United States v. Laton

• Court: Court of Appeals for the Sixth Circuit
• Decided: December 10, 2003
• Docket: 02-5185
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Laton No. 02-5185 ELECTRONIC CITATION: 2003 FED App. 0437P (6th Cir.) File Name: 03a0437p.06 Tennessee, for Appellant. Leslie I. Ballin, BALLIN, BALLIN & FISHMAN, Memphis, Tennessee, for Appellee. UNITED STATES COURT OF APPEALS MOORE, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. SUTTON, J. (pp. 27-48), FOR THE SIXTH CIRCUIT delivered a separate dissenting opinion. _________________ _________________ UNITED STATES OF AMERICA , X - OPINION Plaintiff-Appellant, _________________ - - No. 02-5185 v. KAREN NELSON MOORE, Circuit Judge. Local and - > state government institutions provide a wide variety of , services ranging from transportation to economic JOHN LATON , - development, which can produce ripples in the broader stream Defendant-Appellee. - of interstate commerce to varying degrees. The general N question presented by the relatively bizarre factual Appeal from the United States District Court background of this case is whether or not a core function of for the Western District of Tennessee at Memphis. municipal government — the provision of firefighting No. 01-20235—Robert H. Cleland, District Judge. services — impacts interstate commerce such that an individual can be indicted under a federal anti-arson statute Argued: August 1, 2003 for destroying a fire station. The more precise question, upon which we dwell, is whether the Henning, Tennessee Fire Decided and Filed: December 10, 2003 Station was used in an activity affecting interstate commerce such that the person charged with setting it ablaze can be Before: DAUGHTREY, MOORE, and SUTTON, Circuit indicted under 18 U.S.C. § 844(i). We hold that this Judges. particular fire station was used in an activity affecting interstate commerce and accordingly REVERSE the _________________ judgment of the district court dismissing the indictment and REMAND for further proceedings consistent with this COUNSEL opinion. ARGUED: Jennifer L. Webber, ASSISTANT UNITED I. BACKGROUND FACTS AND PROCEDURE STATES ATTORNEY, Memphis, Tennessee, for Appellant. Leslie I. Ballin, BALLIN, BALLIN & FISHMAN, Memphis, Prometheus may have thought twice before handing down Tennessee, for Appellee. ON BRIEF: Jennifer L. Webber, the gift of fire to humans had he imagined that those whom ASSISTANT UNITED STATES ATTORNEY, Memphis, the mere mortals chose to steward the precious flame would use it to decimate the very mechanisms employed to control

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its power. We are faced with precisely such an odd event. Virtually all American insurance companies use the Public On March 3, 2000, the Henning Fire Station (“HFS”) was Protection Classification (“PPC”) to calculate fire-insurance destroyed by fire. Henning is a rural town in the western premiums in a particular area. The PPC is partially based Tennessee county of Lauderdale. It lies between Memphis upon the equipment, staffing, training, and geographic and Dyersburg on U.S. Route 51 and is approximately twenty distribution of local fire departments. Fire insurance miles from the Mississippi River. On September 18, 2001, a premiums in a community with a “good” PPC are federal grand jury indicted John Laton (“Laton”), the chief of considerably lower than in a community with a “bad” PPC, the Henning Fire Department (“HFD”), on one count of arson and insureds in an area that lacks fire services altogether will in violation of 18 U.S.C. § 844(i), the federal anti-arson have the “worst” PPC and the highest premiums. statute. The district court granted Laton’s motion to dismiss on the Laton subsequently moved to dismiss the indictment in ground that the HFS was not used in interstate commerce. October 2001, contending that the district court lacked subject United States v. Laton, 180 F. Supp. 2d 948 (W.D. Tenn. matter jurisdiction over the prosecution because the HFS was 2002). It focused its analysis on “whether the [HFS] was not used in an activity affecting interstate commerce. Both used in the activities of the [HFD], and whether those parties agreed upon and submitted to the court a set of activities substantially affect interstate commerce.” Id. at stipulations, which established the relevant facts regarding the 952. The court thus bifurcated the purposes of the HFS and HFS and the HFD. First, the HFS housed firefighting the HFD, reasoning that it was “not significant that the [HFS] equipment, including fire trucks, nozzles, uniforms, hoses, houses the trucks that drive to sites” of fires involving and other equipment. Additionally, the HFS contained an business or other instrumentalities of interstate commerce office, a kitchen, and meeting spaces for members of the because “[t]his is too attenuated a series of connections to HFD. Second, the HFD purchased most of its firefighting constitute a building that is used ‘in any activity’” that affects equipment from out-of-state vendors, and the HFD in the past interstate commerce. Id. The district judge then ruled that the relied upon out-of-state vendors for repairs to this equipment. purchase of supplies from out of state, the payment of some Third, the HFD is responsible for responding to fire wages to the firefighters, the fees billed for out-of-city fires, emergencies in Henning, which, like any other town, contains and the impact upon insurance rates did “not indicate any sort residences, churches, public buildings, and businesses. In the of active employment, but is again evidence of, at the very past, the HFD has responded to various emergency calls least, a passive connection.” Id. at 953. Accordingly, the involving several businesses in Henning, including a market court dismissed the indictment, because it ruled that it lacked and a laundry facility, the Henning Police Department, and subject matter jurisdiction over the case. Id. vehicles in distress on U.S. Route 51 and at the U.S. Route 51 rest area. Fourth, when the HFD responds to fire calls outside The government timely appealed the district court’s ruling. of the Henning city limits, the HFD charges out-of-state We have jurisdiction to hear such an appeal pursuant to insurance companies $500. Fifth, the volunteer firefighters 18 U.S.C. § 3731. See id. (“In a criminal case an appeal by who compose the HFD are paid wages by the City of Henning the United States shall lie to a court of appeals from a based upon the amount of time that they spend at a fire scene. decision, judgment, or order of a district court dismissing an The total wages paid to the firefighters generally does not indictment . . . .”). On review, we reject the reasoning of the exceed $1,000 per year. Sixth, the firefighting presence of the district court, reverse its judgment dismissing the indictment, HFS and the HFD impacts insurance rates in Henning. No. 02-5185 United States v. Laton 5 6 United States v. Laton No. 02-5185

and remand for further proceedings consistent with this prosecution, any rational trier of fact could have found the opinion. essential elements of the crime beyond a reasonable doubt.” (internal quotations omitted)). II. ANALYSIS We follow Rayborn’s lead and review the merits of the A. Erroneous Dismissal for Lack of Subject Matter district court’s determination that the HFS was not used in an Jurisdiction activity that affected interstate commerce. Because the inquiry into whether the HFS affects interstate commerce is As a preliminary matter, we hold that the district court a mixed question of fact and law, we review the district erred in dismissing the indictment based on the conclusion court’s determination de novo. United States v. Salvo, 133 that it lacked subject matter jurisdiction. In United States v. F.3d 943, 948 (6th Cir.), cert. denied, 523 U.S. 1122 (1998). Rayborn, 312 F.3d 229 (6th Cir. 2002), which we decided after the district court’s decision in this case, we held that the B. Section 844(i) and Its Applicability to Government interstate-commerce requirement “is simply one of the Buildings and Property essential elements of § 844(i),” even though it is frequently denoted a “‘jurisdictional element.’” Id. at 231. We We start with the plain language of the statute. Section explained that “[i]t is not jurisdictional in the sense that it 844(i) provides: “Whoever maliciously damages or destroys, affects a court’s subject matter jurisdiction, i.e., a court’s or attempts to damage or destroy, by means of fire or an constitutional or statutory power to adjudicate a case.” Id. explosive, any building, vehicle, or other real or personal The district court here, just like the district court in Rayborn, property used in interstate or foreign commerce or in any did have subject matter jurisdiction over the indictment under activity affecting interstate or foreign commerce shall be 18 U.S.C. § 3231. imprisoned for not less than 5 years and not more than 20 years . . . .” 18 U.S.C. § 844(i) (emphasis added).1 The This does not end the appeal. We noted in Rayborn that statute thus covers the arson of any building that is either used “this court typically vacates a dismissal order when it in interstate commerce or that is used in any activity affecting determines that a district court has erred in dismissing a case interstate commerce.2 for lack of subject matter jurisdiction . . . .” Rayborn, 312 F.3d at 232. Yet, Rayborn also instructs that when the district Crimes of arson have traditionally been viewed as court “undertook an evaluation of the merits of the interstate “paradigmatic common-law state crime[s],” but in 1982 commerce question under the guise of subject matter Congress chose to federalize certain arson crimes as an jurisdiction,” id., we are permitted to determine whether the exercise of its Commerce Clause power. Jones v. United evidence produced by the government (or in this case stipulated to by both parties) is sufficient to permit a rational jury to find that a particular building was used in an activity that affected interstate commerce such that the indictment can 1 “Interstate commerce” is defined as “commerce between any place still stand. Id. at 235-36; see also United States v. Latouf, 132 in a State and any place outside of that State.” 18 U.S.C. § 841(b). F.3d 320, 325-26 (6th Cir. 1997) (“The relevant inquiry when 2 reviewing claims of insufficient evidence is whether after Affect is “[t]o act upon; influence; change; enlarge o r abrid ge; . . . viewing the evidence in the light most favorable to the to act, or produce an effect or result upon; to imp ress or influence . . . .” B LACK’S L A W D IC T IO N A R Y 57 (6th ed. 1991). No. 02-5185 United States v. Laton 7 8 United States v. Laton No. 02-5185

