# Amicus Curiae Brief — Scheidler v. National Organization for Women, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 537 U.S. 393

## Text

Ssapreme Doort Ua.
FILED
| JUL 12 2002
@ 6
Nos. 01-1118, 01-1119 |_OPS UE Cerr |

IN THE
Supreme Court of the Gnited States

o
JOSEPH SCHEIDLER, ET AL.,
Petitioners,

Vv.
NATIONAL ORGANIZATION FOR WOMEN, INC., ET AL.

OPERATION RESCUE,
Petitioner,
. Vv.
NATIONAL ORGANIZATION FOR WOMEN, INC., ET AL.
+
On Writs of Certiorari to the
United States Court of Appeals for the Seventh Circuit
BRIEF FOR THE STATES OF ALABAMA,
NEBRASKA, NORTH DAKOTA, AND SOUTH
DAKOTA, AND THE COMMONWEALTH OF THE
NORTHERN MARIANA ISLANDS, AS AMICI
CURIAE, IN SUPPORT OF PETITIONERS

+
WILLIAM H. Pryor JR.
Attorney General of Alabama

CHARLES B. CAMPBELL*
Deputy Solicitor General
Counsel of Record *

OFFICE OF THE ATTORNEY GENERAL
STATE OF ALABAMA

11 South Union Street
Montgomery, Alabama 36130-0152
(334) 242-7300

wr Counsel for Amicus Curiae,
the State of Alabama

(Additional C 1 Listed
Inside Front Cover

Additional Counsel for Amici Curiae

DON STENBERG
ATTORNEY GENERAL OF
NEBRASKA
Department of Justice
2115 State Capitol
Lincoln, NE 68509
(402) 471-2682
WAYNE STENEHJEM
ATTORNEY GENERAL OF
NORTH DAKOTA
600 East Boulevard Avenue
Bismark, ND 58505
(701) 328-2210

MARK BARNETT

ATTORNEY GENERAL OF
SOUTH DAKOTA

500 East Capitol Avenue

Pierre, SD 57501-5070

(605) 773-3215

ROBERT TORRES

ATTORNEY GENERAL OF THE
COMMONWEALTH OF THE
NORTHERN MARIANA ISLANDS

Office of the Attorney General

State House Building, Station 6

Saipan, MP 96950

(670) 664-2338

i
QUESTIONS PRESENTED

1. Whether the Seventh Circuit correctly held, in ac-
knowledged conflict with the Ninth Circuit, that injunc-
tive relief is available in a private civil action for treble
damages brought under the Racketeer Influenced and
Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1964(c).

2. Whether the Hobbs Act, which makes it a crime to
obstruct, delay, or affect interstate commerce “by robbery
or extortion”—and which defines “extortion” as “the ob-
taining of property from another, with [the owner’s] con-
sent,” where such consent is “induced by the wrongful use
of actual or threatened force, violence, or fear” (18 U.S.C.
§ 1951(b)(2) (emphasis added))—criminalizes the activi-
ties of political protesters who engage in sit-ins and dem-
onstrations that obstruct the public’s access to a
business’s premises and interfere with the freedom of
putative customers to obtain services offered there.

ii

TABLE OF CONTENTS

Page
ID I cnrseteenssccsssnteenmemncsmmsmemenemnen i
ee RD sccnnsmcesnsessnercesmnemmiemenenemenenette ii
es I cennesemseememsemmnenennes iii
Brief for Amici Curiae in Support of Petitioners ............... 1
I Ee GD cnreeencctenminnnmeane 1
ID cinenrcennnnenscensnreniseninnninennnninnnes 2
I ceesemesmmmntesinmnnel 4

I. The Creation of an Implied Private Equitable
Action Under Civil RICO Violates this Court's
“Particular Understanding of the Genesis of Pri-
a I S ‘cennttcetnnenscnecnnersncnetnensenenee 4

Il. The Expansion of the Hobbs Act to Prohibit Con-
duct That Does Not Involve “the Obtaining of
Property” Raises the Specter of Unnecessary Civil
RICO Litigation Against State and Local Officials......7

III. The Expansion of the Hobbs Act to Apply to Intan-
gible, Non-economic Rights Departs from the
Common Law of Extortion. ................:scscsccssssesseseeeeeees 13

TABLE OF AUTHORITIES
Page(s)

Cases:
Alexander v. Sandoval,

eae 2-7
Alford v. City of Newport News,

220 Va. 584, 260 S.E.2d 241 (1979) ...............cccceceeeeeee 11
Amico’s Inc. v. Mattos,

nee 11
Bray v. Alexandria Women’s Health Clinic,

| Een 18
Brown v. NationsBank Corp.,

188 F.3d 579 (5th Cir. 1999),

cert. denied, 530 U.S. 1274 (2000) ..............cc0eceeeceeeeeee 12
Carpenter v. United States,

