Opposition Brief — Dylann Storm Roof, Petitioner v. United States
Supreme Court briefAug 31, 2022
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No. 21-7234
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
DYLANN STORM ROOF, PETITIONER
v.
UNITED STATES OF AMERICA
(CAPITAL CASE)
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
KRISTEN CLARKE
KENNETH A. POLITE, JR.
Assistant Attorneys General
BONNIE I. ROBIN-VERGEER
BRANT S. LEVINE
ANN O’CONNELL ADAMS
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
________________________________________________________________
________________________________________________________________
CAPITAL CASE
QUESTIONS PRESENTED
1.
Whether
assistance
of
petitioner’s
counsel
Sixth
entitled
Amendment
him
to
right
override
to
the
counsel’s
determinations about the mitigation evidence to present during the
penalty phase of his capital trial.
2.
Whether 18 U.S.C. 247(a)(2), which prohibits intentional
obstruction
of
the
free
exercise
of
religious
beliefs
in
circumstances that are “in or affect[] interstate or foreign
commerce,” 18 U.S.C. 247(b), exceeds Congress’s Commerce Clause
power as applied to petitioner’s mass shooting of worshippers in
a
Charleston
church,
which
he
planned
using
the
internet,
propagandized on a foreign-hosted website, and carried out with
instruments that traveled in interstate commerce.
3.
willfully
Whether 18 U.S.C. 249(a)(1), which makes it a crime
to
cause
bodily
injury
“because
of
the
actual
or
perceived race, color, religion, or national origin of any person,”
is a facially valid exercise of Congress’s power under Section 2
of the Thirteenth Amendment.
(I)
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 21-7234
DYLANN STORM ROOF, PETITIONER
v.
UNITED STATES OF AMERICA
(CAPITAL CASE)
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-94a) is
reported at 10 F.4th 314.
memorializing
unpublished.
a
pretrial
The
opinion
An opinion of the district court
ruling
of
(Pet.
the
App.
district
121a-126a)
court
is
denying
petitioner’s motion to dismiss (Pet. App. 128a-150a) is reported
at 225 F. Supp. 3d 438.
The opinion of the district court denying
petitioner’s motion for a new trial or a judgment of acquittal
(Pet. App. 151a-171a) is reported at 252 F. Supp. 3d 469.
2
JURISDICTION
The judgment of the court of appeals was entered on August
25, 2021.
A petition for rehearing was denied on September 27,
2021 (Pet. App. 175a-176a).
On December 15, 2021, the Chief
Justice extended the time within which to file a petition for a
writ of certiorari to and including February 24, 2022, and the
petition was filed on that date.
The jurisdiction of this Court
is invoked under 28 U.S.C. 1254(1).
STATEMENT
Following a jury trial in the United States District Court
for the District of South Carolina, petitioner was convicted on
nine counts of racially motivated hate crimes resulting in death,
in violation of 18 U.S.C. 249(a)(1); three counts of racially
motivated hate crimes involving an attempt to kill, in violation
of 18 U.S.C. 249(a)(1); nine counts of obstructing religious
exercise resulting in death, in violation of 18 U.S.C. 247(a)(2)
(2012)
and
18
U.S.C.
247(d)(1);
three
counts
of
obstructing
religious exercise, involving an attempt to kill and use of a
dangerous weapon, in violation of 18 U.S.C. 247(a)(2) (2012), 18
U.S.C. 247(d)(1), and (d)(3); and nine counts of causing death by
murder by using a firearm to commit murder during and in relation
to a crime of violence, in violation of 18 U.S.C. 924(c)(1)(A),
(j)(1),
and
18
U.S.C.
924(c)(1)(C)
Indictment 4-10; Judgment 1.
(2012
&
Supp.
II
2015).
3
The district court sentenced petitioner to death for each
violation of Section 247 resulting in death and for each violation
of Section 924 resulting in death, and to life imprisonment on all
other counts.
Judgment 2-3.
The court of appeals affirmed.
Pet.
App. 1a-94a.
1.
On June 17, 2015, 12 black parishioners and church
leaders of the historic Emanuel African Methodist Episcopal Church
(Mother Emanuel) in Charleston, South Carolina, gathered in the
church’s Fellowship Hall for their weekly Bible study.
19a-20a.
Pet. App.
At 8:16 p.m., petitioner entered the church carrying a
tactical bag that concealed a Glock .45 semi-automatic handgun and
eight loaded magazines.
Id. at 19a-20a, 69a.
The parishioners
welcomed petitioner, handing him a Bible and a study sheet.
Id.
at 20a.
Petitioner sat with the parishioners for about 45 minutes.
Pet. App. 20a.
Then, as the parishioners rose and shut their eyes
for a closing prayer, petitioner took out his gun and started
shooting
them.
Ibid.
He
reloaded
multiple
times
parishioners dove under tables to avoid the gunfire.
firing
approximately
Sheppard,
who
was
74
bullets,
praying
aloud.
petitioner
Ibid.;
as
the
Ibid.
After
approached
Polly
C.A.
5017.
App.
Petitioner told Sheppard to “shut up” and asked if he had shot her
yet.
Ibid.
When she responded “no,” petitioner said, “I’m not
4
going to.
I’m going to leave you here to tell the story.”
C.A.
App. 5017; see Pet. App. 20a.
Petitioner left Mother Emanuel around 9:06 p.m.
20a.
Pet. App.
Seven of the parishioners were dead when police arrived, and
another two victims died soon after.
Ibid.
Reverend Sharonda
Coleman-Singleton, Cynthia Hurd, Susie Jackson, Ethel Lee Lance,
Reverend DePayne Middleton-Doctor, Reverend Clementa Pinckney,
Tywanza Sanders, Reverend Daniel Simmons, Sr., and Reverend Myra
Thompson were all killed by petitioner’s shooting spree.
Ibid.
Sheppard survived, as did Felicia Sanders and her granddaughter
K.M., both of whom had played dead under a table.
C.A. App. 3700-
3701, 3751-3752, 3761-3763, 5017; Pet. App. 20a, 131a.
Officers stopped petitioner’s car the next morning in Shelby,
North Carolina.
Pet. App. 20a.
FBI agents and confessed.
He agreed to an interview with
Ibid.
Petitioner referred to himself
as a “white nationalist” and told agents he committed the crime
because “black people are killing white people every day” and
“rap[ing] white women.”
Ibid. (citation omitted; brackets in
original).
that
He
admitted
he
was
trying
to
agitate
race
relations, in the hope that it could potentially lead to a race
war.
Ibid.
To plan his crime, petitioner used the internet to research
South
Carolina’s
black
churches,
because of its historic importance.
settling
on
Mother
Emanuel
Pet. App. 20a, 69a.
He also
5
used his home telephone to call Mother Emanuel and a GPS device to
navigate to the area surrounding Mother Emanuel for repeated
surveillance trips.