States, 529 U.S. 848, 858 (2000).3 In seeking to avoid counter to the dissent’s belief that § 844(i) suffers from a lack “render[ing] traditionally local criminal conduct a matter for of clarity, Congress made transparent its objective in passing federal enforcement,” Congress “will not be deemed to have § 844(i). It fashioned a statute that covered the arson of “any” significantly changed the federal-state balance” unless it building and included a jurisdictional element limiting its clearly conveys its purpose. United States v. Bass, 404 U.S. reach to buildings that are used in interstate commerce or in 336, 349-50 (1971) (quoted in Jones, 529 U.S. at 858).4 any activity affecting interstate commerce, such that § 844(i) Additionally, when Congress fails to speak in clear and was “intended to protect all business property, as well as definite language, “ambiguity concerning the ambit of some additional property that might not fit that description, criminal statutes should be resolved in favor of lenity.” but perhaps not every private home.” Russell v. United Jones, 529 U.S. at 858 (quoting Rewis v. United States, 401 States, 471 U.S. 858, 862 (1985). U.S. 808, 812 (1971)). Had Congress been ambiguous in its formulation of § 844(i), the rule of lenity might apply, but We are mindful of our duty to construe a statute so as to eschew constitutional questions, and the straightforward application of the jurisdictional element here aids us in 3 avoiding any such entanglements. The prominent issue raised Congress originally passed § 844(i) as part of the Organized Crime Control Act of 197 0 to contro l the use and possession of explo sives. See by this appeal is not constitutional in scope, rather it is an Russell v. United States, 471 U.S. 858, 860 n.5 (198 5). In 198 2, Congress exercise in statutory interpretation. In United States v. Lopez, amended the statute to include the words “fire or” before the words “an 514 U.S. 549 (1995), the Supreme Court remarked that the explosive.” Jones v. United States, 529 U.S. 848 , 853 n.4 (2000 ). Gun-Free School Zones Act of 1990 (formerly 18 U.S.C. 4 § 922(q)) “contain[ed] no jurisdictional element which would W e note that the federal prosecution of Laton does not preclude the ensure, through case-by-case inquiry, that the firearm state from also prosecuting him if it so desires. See Heath v. Alabama, possession in question affects interstate commerce.” Id. at 474 U.S. 82, 89-90 (1985) (“‘[A]n act denounced as a crim e by both national and state sove reignties is an offense against the peace and d ignity 562 (emphasis added). It distinguished § 922(q) from the of both and m ay be p unished by each.’” (quoting United States v. Lanza , former 18 U.S.C. § 1202(a), a statute examined in United 260 U.S. 377, 382 (1922)). Under the federal arson statute, Laton faces States v. Bass, 404 U.S. 336 (1971), “which made it a crime a sentenc e of five to twenty years, assuming that no persons were injured for a felon to ‘receive, posses[s], or transport in commerce or by the fire. 18 U.S.C. § 844(i). If any persons were injured, Laton faces affecting commerce . . . any firearm,’” Lopez, 514 U.S at 561- a sentenc e of seven to forty years, and if any persons were killed by the 62 (emphasis added) (quoting Bass, 404 U.S. at 337). The fire, Laton is subject to any term of imprisonm ent, includ ing life imprisonm ent. Id. Under the Tennessee arson statute, the destruction of Court wrote that “[u]nlike the statute in Bass, § 922(q) has no a building by fire is a Class C felony, which is punishable by a term of express jurisdictional element which might limit its reach to imprisonment of three to fifteen years. See Tenn. Code Ann. §§ 39-14- a discrete set of firearm possessions that additionally have an 301, 40-3 5-111(b)(3). If any persons were injured in the fire, the arson explicit connection with or effect on interstate commerce.” of the HFS would constitute a Class A felony, which is punishable by a Id. at 562. Unlike § 922(q), § 844(i) does contain a term of imprisonm ent of fifteen to sixty years. See Tenn. Cod e Ann. §§ 39-14-302, 40-35-111(b)(1). Any supposed friction, as the dissent jurisdictional element, and we accordingly follow the lead of labels it, between the policy choices of the United States Congress and the previous post-Lopez decisions, which focus on interpreting Tennessee Legislature regarding the severity of the criminal sanction is the words of similarly phrased jurisdictional elements. See a necessary by-product of a federalist republic; a disparity between state Rayborn, 312 F.3d at 232-33 (applying Jones’s two-part test and federal sentences, which in this instance is de m inimis, oc curs quite to determine that the jurisdictional element in § 844(i) was often in areas of concurrent jurisdiction, such as prosecution for drug- related offenses. satisfied and the prosecution could proceed); United States v. No. 02-5185 United States v. Laton 9 10 United States v. Laton No. 02-5185

Riddle, 249 F.3d 529, 536 (6th Cir. 2001) (RICO provision,18 them from engaging in interstate commerce,” particularly U.S.C. § 1962(c); United States v. Napier, 233 F.3d 394, 400 because “they purchase goods and services in competitive (6th Cir. 2000) (firearms provision governing those under markets, offer their facilities to a variety of patrons, and domestic-violence court orders, 18 U.S.C. § 922(g)(8)); derive revenues from a variety of sources, some of which are United States v. Smith, 182 F.3d 452, 456 (6th Cir. 1999) local and some out of State.” Camps Newfound/Owatonna, (Hobbs Act, 18 U.S.C. § 1951); United States v. Ables, 167 Inc. v. Town of Harrison, 520 U.S. 564, 585-86 (1997). F.3d 1021, 1030 (6th Cir. 1999) (money laundering provision, Thus, as the Court stated, “[f]or purposes of Commerce 18 U.S.C. § 1956); United States v. Chesney, 86 F.3d 564, Clause analysis, any categorical distinction between the 568-70 (6th Cir. 1996) (firearms provision governing activities of profit-making enterprises and not-for-profit convicted felons, 18 U.S.C. § 922(g)(1)). Our responsibility entities is . . . wholly illusory.” Id. at 586. is to decide whether the government can demonstrate that the HFS was used in commerce or in an activity affecting Similarly, government institutions not only can affect commerce such that any rational juror could find that the interstate commerce but also can be direct participants in jurisdictional element of the crime defined in the statute has interstate commerce. The Supreme Court has noted on been satisfied beyond a reasonable doubt. several occasions the impact that certain federal, state, and local government institutions can have on interstate On its face, § 844(i) does not distinguish between the arson commerce. See Garcia v. San Antonio Metro. Transit Auth., of traditional for-profit business property, nonprofit 469 U.S. 528, 537, 547-48 (1985) (holding that application of organizations’ structures and equipment, or state and local Fair Labor Standards Act (“FLSA”) to transportation government buildings and supplies,5 because the statute employees employed by local government does not simply governs “any building, vehicle, or other real or contravene the Commerce Clause because labor conditions of personal property.” 18 U.S.C. § 844(i). There can be little those employees affect interstate commerce).6 Governments doubt that virtually all edifices and personal property in general, and individual government institutions in employed by for-profit businesses are both used in interstate particular, can serve in both a sovereign/regulatory capacity commerce and used in activities that affect interstate and a market capacity, and their actions as either can affect commerce, as they primarily house and make possible the interstate commerce. See Lehman v. City of Shaker Heights, operation of businesses that buy, sell, manufacture, ship, and 418 U.S. 298, 303 (1974) (holding that a municipal transit finance goods and services. Nonprofit institutions can also vehicle is not a public forum for First Amendment purposes impact interstate commerce. The mere fact that a nonprofit because “the city is engaged in commerce” and the organization differs from its for-profit cousins in its treatment advertising space in question “although incidental to the of net earnings does not prevent its buildings or property from being used in interstate commerce or in an activity affecting interstate commerce. As the Supreme Court has explained, 6 The Court also rejected “as unsound in principle and unwo rkable in “[n]othing intrinsic to the nature of nonprofit entities prevents practice, a rule of state immunity from federal regulation that turns on a judicial appraisal of whether a particular governmental function is ‘integral’ or ‘traditional.’” Garcia v. San Antonio Metro. Transit Auth., 5 469 U.S. 528, 546-47 (1985). The Court highlighted “the elusiveness of W e use “local” to encompass all political entities within but not objective criteria for ‘fundamental’ elements of state sovereignty,” including a state, such as municipalities, counties, and special districts labeling such obliqueness as “a problem we have witnessed in the search (water, school, economic develop ment, etc.). for ‘traditional governmental functions.’” Id. at 548. No. 02-5185 United States v. Laton 11 12 United States v. Laton No. 02-5185