eee 9,17
Carter v. United States,

een 13
City of Tucson v. Grezaffi,

200 Ariz. 130, 23 P.3d 675 (Ct. App. 2001)................. 11
Cleveland v. United States,

Serene 17
Commonwealth v. Coney,

cee nneeee 15
Commonwealth v. Mitchell,

66 Ky. (3 Bush) 25, 96 Am Dec. 192 (1867) ............... 15
Commonwealth v. Pease,

UG Deas. O2 (RBI) ..2..cccccccccccscccsccccccccccsvceccssccsccccssscees 15

lv

TABLE OF AUTHORITIES—Continued

Page(s)
Dutchess/Putnam Rest. & Tavern Ass'n, Inc.
v. Putnam County Dep't of Health,
178 F. Supp. 2d 396 (S.D.N.Y. 2001) ...........ccceceeeeeeeeee 11
Empire State Rest. & Tavern Ass'n, Inc. v. Rapoport,
240 A.D.2d 576, 658 N.Y.S.2d 687 (1997)................... 11
Evans v. United States,
ee passim
Gregoire v. Biddle,
177 F.2d 579 (2d Cir. 1949),
cert. denied, 339 U.S. 949 (1950) .............ccccceceeeeeeeeeees 13
Guerrero v. Gates,
110 F. Supp. 2d 1287 (C.D. Cal. 2000)........................ 10
Harlow v. Fitzgerald,
a Ce a crtcnterteseereccenmenmsmmemmenen 12, 13
Holmes Group, Inc. v. Vornado Air Circulation
Sys., Inc., 122 S. Ct. 1889 (2002) ............cccccccreseeseeereeees 7
Justiana v. Niagara County Dep't of Health,
45 F. Supp. 2d 236 (W.D.N.Y. 1999) ..............cccceeeeeeees 11

LDM, Inc. v. Princeton Reg. Health Comm'n,
336 N.J. Super. 277, 764 A.2d 507 (Law Div. 2000)... 11

Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson,

Se ee GE IE nicinnircetnigmsnntunbbimenetictenmnenmmnteninsenained 5
La Tour v. Stone,
- 189 Fla. 681, 190 So. 704 (193) .00........ccccceceeeeesceeerenees 15
Leonard v. Duchess County Dep't of Health,
105 F. Supp. 2d 258 (S.D.N.Y. 2000) ................ccccceeeee 11

ge ee et tes SEM Fe ees

PE ee

Vv
TABLE OF AUTHORITIES—Continued
Page(s)

Libertad v. Welch,

ee 8

' MeNally v. United States,

Ry SE cxcencrcsensnsensnnesesnneenscennennenenneneeneeanets 17
Mich. Rest. Ass’n v. City of Marquette,

245 Mich. App. 63, 626 N.W.2d 418 (2001) ................ 11
Nassau Bowling Propreitors Ass'n v. County of Nassau,

965 F. Supp. 376 (E.D.N.Y. 1997) ............cccceccereeeeeeeees 11
Ore. Rest. Ass'n v. City of Corvallis,

166 Or. App. 506, 999 P.2d 518 (2000) .............ccceeceees 11
People v. Adelstein,

9 A.D.2d 907, 195 N.Y.S.2d 27 (1959)................0:00000e 16
People v. Squillante,

8 N.Y.2d 998, 169 N.E.2d 425 (1960).................:..00000 16
Tri-Nel Management, Inc. v. Bd. of Health of Barnstable,

433 Mass. 217, 741 N.E.2d 37 (2001) ....................000+ 11
Rex v. Burdett,

91 Eng. Rep. 996 (K.B. 1696) .......cccccceccssssesseeseeees 14-15
United States v. Anderson,

716 F.2d 446 (7th Cir. 1983) .................ccccceeeeeeeeeeeeeeeeees 8
United States v. Debs,

949 F.2d 199 (6th Cir. 1991) .0..........ccccccccccceeeeeeeeeeeeeeeees 8
United States v. Enmons,

4 | ES speecncinnnmmnaniems 16
United States v. Hoelker,

765 F.2d 1422 (9th Cir. 1985) .............ccccccccccceeeeeeeeenenees 8

vi
TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Nadaline,

Oe ee I, SD cccccccrccnnenenntssnsccnticneniscsnacsed 8
United States v. Panaro,

266 F.3d 939 (Oth Cir. 2001) ............:cccccceessssseseseeeeeeeeees 4
United States v. Provenzano,

334 F.2d 678 (Sd Cir. 1964)..............ccccccccccssssssscsscsssesees i)
United States v. Santoni,

685 F.2d 667 (4th Cir. 1978) ..........ccccccsccccccscccccccescceeeees
United States v. Stillo,

po UL es
United States v. Stephens,

964 F.2d 424 (5th Cir. 1992) .................s0csseseseeseesereeeeees 8
United States v. Tropiano,

418 F.2d 1069 (2d Cir. 1969),

cert. denied, 397 U.S. 1021 (1970) ........ccccccccceceeeeeseeees 16

Statutes:

Freedom of Access to Clinic Entrances Act of 1994,
Pub. L. 103-259, 108 Stat. 694 (codified as

amended at 18 U.S.C. § 248 (2000)) 20.00.00... cccceeeeeeeee 18
BB Ee © BE Go ccccncrencscnnnsccscsscscccesnscsnmsersssessssnsvesses 9
BD ee © BE Go creccccensnnsensssestssssssscnsnmmansmenemnes 9
Hobbs Act, 18 U.S.C. § 1951 (2000) .....5.......:cccceeeeeeee passim
Racketeer Influence and Corrupt Organizations Act

18 U.S.C. § 1961(1)(B) (2000)................. ee 8

18 U.S.C. § 1962 (2000)........,..ccccccccseeeseeereeeeseeeseeeees 56

vii
TABLE OF AUTHORITIES—Continued
Page(s)
18 U.S.C. § 1964 (2000)............ccccsssccssserereessseeees passim
GD Ga TED ceccccsccaccesseccsscscesssccccessscsssensssscecsnsases 18

Penal Law of 1909, § 850, as amended, 1917 N.W.
Laws, ch. 518 (codified at N.Y. Penal Law § 850

(McKinney Supp. 1965) .0..........ccccccscceseeeseeeeeeeeeeeeereeees 16
Other Authorities:
Craig M. Bradley, NOW v. Scheidler: RICO Meets the

First Amendment, 1994 Sup. Ct. Rev. 129 ................. 16
Craig M. Bradley, NOW v. Scheidler Round Two,

