Amicus Curiae Brief — Operation Rescue v. National Organization for Women, Inc.

FILED

: JUL 12 2002

95 >

. CE OF THE

Nos. 01-1118, 01-1119 Se Sams |

Sapreme Dourt Ua.

IN THE

Supreme Court of the United States

¢

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

e

WILLIAM H. PRYOR JR.

Attorney General of Alabama

CHARLES B. CAMPBELL*

Deputy Solicitcr 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

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 publics access to a

business’s premises and interfere with the freedom of

putative customers to obtain services offered thr~e.

ii

TABLE OF CONTENTS

Page

I ri tnenecncconsonncennanesmrenssnenenienensestmedemmenisens i

ID iccccinccssscnencenensnscesmcnsteaninimentsenmnnintecumen ii

ED cccnnensnnsenenteninnmneinntaninnssmnmenuanensnnemeus iii

Brief for Amici Curiae in Support of Petitioners ............... 1

ee ae CD eetetercccncenstrrtantrmneinesensesnaneennentmseies 1

EIT 1 sinsnositrricrrrnecttenneitaniatinnteimaneeenetmnanel 2

SI crninecasiantandnnemntatindinnnatstiinnmaibntnamainiiitianeel 4

I. The Creation of an Implied Private Equitable

Action Under Civil RICO Violates this Court's

“Particular Understanding of the Genesis of Pri-

TTA a EE 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. ..............cccccccccsccsseeeeeeeeeeeee 13

TABLE OF AUTHORITIES

Page(s)

Cases:

Alexander v. Sandoval,

I isin ineitlatatlietendanail 2-7

Alford v. City of Newport News,

220 Va. 584, 260 S.E.2d 241 (1979) ...........cccccceeeeeeeeees 11

Amico’s Inc. v. Mattos,

789 A.2d 899 (R.1. 2002)..............04. delicate 11

Bray v. Alexandria Women’s Health Clinic,

| een nnn ne 18

Brown v. NationsBank Corp.,

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

cert. denied, 530 U.S. 1274 (2000) ..............cccccceeeeeeeees 12

Carpenter v. United States,

I TTT orsssrsrninssinongrinntinipnenmmeienepiunesemeans 9,17

Carter v. United States,

8 EEE ee eee 13

City of Tucson v. Grezaffi,

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

Cleveland v. United States,

BE Tin rrnrrrnerenemesenapsematinnetneenmanestns 17

Commonwealth v. Coney,

SITTIN CTT nessa neapermnndoananmmpaninsnnenantaniiets 15

Commonwealth v. Mitchell,

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

Commonwealth v. Pease,

UG DGaas. B1 (IBID) ......ccccccccccccccccccsccccssccccccccsssosssccsoes 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) ............:ccccceceeeee 11

Empire State Rest. & Tavern Ass'n, Inc. v. Ra oport,

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) ................cceceeeeeeeeeees 13

Guerrero v. Gates,

110 F. Supp. 2d 1287 (C.D. Cal. 2000)....................02.. 10

Harlow v. Fitzgerald,

re I eiitsitnrnimrencrimemnnntiniens 12, 13

Holmes Group, Inc. v. Vornado Air Circulation

Sye., Inc., 123 S. Ct. 18BD (GOOD) ....cccccccccccccccccccccccccccees 7

Justiana v. Niagara County Dep't of Health,

45 F. Supp. 2d 236 (W.D.N.Y. 1999)...............cccceeeeeees 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 es TE ctersssiseicidichipnitnraietsiiiiiaiinramaiedeesaiinniastaneanl 5

La Tour v. Stone,

- 139 Fla. 681, 190 So. 704 (193) ..............cccccccceceseeeeeees 15

Leonard v. Duchess County Dep’t of Health,

105 F. Supp. 2d 258 (S.D.N.Y. 2000) ..............cccceeeeeees 11

v

TABLE OF AUTHORITIES—Continued

Page(s)

Libertad v. Welch,

ee 8

McNally v. United States,

CETTE snsesicnicrtensnmsintantninioenmnnenmusesenees 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)..............:cccccceeeeeeeees 11