provision of public transportation, is part of a commercial The reality that the core functions of government are not venture”); United States v. Kokinda, 497 U.S. 720, 725 (1990) exclusive of interstate commerce does not only hold true (concluding that federal government acts as proprietor, and when a government operates a commercial enterprise, such as not as regulator, for First Amendment purposes when it a post office, lottery, or liquor store. Government institutions operates the United States Post Office); Int’l Soc’y for also can affect interstate commerce when they provide core Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992) public services, such as police protection and emergency (ruling that local government acts as a proprietor when it services.7 See Prickett v. DeKalb County, 92 F. Supp. 2d owns and operates an airport). 1357, 1362-63 (N.D. Ga. 2000) (determining that labor practices of county fire department impact interstate In their operations as a sovereign or as a regulator, commerce such that the FLSA applies to its employees); governments may engage in interstate commerce or in Persons v. City of Gresham, 704 F. Supp. 191, 193 (D. Ore. activities that affect interstate commerce, even though the 1988) (applying FLSA to municipal firefighters because the impetus for their actions is noncommercial because it is fire department responded to emergencies that involved motivated by public service. See Garcia, 469 U.S. at 539 instrumentalities of interstate commerce and protected (“The constitutional distinction between licensing drivers and businesses engaged in interstate commerce); Conway v. regulating traffic . . . or between operating a highway Takoma Park Volunteer Fire Dep’t, 666 F. Supp. 786, 791 authority and operating a mental health facility, is elusive at (D. Md. 1987) (same). One can imagine dozens of state and best.”); United States v. Terry, 257 F.3d 366, 369 (4th Cir. local government institutions that could be used in activities 2001) (“We cannot close our eyes to the commercial nature of affecting interstate commerce, including but not limited to an activity solely because non-commercial considerations also airports, seaports, convention centers, police departments underlie it.”). In their function as market participants, auctioning off seized and forfeited property, health care governments inherently influence interstate commerce. See centers, and departments of property management, economic White v. Mass. Council of Constr. Employers, Inc., 460 U.S. development, and waste collection. Accordingly, Section 204, 207, 214 (1983) (ruling that when a city government § 844(i) has been invoked in the past to prosecute the arson of expends its own funds for construction of public projects, it public buildings; for example, the Tenth Circuit affirmed the can promote the employment of its own citizens, because it conviction under § 844(i) of the arsonist of a City Hall. acts as “a market participant” and “there is no indication of a United States v. Woodward, No. 93-3123, 1993 WL 498178 constitutional plan to limit the ability of the States themselves (10th Cir. Dec. 2, 1993) (unpublished). The police to operate freely in the free market” (quotation omitted)); Four T’s, Inc. v. Little Rock Mun. Airport Comm’n, 108 F.3d 909, 912 (8th Cir. 1997) (defining a local airport commission, 7 which operated the airport and charged concession fees from Counter to the dissent’s assertion, the fact that city-funded various vendors, as a market participant); Pic-A-State Pa., firefighting constitutes an unbargained-for public service is not relevant to the analysis. That individual citizens do not explicitly contract for Inc. v. Reno, 76 F.3d 1294, 1301 (3d Cir. 1996) (“It is beyond firefighting support does not mean that fire stations and fire departments dispute that state lotteries affect interstate commerce.”) fail to impact interstate commerce. Individuals do not bargain with non- (quoting The Lottery Case, 188 U.S. 321, 354 (1903) profit organizations in order to receive charity or other forms of (“[L]ottery tickets . . . are subjects of commerce.”)). assistance, yet the Supreme Court has made clear that any rigid categorization of non-profits as entities incap able o f affecting interstate commerce is void. Camp s New foun d/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564 , 586 (1997 ). No. 02-5185 United States v. Laton 13 14 United States v. Laton No. 02-5185

department is not used in an activity affecting interstate ‘activity’ that affects commerce” and reasoned that “[t]he commerce simply because it sells “I Support My Local Police rental of real estate is unquestionably such an activity.” Id. at Department” stickers, but to believe that such fundraising 862. In its analysis, the Court noted that the original version sales are the only way that a police building can be used in of the bill proposing § 844(i) contained the words “for activities affecting interstate commerce naively ignores a business purposes,” but that Congress removed such language police department’s role as reclaimer of stolen property before enactment “after considering whether the bill as moving between states, auctioneer of seized goods, and originally introduced would cover bombings of police stations perpetuator of the safety necessary to encourage interstate or churches . . . .” Id. at 860; see also id. at 860-61 nn.5-9 business growth. (quoting the relevant legislative history).8 The Court read this legislative history to suggest “that Congress at least intended The link between government and commerce described to protect all business property, as well as some additional above merely establishes that state and local government property that might not fit that description, but perhaps not buildings and property are neither inherently disconnected every private home.” Id. at 862.9 Because the apartments in from nor innately intertwined with interstate commerce. Each piece of real or personal property, taking into account its function, must be assessed individually to determine the 8 Enacted as part of the “Explosive Control Act” provisions of the extent to which it impacts interstate commerce. There can be Organized Crime Control Act of 1970, 84 Stat. 922, 952 , the precursor to no uniform and inflexible rule that §844(i) covers either all or § 844(i) provided stiff penalties for “[w]hoe ver maliciously damages or none of the wide variety of municipal buildings that fill either destroys, or attempts to damage or destroy, by means of an explosive, any the largest urban metropolis or the smallest rural hamlet. This building, vehicle, or other real or personal property used for business perfectly conforms to Congress’s will as expressed in purposes by a person engaged in commerce o r in any activity affecting commerce . . . .” H.R. 16699, 91st Cong., 2d Sess. (1970) (emp hasis § 844(i); the insertion of a jurisdictional element mandates a added). During a hearing o n this pro vision, several re prese ntatives case-by-case, building-by-building inquiry into whether that expressed conc ern that the statute as word ed would not cover the bombing particular building is used in an activity that affects interstate of police stations or churches and suggested leaving out the words “for commerce, no matter whether it is owned and operated by a business purposes.” Russell, 471 U.S. at 860 -61 nn.6-7. This phrase was supermarket, an advocacy group, or a local-government not included in the statute as enacted. police department. 9 The dissent suggests that a glance at § 844(i)’s code-book neighbor, 18 U.S.C. § 844(f) definitively reveals that Congress did not intend for C. The Supreme Court’s Analysis of 18 U.S.C. § 844(i) § 844 (i) to reach all government buildings even though § 844(f) governs only the destruction of federal, but not state or local, buildings. Section The Supreme Court has had two opportunities to analyze 18 844(f)(1) reads: “Whoever maliciously damages or destroys . . . by means U.S.C. § 844(i) and to establish a mechanism by which courts of fire . . . any building, vehicle, or other perso nal or real prope rty in can assess whether real or personal property is used in who le or in part owned or p ossessed b y, or leased to, the U nited States, interstate commerce or in an activity that affects interstate or any departm ent or a gency thereo f, or any institution or organization receiving Federal financial assistan ce, shall be imp risoned . . . .” This commerce. In Russell v. United States, 471 U.S. 858 (1985), provision criminalizes the arson of any federal building, such as the the Court considered whether the arson of a two-unit former Murrah Federal Building in Oklahoma City, or any building apartment building that was used as a rental property fell owned by an organization obtaining federal assistance, such as a within the purview of 18 U.S.C. § 844(i). The Court held that university research laboratory that receives a federal grant and then “the statute only applies to property that is ‘used’ in an markets its technology. The two statutes do not reference each other, although they were passed at the same time in response to the spate of No. 02-5185 United States v. Laton 15 16 United States v. Laton No. 02-5185