27 Syracuse J. Int’] L. & Com. 233 (2000).................. 16
3 Edward Coke, A Systematic Arrangement of Lord

Coke’s First Institute (J.H. Thomas ed. 1826) ............ 14
Comm'rs of the Code, Proposed Penal Code of the State

Of New York § 613 (1865) ..............cececcssssssseseeeeesseeeeees 16

Randy J. Curato et al., Government Fraud, Waste, and
Abuse: A Practical Guide to Fighting Official
Corruption, 58 Notre Dame L. Rev. 1027 (1983)........ 16

The Freedom of Access to Clinic Entrances Act of 1993:

Hearing Before the Senate Comm. on Labor and
Human Resources, 103d Cong. (1993) ................00000+ 18

1 William Hawkins, Pleas of the Crown (6th ed. 1787)... 14
Donald P. Judges, Hard Choices, Lost Voices (1993) ........ 1

James Lindgren, The Elusive Distinction Between
Bribery and Extortion: From the Common Law to
the Hobbs Act, 35 UCLA L. Rev. 815 (1988).............. 14

TABLE OF AUTHORITIES—Continued
Page(s)

Steven P. Ragland, Comment, Using the Master’s
Tools: Fighting Persistent Police Misconduct with
Civil RICO, 51 Am. U. L. Rev. 139 (2001)................. 10

SD, GR Bile Gi eel cncancecsnenvesnnineinpsunnnetinntenbecitiasentetniniemmennsiive 1

U.S. Dep’t of Justice, Criminal Resource Manual 2404
(Oct. 1997), http://www.usdoj.gov/usao/eousa/foia_
reading room/usam/title9/crm02404.htm ................. 17

a —_—

1

BRIEF FOR AMICI CURIAE
IN SUPPORT OF PETITIONERS

The States of Alabama, Nebraska, North Dakota, and
South Dakota, and the Commonwealth of the Northern
Mariana Islands (hereinafter “the amici States”) respect-
fully submit this brief as amici curiae pursuant to
Supreme Court Rule 37.4 in support of the Petitioners.

INTEREST OF AMICI CURIAE

Abortion has rightly been called “one of the most divi-
sive issues of our time.”! The amici States recognize that
many of their citizens have deep convictions regarding
abortion. Because they are responsible for upholding the
rule of law and safeguarding social order, the amici States
categorically condemn criminal acts of violence by or
against those who consider themselves pro-life or pro-
choice. As with any divisive issue, the debate over abor-
tion calls for peaceful, reasoned discussion. The amici
States seek to promote such peaceful engagement, and
oppose efforts te silence either side.

The issues upon which the Court has granted certio-
rari have broad implications far beyond the context of the
present case, which involves abortion protest activities.
State governments have a profound interest in protecting
both the physical safety and the fundamental rights of
their citizens. The amici States thus have an interest in
seeing that all citizens are protected while respecting any
citizen’s constitutionally protected interest in legitimate,
peaceful protest, no matter what the underlying issue.
More pragmatically, State officials are named as defen-
dants in countless lawsuits alleging State interference
with various individual rights. The amici States thus

1 Donald P. Judges, Hard Choices, Lost Voices 4 (1993).

2

have an interest in seeing that their officials do not face
an unwarranted threat of civil RICO litigation arising
from an overly expansive interpretation of the scope and
purpose of that statute and the Hobbs Act. The Seventh
Circuit’s interpretation of the Hobbs Act and civil RICO
threatens these interests and injects unnecessary ambigu-
ity into the law of extortion.

+
SUMMARY OF ARGUMENT

In Alexander v. Sandoval, 532 U.S. 275 (2001), this
Court explained its “particular understanding of the
genesis of private causes of action.” Jd. at 286. The deci-
sion below, which found an implied private cause of action
for injunctive relief in the civil RICO statute, 18 U.S.C. §
1964(c) (2000), is inconsistent with this Court’s holding in
Sandoval. The text of the civil RICO statute manifests a
congressional intent to authorize the Attorney General of
the United States to seek injunctive relief under RICO,
but to authorize private persons to seek only treble dam-
ages, costs, and attorney’s fees. Nowhere does the statute
authorize private entities to seek injunctive relief under
RICO, and Congress has repeatedly refused to amend
civil RICO to create such a private cause of action for
injunctive relief. Moreover, the creation of a private cause
of action for injunctive relief under civil RICO chills le-
gitimate activity protected by the First Amendment.

The expansion of the definition of “extortion” under
the Hobbs Act, 18 U.S.C. § 1951(b)(2) (2000), by the Sev-
enth Circuit to prohibit conduct that does not involve “the
obtaining of property” raises the specter of unwarranted
civil RICO litigation against State officials. By unmooring
the definition of property under the Hobbs Act from the
“obtaining” element of the offense, the Seventh Circuit
substantially broadened the Hobbs Act, and thus civil
RICO. This interpretation could subject almost any State

3

regulation of economic activity or property to civil RICO
litigation. It also expands civil RICO to chill activity
protected by the First Amendment in which protesters or
demonstrators do not obtain property of any kind. Such
untoward results are avoided by simply applying the
Hobbs Act as written, to require an “obtaining of prop-
erty.”

The Seventh Circuit’s expansion of the Hobbs Act
(and, in turn, civil RICO) to apply to intangible, non-
economic rights represents a substantial departure from
the common law of extortion. At common law, extortion
required the taking of “money,” or “a thing of value” or a
“valuable thing.” Even under the “broad sense” of prop-
erty used in modern Hobbs Act cases, “property” should
be interpreted to mean, at most, a right with financial or
economic value. The Court of Appeals’ inclusion of intan-
gible, non-economic rights in the meaning of “property”
for purposes of the Hobbs Act leaves the “outer bounda-
ries” of extortion under color of official right “ambiguous”
and could have unintended consequences. The Hobbs Act
simply does not apply to intangible, non-economic rights
such as the “right[ ] to seek medical services.” If it did, the
Freedom of Access to Clinic Entrances Act of 1994 would
have been unnecessary.

