Amicus Curiae Brief — Terance Martez Gamble, Petitioner v. United States

Supreme Court briefSep 7, 2018

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No. 17-646

IN THE

Supreme Court of the United States

————

TERANCE MARTEZ GAMBLE,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

————

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

————

BRIEF OF AMICUS CURIAE

HOWARD UNIVERSITY SCHOOL OF LAW

THURGOOD MARSHALL CIVIL RIGHTS

CENTER IN SUPPORT OF NEITHER PARTY

————

JUSTIN HANSFORD

Director

HOWARD UNIVERSITY

SCHOOL OF LAW

THURGOOD MARSHALL

CIVIL RIGHTS CENTER

2900 Van Ness St. NW

Washington, D.C. 20008

ADAM HARRIS KURLAND

Counsel of Record

Professor of Law

HOWARD UNIVERSITY

SCHOOL OF LAW

THURGOOD MARSHALL

CIVIL RIGHTS CENTER

2900 Van Ness St. NW

Washington, D.C. 20008

(202) 806-8063

akurland@law.howard.edu

Counsel for Amicus Curiae

September 7, 2018

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

iii

STATEMENT OF INTEREST OF THE

AMICUS CURIAE ...........................................

SUMMARY OF ARGUMENT .............................

ARGUMENT ........................................................

I. A FEDERAL PROSECUTION UNDER

18 U.S.C. § 242 IS NOT THE

“SAME OFFENSE” AS A STATE

HOMICIDE, RECKLESS ENDANGERMENT, ASSAULT, OR OTHER SIMILAR

PROSECUTION........................................

A. The Blockburger Test Would Remain

in Force Even if Dual Sovereignty is

Abolished .............................................

B. Section 242 “Same Offense” Analysis .

C. The Issue Preclusion Component of

Double Jeopardy Does Not Apply to

Successive Inter-Sovereign Prosecutions......................................................

II. CONSTITUTIONAL DOCTRINE SUPPORTS AN INDEPENDENT CIVIL

RIGHTS EXCEPTION TO DOUBLE

JEOPARDY ...............................................

CONCLUSION ....................................................

(i)

TABLE OF CONTENTS—Continued

APPENDIX

Page

Pub. L. No. 103-259, 108 Stat. 694 ................

18 U.S.C. § 241 ...............................................

18 U.S.C. § 245 ...............................................

18 U.S.C. § 247 ...............................................

42 U.S.C. § 3631 .............................................

Fed. R. Evid. 804 (b)(1) ..................................

United States Attorneys Manual § 9-2.031... 3a, 4a

Cal. Penal Code § 149 ....................................

Cal. Penal Code § 187 ....................................

Cal. Penal Code § 422.6 ................................. 4a, 5a

Model Penal Code § 210.1 ..............................

Model Penal Code § 211.2 ..............................

Model Penal Code § 243.1 ..............................

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Albernaz v. United States,

450 U.S. 333 (1981) ...................................

Ashe v. Swenson,

397 U.S. 436 (1970) ................................... 15, 16

Bartkus v. Illinois,

359 U.S. 121 (1959) ................................. 4, 6, 19

Blockburger v. United States,

284 U.S. 299 (1932) ..................................passim

Bond v. United States,

134 S. Ct. 2077 (2014) ...............................

Bravo-Fernandez v. United States,

137 S. Ct. 352 (2016) .................................

Cooper v. California,

386 U.S. 58 (1967) .....................................

Currier v. Virginia,

138 S. Ct. 2144 (2018) ..............................passim

Garrett v. United States,

471 U.S. 773 (1985) ...................................

Grady v. Corbin,

495 U.S. 508 (1990) ...................................

Green v. United States,

355 U.S. 184 (1957) ...................................

Heart of Atlanta Motel, Inc. v. United

States,

379 U.S. 241 (1964) ...................................

Heath v. Alabama,

474 U.S. 82 (1985) ..................................... 4, 19

TABLE OF AUTHORITIES—Continued

Page(s)

Iannelli v. United States,

420 U.S. 770 (1975) ...................................

Martin v. Rose,

481 F.2d 658 (6th Cir. 1973) .....................

Nevada v. Hall,

440 U.S. 410 (1979) ................................... 22, 23

New State Ice Co. v. Liebmann,

285 U.S. 262 (1932) ...................................

Schmuck v. United States,

489 U.S. 705 (1989) ...................................

Standefer v. United States,

447 U.S. 10 (1980) ..................................... 17, 18

State v. Rogers,

566 P.2d 1142 (N.M. 1977) .......................

Terminiello v. Chicago,

337 U.S. 1 (1949) .......................................

United States v. Dixon,

509 U.S. 688 (1993) ................................... 7, 13

United States v. Felix,

503 U.S. 378 (1992) ...................................

United States v. Gillock,

445 U.S. 360 (1980) ...................................

United States v. Guest,

383 U.S. 745 (1966) ...................................

United States v. Hairston,

64 F.3d 491 (9th Cir. 1995) .......................

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Koon,

34 F.3d 1416 (9th Cir. 1994) .....................

United States v. Lanier,

520 U.S. 259 (1997) ...................................

United States v. Lopez,

514 U.S. 549 (1995) ...................................

United States v. Morrison,

529 U.S. 598 (2000) ................................... 9, 23

United States v. Salad,

907 F. Supp. 2d 743 (E.D. Va. 2012) ........

CONSTITUTIONAL AND

STATUTORY AUTHORITIES

U.S. Const. art. I § 8, cl. 3 ............................

U.S. Const. amend. V ...................................

U.S. Const. amend. XIV ..............................passim

Cal. Penal Code § 149...................................

Cal. Penal Code § 422.6 ................................

Model Penal Code § 243.1 ............................

18 U.S.C. § 241 ............................................. 10, 15

18 U.S.C. § 242 ............................................passim

18 U.S.C. § 245 .............................................

18 U.S.C. § 247 .............................................

18 U.S.C. § 248 .............................................

18 U.S.C. § 249 ............................................. 23, 24

TABLE OF AUTHORITIES—Continued

Page(s)

18 U.S.C. § 659 .............................................

42 U.S.C. § 3631 ........................................... 23, 24

FEDERAL RULES AND INTERNAL

DEPARTMENT OF JUSTICE POLICIES

Fed. R. Evid. 804 (b)(1).................................

United States Attorneys’ Manual § 9-2.031...

COURT FILINGS

Brief for Petitioner (Gamble), No. 17-646

(Sept. 4, 2018) ..................................... 4, 7, 9, 15

OTHER AUTHORITIES

Norman Abrams, Sara Sun Beale, & Susan

Riva Klein, Federal Criminal Law and its

Enforcement (6th ed. 2015) ......................

Akhil Reed Amar & Jonathan L. Marcus,

Double Jeopardy Law After Rodney King,

95 Colum. L. Rev. 1 (1995) ................. 11, 21, 22

Michal R. Belknap, Federal Law and

Southern Order: Racial Violence and

Constitutional Conflict in the PostBrown South (1987) ..................................

Michal R. Belknap, The Legal Legacy of

Lemuel Penn, 25 How. L.J. 467 (1982).....

Michal R. Belknap, The Vindication of

Burke Marshall: The Southern Legal

System and the Anti-Civil-Rights Violence

of the 1960s, 33 Emory L.J. 93 (1984) ......