the building were rented to tenants at the time of the fire, the for any commercial purpose.” Id. at 852. Justice Ginsburg, Court concluded that the property was “being used in an writing for a unanimous Court, again noted how Congress activity affecting interstate commerce.” Id.; see also United removed the “for business purposes” language from the States v. Ryan, 9 F.3d 660, 667 (8th Cir. 1994) (ruling that a proposed bill in order to indicate “that . . . the provision closed fitness center affected interstate commerce because the should apply to the bombings of schools, police stations, and building was owned and leased by an individual from a places of worship.” Id. at 853 n.5 (citing Russell, 471 U.S. at different state). 860-61).10 The Court emphasized the “qualifying words ‘used in,’” which mandates “‘that the damaged or destroyed The question that Russell hinted at — whether or not property must itself have been used in commerce or in an § 844(i) reached the destruction of a private residence — activity affecting commerce.’” Jones, 529 U.S. at 854 remained unresolved until 2000. In Jones v. United States, (emphasis added) (quoting United States v. Mennuti, 639 F.2d 529 U.S. 848 (2000), the Supreme Court ruled that “§ 844(i) 107, 110 (2d Cir. 1981)). It then outlined a two-part inquiry does not reach an owner-occupied residence that is not used for assessing the applicability of § 844(i), which entailed an analysis of “‘the function of the building itself, and then a determination of whether that function affects interstate bom bings in the late 196 0s. See United States v. Eichman, 957 F.2d 45, 46 (2d Cir. 199 2) (describing § 8 44(f)’s history). O ne cannot lo gically 10 conclude that the specific mention of federal gov ernment buildings in The Supreme Co urt has thus twice relied on this legislative history § 844(f) provides definitive evidence of Congress’s intention to draw in analyzing § 8 44(i). Even if this legislative history did not exist, it § 844 (i)’s boundaries just shy of reaching state or local government wou ld not alter our conclusion because it is the plain language of the buildings. statute that directs us towards the inquiry o f whether the fire station is The provisions overlap in som e respects, but they are no t so used in an activity that affects interstate commerce. However, we need complimentary that the existence of one negates the purpose of the other. not ignore the history of § 844(i). W e agree with the dissent that we are For the arson of the university lab mentioned above, both § 844(i) and not to “attach decisive significance to the unexplained disappearance of § 844(f) apply. However, the two statutes will not always be one word from an unenacted bill because ‘m ute interm ediate legislative interchangeable such that § 84 4(i) is surplusage. The arson of a building maneuv ers’ are not reliable indicators of congressional intent.” Mead owned by the federal government or an entity receiving federal assistance Corp. v. Tilley, 490 U.S. 714 , 723 (1989 ) (emphasis added) (quo ting that does not in any way affect interstate commerce cannot be prosecuted Trailm obile Co. v. Wh irls, 331 U.S. 40, 61 (1947)). We also recognize under § 844(i), but can be under § 84 4(f). Fo r exam ple, if an individual that “unenacted appro vals, beliefs, and desires are not laws.” Puerto Rico purchased a single-family residence under a federal program in which the Dep’t of Consumer Affairs v. ISLA Petroleum Corp., 485 U.S. 495, 501 cost of the home was split between the buyer and a state-run housing (1988). How ever, the disapp earance o f the words “for business purpo ses” organization receiving federal funds such that the state government owned from the proposed, but unenacted, version of the original § 844 (i) in 1970 part of the residence, the arson of that residence would be punishable was neither unexplained nor mute. Congress explained that it removed under § 84 4(f), bu t not § 844 (i). Cf. United States v. Da vis, 98 F.3d 141, the words to ensure that § 844(i) covered more than just traditional 145 (4th Cir. 1996) (affirming prosecution under § 844(f) for the arson of business properties, although precisely how much more is the question we a single-family townhouse because a state housing authority that received address today. Furthermore, the belief or d esire that § 84 4(i) co ver “any” federal assistance heavily subsidized the rent of the tenant). Similarly, the type of build ing used in interstate commerce could not be described as arson of a non-federal building, the owners or possessors of which do not unenacted. In contrast to the words “for b usiness purposes,” which were receive federal funds, cannot be prosecuted under § 844(f), but may be not included in the final bill, § 844(i)’s coverage of “any building . . . under § 84 4(i) if the building was used in an activity affecting interstate used . . . in any activity affecting interstate . . . commerc e” (em phasis commerce. Th us, there are certain arsons that may be prosecuted under add ed), reflects the desires of Congress to broaden the sco pe of the anti- § 844(f), but not § 844(i), and others that may be prosecuted under arson statute to encompa ss some pub lic institutions, such as police § 844(i), but not § 844(f). Each section has a special function to serve. stations. No. 02-5185 United States v. Laton 17 18 United States v. Laton No. 02-5185

commerce.’” Jones, 529 U.S. at 854-55 (quoting United those that are used in an activity that affects interstate States v. Ryan, 9 F.3d 660, 675 (8th Cir. 1993) (Arnold, C.J., commerce. concurring in part and dissenting in part)). In exploring whether § 844(i) covered the destruction of a private D. The Application of Jones to Laton’s Indictment residence, the court reasoned that for a building to be used in an activity affecting interstate commerce requires “active We now turn to the application of Jones’s two-part analysis employment for commercial purposes, and not merely a to the destruction of the HFS.11 The first step is to identify passive, passing, or past connection to commerce.” Jones, the function of the HFS and the equipment that the building 529 U.S. at 855. The Court ultimately ruled that a private housed. A building and the personal property within that residence does not fit within § 844(i) where its only building can have multiple functions. See Jones, 529 U.S. at relationship to interstate commerce is the receipt of natural 856 (distinguishing the private home at issue from a residence gas, a mortgage, or an insurance policy because such a limited that was also used as a home office or for a commercial nexus did not constitute “active employment.” To hold enterprise). Accordingly, a “building’s function is not limited otherwise would mean that “hardly a building in the land to its primary use.” Rayborn, 312 F.3d at 233. Churches, for would fall outside the federal statute’s domain” because example, primarily serve a religious function, but churches “[p]ractically every building . . . is constructed with supplies can also have secondary and important economic purposes. that have moved in interstate commerce, served by utilities Terry, 257 F.3d at 369 (holding that a church “can have both that have an interstate connection, financed or insured by a religious aspect and an economic one” when the church enterprises that do business across state lines, or bears some operated a daycare center); United States v. Grassie, 237 F.3d other trace of interstate commerce.” Id. at 857. 1199, 1209-10 (10th Cir. 2001) (acknowledging that a church’s activities can be both religious and commercial); This two-part inquiry must be conducted in every federal United States v. Odom, 252 F.3d 1289, 1294 (11th Cir. 2001) arson case to determine whether the jurisdictional element of (“Churches are not commonly considered a business § 844(i) has been met. This case-by-case analysis is enterprise; nonetheless, churches can and do engage in mandated by Congress’s inclusion of a jurisdictional element, commerce.”). which, as mentioned previously, distinguishes § 844(i) from the Gun-Free School Zones Act of 1990 that the Supreme Similarly, the HFS performed one ancillary function and Court struck down in Lopez. See Lopez, 514 U.S. at 562 one main function. It fulfilled an ancillary function of (“[Section] 922(q) has no express jurisdictional element assuring the homeowners and businesses of Henning that their which might limit its reach to a discrete set of firearm property was safe. The HFS was a municipally owned possessions that . . . have an explicit connection with or effect building that stood alongside the police department and the on interstate commerce.”). The evidence of Congress’s city hall as a public institution and a visible public safety intention to permit federal prosecution of arson of police shield for the citizens of Henning. More significantly, the stations strongly implies that arson of fire stations is also covered, because police stations and fire stations provide 11 similar public safety services. Naturally, Congress’s The complicity of the Henning Fire Chief in the arson of the HFS envisioning of § 844(i) prosecutions for the arson of schools, does not facto r into the analysis. The application of § 844(i) does not turn police stations, and churches does not mean that the arson of on the identity of the arsonist. It is a bitterly ironic tw ist that an official employed by the local government, in fact the official in charge of fire all such institutions is covered by the statute, but rather only safety, destroyed the fireho use, bu t it is not legally pertinent. No. 02-5185 United States v. Laton 19 20 United States v. Laton No. 02-5185

HFS made the HFD possible; fire departments cannot exist traditional for-profit business, particularly in the service without fire stations. The HFS facilitated the provision of fire sector, into a building that does not in itself affect interstate protection services necessary for the economic development commerce and a service performed elsewhere that most and prosperity of Henning because the station and the certainly does affect interstate commerce, but such division equipment in the building provided the HFD with the only obfuscates the true impact of the business as a whole. implements necessary to combat fires. The function of the building and the trucks, hoses, boots, hats, and The second step of the Jones analysis involves determining communication devices was to permit the HFD to battle ably whether the function of the HFS affects interstate commerce. any conflagration within the jurisdiction of the HFD, whether We must analyze whether the HFS, in its role as a municipal it be a small brush fire or a major truck or automobile building that enables firefighting, is “used” in an activity that accident on U.S. Route 51. affects interstate commerce: does it enjoy “active employment for commercial purposes” rather than “a passive, We reject the district court’s conclusion that the functions passing, or past connection to commerce”? Jones, 529 U.S. of the HFS can be separated from the functions of the HFD, at 855. A single relationship to interstate commerce or the such that the HFD’s firefighting efforts affected interstate conjunction of several different ties to interstate commercial commerce, but the HFS, an edifice containing firefighting activity can support a finding that a building was actively equipment, did not. The district court wrote that “most of the employed in commerce. For example, in Rayborn we facts to which the parties stipulate involve the purposes of the affirmed a conviction under § 844(i) for the arson of a church. Henning Fire Department, not the Henning Fire Station” and Rayborn, 312 F.3d at 234. The church broadcasted radio ruled that “[i]t is not significant that the Henning Fire Station messages by renting out time from various stations in order to houses the trucks that drive to the sites that require service, increase the attendance and contributions of out-of-state even though those sites are sometimes businesses that are parishioners, it drew members from three states, it paid involved in activities that themselves affect interstate salaries, it hosted gospel concerts featuring out-of-state talent commerce.” Laton, 180 F. Supp. 2d at 951-52. This analysis for which it requested donations, and it owned several too finely atomizes the roles of the HFS and the HFD and vehicles. Id. at 234-35. On this basis, we concluded that ignores the inseparability of their functions. Neither the HFD “[t]he church’s interstate connections were direct, regular, and nor any other fire department in the country can operate substantial.” Id. at 234. Other courts have similarly found without trucks, hoses, axes, flashlights, fire-retardant churches to affect interstate commerce where the church has uniforms, meeting spaces, and communication systems. To some active commercial connection. See United States v. hold that the HFD could affect interstate commerce by putting Terry, 257 F.3d 366, 369-70 (4th Cir. 2001) (finding that a out fires at businesses in Henning or along U.S. Route 51, but church daycare center “was actively engaged in commercial that the HFS could not because it only houses the trucks that activity” because it provided childcare services for payment); combat those fires, is no less erroneous than the conclusion United States v. Grassie, 237 F.3d 1199, 1209 n.7 (10th Cir. that a garage housing a towing service does not affect 2001) (holding that a Mormon church in rural New Mexico interstate commerce because the tow trucks perform their affected interstate commerce because the revenues of the commercial function on the road or the conclusion that a radio church and the tithed incomes, goods, and services of church studio does not affect interstate commerce because the intangible radio waves emanated from the studio are diffusely captured by listeners. One could fracture nearly any No. 02-5185 United States v. Laton 21 22 United States v. Laton No. 02-5185