Id. at 69a.
He purchased and used a gun,
ammunition, a tactical pouch, and magazines that had traveled in
interstate or foreign commerce.
Ibid.
On the day of the crime,
petitioner posted writings on his website, hosted on a foreign
internet
server,
racist ideology.
foreshadowing
his
Id. at 21a, 69a.
attack
and
explaining
his
He then used a GPS device and
an interstate highway to reach Mother Emanuel from his home in
Columbia, South Carolina.
2.
Id. at 69a.
A grand jury in the District of South Carolina returned
an indictment charging petitioner with nine counts of racially
motivated hate crimes resulting in death, in violation of 18 U.S.C.
249(a)(1);
three
counts
of
racially
motivated
hate
crimes
involving an attempt to kill, in violation of 18 U.S.C. 249(a)(1);
nine counts of obstructing religious exercise resulting in death,
in violation of 18 U.S.C. 247(a)(2) (2012) and 18 U.S.C. 247(d)(1);
three
counts
of
obstructing
religious
exercise,
involving
an
attempt to kill and use of a dangerous weapon, in violation of 18
U.S.C. 247(a)(2) (2012), 18 U.S.C. 247(d)(1), and (d)(3); and nine
counts of causing death by murder by using a firearm to commit
murder during and in relation to a crime of violence, in violation
of 18 U.S.C. 924(c)(1)(A), (j)(1), and 18 U.S.C. 924(c)(1)(C) (2012
& Supp. II 2015).
Indictment 4-10.
The government gave notice of
6
its intent to seek capital punishment and declined petitioner’s
offer to plead guilty in exchange for life imprisonment.
Pet.
App. 21a.
Petitioner moved to dismiss the indictment on the theories
that Section 247 exceeds Congress’s authority under the Commerce
Clause both on its face and as applied and that Section 249(a)(1)
exceeds Congress’s power under the Thirteenth Amendment.
App. 131a.
The district court denied the motion.
See Pet.
Id. at 132a-
146a.
3.
As
trial
approached,
petitioner
expressed
attorneys his goal of avoiding capital punishment.
662.
to
his
C.A. App. 574,
And during a competency evaluation, he told the court’s
examiner that he wanted to stay alive as long as possible and that
part of his strategy was to insist on a trial that would create
appellate issues and thereby “prolong
* * *
his life span.”
Id.
at 5563; see id. at 5545.
Defense
counsel
explored
various
aspects
of
mitigation,
including petitioner’s medical history and mental health.
App. 537-546.
C.A.
But petitioner became upset when he learned that
his lawyers planned to call an autism expert during the trial’s
penalty phase.
Pet. App. 22a.
Petitioner wrote a letter to the
prosecution stating, “what my lawyers are planning to say in my
defense
is
permission.”
a
lie
and
will
be
said
without
my
Id. at 22a, 35a (quoting C.A. App. 587).
consent
or
7
At defense counsel’s request, the district court held an ex
parte hearing to address the situation.
C.A.
App.
fundamental
573-574.
Counsel
issues
entrusted
See Pet. App. 22a, 35a;
argued
that
to
defendant
a
aside
from
certain
concerning
the
objectives of the representation -- such as whether to plead
guilty, waive a jury trial, testify in his own defense, or take an
appeal -- counsel has full authority to manage the trial, including
decisions about what evidence to introduce at capital sentencing.
Pet. App. 35a; C.A. App. 579-580.
In response to questions from
the court, petitioner stated that he would “rather die than be
labeled
autistic”
and
that
mental-health
mitigation
“discredits the reason why [he] did the crime.”
23a, 36a, 106a-109a (citation omitted).
evidence
Pet. App. 22a-
Defense counsel stated
that they had considered petitioner’s perspective but determined,
in their professional judgment, that presenting the evidence was
in petitioner’s best interests because it was his “only sentencing
defense.”
Id. at 23a, 36a; C.A. App. 833.
The district court agreed with defense counsel that counsel’s
authority to make strategic judgments includes the authority to
make
judgments
sentencing.
about
the
evidence
to
introduce
at
capital
Pet. App. 36a, 121a-126a; C.A. App. 1741-1743.
The
court explained that the Sixth Amendment does not give a defendant
the
right
“to
instruct
his
counsel
not
to
present
certain
mitigation evidence in his capital sentencing proceeding, when
8
counsel believe they have a professional obligation to present
such evidence.”
Pet. App. 124a; see id. at 126a.
After the
district court’s ruling, petitioner invoked his Sixth Amendment
right to self-representation under Faretta v. California, 422 U.S.
806 (1975).
Pet. App. 36a.
The court granted that request and
appointed petitioner’s lawyers as standby counsel.
37a.
Id. at 36a-
Petitioner represented himself during voir dire, then asked
to be represented by counsel for the guilt phase, which the court
allowed.
4.
Id. at 37a-38a.
The jury found petitioner guilty on all counts.
App. 22a; Judgment 1.
Pet.
After the verdict, petitioner advised the
court that he wished to represent himself during the penalty phase.
Pet.
App.
38a;
C.A.
App.
5180-5181.
The
court
accepted
petitioner’s waiver of the right to counsel and reappointed his
lawyers as standby counsel.
C.A. App. 5181.
Petitioner did not
cross-examine any witnesses or present any evidence during the
penalty phase, but he delivered an opening statement and closing
argument.
Pet. 8; C.A. App. 5793-5794, 6712-6714.
The jury found four independent gateway factors that each
made petitioner eligible for capital punishment, further found
that aggravating factors outweighed mitigating factors, and voted
unanimously for a capital sentence on each relevant count.
C.A.
App.
such
6793-6794,
6806.
The
district
court
then
imposed
sentences for the violations of Sections 247 and 924(c) resulting
9
in death, and imposed sentences of life imprisonment for the
Section
249(a)(1)
violations
and
involving an attempted killing.
the
Section
247
violations
Judgment 2-3; Pet. App. 56a.
5.
The court of appeals affirmed.
Pet. App. 1a-94a.
a.
Petitioner contended that the Sixth Amendment entitled
him to override his attorneys’ decision to present evidence of
mental health in mitigation and that his waiver of counsel was
invalid because it was predicated on the district court’s contrary
determination.
Pet. App. 38a.
He relied principally on this
Court’s decision in McCoy v. Louisiana, 138 S. Ct. 1500 (2018),
which held that “a defendant has the right to insist that counsel
refrain from admitting guilt, even when counsel’s experience[]based view is that confessing guilt offers the defendant the best
chance to avoid the death penalty.”
McCoy
explained
that
a
Id. at 1505.
counseled
defendant
may
“objectives” of his defense, including “the objective
set
the
* * *
to
assert innocence,” and that defense counsel is responsible for
“[t]rial management” and “strategic choices,” including “‘what
arguments to pursue.’”