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Christian Farias, Eric Holder Wants to

Lower the Bar for Federal Civil Rights

Prosecutions: That’s Trickier Than it

Sounds., The New Republic, Feb. 27,

2015, https://newrepublic.com/article/12

1177/eric-holder-we-might-lower-bar-civi

l-rights-prosecutions .................................

Eric Foner, Reconstruction: America’s

Unfinished Revolution 1863-1877 (1st

Perennial Lib. ed. 1989)............................

Harlan R. Harrison, Federalism and

Double Jeopardy: A Study in the

Frustration of Human Rights, 17 U.

Miami L. Rev. 306 (1963) .........................

Susan N. Herman, Double Jeopardy All

Over Again: Dual Sovereignty, Rodney

King, and the ACLU, 41 UCLA L. Rev.

609 (1994) ..................................................

Paul Hoffman, Double Jeopardy Wars: The

Case for a Civil Rights “Exception,” 41

UCLA L. Rev. 649 (1994) ..........................

Howard University Mission Statement,

https://www2.howard.edu/about/mission

(last visited Aug. 23, 2018) .......................

Robert Kaczorowski, The Politics of

Judicial Interpretation: The Federal

Courts, Department of Justice and Civil

Rights 1866-1876 (1985) ....................... 9, 10, 12

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Andrew Knapp, Wilson: Feds ignoring S.C.

Roof case Solicitor frustrated over

scheduling conflicts, idea of families

enduring trial during holidays, The

(Charleston) Post and Courier, June 19,

2016, https://www.postandcourier.com/ar

chives/wilson-feds-ignoring-s-c-roof-casesolicitor-frustrated-over/article_9eb4911efe10-5d68-9771-228e4dcc2fe6.html .......... 19, 20

Adam Harris Kurland, Successive Criminal

Prosecutions: The Dual Sovereignty

Exception to Double Jeopardy in State

and Federal Courts (2001) ........................

6, 9

Laurie L. Levenson, The Future of State

and Federal Civil Rights Prosecutions:

The Lessons of the Rodney King Trial, 41

UCLA L. Rev. 509 (1994) .......................... 9, 14

Carolyn Kelly MacWilliam, Annotation,

Conviction or Acquittal in Federal Court

as Bar to Prosecution in State Court for

State Offense Based on Same Facts –

Modern View, 97 A.L.R. 5th 201 (2002) ...

Our History, http://law.howard.edu/con

tent/our-history (last visited Aug. 23,

2018) ..........................................................

Clay Risen, The Bill of the Century: The

Epic Battle for The Civil Rights Act

(2014) .........................................................

TABLE OF AUTHORITIES—Continued

Page(s)

Aric Short, Post-Acquisition Harassment

and the Scope of the Fair Housing Act, 58

Ala. L. Rev. 203 (2006) .............................

Doug Stanglin, Driver accused of plowing

into crowd at Charlottesville rally

charged with hate crimes, USA Today,

June 27, 2018, https://www.usatoday.

com/story/news/2018/06/27/Charlottesvill

e-rally-james-alex-fields-charged-federalhate-crimes/738514002 .............................

The Federalist No. 45 (James Madison) ......

Michael P. Zuckert, A System Without

Precedent: Federalism in the American

Constitution, in The Framing and

Ratification of The Constitution (Levy &

Mahoney ed. 1987) ....................................

STATEMENT OF INTEREST

OF THE AMICUS CURIAE1

Amicus curiae is the Howard University School of

Law Thurgood Marshall Civil Rights Center

(“TMCRC”). Howard University is one of the oldest

historically Black institutions of higher learning in the

United States, established by congressional charter in

1867 in the aftermath of the Civil War. The Law

School, established in 1869, will celebrate its

sesquicentennial in 2019. “In the 20th century, [the

Law School] … emerged as a ‘clinic’ on justice and

injustice in America, as well as a clearinghouse for

information on the civil rights struggle.”2 Consistent

with these principles and the Mission of Howard

University,3 the TMCRC has an interest in the just

Pursuant to Supreme Court Rule 37, this brief is filed with

the written consent of all parties. No counsel for a party authored

this brief in whole or in part and no party or counsel made a

monetary contribution for the preparation or submission of this

brief. No one other than amicus curiae or its counsel made a

monetary contribution to fund the preparation or submission of

this brief.

Our History, http://law.howard.edu/content/our-history (last

visited Aug. 23, 2018).

The Howard University Mission Statement provides:

Howard University, a culturally diverse, comprehensive, research intensive and historically Black private

university, provides an educational experience of

exceptional quality at the undergraduate, graduate,

and professional levels to students of high academic

standing and potential, with particular emphasis

upon educational opportunities for Black students.

Moreover, the University is dedicating to attracting

and sustaining a cadre of faculty who are, through

their teaching, research and service, committed to the

development of distinguished, historically aware, and

compassionate graduates and to the discovery of

and robust enforcement of the federal criminal civil

rights laws. Successive prosecutions are uncommon.

When they do occur, federal criminal civil rights cases

constitute a measurable portion of federal prosecutions occurring after a state prosecution. Resolution

of the continuing validity of the dual sovereignty

doctrine will impact on the future direction and

effectiveness of federal civil rights enforcement. The

TMCRC takes no position on whether the dual

sovereignty doctrine should be overruled. If dual

sovereignty survives, the status quo concerning

federal criminal civil rights enforcement would remain

unchanged. This amicus brief is intended to supplement the principal briefs by providing additional

historical and legal analysis concerning the impact on

federal criminal civil rights enforcement should the

dual sovereignty doctrine be abolished.

SUMMARY OF ARGUMENT

The TMCRC recognizes the significant burdens

associated where an individual is subject to multiple

prosecutions and punishments for the same or similar

underlying conduct.

Most federal criminal civil

rights excessive force prosecutions charge violations of

18 U.S.C. § 242, which concern conduct that is also

prosecutable under numerous state laws. The federal

government possesses the solemn obligation to vigorously enforce the Nation’s civil rights laws, including

the relevant federal criminal civil rights laws.

Consequently, any modification or abolition of the dual

solutions to human problems in the United States and

throughout the world. With an abiding interest in

both domestic and international affairs, the University

is committed to continuing to produce leaders for

America and the global community. https://www2.

howard.edu/about/mission (last visited Aug. 23, 2018).

sovereignty doctrine will necessarily impact the future

direction of federal criminal civil rights enforcement.

Abolishing the dual sovereignty doctrine inevitably

will create some degree of uncertainty concerning the

complex tapestry of double jeopardy doctrine that

would, for the first time, now apply to inter-sovereign

prosecutions. Under Blockburger v. United States,

federal civil rights statutes concerning law enforcement misconduct are not the “same offense” as State

statutes that may cover the same or similar underlying conduct. Thus, overruling dual sovereignty

should not eliminate the federal government’s ability

to prosecute these types of civil rights cases after the

State has previously prosecuted a case that was tried

to verdict.

Additionally, in a criminal case, the government is

often without the kind of “‘full and fair opportunity to

litigate’ that is a prerequisite of estoppel.” The

“collateral estoppel” or “issue preclusion” component of

double jeopardy should not be unnecessarily altered or

otherwise expanded by any decision in this case so as

to adversely bind the federal government, a non-party

in any prior State prosecution, from litigating an issue

purportedly “necessarily resolved” in the defendant’s

favor in a prior State trial.