members flowed across state lines for distribution by the that the destruction of the police car had “a significant impact church’s headquarters in Salt Lake City).12 on interstate commerce” because the deputy patrolled traffic and made arrests on an interstate highway, issued citations to Churches are not the only buildings that we and other out-of-state drivers, participated in interstate narcotic courts have found to be used in an activity affecting interstate investigations, assisted out-of-state authorities in commerce. In United States v. Sherlin, 67 F.3d 1208, 1213 apprehending suspects, recovered stolen property from other (6th Cir. 1995), we held that the arson of a dormitory at a states, and attended law enforcement training sessions in other private college was punishable under § 844(i). The college states. Id. was a nonprofit institution, but its dormitory was used in an activity that affected interstate commerce because the college The Supreme Court’s decision in Jones made clear that the received payments from students in return for educational mere receipt of inputs or services from an out-of-state vendor services, it advertised out of state, and almost all of the is not a sufficient connection to interstate commerce to students living in the destroyed dorm hailed from other states. support an indictment under § 844(i). Jones, 529 U.S. at 856. Id. In Bellflower v. United States, 129 F.3d 1459, 1462 (11th Accordingly, a purely private residence, which is only Cir. 1997), the Eleventh Circuit held that § 844(i) covered the connected to interstate commerce through the material used bombing of a police vehicle, which a local sheriff’s deputy to construct it, the supplies used to heat it, or the monetary used in his law enforcement responsibilities. That court held instrument used to finance its purchase, is not used in an activity affecting interstate commerce. However, when the government relies on other connections to interstate 12 commerce to establish the jurisdictional element of § 844(i), Several courts have ruled that § 844(i) does not cover churches the purchase of supplies from out of state can offer additional where the connection to interstate commerce is limited to purchasing support for the conclusion that a building or property is used supplies, sending dues and contributions across state lines, acquiring insurance, or providing services and religious educ ation. See United in an activity affecting interstate commerce. See Rayborn, States v. Lamont, 330 F.3d 12 49, 1256 -57 (9th Cir. 2003) (rejecting 312 F.3d at 234-35 (mentioning, in addition to other factors, gove rnment’s contention that § 844(i) applied where church purchased that a church affected interstate commerce because it gas, insurance, and supplies from out of state and several church attendees purchased local goods, such as groceries and flowers); came from out of state); United States v. Rea, 300 F.3d 95 2, 962 (8th Cir. Sherlin, 67 F.3d at 1214 (noting that a college dorm affected 2002) (concluding that § 844(i) did not cover a church annex that only interstate commerce partially because it purchased “numerous housed Sund ay scho ol classes and after-school tutoring because the purchase of supplies for the annex by itself had only “fleeting effects on supplies” from out of state, including food services). interstate commerce”); United States v. Odom, 252 F.3d 1289, 1296-97 (11th Cir. 20 01) (dismissing church’s rec eipt of donations from out-of- When it crafted § 844(i) to encompass the arson of police state donors, utilization of Bibles purchased from out-of-state vendors, stations, Congress recognized that the provision of emergency and contributions to various out-of-state nonprofit organizations as “too services by municipalities can affect interstate commerce in passive, too minimal and too indirect” to affect interstate commerce); United States v. Johnson, 246 F.3d 749, 752 (5th Cir. 2001) (holding that the active sense of the phrase. See Jones, 529 U.S. at 853 n.5; earlier decisio n, United States v. Johnson, 194 F.3d 657 , 662 (5th Cir. Russell, 471 U.S. at 860-61. Fire stations provide similar 1999), which was vacated and remanded by the Supreme Court, 530 U.S. emergency services and undoubtedly can affect interstate 1201 (2000), correctly concluded that contribution of funds by church commerce. See Benson v. Universal Ambulance Serv., 675 members to a national organization and paym ent of an insurance claim by F.2d 783, 786 (6th Cir. 1982) (affirming lower court’s an out-of-state insurer did not suffice to show that the jurisdictional element of § 844(i) had been met). determination that the FLSA applies to private ambulance No. 02-5185 United States v. Laton 23 24 United States v. Laton No. 02-5185

employees because responding to emergencies on streets and belief that this is an easier case than Jones sidesteps highways affects interstate commerce given that it removes fundamental differences between Jones and this case, for obstructions to the free flow of interstate commerce); much more than the mere purchase of supplies from out of Bellflower, 129 F.3d at 1462 (upholding conviction under state ties the HFS into the web of interstate commerce. As § 844(i) for the arson of a police vehicle because the officer’s demonstrated below by the final three links to interstate responses to emergencies affected interstate commerce). The commerce, we find it persuasively clear that the HFS was issue, though, is not whether all fire stations and fire used in an activity affecting interstate commerce. departments affect interstate commerce; the jurisdictional element of § 844(i) requires us to focus our attention only on Fourth, the HFD is charged with responding to fire whether the HFS is used in an activity affecting interstate emergencies within the Henning city limits. In the past, the commerce. HFD has responded to emergency calls from several businesses in Henning, including a market and a laundry We conclude that a rational juror could find beyond a facility. In the future, it is certain that the HFD will be called reasonable doubt that the HFS was used in an activity that upon to fight fires at other businesses in Henning.13 affected interstate commerce because its role in fighting fires Preventing the destruction of commercial establishments constituted an active, rather than a passive, employment in strikingly affects interstate commerce by preserving entities interstate commerce. See Latouf, 132 F.3d at 325. Six directly engaged in interstate commerce. aspects of the HFS demonstrate this connection. First, the HFS housed firefighting equipment, including trucks, hoses, Fifth, the HFD serves to protect both the channels of nozzles, and uniforms, which the HFD purchased from out of commerce and the instrumentalities of commerce because it state, which the HFD sent for repairs out of state, and which is the primary emergency services provider for the stretch of perished in the fire. The precise dollar amount of this U.S. Route 51 going through Henning. The HFD has equipment is not known, but given that the equipment responded (and will respond in the future) to incidents and destroyed included at least one fire vehicle, it was not trivial. accidents both on U.S. Route 51 and at the U.S. Route 51 rest Second, the HFD charged $500 to out-of-state insurance area. The HFD’s role in extinguishing fires, saving lives, and companies for fighting fires outside of the Henning city keeping U.S. Route 51 clear impacts interstate commerce. limits, although it only did so a few times annually. Third, The HFD protects passenger vehicles carrying tourists and the HFD paid its volunteers wages based on the amount of travelers voyaging through western Tennessee, it safeguards time spent on a fire scene, although these wages generally the interstate shipments of goods, and it permits the freeflow have not exceeded $1000 annually. On their own, these first three factors may not form an adequate nexus to interstate commerce under Jones. If the purchase of equipment from out-of-state were the only link between the HFS and interstate commerce, the dissent might 13 be right that this case is easier than, or at least as easy as, The town of Henning is the site of the Alex Haley Museum, several Jones given that the acquisition of a mortgage, natural gas, antique shop s, a restaurant, two beau ty salons, two grocery stores, a bank and insurance from out-of-state providers was the extent of branch, an auto parts store, twenty churches, 161 renter-occupied housing units, and a clothing manu facturer that employed seventy-five peo ple in the interstate commerce connection in Jones. The dissent’s 2002. No. 02-5185 United States v. Laton 25 26 United States v. Laton No. 02-5185