138 S. Ct. at 1508 (citation omitted).
The court of appeals rejected petitioner’s assertion that a desire
not to be portrayed as autistic or mentally ill is an “objective”
of the defense, explaining that the “presentation of mental health
mitigation evidence” is “‘a classic tactical decision left to
counsel . . . even when the client disagrees.’”
Pet. App. 40a
10
(citation omitted).
The court observed that McCoy “does not
subvert the long-established distinction between an objective and
tactics” and that petitioner’s interpretation of McCoy “would
leave
little
remaining
in
the
tactics
category
by
defendants to define their objectives too specifically.”
allowing
Id. at
41a.
b.
18
Petitioner separately challenged his convictions under
U.S.C.
247(a)(2)
(2012)
and
18
U.S.C.
247(d)(1),
for
intentionally obstructing persons in the free exercise of their
religious beliefs by force and threat of force, as exceeding
Congress’s power under the Commerce Clause.
court
of
appeals
rejected
his
facial
Pet. App. 68a.
claim,
pointing
to
The
the
statute’s jurisdictional element requiring proof that “the offense
is in or affects interstate or foreign commerce,” id. at 70a
(quoting 18 U.S.C. 247(b)), and upheld the constitutionality of
the statute as applied, id. at 72a-75a.
The court of appeals pointed to this Court’s instruction in
United States v. Lopez, 514 U.S. 549 (1995), that Congress’s
commerce
power
“extends
to
regulating
instrumentalities
of
interstate commerce even when the threat of their misuse ‘may come
only from intrastate activities.’”
514 U.S. at 558).
Pet. App. 74a (quoting Lopez,
It observed that petitioner had used the
internet, a channel and instrumentality of interstate commerce, to
“conduct[] internet research to pick his church target and to
11
maximize the impact of his attack,” and “to spread his racist
ideology” and “advertise” the “rampage that he would undertake.”
Id. at 74a.
The court found that internet usage to be “closely
linked, both in purpose and temporal proximity,” to his crimes.
Ibid.
And it further found that even if petitioner’s internet use
alone did not bring his conduct within the scope of Congress’s
authority, his crime was marked by “multiple other connections to
the means of commerce,” including his use of a telephone to call
Mother Emanuel, a GPS device to navigate to the church, and an
interstate highway within South Carolina to travel to the church,
including on the day of the attack.
Id. at 75a.
The court did
not reach the government’s separate argument that petitioner’s use
of a gun, ammunition, and tactical pouch that had previously moved
in interstate commerce independently established the requisite
nexus with commerce.
c.
Id. at 75a n.46.
Petitioner additionally challenged his convictions under
Section 249(a)(1), for willfully causing bodily injury to his
victims based on their race, on the theory that the statute exceeds
Congress’s enforcement authority under the Thirteenth Amendment.
Pet. App. 78a.
issue,
the
Like every other court of appeals to consider the
court
of
appeals
here
recognized
authority under that Amendment to “enforce
* * *
that
Congress’s
by appropriate
legislation” the constitutional ban on “slavery [and] involuntary
servitude
* * *
within the United States,” U.S. Const. Amend.
12
XIII, includes the authority to enact Section 249(a)(1).
Pet.
App. 79a-80a & n.52.
The court of appeals pointed to this Court’s recognition in
Jones v.
Alfred
H.
Mayer
Co.,
392
U.S.
409 (1968), that the
Constitution gives “Congress not only the authority to abolish
slavery, but also the ‘power to pass all laws necessary and proper
for abolishing all badges and incidents of slavery in the United
States.’”
Pet. App. 80a (quoting Jones, 392 U.S. at 439).
The
court explained that Congress had “ample grounds for finding that
‘[s]lavery and involuntary servitude were enforced . . . through
widespread public and private violence directed at persons because
of their race, color, or ancestry,’” such that “‘eliminating
racially motivated violence is an important means of eliminating,
to the extent possible, the badges, incidents, and relics of
slavery and involuntary servitude.’”
Ibid. (quoting 34 U.S.C.
30501(7)) (brackets in original).
The
court
of
appeals
rejected
petitioner’s argument that
Section 249(a)(1) should be evaluated pursuant to the tests for
enforcement
legislation
under
the
Fourteenth
and
Fifteenth
Amendments, as set forth in City of Boerne v. Flores, 521 U.S. 507
(1997), and Shelby County v. Holder, 570 U.S. 529 (2013).
App. 80a-82a.
See Pet.
The court observed that neither decision mentions the
Thirteenth Amendment or Jones, and “neither discusses Congress’s
13
power to identify and legislate against the badges and incidents of
slavery.”
Id. at 82a.
ARGUMENT
Petitioner renews his contentions that his waiver of the right
to counsel was invalid because the district court misadvised him
as to whether he could control counsel’s presentation of mitigation
evidence (Pet. 10-21); that 18 U.S.C. 247(a)(2), as applied to his
planning, execution, and proselytization of his shooting spree,
exceeds Congress’s Commerce Clause power (Pet. 21-32); and that 18
U.S.C. 249(a)(1) is facially unconstitutional (Pet. 32-40).
The
court of appeals correctly rejected those contentions, and its
decision does not implicate any conflict among the lower courts
warranting
this
Court’s
intervention.
Further
review
is
unwarranted.
1.
The
court
of
appeals
correctly
determined
that
petitioner was not entitled to enjoy the assistance of counsel
while directing presentation of mitigation evidence.
on
that
question
in
the
lower
courts
is
far
Any conflict
narrower
than
petitioner suggests and does not warrant this Court’s review.
a.
The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right
the Assistance of Counsel for his defence.”
VI.
by
* * *
to have
U.S. Const. Amend.
Although a criminal defendant who chooses to be represented
counsel
retains
“the
ultimate
authority
to
make
certain
14
fundamental decisions regarding the case” -- namely, whether to
plead guilty or otherwise concede guilt, waive a jury trial,
testify in his own behalf, or appeal -- he does not have a more
general right to supersede counsel’s judgment on how to present a
defense.
Jones v. Barnes, 463 U.S. 745, 751 (1983); see McCoy v.
Louisiana, 138 S. Ct. 1500, 1505, 1508 (2018).
As this Court has
emphasized, “the lawyer has -- and must have -- full authority to
manage the conduct of the trial.”
Taylor v. Illinois, 484 U.S.
400, 418 (1988); Gonzalez v. United States, 553 U.S. 242, 248-249
(2008).
Counsel
thus
exercises
strategic
judgment
about
“what
arguments to pursue, what evidentiary objections to raise, and
what agreements to conclude regarding the admission of evidence.”
McCoy, 138 S. Ct. at 1508 (citation omitted); see, e.g., New York
v. Hill, 528 U.S. 110, 114-115 (2000); see also Brookhart v. Janis,
384 U.S. 1, 8 (1966) (opinion of Harlan, J.) (“[A] lawyer may
properly make a tactical choice of how to run a trial even in the
face of [the] client’s
* * *
explicit disapproval.”); American
Bar Ass’n, Criminal Justice Standards for the Defense Function
§ 4-5.2 (4th ed. 2017) (describing division of decision-making
authority between client and counsel).