Finally, the paramount importance of civil rights,

and the fact that the Fourteenth Amendment places

limitations on state action, support a civil rights

“exception” to double jeopardy. If dual sovereignty is

retained, this issue is moot. Although this case does

not concern police misconduct or federal civil rights

enforcement, a decision to abolish dual sovereignty

inevitably will require reexamination of several

interrelated double jeopardy issues that impact on

federal criminal civil rights enforcement. Should the

Court abolish the dual sovereignty doctrine, the

Court’s ratio decidendi should not adversely affect or

otherwise foreshadow any particular outcome when

the framework of a civil rights “exception” ultimately

arises in future litigation.4

The double jeopardy clause is principally designed to prevent

the government with unlimited resources from making “repeated

attempts to convict an individual for an alleged offense, thereby

subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety.” Green v.

United States, 355 U.S. 184, 187-88 (1957). Many commentators

contend that the Framers intended to model double jeopardy

principles after English common law principles, which purportedly did not include dual sovereignty principles.

On the other hand, this Court has held numerous times

that dual sovereignty “finds weighty support in the historical

understanding and political realities of the States’ role in the

federal system.” Heath v. Alabama, 474 U.S. 82, 92 (1985).

Justice Frankfurter dismissed the purported English precedents

as “dubious….because they reflect a power of discretion vested in

English judges not relevant to the constitutional law of our

federalism.” Bartkus v. Illinois, 359 U.S. 121, 128 n.9 (1959); see

also United States v. Gillock, 445 U.S. 360, 369 (1980)(recognizing

“our structure of federalism which had no counterpart in

England”). “Federalism thus appears to have been the issue

around which the controversy over the Constitution turned,”

as the Framers created a unique federalism system “without

precedent.” Michael P. Zuckert, A System Without Precedent:

Federalism in the American Constitution, in The Framing and

Ratification of the Constitution 132 (Levy & Mahoney ed. 1987).

The briefs filed at the certiorari consideration stage and the

Brief for Petitioner (Gamble), No. 17-646 (Sept. 4, 2018), indicate

that the parties will comprehensively address the methodology in

evaluating whether this Court should overrule long standing

precedent. This brief, while taking no position on the fate of dual

sovereignty, focuses on how federal criminal civil rights

enforcement, particularly police brutality prosecutions, could be

affected if dual sovereignty is abolished.

ARGUMENT

I. A FEDERAL PROSECUTION UNDER

18 U.S.C. § 242 IS NOT THE “SAME

OFFENSE” AS A STATE HOMICIDE,

RECKLESS ENDANGERMENT, ASSAULT,

OR OTHER SIMILAR PROSECUTION

A. The Blockburger Test Would Remain in

Force Even if Dual Sovereignty is

Abolished

Many of the most notable successive or dual

criminal prosecutions concern federal civil rights

prosecutions commenced after a state prosecution that

was tried to verdict. For example, United States v.

Guest, 383 U.S. 745 (1966), was a federal prosecution

based on the Georgia murder of American serviceman

Lemuel Penn. A prior state murder prosecution

resulted in an acquittal. Michal R. Belknap, Federal

Law and Southern Order: Racial Violence and

Constitutional Conflict in the Post-Brown South 186189 (1987).5 The murder of civil rights worker Viola

Liuzzo in the aftermath of the Selma to Montgomery

Civil Rights March resulted in state court acquittals.

A subsequent section 241 federal civil rights conspiracy prosecution was successful. Id. at 190-192. More

recently, the Rodney King trials in Los Angeles resulted

in a section 242 federal prosecution after prior state

court acquittals. See United States v. Koon, 34 F.3d

1416, 1425 (9th Cir. 1994)(referencing prior state

court acquittals).

For a comprehensive account of the Penn murder and

subsequent prosecutions, see Michal R. Belknap, The Legal

Legacy of Lemuel Penn, 25 How. L.J. 467 (1982).

The Blockburger test to determine whether two

offenses are the “same offense” under the double

jeopardy clause matured during the dual sovereignty

regime. Blockburger v. United States, 284 U.S. 299

(1932). Under Blockburger, a defendant may be prosecuted for the same act under two distinct statutes

if each offense requires proof of an element not

contained in the other. See id. at 304. States have long

possessed the authority to provide greater individual

rights protections than those required under the

federal constitution, including double jeopardy protections. See generally Cooper v. California, 386 U.S. 58,

62 (1967)(stating analogous hornbook proposition

that a State possesses the “power to impose higher

standards on searches and seizures than required

by the Federal Constitution if it chooses to do so”); see

also Bartkus v. Illinois, 359 U.S. 121, 133-148

(1959)(discussing state statutory permutations limiting dual sovereignty). These statutory experiments

are part of our “laboratory” of democracy, New

State Ice Co. v. Liebmann, 285 U.S. 262, 311

(1932)(Brandies, J., dissenting),

but have often

proven difficult to apply, with many of the statutes

embodying awkward statutory formulations making it

problematic to assess whether a particular prosecution is barred before the second trial takes place. See

Bartkus, 359 U.S. at 138 (noting difficulty in applying

state dual sovereignty limitation statutes).6

For a state by state breakdown, including how the Model

Penal Code addresses these issues, see Adam Harris Kurland,

Successive Criminal Prosecutions: The Dual Sovereignty Exception

to Double Jeopardy in State and Federal Courts (2001); see also

Carolyn Kelly MacWilliam, Annotation, Conviction or Acquittal

in Federal Court as Bar to Prosecution in State Court for State

If dual sovereignty is overruled, Blockburger’s

analytical structure would still remain.7 Blockburger’s

enduring utility was evident when this Court abandoned a short-lived “same conduct” test and reinstated

the Blockburger test in United States v. Dixon, 509

U.S. 688 (1993)(overruling Grady v. Corbin, 495 U.S.

508 (1990)). The Grady test was deemed unworkable

largely because a conclusive determination often could

not be made until well into a second trial—thereby

frustrating one of the main objectives of the double

jeopardy clause to avoid the inconvenience and

harassment of a second trial. Grady, 495 U.S. at 529

(Scalia, J., dissenting); see also Dixon, 509 U.S. at 703712 (Grady deemed unworkable). Moreover, last term

this Court reiterated that it “has emphatically refused

to import into criminal double jeopardy law the civil

law’s more generous ‘same transaction’ or same

criminal ‘episode’ test.” Currier v. Virginia, 138 S. Ct.

2144, 2154 (2018)(citing Garrett v. United States, 471

U.S. 773, 790 (1985)).

The question then becomes how prosecutions under

section 242, the most important federal criminal civil

rights statute used to prosecute police brutality, would

be affected should dual sovereignty be abolished. Title

18 United States Code, Section 242 provides in

relevant part:

Offense Based on Same Facts-Modern View, 97 A.L.R. 5th 201

(2002).

Petitioner agrees. Petitioner’s Brief at 9, 51-52. In some

circumstances, Congress has statutorily abrogated dual

sovereignty. See, e.g., 18 U.S.C. § 659 (theft of interstate

shipment statute which provides “[a] judgment of conviction or

acquittal on the merits under the laws of any state shall be a bar

to any prosecution under this section for the same act or

acts”)(emphasis added).