of trucks and buses through the area.14 The HFD’s more than passive or passing. Taken together, along with the firefighting capabilities in this regard affect interstate first three factors, they show that the connection of the HFS commerce, because insuring that the channels of commerce to interstate commerce resembles the links between interstate are kept open and the instrumentalities of commerce are commerce and the church in Rayborn, the dormitory in protected is not a passive or passing connection to interstate Sherlin, and the police car in Bellflower. The HFS and the commerce. HFD have a definite impact upon the economy of Henning that is no less significant than a church purchasing radio time Sixth, and finally, the presence of the HFS and the HFD or a nonprofit college attracting students from other states. impacts insurance rates in Henning. The absence of the HFS, The HFS permits local businesses to operate, enables the free and the impact on the HFD’s competency that is wrought by flow of goods and passengers through the state of Tennessee, the loss of the HFS, directly alters the PPC, which helps lowers the costs of doing business by decreasing fire insurance companies calculate fire insurance premiums. As insurance premiums, and directly engages in commercial a result of the fire, Henning will have a worse PPC, and transactions, in a more minor way, through the purchase of insurance premiums will rise. The presence of an active fire supplies and the billing of insurance companies. department in Henning thus significantly impacts the Accordingly, any rational juror could conclude beyond a insurance rates of all the businesses (and homes) in Henning, reasonable doubt that the jurisdictional element was met here which in turn influences the commercial transactions of those because the HFS is actively used in an activity that affects businesses, both in the sense of their relationships to their interstate commerce. insurers and their profit margins.15 III. CONCLUSION Any of these last three factors by itself demonstrates sufficiently that the HFS was used in an activity that affected Because we conclude that both parts of the Jones test have interstate commerce, because its connection to commerce was been satisfied, we hold that there is sufficient evidence to support the indictment as the HFS was used in an activity affecting interstate commerce. We thus REVERSE the 14 judgment of the district court and REMAND for further Not only commercial shipping and passenger vehicles pass through Henning, but also passenger buses ope rated by Greyhound, In c., shuttle proceedings under § 844(i) consistent with this opinion. between Mem phis and Dyersburg (and to points further south and north). Additiona lly, active railroad tracks owned by the Illinois Central Railroad run para llel to U.S. Route 51 through Henning. Freight trains frequent these tracks and AMT RAK runs passenger service along this route, connecting Chicago to New Orleans, with stop s in Dye rsburg to the north and Me mphis to the south. Any fire emergency in Henning involving a bus or a train would require the assistance of the HFD.

15 W e do not conclude in this opinion that because every com munity’s PPC depends on the training and geographic distribution of fire companies, all fire stations are automatically used in an activity affecting interstate commerce. Given Congress’s explicit instruction that the application of § 844(i) depends on the specific circumstances of a particular fire station, we limit our analysis to the fire station in Henning. No. 02-5185 United States v. Laton 27 28 United States v. Laton No. 02-5185

_______________ a passive, passing, or past connection to commerce.” Id. at 855. Fire stations are no more “active[ly]” used for DISSENT “commercial purposes” than residential homes are. In point _______________ of fact, this would seem to be the easier case—as firefighting represents the epitome of an unbargaining public service and SUTTON, Circuit Judge, dissenting. the arsonist in this instance represents the epitome of a local public official. To conclude otherwise is to embrace the view “Some say the world will end in fire, Some say in ice.” that even the most attenuated connections to commerce will Robert Frost, Fire and Ice, in The Poetry of Robert Frost 220 suffice in prosecuting individuals under this statute, a (Edward Connery Lathem ed., 2002). From what the 970 perspective that by my reading of Jones is no longer an option residents of Henning, Tennessee have seen of John Laton, for the lower courts. For these reasons and those elaborated their fire chief, one could certainly understand why they below, I would affirm the judgment of the district court would “hold with those who favor fire.” Id. dismissing this case. Yet the incompatibility of this crime with this alleged I. criminal merely serves as a prelude to other oddities of this case. Consider what happened after the fire chief set fire to On March 3, 2000, John Laton allegedly set fire to the the Henning Fire Station. While arson is a state-law felony in Henning, Tennessee Fire Station. At the time, Laton served Tennessee, as in all States, neither the local prosecutors nor as the Chief of the Henning Volunteer Fire Department, a city the Attorney General of Tennessee indicted this defendant. government position. Henning, Tenn. Mun. Code §§ 7-301, While the federal crime of arson applies just to property “used 7-305. Under Tennessee law and the Henning Municipal in” interstate commerce, 18 U.S.C. § 844(i), the National Code, Laton’s job qualified him as a state officer, specifically Government indicted this defendant for destroying a building an assistant to the state fire marshal, subject to all of the that has a uniquely public, non-commercial and sovereign duties and obligations imposed on state officers under purpose. And while the United States acknowledged at oral Tennessee’s fire-prevention laws. Tenn. Code Ann. § 68- argument that it was not aware of a single other prosecution 102-108; Henning, Tenn. Mun. Code § 7-308. under § 844(i) for the arson of a local public building, the United States Attorney for the Western District of Tennessee Henning is a small rural town located in western Tennessee. invoked this statute in response to the destruction of a rural It has a population of 970 and sits in Lauderdale County fire department by a local fire chief. (population 27,101). U.S. Census Bureau, Census 2000, Table DP-1. Henning lies about fifty miles north of Memphis This case, however, is not just unusual as a matter of fact, and can be found at the crossroads of State Routes 87 and law, or history; it is also unusual as a matter of precedent. 209. (The author Alex Haley grew up in Henning.) Three Terms ago, in a 9-0 decision, the United States Supreme Court held that § 844(i) does not apply to the On September 18, 2001, a federal grand jury indicted Laton burning of residential homes. Jones v. United States, 529 for arson in violation of 18 U.S.C. § 844(i). Laton moved to U.S. 848 (2000). In doing so, the Court made clear that the dismiss the indictment, arguing that § 844(i) did not provision applies only to the destruction of buildings with an encompass this incident because the Henning Fire Station was “active employment for commercial purposes, and not merely not “used in” interstate commerce or a commerce-affecting No. 02-5185 United States v. Laton 29 30 United States v. Laton No. 02-5185

activity. Before ruling on Laton’s motion, the district court According to the Municipal Code, the mayor and aldermen received a stipulation from the parties agreeing on several determine the compensation for Fire Department personnel. pertinent facts. Henning, Tenn. Mun. Code § 7-305. The stipulation contains few surprises. The parties agree, The parties lastly agree about the general economic impact for example, that the function of the Fire Station building is of the loss of a fire station. In calculating property-insurance to “house[] the fire fighting equipment including trucks, as premiums, virtually all insurers of homes and businesses use well as the office, kitchen and meeting spaces for the Henning a designation made by the Insurance Services Office called Volunteer Fire Department.” The Henning Municipal Code the Public Protection Classification (PPC). A community’s adds that “[a]ll [such] apparatus, equipment, and supplies” PPC depends on the ability of fire departments to respond to must be “purchased by or through the town” and “remain the calls. Property owners in areas with no fire service receive property of the town.” Henning, Tenn. Mun. Code § 7-301. the highest PPC, and they accordingly pay substantially higher premiums than those paid by similarly-situated The parties agree that the Fire Department responds to property owners who live in areas with a lower PPC. firefighting calls in a rural area of Tennessee that includes numerous residences, churches, public buildings, several The district court granted Laton’s motion to dismiss the businesses and one U.S. highway. In some instances, the Fire indictment. In doing so, the court concluded that the Henning Department has provided emergency services to vehicles on Fire Station is not “used in” interstate commerce or in “an fire and/or involved in accidents on the highway. activity affecting interstate commerce,” but is used for the non-commercial purpose of housing the City’s Fire The parties agree that the Fire Department has occasional Department. To the extent that the activities of the Fire connections to three types of economic transactions. First, Department have any effects on commerce—through the Department has purchased equipment from, and had responding to fires, purchasing fire equipment, paying wages, equipment repaired by, out-of-state vendors. Second, the receiving fees or affecting insurance rates—the district court Department charges a fee when it responds to calls outside the added that they are merely “incidental” and “passive, at best.” city limits, which it does on average no more than three times That attenuated connection to interstate commerce, the court a year. According to the Henning Municipal Code, the Fire concluded, did not suffice to bring this arson within the Department responds to such calls only when a fire outside compass of § 844(i) or of the Supreme Court’s recent the city limits threatens property within the city limits or interpretation of the provision in Jones v. United States, 529 when the mayor and aldermen grant the Fire Department U.S. 848 (2000). permission to respond to the call. Henning, Tenn. Mun. Code § 7-307. City employees working at City Hall bill these fees, II. which amounted to $300 per call in March 2000, and have on occasion billed these fees directly to out-of-state insurance The text of the statute does not provide a natural home for companies. The total amount billed in a year, the parties this prosecution. Section 844(i) provides in pertinent part: agree, does not exceed $1,000. Third, the City of Henning “Whoever maliciously damages or destroys, or attempts to pays wages to the “volunteer” fire fighters based on the damage or destroy, by means of fire or an explosive, any amount of time they spend at the scene of a fire. Total wages building, vehicle, or other real or personal property used in paid by the City in a typical year do not exceed $1,000. interstate commerce or foreign commerce or in any activity No. 02-5185 United States v. Laton 31 32 United States v. Laton No. 02-5185