An attorney is not simply
“an adviser to a client with the client’s having the final say at
each point.”
United States v. Chapman, 593 F.3d 365, 370 (4th
Cir. 2010), cert. denied, 562 U.S. 1134 (2011) (quoting United
15
States v. Burke, 257 F.3d 1321, 1323 (11th Cir. 2001), cert.
denied, 537 U.S. 940 (2002)).
Instead, defense counsel “is an
officer of the court and a professional advocate pursuing a result
-- almost always, acquittal -- within the confines of the law; his
chief reason for being present is to exercise his professional
judgment to decide tactics.”
Ibid. (quoting Burke, 257 F.3d at
1323); see Jones, 463 U.S. at 751.
In cases where a defendant disagrees with his attorney’s
strategic decisions, he may “preserve actual control over the case
he chooses to present to the jury” by waiving the right to counsel
and representing himself.
McKaskle v. Wiggins, 465 U.S. 168, 178
(1984); see Faretta v. California, 422 U.S. 806, 819 (1975).
But
where
he
a
defendant
decides
to
be
represented
by
counsel,
necessarily “consent[s]” to his counsel’s control over “trial
strategy.”
b.
Id. at 820.
The
principles.
decision
below
properly
applied
the
foregoing
Consistent with this Court’s recognition that a
defendant retains the autonomy to make “fundamental decisions”
regarding the objectives of his defense, Jones, 463 U.S. at 751,
petitioner made the decision to plead not guilty and to invoke his
right to a jury trial, see id. at 759.
He also determined that
the ultimate objective of his defense was to avoid the death
penalty, see, e.g., C.A. App. 77, 161, 373, 574, 5563 -- an
16
objective that his attorneys respected and sought to achieve, see,
e.g., id. at 662.
Petitioner
was
not,
however,
entitled
to
control
his
counsel’s strategy for achieving that objective by dictating the
mitigation evidence that they could introduce.
Those strategic
judgments fall squarely within counsel’s purview to determine
“what arguments to pursue, what evidentiary objections to raise,
and
what
agreements
to
conclude
regarding
the
admission
of
evidence,” Gonzalez, 553 U.S. at 248 (citations omitted), in an
effort to achieve the defendant’s objectives. Unlike the decisions
reserved to a defendant, such strategic judgments do not involve
the defendant’s right to assert his innocence or the assertion (or
forfeiture) of a legal entitlement, like the right to a jury.
Instead, the decision of what mitigation evidence to introduce is
“a classic tactical decision left to counsel.”
Pet. App. 40a
(citation omitted).
In
challenging
the
decision
below,
petitioner
does
not
directly engage with the scope of counsel’s authority to make
strategic judgments, and instead simply asserts that a desire not
to present mental-health evidence is an “autonomy” interest akin
to the decision whether to concede guilt that McCoy held to be
within the defendant’s control.
Pet. 17-18.
But McCoy did not
confer on a defendant a comprehensive autonomy right “over his
defense,” as petitioner suggests.
Pet. 17; see, e.g., United
17
States v. Rosemond, 958 F.3d 111, 123 (2d Cir. 2020) (“McCoy [i]s
limited to a defendant preventing his attorney from admitting he
is guilty of the crime with which he is charged.”), cert. denied,
141 S. Ct. 1057 (2021).
To the contrary, McCoy reaffirmed that “[t]rial management is
the lawyer’s province” and distinguished “choices about what the
client’s objectives in fact are” (which the client makes) from
“strategic choices about how best to achieve a client’s objectives”
(which counsel makes).
objective
was
to
138 S. Ct. at 1508.
obtain
a
non-capital
Here, petitioner’s
sentence,
and
the
introduction of mitigation evidence was a strategic decision to
achieve that objective.
Petitioner’s contrary view would render
the line between “objectives” and “strategic choices” incoherent
and establish an unprecedented right to insist on the assistance
of
counsel
while
simultaneously
insisting
number of counsel’s strategic judgments.
on
superseding
any
See Pet. App. 41a.
Petitioner asserts (Pet. 20-21) that even if counsel controls
some decisions about what mitigation evidence to introduce, the
decision to introduce evidence of mental health should be treated
differently because it “resembles the choice to present an insanity
or diminished capacity defense, which nearly all jurisdictions
reserve for defendants.”
Pet. 20 (citing, e.g., United States v.
Read, 918 F.3d 712, 719 n.2 (9th Cir. 2019)).
But “an insanity
defense entails an admission of guilt,” Pet. App. 41a (citing 18
18
U.S.C. 17(a)), and a defendant is subject to confinement if the
defense is successful, see ibid. (citing 18 U.S.C. 4243(a) and
(e)).
Petitioner’s reliance on Schriro v. Landrigan, 550 U.S. 465,
475 (2007), and Blystone v. Pennsylvania, 494 U.S. 299, 306 n.4
(1990),
is
misplaced.
In
Landrigan,
the
Court
found
no
unreasonable application of clearly established law in a lower
court’s
finding
that
counsel
had
not
been
constitutionally
ineffective in declining to investigate mitigating evidence on
behalf of a defendant who had told counsel that he did not want
counsel to present any such evidence.
550 U.S. at 478.
Not only
does this case not involve an ineffective-assistance claim, which
would be governed by a different test (compare McCoy, 138 S. Ct.
at 1508, with Strickland v. Washington, 466 U.S. 668, 687 (1984)),
but “the fact that counsel could be found not ineffective for
conforming to the wishes of a defendant does not mean that counsel
must conform to the defendant’s wishes,” Pet. App. 40a n.16.
And
Blystone did not involve any question about the Sixth Amendment,
but simply observed in a footnote that the defendant had decided
not to present any mitigation at sentencing, contrary to counsel’s
advice.
c.
494 U.S. at 306 n.4.
Petitioner fails to identify any meaningful disagreement
in the lower courts on the application of well-settled Sixth
Amendment doctrine to his case.
19
Petitioner
principally
relies
(Pet.
11
n.4,
12
n.9)
on
decisions similar to Landrigan, which find that attorneys were not
constitutionally
desire
not
to
ineffective
present
for
acquiescing
mitigation
evidence.
to
a
See
defendant’s
Ramirez
v.