Whoever, under color of law … willfully

subjects any person in any State … to the

deprivation of any rights, privileges or immunities secured or protected by the Constitution

or laws of the United States … shall be

imprisoned not more than one year …and if

bodily injury results… shall be imprisoned

not more than ten years, … and if death

results… shall be imprisoned for any term of

years or for life … or may be sentenced to death.

First, the Department of Justice’s (“DOJ”) discretionary Petite Policy would still apply for section 242

prosecutions. The Policy presently recognizes that a

federal prosecution following a state prosecution based

on substantially the same acts is constitutionally

appropriate under the dual sovereignty doctrine.

United States Attorneys’ Manual (“USAM”) § 92.031(B). However, the Policy also applies where “a

prior prosecution would not legally bar a state or

federal prosecution under the double jeopardy clause

because each offense requires proof of an element not

contained in the other.” Id. (citing Supreme Court

authority). Thus, should dual sovereignty be abolished,

the constitutional justification would shift to the

above noted second prong of the Policy. As such, the

Petite Policy, which was unchanged after a 2017

comprehensive revision of the USAM, would still

remain in full force and effect. A successive federal

prosecution may be appropriate if the prior state

prosecution left a “substantial federal interest …

demonstrably unvindicated.” Id. § 9-2.031(A).8

Successive federal prosecutions following state prosecutions

for the same or similar conduct are uncommon. DOJ generally

does not publically release the relevant Petite Policy statistics.

Some studies suggest that the federal government authorizes

Additionally, federal prosecutors generally defer to

local authorities in the first instance for prosecution of

police brutality cases, which concern local criminal

conduct squarely within the general police power of

the states. The Federalist No. 45 (James Madison);

Bond v. United States, 134 S. Ct. 2077, 2087 (2014);

United States v. Morrison, 529 U.S. 598, 618 (2000);

United States v. Lopez, 514 U.S. 549, 567 (1995). This

federal “back stop” policy is consistent with bedrock

Federalism principles and sensibly provides local

prosecutors “‘every opportunity to clean up their own

shops.’” Laurie L. Levenson, The Future of State and

Federal Civil Rights Prosecutions: The Lessons of the

Rodney King Trial, 41 UCLA L. Rev. 509, 539

(1994)(citing discussions with federal prosecutors).

Federal deference to state prosecution can be traced

back to 1866, when the first federal criminal civil

rights statutes were enacted. See Robert Kaczorowski,

The Politics of Judicial Interpretation: The Federal

Courts, Department of Justice and Civil Rights, 18661876, at 52 (1985)(noting United States Attorney

Benjamin H. Bristow “instructed federal officers to

assume primary criminal jurisdiction only after blacks

were denied justice in state courts”). As recently as

2015, Attorney General Eric Holder advocated for

approximately 150 successive prosecutions a year. Kurland,

Successive Criminal Prosecutions, at xiv. An American Bar

Association Ad Hoc Task Force on Double Jeopardy Report

included otherwise unpublished data provided by DOJ officials

that indicated most Petite Policy approvals concern situations

where a defendant was convicted in state court but received what

DOJ considered a manifestly inadequate sentence. Id. at 377378. That appears to be the case with Petitioner Gamble. See

Petitioner’s Brief at 2-3 (defendant received one year state court

sentence and then received federal sentence increasing his

incarceration approximately three more years).

more aggressive federal civil rights enforcement but

nonetheless reaffirmed DOJ’s “backstop” role in police

brutality cases. Christian Farias, Eric Holder Wants to

Lower the Bar for Federal Civil Rights Prosecutions:

That’s Trickier Than it Sounds., The New Republic,

Feb. 27, 2015, https://newrepublic.com/article/121177/

eric-holder-we-might-lower-bar-civil-rights-prosecutio

ns.

B. Section 242 “Same Offense” Analysis

In the aftermath of the Civil War, Congress sought

to provide a mechanism to federally prosecute those

responsible for racial killings, and adroitly drafted the

predecessor statutes to current sections 241 and 242.

Congress relied on broad statutory terms protecting

civil rights so as to legally differentiate these federal

crimes from State crimes based on similar conduct:

Congress thus sought to authorize the federal

courts to punish crimes, such as murder, by

broadly defining them as violations of federally enforceable civil rights [based on the

statutory elements] in order to avoid the

accusation that the federal courts were

unconstitutionally supplanting state courts

in punishing offenses against the criminal

laws of the states.

Kaczorowski, supra at 57. This was recognition of

what would later become known as the Blockburger

principle to determine whether two statutes constituted the same offense under the double jeopardy

clause. See also Currier, 138 S. Ct. at 2153 (“the [federal]

courts apply today much the same [Blockburger]

double jeopardy test they did at the founding”).

Reconstruction era federal prosecutors, often faced

with the lone option of pursing a federal misdemeanor

civil rights charge, obviously would have preferred a

competent, fair, and zealous state murder prosecution.

Nothing in the historical record suggests that if a state

homicide prosecution involving culpable state actors

resulted in an unjust acquittal (not an implausible

outcome), pursuit of a misdemeanor civil rights charge

would be precluded as a matter of law. If anything,

the Reconstruction era record suggests otherwise.

As Rep. John Bingham, principal author of the

Fourteenth Amendment noted:

I have advocated here an amendment which

would arm Congress with the power to compel

obedience to the oath [to support, protect, and

defend the Constitution], and punish all

violations by State officers of the bill of rights,

but leaving those officers to discharge the

duties enjoined upon them as citizens of the

United States by that oath and by that

Constitution.

Akhil Reed Amar & Jonathan L. Marcus, Double

Jeopardy Law After Rodney King, 95 Colum. L. Rev. 1,

18 n.104 (1995) (citing sources).

Against the Reconstruction backdrop of Southern

backlash and violent resistance, the sobering grisly

reality is that white men regularly beat or killed black

men with relative impunity and State and local

prosecutions often did not take place:

The Klan effectively paralyzed local government agencies and officers. Many public

officers were members of the Klan and participated in these crimes. Consequently, though

hundreds of crimes were committed, local

officers moved against very few. Even when

they wanted to bring criminals to justice, local

officers were too frightened and/or unable to

do so.

Kaczorowski, Politics of Judicial Interpretation, at

55; see also Eric Foner, Reconstruction: America’s

Unfinished Revolution 1863-1877, at 119-123 (1st

Perennial Lib. ed. 1989)(chronicling daily violence

against blacks “that raged almost unchecked in large

parts of the postwar South”). As one Reconstruction

era Florida sheriff lamented, “[i]f a white man kills a

colored man in any of the counties of this state … you

cannot convict him.” Foner, at 435. More than a

century later, the situation remained abysmal in much

of the South. “As [Klan] victims became all too well

aware, in such bastions of segregation as Alabama it

was simply ‘not a punishable crime to kill a Negro or

civil rights worker.’”9

If dual sovereignty is abolished, virtually all federal

section 242 “under color of law” prosecutions commenced after prior state court prosecutions based on

the same underlying conduct should not constitute the

“same offense” under Blockburger. 18 U.S.C. § 242

and virtually every State law homicide and aggravated assault statute each contain elements not

contained in the other.10 The critical focus is on

Michal R. Belknap, The Vindication of Burke Marshall, The

Southern Legal System and the Anti-Civil-Rights Violence of

the 1960s, 33 Emory L.J. 93 & n.1 (1984)(referencing J. Minnis,

Life with Lyndon Johnson in the Great Society (May 20,

1965)(original source citations to document in SNCC papers at

Martin Luther King, Jr. Center).