4 5

ARGUMENT Id. at 286—87 (citations omitted) (emphasis added) (quot-
I. THE CREATION OF AN IMPLIED PRIVATE ing Lampf, Pleva, Lipkind, Prupis & Petigrow v.
RIGHT OF ACTION FOR INJUNCTIVE RELIEF Gilbertson, 501 U.S. 350, 365 (1991) (SCALIA, J., concur-
UNDER CIVIL RICO VIOLATES THIS COURT'S ring in part and concurring in judgment). Although the
“PARTICULAR UNDERSTANDING OF THE Court of Appeals cited Sandoval, Pet. App. at 6a, its
GENESIS OF PRIVATE CAUSES OF ACTION.” analysis is inconsistent with the “particular understand-
ing of the genesis of private causes of action” expressed in
In this case, the Seventh Circuit found an implied pri- that decision.

vate right of action to obtain injunctive relief under the Le v9

civil remedies provision of the Racketeer Influenced and The civil remedies provision of RICO provides, in per-

tinent part, as follows:

Corrupt Organizations Act (“civil RICO”), 18 U.S.C. §
1964(c) (2000). Pet. App. at 6a—14a.? That holding violates
the basic understanding of implied causes of action ex-
pressed by this Court in Alexander v. Sandoval, 532 U.S.
275 (2001). In Alexander v. Sandoval, this Court ob-
served:

Implicit in our discussion thus far has been a
particular understanding of the genesis of private
causes of action. Like substantive federal law it-
self, private rights of action to enforce federal law
must be created by Congress. The judicial task is
to interpret the statute Congress has passed to de-
termine whether it displays an intent to create not
just a private right but also a private remedy.
Statutory intent on this latter point is determina-
tive. Without it, a cause of action does not exist and
courts may not create one, no matter how desirable
that might be as a policy matter, or how compatible
with the statute. “Raising up causes of action where
a statute has not created them may be a proper
function for common-law courts, but not for federal
tribunals.”

2 All citations to “Pet. App.” herein are to the Appendix to the Peti-
tion for Writ of Certiorari in No. 01-1118.

(a) The district courts of the United States
shall have jurisdiction to prevent and restrain vio-
lations of section 1962 of this chapter by issuing
appropriate orders, including, but not limited to:
ordering any person to divest himself of any inter-
est, direct or indirect, in any enterprise; imposing
reasonable restrictions on the future activities or
investments of any person, including, but not lim-
ited to, prohibiting any person from engaging in
the same type of endeavor as the enterprise en-
gaged in, the activities of which affect interstate or
foreign commerce; or ordering dissolution or reor-
ganization of any enterprise, making due provision
for the rights of innocent persons.

(b) The Attorney General may institute proceed-
ings under this section. Pending final determina-
tion thereof, the court may at any time enter such
restraining orders or prohibitions, or take such
other actions, including the acceptance of satisfac-
tory performance bonds, as it shall deem proper.

(c) Any person injured in his business or prop-
erty by reason of a violation of section 1962 of this
chapter may sue therefor in any appropriate United
States district court and shall recover threefold the

6

damages he sustains and the cost of the suit, in-
cluding a reasonable attorney’s fee... .

18 U.S.C. § 1964 (emphasis added).

The statute specifically provides that only the Attor-
ney General “may institute proceedings under” § 1964
generally. 18 U.S.C. § 1964(b). Unlike the Attorney Gen-
eral, private persons are not authorized to “institute
proceedings under” § 1964 generally. Instead, private
persons have the far more limited ability to sue for busi-
ness or property injuries sustained “by reason of a viola-
tion of section 1962.” 18 U.S.C. § 1964(c). Recovery by
private plaintiffs is limited to treble damages, costs, and
attorney's fees, id.; nowhere does § 1964(c) authorize
private persons to sue for injunctive relief under §
1964(a). As this Court noted in Sandoval, “[t]he express
provision of one method of enforcing a substantive rule
suggests that Congress intended to preclude others.” 532
U.S. at 290. This is especially the case when the other
method of enforcement (i.e., by the Attorney General) is
specified in the immediately preceding subsection.

Given the plain text of the statute and the marked dif-
ference between the broad authority granted the Attorney
General to sue under § 1964 and the limited authority
granted private parties to sue only for damages, the Sev-
enth Circuit’s “parity of reasoning” approach, Pet. App. at
8a, is inappropriate. That approach renders the differ-
ences between the statutory language in § 1964(b) and §
1964(c) meaningless. It effectively amends § 1964(c) to
state that a person injured by a violation of § 1962 “shall
recover [, in addition to any relief authorized in subsection
(a) to which he is entitled,] threefold the damages he
sustains and the costs of the suit, including a reasonable
attorney’s fee.”

Congress had (and has) the ability to write the RICO
statute that way, of course, but has repeatedly chosen not

gt, CNS Ot a: toe OP Mg. —

ee ee

7

to do so. See Pet. in No. 01-1119 at 16-19 & n.22 (recount-
ing history of attempts to amend RICO to authorize pri-
vate injunctive actions). The federal courts should not,
therefore, create that result “no matter how desirable that
might be as a policy matter, or how compatible with the
statute.” Sandoval, 532 U.S. at 287. As this Court re-
cently stated in a patent case, the task of statutory inter-
pretation “is not to determine what would further
Congress’s goal . . ., but to determine what the words of
the statute must fairly be understood to mean.” Holmes
Group, Inc. v. Vornado Air Circulation Sys., Inc., 122 S.
Ct. 1889, 1895 (2002).

