely the role of
                                                                   the clear-statement rules identified above, and applied
   Also unavailing is the United States’ reliance on the           faithfully in Jones, to prevent federal courts from extending
economic impact of a fire station’s destruction—specifically,      the reach of federal criminal statutes on the basis of the kinds
the lower PPC ratings, the higher insurance costs, or the          of attenuated connections to interstate commerce that the
inability to extinguish fires affecting local businesses or        Federal Government has raised here. If the majority is right
(occasionally) burning cars on the highways. Accepting this        that a state liquor store, a state building housing a lottery
position would rewrite the statute to say something that it        commission or a post office building (though a federal
does not. As Jones indicates, Congress did not “define the         building) amounts to a building with an “active[] . . .
crime . . . as the [destruction] of a building whose damage or     commercial purpose,” that is only because the statute
destruction might affect interstate commerce,” but instead         unambiguously covers these properties, not because it
required “that the damaged or destroyed property . . . itself      unambiguously covers an eminently non-commercial fire
have been used in commerce or in an activity affecting             station. At any rate, in view of Jones and Cleveland, 531
commerce.” 529 U.S. at 854 (citation and quotation omitted);       U.S. at 23–24 (a State “does not ‘sell’ video poker licenses in
cf. Lopez, 514 U.S. at 564 (rejecting a “costs of crime”           the ordinary commercial sense” because the activity
rationale for connecting federal legislation banning guns near     “implicates the Government’s role as sovereign”), it seems
schools to interstate commerce). Two of Jones’ overriding          doubtful that the statute unambiguously covers even these
lessons—that § 844(i) does not reach the full extent of            buildings.
Congress’s Commerce Clause powers, 529 U.S. at 854, and
that the statute applies only when the building itself is
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   Neither may one overcome these objections by suggesting         “[l]egislative history generally will be irrelevant.”) (emphasis
that, in the world of case-by-case determinations, the outcome     added); Gregory, 501 U.S. at 470 (equating the clear-
here will be a ticket good for one train and one train only.       statement rule applied in the sovereign immunity context with
Until now, there have been no other trains in the station, so it   the clear-statement rule applied in the context of Commerce
is not clear what the concession concedes. More to the point,      Clause legislation that would alter the federal-state balance);
it still remains to be seen what government buildings              see also Cleveland, 531 U.S. at 24, 27 (requiring a “clear
analytically would not be covered by this type of analysis—as      statement” to extend “federal criminal jurisdiction” to an area
the United States seems to recognize.                              “traditionally policed by the States”).
   One last point deserves mention. The United States also            Second, the use of legislative history to broaden the reach
seeks refuge in the legislative history, relying on an unenacted   of a law seems particularly inappropriate in a setting like this
forerunner to § 844(i), which applied to the destruction of        one—where we have not just the risk of the alteration of the
property used “for business purposes,” and on the statements       federal-state balance and the imperative to avoid
of some legislators that § 844(i) as enacted would cover           constitutional questions but the imposition of a criminal
“police stations.” Congress eventually omitted the words “for      sanction. It stretches the necessary legal fiction that every
business purposes,” and while doing so several House               person knows the law, see McBoyle v. United States, 283 U.S.
members individually explained that the language was               25, 27 (1931), to the breaking point when the unenacted
eliminated because some members were afraid that the statute       views of a handful of legislators (here, for example, a few
would not reach “police stations.” See Explosives Control:         floor statements suggesting that the law covers police
Hearings Before Subcomm. No. 5 of the House Comm. on               stations) become the basis for putting someone behind bars.
Judiciary on H.R. 17154, H.R. 16699, H.R. 18573 and                Because “the rule of lenity ensures that criminal statutes will
Related Proposals, 91st Cong. 33 (1970) (“Hearings”) (Rep.         provide fair warning concerning conduct rendered illegal,”
McCulloch); id. at 56 (Rep. Rodino); id. at 73 (Rep. Polk); id.    Liparota v. United States, 471 U.S. 419, 427 (1985), and
at 79 (Rep. Smith). The United States infers from this             because no one can plausibly conclude that a committee
unenacted legislation and from these statements by individual      report or the floor statements of selected legislators provides
representatives that Congress intended § 844(i) to cover the       such warning, the use of such material seems utterly
arson of city buildings.                                           incompatible with the purposes of the rule or the civilized
                                                                   interests it protects. In at least one opinion, the Supreme
  This argument fails for three reasons. First, when clarity in    Court has said that very thing: “Even were the statutory
the text of a law is required, legislative history by definition   language regarding the scope of a court’s authority to order
cannot supply it. See United States v. Nordic Village, 503         restitution ambiguous, longstanding principles of lenity,
U.S. 30, 37 (1992) (“[L]egislative history has no bearing on       which demand resolution of ambiguities in criminal statutes
the ambiguity point [because] . . . the ‘unequivocal               in favor of the defendant, Simpson v. United States, 435 U.S.