18 U.S.C. § 242 contains the elements of “under color of law”

and deprivation of a constitutional right (usually drafted in

section 242 indictments as deprivations of the right to a trial or

the right to be free from unreasonable force). On the other hand,

state homicide statutes, including Model Penal Code based

statutes, contain the element of killing a human being, and

the elements, not the particular manner in how the

case was proved. See Dixon, 509 U.S. at 700-704; see

also Currier, 138 S. Ct. at 2153 (“[t]o prevent a second

trial on a new charge, the defendant must show an

identity of statutory elements between the two charges

against him; it’s not enough that ‘a substantial overlap

[exists] in the proof offered to establish the crimes’”)

(citing Iannelli v. United States, 420 U.S. 770, 785,

n.17 (1975)(emphasis added). Thus, a subsequent

section 242 prosecution should likely satisfy Blockburger

and the federal prosecution should proceed.

Additionally, in Schmuck v. United States, 489 U.S.

705 (1989), this Court, although not mentioning

Blockburger by name, again relied on Blockburger principles to determine what constitutes a lesser included

offense by focusing on the elements of the statutes, as

opposed to relying on an amorphous “inherent relationship approach.” Id. at 716-717.11 Consequently,

assault statutes require proof of the commission of an assault.

See Appendix 4a-5a (setting forth representative statutes).

Thus, Blockburger is satisfied even without consideration of

jurisdictional or mens rea requirements. Federal courts are split

on whether jurisdictional elements can be used to satisfy

Blockburger. See United States v. Hairston, 64 F.3d 491, 496 (9th

Cir. 1995)(jurisdictional elements may be used to satisfy

Blockburger); United States v. Salad, 907 F. Supp. 2d 743, 748750 (E.D. Va. 2012)(surveying circuit split). The status of mens

rea elements is also unclear. See Dixon, 509 U.S. at 701

(suggesting specific intent to kill element can be used in

Blockburger analysis).

The Schmuck Court held:

Since offenses are statutorily defined, that comparison

is appropriately conducted by reference to the

statutory elements of the offenses in question, and not,

as the inherent relationship approach would mandate,

there is no basis to modify the Blockburger test in the

event dual sovereignty is overruled.

Nonetheless, if dual sovereignty is abolished, a new

level of cooperative federalism may be necessary if the

federal government still chooses to pursue the sensible

policy of federal deference in many police brutality

cases. Federal prosecutors may have to walk a legal

tightrope so as to avoid a claim that a purported

increase in the level of interjurisdictional coordination

establishes that a second prosecution is a sham.

For example, some state criminal civil rights

charges which closely parrot section 242 should, out of

an abundance of caution, not be brought. See, e.g., Cal.

Penal Code §§ 149 (misdemeanor for public officer,

acting under color of authority, to unlawfully use

excessive force); 422.6 (misdemeanor to injure or

threaten person exercising constitutional right, whether

or not acting under color of law); see also Model Penal

Code § 243.1 (“Official Oppression” misdemeanor

statute).12 These are rarely prosecuted misdemeanors,

and state prosecutors could easily adopt review

procedures that would largely avoid these charges

altogether. See Levenson, at 553 (noting California

civil rights misdemeanor statutes are rarely, if ever,

utilized). More problematic could be inclusion of less

serious related state charges, including lesser

included offenses, for the purpose of increasing the

likelihood of a conviction on some charge even if the

jury cannot reach a verdict on the more serious

charges. This scenario could conceivably bar a subseby reference to conduct proved at trial regardless of the

statutory definitions.

Schmuck, 489 U.S. at 716-717.

These statutes are set forth at Appendix 4a-5a.

quent federal civil rights prosecution if some lesser

offense resulting in a conviction or acquittal is later

determined to constitute the “same offense” as section

242.

Federal conspiracy prosecutions for violations of

18 U.S.C. § 241, another vitally important federal

criminal civil rights statute often undertaken after a

state prosecution, would likely be largely unaffected

by the abolition of dual sovereignty. Section 241

reaches conspiracies involving acts under color of law

and can also reach certain wholly private conspiracies

as well.13 The double jeopardy clause does not apply

where there are two separate convictions for an underlying substantive crime and a conspiracy to commit

that same crime. United States v. Felix, 503 U.S. 378

(1992). Similarly, separate conspiracy convictions

that concern overlapping but legally distinct conduct

do not violate the double jeopardy clause. Albernaz v.

United States, 450 U.S. 333 (1981). The resolution of

this case should not affect those precedents.

C. The Issue Preclusion Component of

Double Jeopardy Does Not Apply to

Successive Inter-Sovereign Prosecutions

The briefs filed at the petition for certiorari stage

focused exclusively on the constitutional legitimacy of

dual sovereignty. The issue preclusion (or “collateral

estoppel”) component of double jeopardy as reflected

in Ashe v. Swenson, 397 U.S. 436 (1970), was not

addressed in Petitioner’s Brief or in any of the

1a.

The relevant portions of section 241 are set forth at Appendix

principal or amicus briefs previously filed at the

petition for certiorari phase.14

The abolishment of dual sovereignty would necessitate the almost immediate determination that Ashe’s

issue preclusion principles are inapplicable to intersovereign prosecutions. Under Ashe, the issue preclusion component of double jeopardy applies when an

issue was necessarily resolved in the defendant’s favor

in the first trial and is sought to be used against the

same sovereign who lost the first trial. The Ashe Court

held that “when an issue of ultimate fact has once been

determined by a valid and final judgment, that issue

cannot again be litigated between the same parties in

any future lawsuit.” Id. at 443 (emphasis added).

If this Court does not ultimately overrule Ashe in its

entirety,15 Ashe should remain as is, and not be

extended to bar “relitigation” of an issue purportedly

necessarily resolved in the defendant’s favor in a prior

state court trial. Collateral estoppel cannot be used as

a sword to bind a non-party to the prior litigation–in

this case the federal government in a subsequent

prosecution who had no opportunity to litigate the

issue in a prior state trial. Binding the federal

government as a non-party is inappropriate because

In the aftermath of the Rodney King trials, one commentator

noted that “there has been surprisingly little exploration of the

implications of the constitutionally based collateral estoppel

doctrine recognized in Ashe.”

Susan N. Herman, Double

Jeopardy All Over Again: Dual Sovereignty, Rodney King, and the

ACLU, 41 UCLA L. Rev. 609, 645 (1994).

Last term, a plurality of this Court suggested that Ashe was

an awkward fit in criminal cases, and that collateral estoppel

should have no place in double jeopardy jurisprudence. Currier

v. Virginia, 138 S. Ct. at 2150-2156 (Gorscuch, J.,)(plurality

opinion).

“[i]n a criminal case, the government is often without

the kind of ‘full and fair opportunity to litigate’ that is

a prerequisite of estoppel.” Standefer v. United States,

447 U.S. 10, 22 (1980). This Court recently warned

“that issue preclusion principles should have only

‘guarded application … in criminal cases.’” Currier,

138 S. Ct. at 2152 (citing Bravo-Fernandez v. United

States, 137 S. Ct. 352, 358 (2016)).

