RICHMOND, Va. (CN) – The Fourth Circuit heard oral arguments Wednesday over whether the attack of a gay man at an Amazon shipping facility counts as a federal hate crime.
At issue are the specifics of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009, which first introduced sexual orientation into the federal government’s list of protected classes for such crimes. But other parts of the law require the act of violence to impact interstate commerce under the U.S. Constitution’s commerce clause.
In May 2015, James W. Hill III attacked Curtis Tibbs while the two were both working at an Amazon shipping facility in Chester, Virginia. Hill was detained by facility staff and later local police. Hill told both staff and police he committed the attack because Tibbs identified as a gay man.
And while Virginia does not include sexual orientation as part of its protected classes in the state’s hate crime law, local police handed the case to the Department of Justice in the hopes it would follow through with a federal hate crime charge.
A jury found Hill guilty of the federal charge last year. But U.S. District Judge John Gabney, Jr. reversed the conviction, finding that the Hate Crimes Prevention Act cannot be applied to Hill because his assault of Tibbs did not affect interstate commerce.
“The attenuated connection between an assault based on sexual orientation and interstate commerce in this case does not support applying the HCPA to Hill,” Gabney wrote.
But Justice Department attorney Vikram Swaruup argued before a Fourth Circuit panel Wednesday morning that the Richmond, Virginia-based appeals court should overrule Judge Gabney.
“This was a hate motivated assault that interfered with commercial activity,” Swaruup said, comparing it to an act involving arson. The federal government, he said, could prosecute the burning of a commercial building under commerce clause and both that hypothetical building and Tibbs were involved in interstate commerce.
“If Hill set fire to the machine [that sorted packages] he could be charged, but in this case it was a person,” Swaruup said.
U.S. Circuit Judge G. Steven Agee, a George W. Bush appointee, pushed back on this argument, saying the difference between the two scenarios lies with what Congress has the power to regulate.
“[The sorting machine] would just be a prop in that commerce,” he said. “This was a victim acting in commerce…. You’re using jurisdictional issues to back-door it.”
But U.S. Circuit Judge James Wynn, Jr., a Barack Obama appointee, saw things differently and said it “would be odd” to apply the law to property but not labor.
U.S. Circuit Judge Diana Motz, a Bill Clinton appointee, pressed Swaruup on the broadness of the issue. If the judges were to accept this argument, she asked what would stop the feds from prosecuting “every incident of workplace violence” as a federal hate crime under the commerce clause.
“The fact patterns matter here,” Swaruup replied, pointing to the preparing of packages for shipment over state lines as a specific interstate act. When Hill attacked, he said, Tibbs was no longer able to participate in the commercial act, which would lead to a violation of the HCPA.
“If you have direct interference, that matters,” the attorney added.
But in his defense of Hill, Patrick L. Bryant with the Alexandria Public Defender’s Office said the Justice Department and jury went beyond the reach of the commerce clause in charging Hill and finding him guilty.
Bryant said the arson comparison was weak because while such crimes often qualify for federal charges, they don’t always.
“It’s not a given,” he said, stressing Congress did not intent for the HCPA to include simple assaults that had no effect on interstate commerce.
“It has to be a substantial interference and the jury didn’t find that,” Bryant continued. “Congress can’t regulate interpersonal conduct… the jurisdictional hook is not the regulated activity. This is interpersonal violence and not regulated conduct.”
Bryant also pointed to testimony from Amazon officials at trial which showed the shipping giant “didn’t miss a beat” and its operations were not interrupted during the attack.
But Judge Wynn, often aggressive in questioning, pushed back on Bryant’s theory. He asked if the jury was told to consider the “substantial” nature of the impact of the attack. It hadn’t and wasn’t instructed to, he said.
But Bryant stressed the HCPA has boundaries.
“Congress doesn’t have the power to regulate this” act of violence, he said.
Wednesday’s hearing comes on the heels of what advocates fear is a record rise in hate-based violence spreading across the country, one with a focus on LGBTQ people the likes of which hasn’t been seen before.
A 2018 study from the National Coalition of Anti-Violence Programs showed a nearly 13 percent increase in hate crimes reported in America’s 10 largest cities, including 52 homicides of LGBTQ people, the highest number ever recorded by the group.
In an amicus brief supporting the Justice Department, attorney Joseph Dudek with Gohn Hankey & Berlage said the reversal of the jury’s verdict was deeply flawed and unconstitutional.
“The district court focused myopically on an intraoffice conveyor belt, minimizing that the attack took place in, and interfered with, an interstate shipping warehouse,” he wrote in the brief on behalf of several organizations, including the LGBTQ legal group Lambda Legal. “Hill committed a hate crime at work. He admitted to that hate crime. It was constitutional to convict him.”
The Fourth Circuit panel did not indicate when it will issue a ruling in the case.