affecting interstate or foreign commerce shall be imprisoned In determining whether an alleged arson fits within the . . . .” 18 U.S.C. § 844(i). terms of the statute, Jones instructs lower courts to ask (and answer) two questions. First, a court must determine “‘the By its terms, § 844(i) combines a broad grant of statutory function of the building itself.’” Id. at 854 (quoting United authority (to federalize the arson of “any” property) with a States v. Ryan, 9 F.3d 660, 675 (8th Cir. 1993) (Arnold, C.J., broad limitation on that language (to do so only with respect concurring in part and dissenting in part)). Second, a court to property “used [1] in interstate or foreign commerce or [2] must “‘determin[e] whether that function affects interstate in an activity affecting interstate or foreign commerce”). commerce,’” id., mindful that this requires “active Congress defines “interstate or foreign commerce” for these employment for commercial purposes, and not merely a purposes to mean “commerce between any place in a State passive, passing, or past connection to commerce,” id. at 855 and any place outside of that State, or . . . between places (emphasis added). within the same State but through any place outside of that State.” 18 U.S.C. § 841(b). The burning of the Henning Fire Station does not satisfy these requirements. Viewed from any angle, the Fire Station As commonly understood, these words do not cover the served sovereign rather than commercial ends. The Fire arson of a rural fire station by a local fire chief. Fire stations Station constitutes municipal real property (a building and are not naturally referred to as property used in interstate land), used to store municipal personal property (firefighting commerce or in commerce-affecting activity. By everyday equipment), deployed by a municipal entity (the Fire standards of language, common sense and tradition, local Department), to perform a uniquely municipal function governments build fire stations to put out fires and save lives, (firefighting). Local governments simply do not “sell” fire activities that serve distinctly intrastate public-safety services “in the ordinary commercial sense.” Cleveland v. objectives, not interstate commercial ends. United States, 531 U.S. 12, 23–24 (2000) (a State “does not ‘sell’ video poker licenses in the ordinary commercial sense” III. and a State’s interest in them “surely implicates the Government’s role as sovereign, not as property holder”). Precedent reinforces this conclusion. Three years ago, They instead provide an eminently useful, sovereign and Jones v. United States, 529 U.S. 848 (2000), construed the necessary public service. Id.; see also Goldstein v. Chestnut same statute and determined that it does not apply to a typical Ridge Volunteer Fire Co., 218 F.3d 337, 344, 348 (4th Cir. private residence. Id. at 850–51. 2000) (stating that “it is difficult to conceive of a service associated more closely with the state than the provision of The Court initially explained that Congress did not “invoke fire protection services,” and holding that a Maryland its full authority under the Commerce Clause” in enacting volunteer fire department that was formed as a non-profit § 844(i). Id. at 854. While Congress might have “‘define[d] corporation is a state actor for § 1983 purposes); Tenn. Code the crime . . . as the [destruction] of a building whose damage Ann. § 29-20-102(3)(A) (for purposes of governmental or destruction might affect interstate commerce,’” it instead immunity, the term “governmental entity” includes required “‘that the damaged or destroyed property . . . itself “municipalit[ies]” and “nonprofit volunteer fire department[s] have been used in commerce or in an activity affecting receiving funds appropriated by . . . a municipality”); cf. commerce.’” Id. at 854 (quoting United States v. Mennuti, United States v. Monholland, 607 F.2d 1311, 1316 (10th Cir. 639 F.2d 107, 110 (2d Cir. 1981) (Friendly, J.)). 1979) (rejecting the argument that a pickup truck used by a No. 02-5185 United States v. Laton 33 34 United States v. Laton No. 02-5185

state court judge to drive back and forth from court was used IV. in a commerce-affecting activity just because state court proceedings may have some effect on commerce). A.

That the Fire Station served sovereign rather than Other interpretive guidelines, each of which Jones endorsed commercial objectives should be dispositive here. For while in construing § 844(i), point to the same conclusion. In § 844(i) does not necessarily require the property at issue to determining whether a federal criminal statute applies to the be used for an interstate purpose, it does require the property arson of a local public building by a local public official, to be used for a commercial purpose. Only buildings, Jones Jones reminds us that we do so in the shadow of several instructs, “active[ly] employ[ed] for commercial purposes,” constitutional considerations. First of all, “where a statute is 529 U.S. at 855, “affect[] interstate or foreign commerce” susceptible of two constructions, by one of which grave and within the meaning of § 844(i). Buildings offered for rent and doubtful constitutional questions arise and by the other of those from which goods and services are sold fall within which such questions are avoided, [a court’s] duty is to adopt § 844(i)’s compass because they serve commercial purposes, the latter.” Jones, 529 U.S. at 857 (quotation omitted). See whether or not the commercial enterprises that use them have also United States v. Bass, 404 U.S. 336, 349 (1971) a profit motive. Russell v. United States, 471 U.S. 858, 862 (applying this principle, as in Jones, to a setting where one (1985) (rental property); United States v. Rayborn, 312 F.3d construction of a statute would “define as a federal crime 229, 234 (6th Cir. 2002) (church building used to record radio conduct readily denounced as criminal by the States”). In messages to be broadcast out of state on commercial radio); applying this constitutional-avoidance principle to the arson United States v. Sherlin, 67 F.3d 1208, 1213 (6th Cir. 1995) of a private residence, Jones emphasized “that the area was (private college dormitory); United States v. Terry, 257 F.3d one of traditional state concern and that the legislation [was] 366, 369–70 (4th Cir. 2001) (church building with daycare aimed at activity in which neither the actors nor their conduct center); cf. Camps Newfound/Owatanna, Inc. v. Town of has a commercial character.” 529 U.S. at 858 (citation and Harrison, 520 U.S. 564, 584 (1997) (holding that the dormant quotation omitted). See United States v. Lopez, 514 U.S. 549, Commerce Clause applies to the not-for-profit sector of the 567 (1995) (holding that the Gun-Free School Zone Act economy). But see United States v. Lamont, 330 F.3d 1249, exceeds Congress’s authority to regulate commerce). 1259 (9th Cir. 2003) (Reinhardt, J.) (church building “used . . . in ordinary religious activities” is not covered); United Jones likewise teaches that federal courts should not States v. Rea, 300 F.3d 952, 962 (8th Cir. 2002) (church casually read a statute in a way that alters the federal-state annex with de minimis commercial functions is not covered). balance. When the National Legislature wishes to regulate an In marked contrast to the activities at issue in every one of area traditionally regulated exclusively by the States, it must these cases, governmental buildings in general and local fire “convey[] its purpose clearly.” Jones, 529 U.S. at 858 stations in particular are not “active[ly] employ[ed] for (citation and quotation omitted). In Jones, a unanimous Court commercial purposes.” Jones, 529 U.S. at 855. held that Congress had not clearly conveyed a desire to criminalize the arson of a private dwelling. Id. Not long after Jones, Cleveland v. United States, 531 U.S. 12 (2000), reached a similar conclusion in construing the mail-fraud statute. There, the Court (again unanimously) declined to “approve a sweeping expansion of federal criminal No. 02-5185 United States v. Laton 35 36 United States v. Laton No. 02-5185