If dual sovereignty is abolished, Ashe should not be

extended to apply to inter-sovereign successive prosecutions. The federal government is not a party to any

prior state trial. In the civil rights context, extending

Ashe could effectively bar the federal government

from establishing the requisite willful misconduct in

a successive federal trial where the defendant was

acquitted in a prior state court homicide, reckless

endangerment, or assault prosecution. Although the

outcome would be far from certain, the defendant

could claim that the acquittal was based on a determination that the defendant officer’s conduct striking

or killing the victim was lawful. In some circumstances, this could effectively bar a subsequent federal

trial altogether even if the federal prosecution

involved a statute that did not otherwise constitute

the “same offense” as the prior state charge.

Standefer supports rejection of this extension of

collateral estoppel. Standefer, 447 U.S. at 23 (“[u]nder

contemporary principles of collateral estoppel [the

prosecution’s inability to appeal an erroneous acquittal]

strongly militates against giving an acquittal preclusive effect”). Extending Ashe to permit sword-like use

against non-party federal prosecutors in a subsequent

trial would severely weaken federal criminal civil

rights enforcement of police brutality cases, and derail

sensible long standing DOJ policies favoring initial

deference to state prosecution. See Standefer, 447 U.S.

at 25 (emphasizing importance of judicial interpretive

doctrines that vindicate the public interest in the

enforcement of the criminal law, and cautioning

against application of an estoppel rule “that would

spread the effect of an erroneous acquittal”).

Lastly, and most fundamentally, the State and

federal government are not the same parties, nor are

they remotely the functional criminal law equivalent

of parties in privity.16 Quotation marks notwithstanding, even Justice Black’s preeminent critique of dual

sovereignty acknowledges that inter-sovereign prosecutions are being undertaken by different parties:

The Court apparently takes the position that

a second trial for the same act is somehow less

offensive if one of the trials is conducted by

the Federal Government and the other by a

Compare Fed. R. Evid. 804(b)(1), which limits the use of prior

statements in criminal cases to situations where the same party

had opportunity and similar motive to previously question the

witness, but permitting admission of such statements in civil

cases on a more lenient basis where the same party or predecessor

in interest had opportunity and similar motive to examine the

witness. It would be illogical to interpret the collateral estoppel

component of double jeopardy more harshly against the government than the manner by which the Federal Rules of Evidence

regulate the admission of evidence against the government. But

cf. Harlan R. Harrison, Federalism and Double Jeopardy: A Study

in the Frustration of Human Rights, 17 U. Miami L. Rev. 306,

334-335 (1963)(suggesting state and federal government are in

privity when each prosecution concerns the same interest).

For cases expressly rejecting criminal collateral estoppel to

non-parties, see Martin v. Rose, 481 F.2d 658, 660 (6th Cir.

1973)(“since … successive federal and state prosecutions do not

involve the same parties or their privies” collateral estoppel

cannot apply); State v. Rogers, 566 P.2d 1142, 1145 (N.M.

1977)(same).

State. Looked at from the standpoint of the

individual who is being prosecuted, this

notion is too subtle for me to grasp. If double

punishment is what is feared, it hurts no less

for two “Sovereigns” to inflict it than for one.

If danger to the innocent is emphasized, that

danger is surely no less when the power of

State and Federal Governments is brought to

bear on one man in two trials than when one

of these “Sovereigns” proceeds alone. In each

case, inescapably, a man is forced to face

danger twice for the same conduct.

Bartkus, 359 U.S. at 155 (Black, J., dissenting)

(emphasis added).

Abolishing dual sovereignty provides no basis to

further abrogate traditional collateral estoppel principles. In order to avoid the unnecessary devolution of

police misconduct prosecutions into an unseemly “race

to the courthouse”17 and to maintain important and

sensible discretionary DOJ policy preferences to defer

to state prosecution in the first instance, the traditional collateral estoppel principle that non-parties

cannot be bound should be maintained as sound

constitutional doctrine.18

See Heath v. Alabama, 474 U.S. 82, 93 (1985)(criticizing

interjurisdictional “race to the courthouse” as unsatisfactory

method of prosecutorial decision making).

This could be particularly problematic for federal civil rights

prosecutions, which, at present, often rely on significant federalstate coordination and cooperation. Even under the current dual

sovereignty regime, interjurisdictional tensions concerning the

order of prosecution sometimes become public spectacles, pitting

vital state interests concerning enforcing state homicide laws

against the federal government’s vital interests in enforcing

federal criminal civil rights laws. See Andrew Knapp, Wilson:

II. CONSTITUTIONAL

DOCTRINE

SUPPORTS AN INDEPENDENT CIVIL RIGHTS

EXCEPTION TO DOUBLE JEOPARDY

As noted above, if dual sovereignty is abolished,

most successive section 242 police brutality prosecutions would not constitute a prosecution for the “same

offense” in relation to offenses based on the same or

similar conduct previously tried to verdict in state

court. However, the abolishment of dual sovereignty

will likely create some uncertainty concerning the

ability to prosecute other federal criminal civil rights

statutes after a state prosecution covering similar

conduct.19

Feds ignoring S.C. Roof case Solicitor frustrated over scheduling

conflicts, idea of families enduring trial during holidays, The

(Charleston) Post & Courier, June 19, 2016, https://www.post

andcourrier.com/archives/wilson-feds-ignoring-s-c-roof-case-solicit

or-frustrated-over/article_9eb4911e-fe10-5d68-9771-228e4dcc2fe

6.html (highlighting state court hearing that exposed state

prosecutor’s frustration concerning whether Roof should be

prosecuted first by federal or South Carolina authorities); see also

Doug Stanglin, Driver accused of plowing into crowd at

Charlottesville rally charged with federal hate crimes, USA

Today, June 27, 2018, https://www.usatoday.com/story/news/

2018/06/27/charlottesville-rally-james-alex-fields-charged-federa

l-hate-crimes/738514002 (noting federal hate crimes indictment

in Charlottesville incident, further noting defendant already

facing state trial commencing in November, 2018 on first degree

murder and related charges). This inter-sovereign friction likely

would increase if dual sovereignty is abolished, where, for some

crimes determined to constitute the “same offense,” a race to the

courthouse could replace more measured federal-state coordination and cooperation to determine the sole jurisdiction that

should prosecute the defendant concerning the incident.

For example, some federal hate crimes prosecutions could

be vulnerable as a prosecution for the “same offense” under

The concept of a constitutional civil rights exception

derives from the inherent necessity to “consult not

only the Founding vision articulated in the original

Bill of Rights, but also the Reconstruction vision

enacted in the Fourteenth Amendment.” Amar &

Marcus, at 19 n.108. Should dual sovereignty be

abolished, this Court should recognize—or, at minimum, not foreclose— a limited civil rights “exception,”

the parameters of which would necessarily be defined

in future litigation.