In the context of this case, moreover, the addition of
private injunctive remedies to the already powerful treble
damages available to private persons is neither desirable
“as a policy matter” nor in furtherance of “Congress’s
goal.” The application of civil RICO to political or social
protest activities has a substantial chilling effect on pro-
tected First Amendment activity. Adding injunctive
remedies to the powerful treble damages available under
civil RICO would only lower the temperature further.
Congress never intended such a result.

Il. THE EXPANSION OF THE HOBBS ACT TO
PROHIBIT CONDUCT THAT DOES NOT
INVOLVE “THE OBTAINING OF PROPERTY”
RAISES THE SPECTER OF UNNECESSARY
CIVIL RICO LITIGATION AGAINST STATE
OFFICIALS.

A second troubling feature of the Seventh Circuit’s de-
cision is its interpretation of the “obtaining of property”
element in the definition of extortion under the Hobbs
Act, 18 U.S.C. § 1951 (2000). The Hobbs Act defines “ex-
tortion” to mean “the obtaining of property from another,
with his consent, induced by wrongful use of actual or

8

threatened force, violence, or fear, or under color of official
right.” 18 U.S.C. § 1951(b)(2). An act indictable under the
Hobbs Act, in turn, is a predicate act under RICO. 18
U.S.C. § 1961(1\(B) (2000).

The Court of Appeals noted that it “has repeatedly
held that intangible property such as the right to conduct
a business can be considered ‘property’ under the Hobbs
Act,” and chose not to revisit that holding. Pet. App. at
29a (citation omitted) (citing United States v. Anderson,
716 F.2d 446, 450 (7th Cir. 1983)). The court then rejected
petitioners’ argument “that, even if ‘property’ was in-
volved, the defendants did not ‘obtain’ that property; they
merely forced the plaintiffs to part with it.” Id. The Court
of Appeals observed that according to its precedent, “‘as a
legal matter, an extortionist can violate the Hobbs Act
without either seeking or receiving money or anything
else. A loss to, or interference with the rights of, the vic-
tim is all that is required.’” Jd. (quoting United States v.
Stillo, 57 F.3d 553, 559 (7th Cir. 1995)).

The difficulty with the Seventh Circuit’s interpreta-
tion is not one of applying the Hobbs Act to intangible
property. Pet. App. at 29a (citing Anderson, 716 F.2d at
450). The Courts of Appeals have applied the Hobbs Act
to intangible property. See, e.g., Libertad v. Welch, 53
F.3d 428, 438 n.6 (lst Cir. 1995); United States v.
Stephens, 964 F.2d 424, 433 n.20 (5th Cir. 1992); United
States v. Debs, 949 F.2d 199, 201 (6th Cir. 1991); United
States v. Hoelker, 765 F.2d 1422, 1425 (9th Cir. 1985);
United States v. Santoni, 585 F.2d 667, 673 (4th Cir.
1978); United States v. Nadaline, 471 F.2d 340, 344 (5th
Cir. 1973) (binding precedent in both Fifth and Eleventh
Circuits). This Court has similarly held that the mail and

olor NSPS

ee ee

9

wire fraud statutes® apply to intangible property.
Carpenter v. United States, 484 U.S. 19, 25-27 (1987).

The principal flaw in the Seventh Circuit’s interpreta-
tion is that, under the Hobbs Act definition of extortion,
someone must obtain (or attempt or conspire to obtain)‘
the victim’s property—whether tangible or intangible. As
Petitioner points out, the Ninth Circuit has held that this
“obtaining” element is critical to finding a violation of the
Hobbs Act:

The four conspirators sought not only to put
Blitzstein [the victim] out of business, but actually
to get his business interests for themselves. That
is important with regard to the “obtaining” ele-
ment of the Hobbs Act. Of course, “it is not neces-
sary to prove that the extortioner himself, directly
or indirectly, received the fruits of his extortion or
any benefit therefrom. The Hobbs Act does not re-
quire such proof.” But under the Hobbs Act, extor-
tion, which is a larceny-type offense, does not occur
when a victim is merely forced to part with prop-
erty. Rather, there must be an “obtaining”: some-
one—either the extortioner or a third person—
must receive the property of which the victim is
deprived.

United States v. Panaro, 266 F.3d 939, 948 (9th Cir. 2001)
(citations omitted) (quoting United States v. Provenzano,
334 F.2d 678, 686 (3d Cir.1964)).

By unmooring the definition of property under the
Hobbs Act from the “obtaining” element of the offense, the
Seventh Circuit substantially broadened the Hobbs Act—

318 U.S.C. §§ 1341, 1343 (2000).

+ See 18 U.S.C. § 1951(a) (‘or attempts or conspires so to do”). As
used herein, references to “obtaining” include attempting to obtain or
conspiring to obtain.

10

and thus civil RICO. As Petitioners assert, this interpre-
tation “creates considerable mischief for government
actors.” Pet. in No. 01-1119, at 20. Perhaps not every act
of official misconduct would implicate the kind of intangi-
ble economic interests protected by the Hobbs Act, and
thus civil RICO. Many official actions certainly would
implicate economic interests, however. If “obtaining”
tangible or intangible property were not required in order
to violate the Hobbs Act, a host of State actions that affect
economic interests could conceivably become the subject of
civil RICO litigation.