Ore. Rest. Ass'n v. City of Corvallis,

166 Or. App. 506, 999 P.2d 518 (2000) ...................004. 11

People v. Adelstein,

9 A.D.2d 907, 195 N.Y.S.2d 27 (1959)...............::c0ceeee 16

People v. Squillante,

8 N.Y.2d 998, 169 N.E.2d 425 (1960)......................02. 16

Tri-Nel Management, Inc. v. Bd. of Health of Barnstable,

433 Mass. 217, 741 N.E.2d 37 (2001) .................000000+ 11

Rex v. Burdett,

91 Eng. Rep. 996 (K.B. 1696) ......................:00000008 14-15

United States v. Anderson,

716 F.2d 446 (7th Cir. 1983) ...............cccccccccsssesesesseecees 8

United States v. Debs,

fe fb ee 8

United States v. Enmons,

Enea 16

United States v. Hoelker,

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

vi

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Nadaline,

Ge re ee I OED crencccnesnentnesstensnensereneneee 8

United States v. Panaro,

266 F.3d O89 (Oth Cir. 2OO1) ......cccccccccrcccccsssssorsrsseseseeees 4

United States v. Provenzano,

A Oe q

United States v. Santoni,

re ey Ge Gs BO cceccrcceccconencssenesnctscncsiennseced i)

United States v. Stillo,

Oe ee ED GIs IIE connnscnccccssecconsnnssnserenscncscsecses 8

United States v. Stephens,

Se ey NIE, Ct ccrscccsnnsereneneenencensenenenineneetl &

United States v. Tropiano,

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

cert. denied, 397 U.S. 1021 (1970) ..............scceeceeeeeeeees 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)) .0..........:ccceeeeeeeeees 18

OB TVG 6 BEE Go cccccnescsseneccceesessncccssnnssessenssseenanenes 9

BB TEE © BI Go cccrcesccccsnscnssscsssrnsssmesssmsssetmnnes 9

Hobbs Act, 18 U.S.C. § 1951 (2000) .............cseceeeeeees passim

Racketeer Influence and Corrupt Organizations Act

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

18 U.S.C. § 1962 (2000)............0sseseresssseressrrsssrresenes 5-6

vii

TABLE OF AUTHORITIES—Continued

Page(s)

ER ee passim

Ge IED cncncntscssncsesnscseseesccsssssnnesseesmennen 18

Penal Law of 1909, § 850, as amended, 1917 N.W.

Laws, ch. 518 (codified at N.Y. Penal Law § 850

SINEY GEUIIID, TRDUIEED cxceceensnssscsenescesevecsvecnnscneseosscsees 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) ..........cccccccccsssossssssorscceseeeeees 16

Randy J. Curato et al., Government Fraud, Waste, and

Abuse: A Practicul 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) ..............000000++ 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

NF Rr ee TT 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

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 to 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

ARGUMENT

I. THE CREATION OF AN IMPLIED PRIVATE

RIGHT OF ACTION FOR INJUNCTIVE RELIEF

UNDER CIVIL RICO VIOLATES THIS COURT’S

“PARTICULAR UNDERSTANDING OF THE

GENESIS OF PRIVATE CAUSES OF ACTION.”

In this case, the Seventh Circuit found an implied pri-

vate right of action to obtain injunctive relief under the

civil remedies provision of the Racketeer Influenced and

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.

5

Id. at 286—87 (citations omitted) (emphasis added) (quot-

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

Gilbertson, 501 U.S. 350, 365 (1991) (SCALIA, J., concur-

ring in part and concurring in judgment)). Although the

Court of Appeals cited Sandoval, Pet. App. at 6a, its

analysis is inconsistent with the “particular understand-

ing of the genesis of private causes of action” expressed in

that decision.

The civil remedies provision of RICO provides, in per-

tinent part, as follows:

(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

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, viulence, 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.” Jd. 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

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 sheriff's 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 Masier’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

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.® 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)).

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 aly 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.” Id. 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

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.” Jd. 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, ... and the essence

of the offence, which is the receiving, will 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 Ky. (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 least

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, “[aJn 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 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)).

® Comm'rs of the Code, Proposed Penal Code of the State of New

York § 613 (1865).

FEA Tie apes

i ae ‘

“

ee LEOEE LELES

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.

i

:

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)