“[T]he constitution [is not] a suicide pact,”

Terminiello v. Chicago, 337 U.S. 1, 37 (1949)(Jackson,

J., dissenting)(warning that “if the Court does not

temper its doctrinaire logic with a little practical

wisdom, it will convert the constitutional Bill of Rights

into a suicide pact”), and the federal government’s

solemn constitutional obligation to vigorously enforce

the federal civil rights laws must factor into the

Court’s constitutional decision making. Professors

Amar and Marcus observe:

Section 5 [of the Fourteenth Amendment]

was paradigmatically about federal criminal

law enforcement of Section 1. ... Congress

designed Section 5 to support the Civil Rights

Bill of 1866, which included a key criminal

provision at abusive state officials (and only

state officials). In light of this clear history,

it would be highly ironic if federal criminal

prosecution of abusive state officials under

the Act of 1866 could be blocked by –of all

things—the Fourteenth Amendment itself.

Blockburger if a federal prosecution sought to follow a prior state

homicide prosecution based on the same underlying acts.

* * *

Thus, where the federal government is

exercising its power pursuant to Section 5 to

prosecute tyrannical state officials, as in the

prosecution of the Los Angeles police officers,

the dual sovereignty doctrine retains validity:

it makes structural sense even after the

Fourteenth Amendment is added to the original Bill of Rights and Barron is generally

repudiated.

* * *

In sum, the dual sovereignty doctrine, while

rendered largely obsolete by the Fourteenth

Amendment, still has a narrow but crucial

role to play in enforcing the Reconstruction

values of that same amendment against state

officials.

Amar & Marcus, at 17-19. Other prominent federal

criminal law scholars further note that “because the

Fourteenth Amendment was adopted after the Fifth

Amendment’s Double Jeopardy Clause and Equal

Protection Clause, the Congressional enforcement

authority under that Amendment might be understood

to create an exception to double jeopardy.” Norman

Abrams, Sara Sun Beale, Susan Riva Klein, Federal

Criminal Law and its Enforcement 117 (6th ed. 2015).

In determining constitutional issues concerning the

consequent evolution of federal and state sovereignty,

this Court has often recognized the “tacit postulates”

of federalism “necessary to make the Constitution a

workable governing charter … [which] are as much

engrained in the fabric of the document as its express

provisions, because, without them, the Constitution is

denied force, and often meaning.” Nevada v. Hall, 440

U.S. 410, 433 (1979)(Rehnquist, J., dissenting)(citing

examples).

As noted above, future litigation will be necessary

to define the contours of this doctrine. See, e.g.,

Paul Hoffman, Double Jeopardy Wars: The Case for

a Civil Rights “Exception,” 41 UCLA L. Rev. 649, 67071 (1994)(endorsing civil rights exception based on

“constitutional authority possessed by Congress to

implement guarantees of [all three] Civil War amendments”)(emphasis added). The doctrinal development

will be challenging.

For example, Chapter 13 of Title 18 of the United

States Code is entitled “Civil Rights.” However,

several of the statutes in that chapter do not require

state action and were not enacted solely pursuant to

Congress’ section 5 enforcement powers.20

Apart from section 242, which requires state action

and is unambiguously based on section five of the

Fourteenth Amendment,21 other important federal

criminal civil rights statutes concern conduct that

could constitute the “same offense” as some state

homicide, assault, or arson statutes, but lack pure

Fourteenth Amendment, section five constitutional

pedigrees. For example, the most recent “Matthew

Shepard Act” amendments to 18 U.S.C. § 249(a)(2)

are based on the commerce clause. See 18 U.S.C.

Additionally, some criminal civil rights statutes are not

even found in Title 18, chapter 13. See, e.g., 42 U.S.C. § 3631

(interference with housing rights).

United States v. Lanier, 520 U.S. 259, 272 n.7 (1997). In

United States v. Morrison, 529 U.S. 598 (2000), this Court

held that Congress’ purported reliance on section five of the

Fourteenth Amendment does not provide talismanic unreviewable constitutional justification. Id. at 619-627.

§ 249(B)(i)(I)(II)(proscribed conduct must cross a state

line or use a channel, facility, or instrumentality of

interstate or foreign commerce). As such, depending

on the scope of any recognized civil rights exception,

the federal government’s ability to prosecute some

important civil rights cases could be significantly

impeded. Other potentially vulnerable statutes which

cover conduct often prosecuted by state authorities

include 18 U.S.C. § 245 (based, in part, on commerce

clause), § 247(a)(b)(damage to religious property

statute based on commerce clause), § 248 (congressional statement of purpose that FACE statute

enacted pursuant to both commerce clause, U.S. Const.

art. I, § 8, cl. 3, and section five, 14th amendment),

42 U.S.C. § 3631 (1988 amendments to anti-housing

discrimination law extended statutory coverage

to disabled persons based on commerce clause).22

However, the potential difficulties in defining the

ultimate parameters of the exception do not reduce the

vital importance of constitutional recognition of the

exception.23

See Aric Short, Post-Acquisition Harassment and the

Scope of the Fair Housing Act, 58 Ala. L. Rev. 203, 234-239

(2006)(convoluted congressional intent reflecting original 1968

enactment relied on both section five of Fourteenth Amendment

and commerce clause (citing sources). For the relevant statutory

language of the above listed statutes, see Appendix 1a-2a.

It is worth noting that this Court upheld the constitutionality of the Civil Rights Act of 1964 as a proper exercise of

congressional authority under the commerce clause. Heart of

Atlanta Motel, Inc. v. United States, 379 U.S. 241, 252-262 (1964).

For a comprehensive history regarding the struggle to pass the

1964 Civil Rights Act, see Clay Risen, The Bill of the Century:

The Epic Battle for the Civil Rights Act (2014).

CONCLUSION

Federal criminal civil rights enforcement was born

in the immediate aftermath of the Civil War. Since

then, the federal government and the States have

possessed concurrent civil rights enforcement authority, and the federal government has often wisely

deferred to state prosecution in the first instance. The

federal criminal civil rights laws proscribing misconduct undertaken “under color of law” do not preempt

state criminal laws, and were constitutionally designed

to supplement state law enforcement. Section 242 was

originally a misdemeanor, and remained so for more

than a century. Thus, preference for a vigorous state

felony prosecution was explicable. Even today, long

after section 242 was elevated to felony status, DOJ

still generally prefers initial federal deference to state

law enforcement in local police misconduct cases.

If the dual sovereignty doctrine is abolished, most

section 242 law enforcement misconduct prosecutions

would survive a Blockburger analysis. Nevertheless,

the abolishment of dual sovereignty would inevitably

require reevaluation of much of the complex tapestry

of double jeopardy jurisprudence woven during

the nearly two century dual sovereignty era. Most

notably, the collateral estoppel component of double

jeopardy—if not ultimately overruled in its entirety as

suggested by the Currier v. Virginia plurality— should

continue to embody the traditional requirement that

non-parties to the first action are not bound in

subsequent litigation where they are parties. A

contrary decision could substantially erode the fair

and effective enforcement of the federal criminal civil

rights laws. Resolution of the dual sovereignty issue

need not constitutionally undermine federal criminal

civil rights enforcement to such a significant degree.

Next, even if many federal criminal civil rights

prosecutions survive a Blockburger analysis, abolishing dual sovereignty could undermine DOJ’s long held

policy to defer many civil rights prosecutions to state

authorities in the first instance. This would almost

certainly increase interjurisdictional tensions and

result in prosecutorial races to the courthouse as well

as other injudicious procedural jockeying in order to

obtain charge selection advantage.