For example, under the Seventh Circuit’s interpreta-
tion of the “obtaining of property” element of the Hobbs
Act, a plaintiff alleging that excessive police force resulted
in a loss of wages could allege a Hobbs Act violation, and
thus a RICO predicate act. Any police or sheriffs depart-
ment facing two or more excessive force claims could face
a RICO lawsuit, provided the victims alleged that there
was some “pattern” to the use of excessive force. See, e.g.,
Guerrero v. Gates, 110 F. Supp. 2d 1287, 1292-93 (C.D.
Cal. 2000) (denying motion to dismiss civil RICO action
against police officers based on plaintiff's pecuniary losses
said to result from alleged police misconduct); see gener-
ally Steven P. Ragland, Comment, Using the Master’s
Tools: Fighting Persistent Police Misconduct with Civil
RICO, 51 Am. U. L. Rev. 139 (2001) (advocating use of
civil RICO against police for repeated civil rights viola-
tions, based on victims’ pecuniary losses).

Removing the “obtaining” element would substantially
broaden the Hobbs Act definition of extortion so that it
could even apply to State economic, health, or environ-
mental regulation. This would open the way for civil
RICO litigation over any number of governmental deci-
sions that inevitably have economic impact. If those deci-
sions turned out to have been based upon a
misunderstanding of the law, and businesses suffered

1 RRO es

te SE :

11

pecuniary losses as a result of the later-invalidated regu-
lation or statute, those businesses’ traditional claims for
damages could also become Hobbs Act claims and used as
RICO predicate acts.

For example, consider the potential impact of civil
RICO on a local ordinance prohibiting smoking in indoor
public places. After enacting the ordinance, local officials
threaten the owners of all bars and nightclubs in town
with prosecution if they do not comply with the ordinance.
After months of sharply reduced business as a result of
the indoor smoking ban, the owners of several clubs sue
the city for injunctive relief—and include a claim for
damages resulting from reduced business due to the ban.
The trial court concludes that the ordinance is invalid
under State law.5 Under the Seventh Circuit’s expansive
interpretation of the “obtaining of property” for purposes
of the Hobbs Act, it might be alleged that the city wrong-
fully “obtained” the clubs’ property interest in doing busi-
ness in the city free from unlawful (and thus “wrongful”)

5 See, e.g., Dutchess/Putnam Rest. & Tavern Ass'n, Inc. v. Putnam
County Dep't of Health, 178 F. Supp. 2d 396 (S.D.N.Y. 2001) (holding
provision in county sanitary code purporting to regulate smoking in
public places invalid under State constitution); Leonard v. Duchess
County Dep't of Health, 105 F. Supp. 2d 258 (S.D.N.Y. 2000) (same);
Justiana v. Niagara County Dep't of Health, 45 F. Supp. 2d 236
(W.D.N.Y. 1999) (same); Mich. Restaurant Ass'n v. City of Marquette,
245 Mich. App. 63, 626 N.W.2d 418 (2001); LDM, Inc. v. Princeton Reg.
Health Comm'n, 336 N.J. Super. 277, 764 A.2d 507 (Law Div. 2000)
(holding local ban on smoking in most indoor places invalid because
preempted by state law); Nassau Bowling Propreitors Ass'n v. County
of Nassau, 965 F. Supp. 376 (E.D.N.Y. 1997); Alford v. City of Newport
News, 220 Va. 584, 260 S.E.2d 241 (1979) (holding local ordinance
invalid and reversing conviction under it). But see Amico’s Inc. v.
Mattos, 789 A.2d 899 (R.I. 2002) (upholding ordinance); City of Tucson
v. Grezaffi, 200 Ariz. 130, 23 P.3d 675 (Ct. App. 2001); Tri-Nel Man-
agement, Inc. v. Bd. of Health of Barnstable, 433 Mass. 217, 741
N.E.2d 37 (2001); Ore. Rest. Ass'n v. City of Corvallis, 166 Or. App.
506, 999 P.2d 518 (2000); Empire State Rest. & Tavern Ass'n, Inc. v.
Rapoport, 240 A.D.2d 576, 658 N.Y.S.2d 687 (1997).

12

restrictions on smoking. Because there are at least two
such clubs, the same threats of prosecution were made to
the owners of each, and the owners all “feared” prosecu-
tion, the city and its officials could find themselves facing
a civil RICO action for treble damages.

Such examples are not limited to the context of regu-
lating smoking. One can imagine similar scenarios in
disputes over handguns, zoning actions, permitting and
licensing activities, regulation of sexually oriented busi-
nesses, patent infringement, environmental regulations,
and so on. Of course, qualified immunity and the mens rea
element for Hobbs Act violations wouldShield government
officials from civil RICO liability in many such situations.
See, e.g., Brown v. NationsBank Corp., 188 F.3d 579, 587—
88 (5th Cir. 1999) (applying qualified immunity to civil
RICO claim), cert. denied, 530 U.S. 1274 (2000); see also
Evans, 504 U.S. at 277 (KENNEDY, J., concurring) (dis-
cussing mens rea requirement in Hobbs Act cases).
RICO’s treble damages would nonetheless triple the com-
pensatory damages plaintiffs would otherwise recover in
cases where those defenses were unsuccessful, however.
The automatic trebling of compensatory damages could
frustrate decades spent by this Court carefully balancing
the vindication of civil and constitutional rights against
the risk of unduly inhibiting governmental officials in the
lawful exercise of their discretionary functions. See
Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982). The

6 “[I}t cannot be disputed seriously that claims frequently run
against the innocent as well as the guilty—at a cost not only to the
defendant officials, but to society as a whole. These social costs include
the expenses of litigation, the diversion of official energy from pressing
public issues, and the deterrence of able citizens from acceptance of
public office. Finally, there is the danger that fear of being sued will
‘dampen the ardor of all but the most resolute, or the most irresponsi-
ble [public officials], in the unflinching discharge of their duties.”
Harlow, 457 U.S. at 814 (footnote omitted) (quoting Gregoire v. Biddle,
177 F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949 (1950)).

ae

13

imposition of compensatory damages, and, in appropriate
cases, punitive damages, is better calibrated toward
maintaining the balance this Court has struck.