Stephens, 641 Fed. Appx. 312, 326-327 (5th Cir.), cert. denied,
137 S. Ct. 279 (2016); Tyler v. Mitchell, 416 F.3d 500, 504 (6th
Cir. 2005), cert. denied, 547 U.S. 1074 (2006); Wallace v. Davis,
362 F.3d 914, 919-920 (7th Cir.), cert. denied, 543 U.S. 1008
(2004); Singleton v. Lockhart, 962 F.2d 1315, 1316, 1321-1322 (8th
Cir.), cert. denied, 506 U.S. 964 (1992); People v. Brown, 326
P.3d 188, 204-211 (Cal. 2014), cert. denied, 574 U.S. 1160 (2015);
State v. Maestas, 299 P.3d 892, 958-962 (Utah 2012), cert. denied,
568 U.S. 1252 (2013); Commonwealth v. Puksar, 951 A.2d 267, 287293 (Pa. 2008); Brawner v. State, 947 So. 2d 254, 263-264 (Miss.
2006); Zagorski v. State, 983 S.W.2d 654, 657 (Tenn. 1998), cert.
denied, 528 U.S. 829 (1999); Trimble v. State, 693 S.W.2d 267, 279
(Mo. Ct. App. 1985); see also Shaw v. State, 207 So. 3d 79, 115
(Ala. Crim. App. 2014) (defendant argued “that the circuit court
interfered with his right to counsel by permitting him to waive
the presentation of mitigation evidence”), cert. denied, 137 S.
Ct. 828 (2017); Boyd v. State, 910 So. 2d 167, 189-190 (Fla. 2005)
(per curiam) (similar), cert. denied, 546 U.S. 1179 (2006); State
v. Grooms, 540 S.E.2d 713, 734-735 (N.C. 2000) (similar), cert.
denied, 534 U.S. 838 (2001); State v. White, 508 S.E.2d 253, 271
20
(N.C. 1998) (similar), cert. denied, 527 U.S. 1026 (1999); State
v. Roscoe, 910 P.2d 635, 649-651 (Ariz.) (similar), cert. denied,
519 U.S. 854 (1996); cf. State v. Thomas, 625 S.W.2d 115, 123-124
(Mo. 1981) (counsel not ineffective for failing to present mental
incapacity
defense
where
defendant
forbade
insisted he did not commit the crime).
decisions
do
not
suggest
that
that
defense
and
As discussed above, such
counsel
must accede
to
such
a
request, and thus do not conflict with other decisions (see Pet.
13 & n.11) that take no position on that issue.
Next, in many of the decisions that petitioner cites (Pet. 11
n.4, 12 n.9, 14 n.12), the defendant decided to waive mitigation
altogether because he preferred death to life imprisonment.
In
upholding counsel’s decision to comply with that request, those
decisions
recognized
that
foregoing
mitigation
defendant’s objective of avoiding life imprisonment.
advanced
the
See Ramirez,
641 Fed. Appx. at 326-327; Singleton, 962 F.2d at 1321-1322; Brown,
326 P.3d at 204-211; State v. Hausner, 280 P.3d 604, 628-630 (Ariz.
2012); Zagorski, 983 S.W.2d at 655-661; Morrison v. State, 373
S.E.2d 506, 508-509 (Ga. 1988), cert. denied, 490 U.S. 1012 (1989);
see also People v. Amezcua, 434 P.3d 1121, 1146-1149 (Cal. 2019)
(similar); St. Clair v. Commonwealth, 140 S.W.3d 510, 560-561 (Ky.
2004) (similar).
Here, in contrast, petitioner’s acknowledged
objective was life imprisonment.
As one of his own cited cases
explains, the strategic judgment about the evidence to present in
21
furtherance of that objective belonged to counsel.
See State v.
Cross, 132 P.3d 80, 95 (Wash.), cert. denied, 549 U.S. 1022 (2006)
(concluding that “[a] competent defendant may forbid counsel to
put on a mitigation case if his goal is to have the death penalty
imposed,” but once the defendant decides to seek life imprisonment,
“the strategy is largely in the hands of his attorneys”), abrogated
on other grounds by State v. Gregory, 427 P.3d 621 (2018).
Several decisions cited by petitioner (Pet. 11 n.4) assess
whether a defendant’s waiver of the right to present mitigating
evidence
was
knowing
and
intelligent.
That
is
a
different
question, governed by a different legal standard, from whether
counsel is required to acquiesce to a defendant’s desire not to
present
specific
evidence
or
testimony
in
mitigation.
See
Singleton, 962 F.2d at 1321; Boyd, 910 So. 2d at 188; St. Clair,
140 S.W.3d at 560-561; State v. Barton, 844 N.E.2d 307, 314-315
(Ohio 2006).
Other decisions (Pet. 11 n.4, 12 n.9) are a variant
on that same theme, finding a reasonable mitigation investigation
was necessary to ensure the validity of a mitigation waiver.
See
Blystone v. Horn, 664 F.3d 397, 422 n.21 (3d Cir. 2011); Dobbs v.
Turpin, 142 F.3d 1383, 1388 (11th Cir. 1998); Grim v. State, 971
So. 2d 85, 100 (Fla. 2007) (per curiam); People v. Steidl, 685
N.E.2d 1335, 1343-1344 (Ill. 1997).
Still others (Pet. 11 n.4, 12
n.8, 14 n.12) address whether permitting a defendant to override
counsel’s
mitigation
decisions
compromises
the
government’s
22
independent interest in a fair and reliable sentencing verdict.
See Amezcua, 434 P.3d at 1149; State v. Johnson, 401 S.W.3d 1, 1316 (Tenn.), cert. denied, 571 U.S. 992 (2013); Wallace v. State,
893 P.2d 504, 512 (Okla. Crim. App.), cert. denied, 516 U.S. 888
(1995).
And almost all of the remainder (Pet. 11 n.4) are
inapposite for individual reasons.
See Wertz v. State, 434 S.W.3d
895, 906 n.1 (Ark. 2014) (determining that counsel presented an
adequate mitigation case); Cooke v. State, 97 A.3d 513, 538 (Del.
2014) (rejecting as “illogical” defendant’s argument that his
capital sentence should be vacated because counsel introduced
mitigation evidence over his objection), cert. denied, 574 U.S.
1085 (2015); State v. Robert, 820 N.W.2d 136, 143-144 (S.D. 2012)
(concluding that defendant’s “death sentence does not appear to
have been the result of passion, prejudice, or any other arbitrary
factor”).
Ultimately, petitioner identifies only a single decision,
Louisiana v. Brown, 330 So. 3d 199 (La. 2021), cert. denied, 142
S. Ct. 1702 (2022), that involves the question presented here.
In
Brown, the defendant wanted to avoid the death penalty and was not
wholly opposed to a mitigation case, but did not want his uncle to
testify and stated that he was “willing to accept death before [he
would] let [his] mother get on the stand.”
218-220.
Id. at 219; see id. at
He opted to represent himself in the penalty phase after
the trial court advised him that counsel was entitled to call the
23
witnesses over his objection.
Id. at 219-221.
The Louisiana
Supreme Court deemed that advice erroneous, on the theory (which
it viewed to be supported by McCoy) that the defendant “had a
‘constitutional right to impose a condition of employment on his
counsel,’” and thus could “‘limit his defense consistent with his
wishes at the penalty phase of trial.’”