Lastly, if the dual sovereignty doctrine is abolished,

this Court will face future litigation to determine the

existence and contours of a civil rights “exception” to

the double jeopardy clause. The Fourteenth Amendment

provides the foundation for the federal government’s

solemn constitutional and moral obligation to protect

civil rights and to effectively enforce the federal

criminal civil rights laws. It would be lamentably

ironic if this Court interprets the Fourteenth Amendment, the vehicle by which the double jeopardy clause

applies to the States, in a manner that unnecessarily

erodes the federal government’s solemn civil rights

enforcement obligations which arise from the Fourteenth Amendment itself.

Respectfully submitted,

JUSTIN HANSFORD

Director

HOWARD UNIVERSITY

SCHOOL OF LAW

THURGOOD MARSHALL

CIVIL RIGHTS CENTER

2900 Van Ness St. NW

Washington, D.C. 20008

ADAM HARRIS KURLAND

Counsel of Record

Professor of Law

HOWARD UNIVERSITY

SCHOOL OF LAW

THURGOOD MARSHALL

CIVIL RIGHTS CENTER

2900 Van Ness St. NW

Washington, D.C. 20008

(202) 806-8063

akurland@law.howard.edu

Counsel for Amicus Curiae

September 7, 2018

APPENDIX

FEDERAL MATERIALS

Pub. L. 103-259, 108 Stat. 694, May 26, 1994

SECTION 1. SHORT TITLE

This Act may be cited as the “Freedom of Access to

Clinic Entrances Act of 1994 [18 U.S.C. § 248]”.

SEC. 2. PURPOSE

Pursuant to the affirmative power of Congress to

enact this legislation under section 8 of article I of

the Constitution, as well as under section 5 of the

fourteenth amendment to the Constitution, it is the

purpose of this Act to protect and promote the public

safety and health and activities affecting interstate

commerce by establishing Federal criminal penalties

and civil remedies for certain violent, threatening,

obstructive and destructive conduct that is intended to

injure, intimidate or interfere with persons seeking to

obtain or provide reproductive health services.

18 U.S.C. § 241, Conspiracy against rights, provides in

relevant part:

If two or more persons conspire to injure, oppress,

threaten, or intimidate any person in any State . . . in

the free exercise or enjoyment of any right or privilege

secured to him by the Constitution or laws of the

United States, or because of his having so exercised

the same. . . [t]hey shall be fined under this title or

imprisoned not more than ten years, or both, and if

death results from the acts committed . . . shall be . . .

imprisoned for any term of years or for life, or both, or

may be sentenced to death.

18 U.S.C. § 245, Federally protected activities, provides

in relevant part:

(b) Whoever, whether or not acting color of law, by

force or threat of force willfully injures, intimidates or

interferes with, or attempts to injure, intimidate with –

* * *

(2) any person because of his race, color, religion,

or national origin and because he is or has been –

* * *

(E) traveling in or using any facility of interstate commerce, or using any vehicle, terminal,

or facility of any common carrier by motor, rail,

water, or air.

18 U.S.C. § 247, Damage to religious property; obstruction of persons in the free exercise of religious beliefs,

provides in relevant part:

(b) The circumstances referred to in subsection (a)

[setting forth the elements of the offense] are that the

offense is in or affects interstate or foreign commerce.

42 U.S.C. § 3631, Fair Housing, Prevention of Intimidation, provides in relevant part:

Whoever, whether or not acting under color of law,

by force or threat of force willfully injuries, intimidates

or interferes with, or attempts to injure, intimidate

or interfere with – [and unlawfully discriminates or

harasses persons because of race, color, religion, sex,

handicap, . . . family status, or national origin, while

they either occupy housing or are contracting to occupy

housing] . . . (c) shall be fined . . . or imprisoned

[pursuant to law].

Federal Rule of Evidence 804(b)(1)

(b) The Exceptions. The following are not excluded

by the rule against hearsay if the declarant is unavailable as a witness:

(1) Former testimony. Testimony that:

(A) was given as a witness at a trial, hearing,

or other lawful deposition, whether given during

the current proceeding or a different one; and

(B) is now offered against a party who had–or,

in a civil case, whose predecessor in interest had–

an opportunity and similar motive to develop it by

direct, cross-, or redirect examination.

United States Attorneys Manual § 9-2.031 – (Dual and

Successive Prosecution Policy (“Petite Policy”) provides

in relevant part:

A. This policy establishes guidelines for the

exercise of discretion by appropriate officers

of the Department of Justice in determining

whether to bring a federal prosecution based

on substantially the same act(s) or transactions involved in a prior state or federal

proceeding.

* * *

The policy precludes the initiation or continuation of a federal prosecution, following a

prior state or federal prosecution based on

substantially the same act(s) or transaction(s)

unless [three] prerequisites are satisfied . . .

the matter must involve a substantial federal

interest [and] . . . the prior prosecution

must have left that interest demonstrably

unvindicated.

B. The policy . . . constitutes an exercise of

the Department’s prosecutorial discretion,

and applies even where a prior state prosecution would not legally bar a subsequent federal

prosecution under the Double Jeopardy Clause

because of the doctrine of dual sovereignty, or

a prior prosecution would not legally bar a

subsequent state or federal prosecution under

the Double Jeopardy Clause because each

offense requires proof of an element not

contained in the other (citations omitted).

OTHER MATERIALS

California Penal Code § 149 provides:

Every public officer who, under color of

authority, without lawful necessity, assaults

or beats any person, is punishable by a fine

not exceeding ten thousand dollars ($10,000),

or by imprisonment in a county jail not exceeding one year, or pursuant to subdivision (h)

of Section 1170, or by both that fine and

imprisonment.

California Penal Code § 187 provides in relevant part:

(a) Murder is the unlawful killing of a human

being, with malice aforethought.

California Penal Code § 422.6 provides in relevant part:

(a) No person, whether or not acting under

color of law, shall by force or threat of force,

willfully injure, intimidate, interfere with,

oppress, or threaten any other person in the

free exercise or enjoyment of any right or

privilege secured to him or her by the

Constitution or laws of this state or by the

Constitution or laws of the United States in

whole or in part because of one or more of the

actual or perceived characteristics of the victim

listed in subdivision (a) of Section 422.55.

* * *

subdivision (a) . . . shall be punished by

imprisonment in a county jail not to exceed

one year, or by a fine not to exceed $5000, or

by both . . . .

Model Penal Code Provisions

Section 210.1. Criminal Homicide

(1) A person is guilty of criminal homicide if he

purposely, knowingly, recklessly or negligently causes

the death of another human being.

(2) Criminal homicide is murder, manslaughter or

negligent homicide.

Section 211.2 Recklessly Endangering Another

Person

A person commits a misdemeanor if he recklessly

engages in conduct which places or may place another

in danger of death or serious bodily injury. . . .

Section 243.1 Official Oppression

A person acting or purporting to act in an official

capacity or taking advantage of such actual or purported capacity commits a misdemeanor if, knowing

that his conduct is illegal, he:

(1) subjects another to arrest, detention, search, seizure, mistreatment, dispossession, assessment, lien or

other infringement of personal or property rights; or

(2) denies or impedes another in the exercise or

enjoyment of any right, privilege, power or immunity.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.