Ill. THE EXPANSION OF “PROPERTY” UNDER
THE HOBBS ACT TO INCLUDE INTANGIBLE,
NON-ECONOMIC RIGHTS DEPARTS FROM
THE COMMON LAW OF EXTORTION.

The Seventh Circuit’s expansion of “property” under
the Hobbs Act to apply to mere interference with intangi-
ble, non-economic rights of the victim, see Pet. App. at 29a
(identifying “the class women’s rights to seek medical
services from the clinics”), is also troubling. This interpre-
tation of “property” represents a marked departure from
the common-law definition of extortion.

In Evans v. United States, 504 U.S. 255, 261-64
(1992), this Court “observed that ‘extortion’ in 18 U.S.C.
§ 1951 was a common-law term, and proceeded to inter-
pret this term by reference to its meaning at common
law.” Carter v. United States, 530 U.S. 255, 266 (2000).
“At common law, extortion was an offense committed by a
public official who took ‘by colour of his office’ money that
was not due to him for the performance of his official
duties.” Evans, 504 U.S. at 260 (footnote omitted) (em-
phasis added). Supporting this definition of common-law
extortion, the Court noted that “Blackstone described
extortion as ‘an abuse of public justice, which consists in
an officer’s unlawfully taking, by colour of his office, from
any man, any money or thing of value, that is not due to
him, or more than is due, or before it is due.” Jd. at 260
n.4. (quoting 4 William Blackstone, Commentaries *141)
(emphasis deleted and added). The Court also noted that

14

Hawkins’ definition of extortion is probably the
source for the official right language used in the
Hobbs Act. Hawkins defined extortion as follows:
“(I]t is said, That extortion in a large sense signi-
fies any oppression under colour of right; but that
in a strict sense, it signifies the taking of money by
any officer, by colour of his office, either where
none at all is due, or not so much is due, or where
it is not yet due.”

Id. (quoting 1 William Hawkins, Pleas of the Crown 316
(6th ed. 1787)) (emphasis added) (citation omitted) (citing
James Lindgren, The Elusive Distinction Between Bribery
and Extortion: From the Common Law to the Hobbs Act,
35 UCLA L. Rev. 815, 864 (1988)). Hawkins’s definition
was partly based on Lord Coke’s, which read: “Extortion,
in its proper sense, is a great misprision, by wresting or
unlawfully taking by any officer, by colour of his office,
any money or valuable thing .. . either that is not due, or
more than is due, or before it be due ....” Lindgren, 35
UCLA L. Rev. at 864 n.287 (quoting 3 Edward Coke, A
Systematic Arrangement of Lord Coke’s First Institute 587
(J.H. Thomas ed. 1826)) (emphasis added).

As shown by the italicized language from Evans and
these common-law treatises, common-law extortion in-
volved the taking of “money” or a “thing of value” or a
“valuable thing.” For example, in Rex v. Burdett, 91 Eng.
Rep. 996 (K.B. 1696), a farmer was tried for extortion
because “he had taken divers sums of money of the mar-
ket people for rent for the use of the little stalls in the
market, and divers great sums for fines.” Jd. at 996. The
court noted “that if the defendant erects several stalls,
and does not leave sufficient room for the market people
to stand and sell their wares, so that for want of room
they are forced to hire the stalls of the defendant, the
taking of money for the use of the stalls in such case is
extortion.” Id. (emphasis added). The court went on to

* Ae ak a ee Oe,

15

observe that “the extorsive agreement, or the usurious
agreement, is not the offence, but the taking ....” Id. at
997 (emphasis added). Thus, the farmer’s interference
with the other market people’s sales, standing alone, was
insufficient to make out a case of common-law extortion;
it was the use of that interference to obtain money from
them that constituted extortion.

American cases were also quite strict in their inter-
pretation of “money” or “thing of value.” In an early Mas-
sachusetts case, the court held that a deputy sheriffs
receipt of a negotiable note for higher fees than allowed
by statute was not extortion. Commonwealth v. Cony, 2
Mass. 523 (1807). The court observed that “[t]o constitute
extortion at common law, there must be the receipt of
money, or of some other thing of value.” Id. at 524. The
court concluded that the deputy’s receipt of a negotiable
note did not constitute extortion because “the receipt of a
negotiable note ... is not the payment of money” and the
note, being “ipso facto void, ... was consequently of no
value.” Id. In a later case, the court explained its ration-
ale: “The fees may never be received, ... 9 ' the essence
of the offence, which is the receiving, w. never have
occurred.” Commonwealth v. Pease, 16 Mass. 91, 93
(1819); see also La Tour v. Stone, 139 Fla. 681, 695, 190
So. 704, 710 (1939) (“A mere agreement to pay will not be
sufficient ....”) (quoting annotation following Common-
wealth v. Mitchell, 66 K-. (3 Bush) 25, 96 Am. Dec. 192,
195 (1867), which cited Cony, Pease, and Burdett).

In modern Hobbs Act cases, lower courts have held
that the concept of “property” that must be obtained in
order to violate the Act is not limited to money or tangible
property, “but includes, in a broad sense, any valuable
right considered as a source or element of wealth.” United
States v. Tropiano, 418 F.2d 1069, 1075 (2d Cir. 1969),
cert. denied, 397 U.S. 1021 (1970). This “broad sense” of
property in the modern cases also expresses its limitation,

16

however: A “property” interest must have economic or
financial value. Cf. Randy J. Curato et al., Government
Fraud, Waste, and Abuse: A Practical Guide to Fighting
Official Corruption, 58 Notre Dame L. Rev. 1027, 1061
(1983) (“It appears, then, that the interest must at lea*t
have economic value, and the cases support this notion.”).