expression’ of elimination of [the United States’] sovereign       6, 14–15 (1978) (applying rule of lenity to federal statute that
immunity that we insist upon is an expression in statutory         would enhance penalty), preclude our resolution of the
text.”); Dellmuth v. Muth, 491 U.S. 223, 230 (1989)                ambiguity against petitioner on the basis of general
(“[E]vidence of congressional intent must be both                  declarations of policy in the statute and legislative history.”
unequivocal and textual” to provide the clarity necessary to       Hughey v. United States, 495 U.S. 411, 422 (1990). While
abrogate a State’s Eleventh Amendment immunity;                    dicta in other cases may suggest a different approach, see
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Moskal v. United States, 498 U.S. 103, 108 (1990), I am            purposes,” Hearings at 30) ostensibly suggesting that no
aware of no decision from our Court or from the United States      business purpose is needed, Jones adopts an “active . . .
Supreme Court that broadens the reach of a criminal statute        commercial purpose[]” test for ascertaining whether § 844(i)
on the basis of legislative history and that does so in spite of   applies, 529 U.S. at 855. And some of the same legislators
these objections. The only Justices of the Supreme Court           who suggested that § 844(i) would cover the arson of a
who have squarely addressed the issue (to my knowledge)            “police station” also suggested that it would cover the arson
have firmly concluded that “it is not consistent with the rule     of a “private home.” Hearings at 56 (Rep. Rodino). See also
of lenity to construe a textually ambiguous penal statute          id. at 289 (Rep. Goldwater) (“this bill should include any
against a criminal defendant on the basis of legislative           building, vehicle or any real property . . . not just
history.” United States v. R.L.C., 503 U.S. 291, 307 (1992)        businesses”); id. at 300–01 (Rep. Wylie) (suggesting that the
(Scalia, J. concurring in part and concurring in the judgment,     bill should cover private dwellings and other property not
joined by Kennedy, J., and Thomas, J.).                            used for business); id. at 304–05 (Rep. Cramer) (“a person
                                                                   has a right to safety and security of his home and to the
   Third, the inference the Federal Government seeks to draw       security of his property”). But Jones of course specifically
from the unenacted version of § 844(i) not only comes from         holds that § 844(i) does not cover private residences.
an inappropriate source but also rests on a discredited
premise. The Supreme Court has frequently rejected                    Because in the end the unbargained-for service of fighting
arguments based on unenacted legislation, noting the               fires is the antithesis of an activity engaged in for an “active
difficulty of determining whether a prior bill prompted            . . . commercial purpose[]” and because Jones has charted a
objections because it went too far or not far enough. See          course that in my view controls us here, I would affirm the
Mead Corp. v. Tilley, 490 U.S. 714, 723 (1989) (“We do not         district court’s judgment. That being a minority view, I
attach decisive significance to the unexplained disappearance      respectfully dissent.
of one word from an unenacted bill because ‘mute
intermediate legislative maneuvers’ are not reliable indicators
of congressional intent.”) (quoting Trailmobile Co. v. Whirls,
331 U.S. 40, 61 (1947)); Puerto Rico Dep’t of Consumer
Affairs v. ISLA Petroleum Corp., 485 U.S. 495, 501 (1988)
(“[U]nenacted approvals, beliefs, and desires are not laws.”).
See also United States v. Granderson, 511 U.S. 39, 69 (1994)
(Kennedy, J., concurring) (“This admonition takes on
particular importance when the Court construes criminal
laws.”).
  All of this perhaps explains why Jones mentions the very
same legislative history that the United States cites here, see
Jones, 529 U.S. at 853 n.5, then proceeds not only to ignore
the alleged inferences created by this history but also
proceeds to contradict them. Thus, while Congress omitted
language proposed in an earlier draft of the bill (“for business