Id. at 224 (quoting State
v. Felde, 422 So. 2d 370, 395 (La. 1982), cert. denied, 461 U.S.
918 (1983)); see id. at 225.
But neither the Louisiana Supreme
Court’s decision nor the State’s petition for a writ of certiorari
in that case even cited the decision below, and any nascent,
unacknowledged
disagreement
between
the
Fourth
Circuit
and
a
single out-of-circuit state court does not warrant further review
of petitioner’s case.
2.
Petitioner separately contends (Pet. 21-32) that his
convictions under the religious-obstruction statute, 18 U.S.C.
247(a)(2) (2012), exceed Congress’s Commerce Clause authority.
Petitioner’s contention is unsound, and the court of appeals’
factbound determination that petitioner’s crimes had the requisite
nexus with interstate commerce does not merit this Court’s review.
a.
At the time of petitioner’s crimes, Section 247(a)(2)
prohibited “intentionally obstruct[ing], by force or threat of
force, any person in the enjoyment of that person’s free exercise
of religious beliefs, or attempt[ing] to do so,” under “any of the
circumstances referred to in subsection (b).”
18 U.S.C. 247(a)(2)
24
(2012).
Subsection (b), in turn, required the government to prove
that “the offense is in or affects interstate or foreign commerce.”
18 U.S.C. 247(b).
That jurisdictional element differentiates this case from
United States v. Lopez, 514 U.S. 549 (1995), and United States v.
Morrison, 529 U.S. 598 (2000), in which this Court concluded that
Congress had exceeded its commerce powers in enacting certain
statutes that, inter alia, lacked any such jurisdictional hook.
Lopez, 514 U.S. at 561 (noting that the statute there “contain[ed]
no jurisdictional element which would ensure, through case-by-case
inquiry,
that
the
firearm
possession
in
question
affects
interstate commerce”); Morrison, 529 U.S. at 613 (similar).
And
petitioner does not dispute that subsection (b) invokes Congress’s
full authority under the Commerce Clause.
Pet. App. 72a-73a n.45.
This Court has “identified three broad categories of activity
that Congress may regulate under its commerce power.”
U.S. at 558.
“First, Congress may regulate the use of the channels
of interstate commerce.
and
protect
Lopez, 514
the
Second, Congress is empowered to regulate
instrumentalities
of
interstate
commerce,
or
persons or things in interstate commerce, even though the threat
may come only from intrastate activities.
Finally, Congress’
commerce authority includes the power to regulate those activities
having a substantial relation to interstate commerce, i.e., those
activities that substantially affect interstate commerce.”
Id. at
25
558-559 (citations omitted); see Morrison, 529 U.S. at 608-609;
see also, e.g., Taylor v. United States, 579 U.S. 301, 306 (2016).
Petitioner’s crimes were well within that authority.
Petitioner used the internet -- which is both a channel and
an instrumentality of interstate commerce -- in direct furtherance
of his crime (“to pick his church target”) and “to maximize the
impact of his attack” (by posting his “racist manifesto and call
to action” on a foreign server).
20a-21a,
69a.
Petitioner’s
Pet. App. 73a, 74a; see id. at
crime
was
also
characterized
by
“multiple other connections to the means of commerce,” including
the use of a telephone to call Mother Emanuel and the repeated use
of a GPS and interstate highway to travel to Mother Emanuel.
at 75a.
“[T]aken together,” those uses of the channels and
instrumentalities
of
interstate
commerce
bring
petitioner’s
conduct within the ambit of Congress’s commerce authority.
b.
Id.
Petitioner’s contrary argument lacks merit.
Ibid.
He primarily
contends (Pet. 24) that the decision below conflicts with Lopez
and Morrison, each of which involved a statute whose validity
rested on its inclusion in the third category of commerce that
Congress may regulate (“activities having a substantial relation
to
interstate
commerce”).
Lopez,
514
U.S.
at
558-559;
see
Morrison, 529 U.S. at 609. The Court concluded that the connection
between
the
elements,
challenged
and
that
statutes,
third
which
category
was
lacked
too
jurisdictional
“attenuated”
for
26
congressional regulation.
Morrison, 529 U.S. at 615; see id. at
601-602 (statute providing civil remedy for victims of gendermotivated violence); Lopez, 514 U.S. at 551 (statute penalizing
possession of firearm in a school zone).
Petitioner’s conduct
here, in contrast, involved the direct use of the channels and
instrumentalities of commerce.
Petitioner
instrumentalities
asserts
and
See Pet. App. 73a-75a.
(Pet.
25)
that
his
channels
of
interstate
uses
of
the
commerce
were
“commonplace acts” that could not sustain federal jurisdiction.
But the court of appeals found that those uses, which both enabled
and exacerbated his crimes, were in fact “closely linked, both in
purpose and temporal proximity, to his violation of the religiousobstruction statute.”
Pet. App. 74a.
Petitioner also asserts
(Pet. 27) that “[t]ransactions merely preceded by interstate acts
* * *
are not ‘in’ interstate commerce.”
But “the authority of
Congress to keep the channels of interstate commerce free from
immoral and injurious uses
* * *
is no longer open to question,”
Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256
(1964) (citation omitted), and petitioner acknowledges that “this
Court has held that Congress can punish interstate travel or use
of interstate instrumentalities to ‘promote’ intrastate harm,”
Pet. 29 n.25 (quoting Brooks v. United States, 267 U.S. 432, 436
(1925)); see Pet. App. 74a (citing cases).
27
Here,
petitioner
employed
multiple
instrumentalities
and
channels of interstate commerce to “promote” his mass shooting at
Mother Emanuel.
the
relevant
“[b]ecause
itself,
Brooks, 267 U.S. at 436.
precedents
Section
not
do
not
247(a)(2)
interstate
Petitioner argues that
support
punishes
travel
or
the
decision
below
religious
obstruction
use
interstate
of
instrumentalities to further religious obstruction.”
Pet. 29
n.25.
But, as noted above, Section 247(a)(2) incorporates an
express
jurisdictional
that
“the
offense is in or affects interstate or foreign commerce.”
18
U.S.C. 247(b).
element
that
requires
proof
Moreover, the proper focus of petitioner’s as-
applied challenge is on his own conduct.
See, e.g., Sabri v.
United States, 541 U.S. 600, 605, 609 (2004).
In finding that the
specific conduct at issue here fell within Congress’s regulatory
authority,
the
court
of
appeals
emphasized
that
it
was
“not
suggesting that a defendant’s internet usage before or even while
committing a federal offense will always place his conduct within
the reach of Congress’s Commerce Clause authority.”
Pet. App.
74a.
The court of appeals’ narrow, factbound determination is
neither “far-reaching,” Pet. 22, nor deserving of this Court’s
review.
Petitioner does not identify any circuit that has ever
found Section 247(a)(2) unconstitutional, either on its face or as
applied.