In Evans, this Court noted that the models for the
Hobbs Act were “the New York [extortion] statute,”’ and
“the Field Code, a 19th-century model code.”* 504 U.S. at
263 n.9. In United States v. Enmons, 410 U.S. 396 (1973),
the Court observed that, under New York’s extortion
statute, “[a]n accused ... could not be convicted without
sufficient evidence that he ‘was actuated by the purpose
of obtaining a financial benefit for himself ....’” Id. at
406 n.16 (emphasis added) (quoting People v. Adelstein, 9
A.D.2d 907, 908, 195 N.Y.S.2d 27, 28 (1959), affd sub
nom. People v. Squillante, 8 N.Y.2d 998, 169 N.E.2d 425
(1960)); see also Craig M. Bradley, NOW v. Scheidler:
RICO Meets the First Amendment, 1994 Sup. Ct. Rev. 129,
140 (quoting Enmons and concluding that the conduct
pleaded in Scheidler is “criminal coercion,” not extortion);
Craig M. Bradley, NOW v. Scheidler Round Two, 27 Syra-
cuse J. Int’ L. & Com. 233, 239 (2000) (same).

Thus, the classic case of common-law extortion was
what this Court described in Evans—“a public official who
took ‘by colour of his office’ money that was not due to him
for the performance of his official duties.” 504 U.S. at 260
(footnote omitted) (emphasis added). Similarly, “[t]he
usual fact situation for a Hobbs Act charge under color of
official right is a public official trading his/her official
actions in [an] area in which he/she has actual authority

7 Penal Law of 1909, § 850, as amended, 1917 N.Y. Laws, ch. 518
(codified at N.Y. Penal Law § 850 (McKinney Supp. 1965)).

8 Comm'rs of the Code, Proposed Penal Code of the State of New
York § 613 (1865).

” Dre: 5

17

in exchange for the payment of money.” U.S. Dep’t of
Justice, Criminal Resource Manual 2404 (Oct. 1997),
http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/
title9/crm02404.htm (emphasis added).

The Court of Appeals’ inclusion of the intangible, non-
economic “right[ ] to seek medical services,” Pet. App. 29a,
within the meaning of “property” for purposes of the
Hobbs Act could have a disturbing spillover effect on
extortion under color of official right. Substituting certain
intangible, non-economic rights for “money” in the Justice
Department’s description of the “usual fact situation for a
Hobbs Act charge under color of official right,” could lead
to unintended results. It would also leave the “outer
boundaries” of extortion under color of official right “am-
biguous,” and ultimately might even “involve[] the Fed-
eral Government in setting standards of ... good
government for local and state officials ... .” McNally v.
United States, 483 U.S. 350, 360 (1987).

This Court has never interpreted “property” under the
Hobbs Act to include intangible, non-economic rights such
as the “right ] to seek medical services,” Pet. App. at 29a.
Moreover, it has held that the mail and wire fraud stat-
utes do not apply to similar kinds of intangible rights. See
Cleveland v. United States, 531 U.S. 12, 23 (2000) (“But
far from composing an interest that ‘has long been recog-
nized as property,’ these intangible rights of allocation,
exclusion, and control amount to no more and no less than
Louisiana’s sovereign power to regulate.”) (quoting
Carpenter, 484 U.S. at 26); McNally, 483 U.S. at 360-61.

Because the Hobbs Act does not reach such non-
economic rights as the “right[ ] to seek medical services,”
Congress passed the Freedom of Access to Clinic En-
trances Act of 1994 (“FACE”), Pub. L. 103-259, 108 Stat.
694 (codified as amended at 18 U.S.C § 248 (2000)), to
protect access to reproductive health clinics. Attorney

18

General Janet Reno testified in support of enacting
FACE. After reviewing the limited potential applicability
of 42 U.S.C. § 1985(3) to “interference with abortion
rights” after Bray v. Alexandria Women’s Health Clinic,
506 U.S. 263 (1993), the Attorney General testified that
the Department of Justice had not “been able to identify
any other Federal law that would be generally applicable
to private interference with a woman’s right to choose.”
The Freedom of Access to Clinic Entrances Act of 1993:
Hearing Before the Senate Committee on Labor and Hu-
man Resources, 103d Cong. 10 (1993) (emphasis added)
(statement of Attorney General Janet Reno). In an ex-
tended prepared statement addressing, inter alia, “[t]he
inadequacy of existing federal law,” id. at 14 (emphasis
removed) (prepared statement of Attorney General Janet
Reno), the Attorney General did not mention the possibil-
ity of applying the Hobbs Act to abortion protest activity.
See id. at 14-16. For similar reasons, the National Asso-
ciation of Attorneys General adopted a resolution asking
“Congress to adopt legislation designed to protect women,
physicians and other health personnel from violence
aimed at family planning clinics across the country where
abortions are performed, without unduly infringing on the
right to peaceful protest ....” Id. at 164 (annex to state-
ment of Robert Abrams); see id. at 163 (citing Bray). If the
Hobbs Act, and thus civil RICO, were as broadly applica-
ble as Respondents now assert, FACE would have been
unnecessary.

19
CONCLUSION

The judgment of the United States Court of Appeals
for the Seventh Circuit should be reversed.

Respectfully submitted,

WILLIAM H. PRYOR JR.
Attorney General of Alabama

CHARLES B. CAMPBELL*
Deputy Solicitor General
Counsel of Record *

OFFICE OF THE ATTORNEY GENERAL
STATE OF ALABAMA

11 South Union Street
Montgomery, Alabama 36130-0152
(334) 242-7300

Counsel for Amicus Curiae,
the State of Alabama

(Additional Counsel Listed
July 12, 2002 Inside Front Cover)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0538%3A35. Public record. Not legal advice.