Nor does petitioner explain how the court of appeals’
28
circumstance-specific analysis would control the outcome in future
cases presenting different facts.
In addition, the court did not
address a separate ground for affirmance that the government
raised. In particular, the government observed that in Scarborough
v. United States, 431 U.S. 563 (1977), this Court held that the
jurisdictional element in the federal felon-in-possession statute
was satisfied by proof that the firearm had previously traveled in
interstate commerce, id. at 568, 575, 578, and argued that the
requisite
commerce
nexus
here
was
independently
provided
by
petitioner’s use of a gun, ammunition, and a tactical pouch that
had all themselves traveled in interstate commerce, see Pet. App.
75a-77a & nn.46, 48.
In any event, this would be an unsuitable vehicle for further
review of this issue because, even if the Court were to overturn
petitioner’s Section 247(a)(2) convictions, that would not itself
suggest that petitioner’s capital sentence should be set aside.
Petitioner was convicted on 18 capital counts:
violations
of
the
religious-obstruction
nine counts for
statute
resulting
in
death, under 18 U.S.C. 247(a)(2) (2012) and 18 U.S.C. 247(d)(1),
and nine counts for using a firearm to commit murder during and in
relation to a crime of violence, in violation of 18 U.S.C. 924(c)
and (j)(1).
Judgment 2.
Although only one predicate crime of
violence was necessary to sustain each of the Section 924 counts,
the
government
proved
(and
the
jury
found)
two
alternative
29
predicates -- a violation of Section 247(a)(2) and a violation 18
U.S.C 249(a)(1) -- to support each.
Pet. App. 56a, 90a, 93a.
would
therefore
be
Indictment 9; Judgment 1;
Petitioner’s Section 924(c) convictions
infirm
only
if
he
prevailed
on
his
constitutional challenges to both the Section 247(a)(2) and the
Section 249(a)(1) convictions, as petitioner does not directly
challenge the validity of those Section 924(c) convictions.
3.
Petitioner’s challenge (Pet. 32-40) to his hate-crime
convictions under Section 249(a)(1), which effectively asks this
Court
to
overrule
its
precedent
interpreting
the
scope
of
Congress’s enforcement powers under the Thirteenth Amendment, is
unsound and provides no justification for further review.
This
Court has previously denied other petitions presenting similar
arguments.
See, e.g., Metcalf v. United States, 139 S. Ct. 412
(2018) (No. 17-9340); Cannon v. United States, 574 U.S. 1029 (2014)
(No. 14-5356); Hatch v. United States, 572 U.S. 1018 (2014) (136765).
a.
The same course is warranted here.
The Thirteenth Amendment states that “[n]either slavery
nor involuntary servitude
* * *
shall exist within the United
States,” and provides that “Congress shall have power to enforce
this article by appropriate legislation.” U.S. Const. Amend. XIII.
In the Civil Rights Cases, 109 U.S. 3 (1883), the Court recognized
that the Thirteenth Amendment authorizes Congress “to pass all laws
necessary and proper for abolishing all badges and incidents of
30
slavery in the United States.”
Id. at 20.
And in Jones v. Alfred
H. Mayer Co., 392 U.S. 409 (1968), the Court relied on the Civil
Rights Cases and explained that the Amendment “empowered Congress to
do much more” than abolish slavery and that “Congress has the power
under the Thirteenth Amendment rationally to determine what are the
badges and the incidents of slavery, and the authority to translate
that determination into effective legislation.”
Id. at 439-440.
Applying that standard, Jones upheld a federal statute prohibiting
racial discrimination in the sale of property on the ground that
Congress had rationally determined that such discrimination is among
the badges and incidents of slavery. Id. at 438-444. Other decisions
of this Court have since reiterated the principle explicated and
applied in Jones.
179
(1976)
See, e.g., Runyon v. McCrary, 427 U.S. 160, 170,
(relying
discrimination
in
on
Jones
making
and
to
uphold
enforcing
prohibition
on
racial
contracts);
Griffin
v.
Breckenridge, 403 U.S. 88, 105 (1971) (relying on Jones to uphold
private cause of action for conspiring to violate equal rights).
The court of appeals correctly applied those precedents to
reject petitioner’s facial challenge to Section 249(a)(1), which
prohibits “willfully caus[ing] bodily injury to any person or,
through the use of
* * *
a firearm,
* * *
attempt[ing] to cause
bodily injury to any person, because of the actual or perceived
race
* * *
explained,
of any person.”
18 U.S.C. 249(a)(1).
Congress
recognized
soundly
that
As the court
“[s]lavery
and
31
involuntary servitude were enforced through widespread public and
private violence directed at persons because of their race, color,
or
ancestry,”
and
permissibly
determined
that
“eliminating
racially motivated violence is an important means of eliminating,
to the extent possible, the badges, incidents, and relics of
slavery.”
Pet. App. 80a (quoting 34 U.S.C. 30501(7)) (brackets in
original).
Section
249(a)(1)
is
therefore
“‘appropriate’
in
exactly the manner envisioned in Jones.” Ibid. Indeed, petitioner
does not contend otherwise.
Instead, petitioner argues (Pet. 32) that this Court should
effectively overrule its precedents on this issue, asserting a
need to “harmonize” the standard for enforcement legislation under
the Thirteenth Amendment with the purportedly more “stringent
tests for analyzing legislation under the Fourteenth and Fifteenth
Amendments.”
521
U.S.
Petitioner thus invokes City of Boerne v. Flores,
507
(1997),
which
required
“congruence
and
proportionality between the injury to be prevented or remedied and
the means adopted to that end” to bring a statute within Congress’s
enforcement authority under the Fourteenth Amendment, id. at 520,
and Shelby County v. Holder, 570 U.S. 529 (2013), which observed
that “a statute’s ‘current burdens’ must be justified by ‘current
needs’” in analyzing a statute’s constitutionality as an exercise
of Congress’s power under the Fifteenth Amendment, id. at 550
(citation omitted).
32
Petitioner’s argument (Pet. 38) for reflexively transposing
Fourteenth or Fifteenth Amendment tests into the context of the
Thirteenth
Amendment
is
misplaced.
As the court of appeals
recognized, neither City of Boerne nor Shelby County “mentions the
Thirteenth Amendment, neither cites Jones, and neither discusses
Congress’s power to identify and legislate against the badges and
incidents of slavery.”
Pet. App. 82a.
And each amendment is
characterized by its “own unique history, structure, and caselaw.”
United States v. Diggins, 36 F.4th 302, 313 (1st Cir. 2022)
(upholding
Section
249(a)(1)
against
a
similar
challenge).
Accordingly, in explicating the proper approach to Thirteenth
Amendment legislation, Jones examined the Amendment’s text and
historical context, including early precedent and contemporary
congressional
debates.
See
392
U.S.
at
429-430,
437-444.
Petitioner does not take issue with that interpretive approach;
indeed, the Court’s interpretation of the Fourteenth Amendment in
City of Boerne “employ[ed] parallel methodologies and modes of
reasoning,”
different
Diggins,
36
Amendment.
F.4th
at
Petitioner
313,
but
offers
no
simply
analyzed
sound
basis
a
for
disregarding Jones to impose an artificial “uniform[ity],” Pet.
38, that the individual contexts of the different Amendments would
not themselves support.
Petitioner also disregards the different implications that
the different Amendments have for federalism.
By their terms, the
33
Fourteenth and Fifteenth Amendments apply only to state action.
The challenged federal statutes in both City of Boerne and Shelby
County directly regulated the States, and the Court’s analysis
accordingly took account of an interest in state autonomy.
See
City of Boerne, 521 U.S. at 532-535; Shelby County, 570 U.S. at
542-545.
The Thirteenth Amendment, however, permits the direct
regulation of private actors, see Civil Rights Cases, 109 U.S. at
23, and Section 249(a)(1) reflects an exercise of that authority.
That distinction, which renders the state-autonomy interest at
issue in City of Boerne and Shelby County inapposite, “has great
significance,” District of Columbia v. Carter, 409 U.S. 418, 423
(1973), to the separate consideration of the Thirteenth Amendment.
Petitioner additionally fails to show that overruling Jones
would be appropriate as a matter of stare decisis.
See, e.g.,
Evans v. Michigan, 568 U.S. 313, 327 (2013) (“declin[ing] to
revisit” prior decisions).
Jones considered and rejected a narrow
reading of the Thirteenth Amendment, and this Court and lower
courts have repeatedly recognized and applied Jones in the 50 years
since it was decided.
See, e.g., Runyon, 427 U.S. at 168, 179;
Griffin, 403 U.S. at 105; p. 34, infra (citing cases); see also
City of Memphis v. Greene, 451 U.S. 100, 125 n.39 (1981) (quoting
Jones, 392 U.S. at 440, for proposition that “Congress has the
power under the Thirteenth Amendment rationally to determine what
are the badges and the incidents of slavery, and the authority to
34
translate that determination into effective legislation”); Palmer
v. Thompson, 403 U.S. 217, 227 (1971) (noting that under Jones,
Congress has broad power to outlaw the “badges of slavery”).
b.
Petitioner
does
not
allege
a
circuit
conflict
over
Jones’s continuing viability or the constitutionality of Section
249(a)(1),
or
otherwise
present
a
sound
basis
for
granting
certiorari on the issue of Section 249(a)(1)’s constitutionality.
To the contrary, the courts of appeals have unanimously upheld
that provision against constitutional challenge.
See Diggins, 36
F.4th at 317; United States v. Metcalf, 881 F.3d 641, 644-645 (8th
Cir.), cert. denied, 139 S. Ct. 412 (2018); United States v.
Cannon, 750 F.3d 492, 505 (5th Cir.), cert. denied, 574 U.S. 1029
(2014); United States v. Hatch, 722 F.3d 1193, 1200-1201, 1206,
1209 (10th Cir. 2013), cert. denied, 572 U.S. 1018 (2014).
And
two additional circuits have applied Jones to uphold 18 U.S.C.
245(b)(2)(B) -- a similar statute prohibiting certain forms of
racially motivated violence.
See United States v. Nelson, 277
F.3d 164, 173-191 (2d Cir.), cert. denied, 537 U.S. 835 (2002);
United States v. Allen, 341 F.3d 870, 883-884 (9th Cir. 2003),
cert. denied, 541 U.S. 975 (2004).
In
any
event,
Section
249(a)(1)
satisfies
articulated in both City of Boerne and Shelby County.
Boerne,
the
Court
determined
that
the
the
tests
In City of
Religious
Freedom
Restoration Act of 1993, 42 U.S.C. 2000bb et seq., was “so out of
35
proportion to a supposed remedial or preventive object that it
cannot be understood as responsive to, or designed to prevent,
unconstitutional behavior,” as opposed to an impermissible effort
“to attempt a substantive change in constitutional protections.”
521 U.S. at 532.
The Court emphasized, however, that Congress has
“wide latitude” in enacting enforcement legislation, id. at 520,
and that “[l]egislation which deters or remedies constitutional
violations can fall within the sweep of Congress’ enforcement power
even if in the process it prohibits conduct which is not itself
unconstitutional
and
intrudes
into
‘legislative
spheres
of
autonomy previously reserved to the States,’” id. at 518 (citation
omitted).
And in Shelby County, the Court invalidated Section
4(b) of the Voting Rights Act of 1965, 52 U.S.C. 10303(b) (Supp.
IV 2016), because that provision imposed requirements based on
factual
circumstances
earlier,
and
the
that
Court
had
existed
concluded
that
“[n]early
“things
50
years”
ha[d]
changed
dramatically” in the intervening decades, 570 U.S. at 547, such
that the legislation was not justified by “current conditions,”
id. at 557.
The issues the Court identified in City of Boerne and Shelby
County are absent here.
The connection between Section 249(a)(1)
and the “slavery” and “involuntary servitude” prohibited by the
Thirteenth Amendment, U.S. Const. Amend. XIII, § 1, is direct and
does
not
reflect
a
“substantive
change
in
constitutional
36
protections.”
City of Boerne, 521 U.S. at 532.
The statute
targets the use of private violence against minorities based on
their race, and petitioner does not challenge Congress’s finding
that “[s]lavery and involuntary servitude were enforced
* * *
through widespread public and private violence directed at persons
because of their race, color, or ancestry.”
34 U.S.C. 30501(7).
Section 249(a)(1) is also warranted in light of “current
conditions.”
Shelby County, 570 U.S. at 550.
A 2002 Senate Report
discussing a predecessor bill had observed that “the number of
reported hate crimes has grown almost 90 percent over the past
decade,” averaging “20 hate crimes per day for 10 years straight.”
S. Rep. No. 147, 107th Cong., 2d Sess. 2 (2002).
And the 2009
House Report accompanying Section 249(a)(1)’s enactment cited FBI
data identifying over 118,000 reported violent hate crimes since
1991, including nearly 4900 motivated by bias based on race or
national origin and ethnicity in 2007 alone, in finding that
“[b]ias crimes are disturbingly prevalent.”
111th Cong., 1st Sess. 5 (2009).
H.R. Rep. No. 86,
Based on this evidence, Congress
properly determined that racially motivated violence remains “a
serious national problem,” 34 U.S.C. 30501(1), and permissibly
acted
to
criminalize
such
violence,
racially motivated mass shooting here.
including
petitioner’s
37
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Solicitor General
KRISTEN CLARKE
KENNETH A. POLITE, JR.
Assistant Attorneys General
BONNIE I. ROBIN-VERGEER
BRANT S. LEVINE
ANN O’CONNELL ADAMS
Attorneys
AUGUST 2022
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.