jurisdiction in the absence of a clear statement by Congress” a limited one. Not until 1982 did Congress enact the first and refused to extend the statute to cover “a wide range of federal law prohibiting the arson of a “building” “by fire.” conduct traditionally regulated by state and local authorities.” See Jones, 59 U.S. at 852–53 & n.4. Id. at 24. See id. at 27 (“Absent clear statement by Congress, we will not read the mail fraud statute to place under federal Indeed, this case appears to be not just an awkward exercise superintendence a vast array of conduct traditionally policed of federal power, but a nearly unprecedented one. At oral by the States.”). See also Gregory v. Ashcroft, 501 U.S. 452, argument, counsel for the Federal Government could not 467 (1991) (“We will not read the ADEA to cover state identify a single other federal prosecution for arson of a judges unless Congress made it clear that judges are governmental building under this provision. The majority included.”). cites a single unpublished decision, United States v. Woodward, No. 93-3123, 1993 WL 498178 (10th Cir. Dec. 2, Jones finally explains that these rules have special 1993), decided before Jones, to counter this admission. But application in the context of criminal statutes. “[W]hen Woodward, which concerned an arson arising from a botched choice has to be made between two readings of what conduct robbery, does not address any of the issues raised here or in Congress has made a crime,” courts should not “choose the Jones. Even the most charitable reading of Woodward, at any harsher alternative . . . [unless] Congress [has] spoken in rate, suggests that it is a solitary and unexplained exception to language that is clear and definite,” and, accordingly, any the traditional rule that the Federal Government does not “ambiguity . . . should be resolved in favor of lenity.” Jones, construe § 844(i) as applying to the arson of government 529 U.S. at 858; see Cleveland, 531 U.S. at 26 (“[W]e decline buildings and as displacing the criminal-law choices of local to attribute to [the mail-fraud statute] a purpose so governments in this area. encompassing where Congress has not made such a design clear.”); id. at 25 (“[T]o the extent that the word ‘property’ is In contrast to the minimal federal interests in this case, the ambiguous . . . , we have instructed that ‘ambiguity state interests would seem to be at their apex. Surely the concerning the ambit of criminal statutes should be resolved commission of “a paradigmatic common-law” crime (Jones, in favor of lenity.’”) (quoting Rewis v. United States, 401 529 U.S. at 858) by a Henning official involving Henning U.S. 808, 812 (1971)); Bass, 404 U.S. at 348 (“This policy property is a matter traditionally taken up, if not in Henning, embodies ‘the instinctive distastes against men languishing in at least in Nashville. Tennessee imposes criminal sanctions prison unless the lawmaker has clearly said they should.’”) on state fire officials (such as the Chief) who fail in their (quoting H. Friendly, Mr. Justice Frankfurter and the official duties. Tenn. Code Ann. § 68-102-139. And Reading of Statutes, in Benchmarks 196, 209 (1967)). Tennessee, of course, makes arson a felony. Id. § 39-14-301. That there is friction between the policy choices of the These principles assuredly apply here. “[A]rson,” Jones National Legislature and the Tennessee Legislature over the reminds us, “is a paradigmatic common-law state crime.” 529 appropriate criminal sanction for this felony only underscores U.S. at 858. It is a felony in all States, and that has been true the sensitivity of the issue and the inter-branch tension raised since colonial days. See John Panneton, Federalizing Fires: by the United States’ position. Compare 18 U.S.C. § 844(i) The Evolving Federal Response To Arson Related Crimes, 23 (providing for a five-year minimum sentence and twenty-year Am. Crim. L. Rev. 151, 151 (1985). See generally Arthur F. maximum sentence under these circumstances), with Tenn. Curtis, A Treatise on the Law of Arson (1936). And the Code Ann. §§ 39-14-301(b)(1), 40-35-111(b)(3) (providing Federal Government’s role in this area historically has been for a shorter three-year minimum sentence and fifteen-year No. 02-5185 United States v. Laton 37 38 United States v. Laton No. 02-5185

maximum sentence under these circumstances). See Jones, has questioned the ability of local prosecutors to enforce state 529 U.S. at 859–60 (Stevens, J., concurring, joined by law in this area. No one has questioned Tennessee’s ability Thomas, J.) (such a disparity “illustrates how a criminal law adequately to investigate and prosecute a local arsonist at the like this may effectively displace a policy choice made by the state level, if for some reason it cannot be done at the local State” and, for this reason, courts “should interpret narrowly level. See Tenn. Code Ann. § 8-7-106(b)(4) (permitting a federal criminal laws that overlap with state authority unless district attorney to “specially appoint” the state attorney congressional intention to assert its jurisdiction is plain”). general “to conduct specific criminal proceedings”); Tenn. The Federal Government’s policy choice to authorize a 5–20 Const. art. VI, § 5 (permitting a court to appoint a special year sentence for this crime effectively displaces the State’s prosecutor if the district attorney fails to prosecute). And, policy choice to authorize a 3–15 year sentence for the same consistent with the United States Attorneys’ Manual, no one crime, and that is true whether the State opts not to prosecute has identified a “specific Federal interest” in this case, just Laton in the future or exercises its discretion to prosecute him exceedingly local ones. under state law as well (and potentially create an 8–35 year sentence). See Heath v. Alabama, 474 U.S. 82, 93 (1985) B. (holding that a double jeopardy violation does not result from prosecutions by different sovereigns arising from the same Because the National Government seeks to apply § 844(i) act). to a traditional state-law crime in a setting where no apparent federal interest exists, Jones requires the Government to show The Federal Government’s own prior guidance in this area that the provision unambiguously extends to this arson. It has to United States Attorneys shows respect for many of these not done so. concerns. The Department of Justice recognizes that Congress intended “Restraint in [the] Exercise of Federal First, the arson of a local fire station does not naturally—or Jurisdiction” under this statute. 9 United States Attorneys’ plainly—cover a building “used in interstate commerce” or Manual § 63.902 (Mar. 2001). When Congress enacted the commerce-affecting activity. 18 U.S.C. § 844(i). Still less federal explosives statute in 1970, and amended it to cover does such an arson concern a building with an “active arson by fire in 1982, it made clear that “[n]o provision of employment for commercial purposes.” Jones, 529 U.S. at [the statute] shall be construed as indicating an intent on the 855. But even if one disagrees with this analysis, the best that part of Congress to occupy the field in which such provision can be said in response is that the provision remains operates to the exclusion of the law of any State on the same ambiguous about its extension to the arson of a fire station. subject matter.” 18 U.S.C. § 848. The Criminal Division of And that conclusion requires the application of the Jones the Justice Department “interprets [this provision] as a default principles and the narrowing interpretation that they statement of congressional intent that the Federal compel. government—absent a specific Federal interest—will not become involved in bombing matters that can be adequately Second, Congress does not generally regulate governmental investigated and prosecuted by local authorities.” 9 United entities in such an opaque manner. Instead of casting a wide States Attorneys’ Manual § 63.902 (emphasis added). net of regulation, indirectly picking up local governmental activities that happen to be involved in interstate commerce In view of this guidance, the Federal Government’s while leaving out those that happen not to be, Congress decision to prosecute here is difficult to understand. No one generally regulates its sovereign sisters with much greater No. 02-5185 United States v. Laton 39 40 United States v. Laton No. 02-5185

specificity—either by regulating them by name or by governments. See 18 U.S.C. § 844(f)(1) (“Whoever referring directly to entities that receive federal funds. maliciously damages or destroys . . . by means of fire or an Several other statutes (too many, in fact, to list) demonstrate explosive, any building . . . owned or possessed by . . . the that when Congress wishes to regulate sovereign activities or United States, or any department or agency thereof, or any property, it tends to say so far more explicitly. See, e.g., Fair institution or organization receiving Federal financial Labor Standards Act, 29 U.S.C. §§ 203(d) (“‘Employer’ . . . assistance, shall be imprisoned.”). If it is true that a statute is includes a public agency.”), 203(r)(2) (“For purposes of “known by the company it keeps,” Gustafson v. Alloyd Co., [defining ‘enterprise’], the activities performed by any person 513 U.S. 561, 575 (1995), then § 844(f) illustrates that or persons . . . in connection with the activities of a public Congress knew how to criminalize the destruction of all agency shall be deemed to be activities performed for a manner of public buildings when it wished to do so and business purpose.”), 203(e)(2) (“In the case of an individual suggests that § 844(i) was designed to reach commercial employed by a public agency, such term [‘employee’] means rather than governmental buildings. Nor, in view of the . . . any individual employed by a State, political subdivision United States’ sweeping construction of § 844(i), which of a State, or an interstate governmental agency . . . .”), would cover all governmental buildings, does the prohibition 216(b) (providing for enforcement against “any employer of burning federal governmental buildings in § 844(f)(1) have (including a public agency)”); Age Discrimination in any independent office. We generally construe statutes to Employment Act, 29 U.S.C. § 630(b) (“‘[E]mployer’ means avoid such redundancy, not accentuate it. See, e.g., Jones, . . . a State or political subdivision of a State.”); Family and 529 U.S. at 857; Kungys v. United States, 485 U.S. 759, 778 Medical Leave Act, 29 U.S.C. §§ 2611(4)(A) (“‘[E]mployer’ (1988). . . . includes any public agency.”); 2611(4)(B) (“For [these purposes], a public agency shall be considered to be a person All of this goes to prove one point. If it is true that federal engaged in commerce or in an industry or activity affecting regulation of the arson of a private home implicates these commerce.”). Against this legislative backdrop, Congress’s three expectations of clarity (constitutional avoidance, decision not to mention governmental property more alteration of the federal-state balance, and the rule of lenity), specifically in § 844(i) at a minimum establishes ambiguity as Jones holds, then assuredly the torching of the local fire about the scope of the provision. See generally Cleveland, station does so as well. For here we have not just a matter of 531 U.S. at 23–25 (concluding that the mail-fraud statute, traditional local concern (arson), but two other factors as which covers “property” obtained by “fraudulent pretenses,” well—property uniquely amenable to local regulation (a city 18 U.S.C. § 1341, does not apply to a State’s sales of video building) and an actor (the fire chief) uniquely at the beck and poker licenses because, among other reasons, the meaning of call of the local citizenry. Jones, in short, was the harder “property” is “ambiguous” in this setting). case. And if Jones applied each of these ambiguity default principles, then I would do so as well. In this instance, the Third, § 844 itself confirms that Congress knew how to application of those principles all points in one direction: A distinguish between eminently sovereign activities and run- federal arson statute that does not mention public buildings by of-the-mine commercial activities. One of the statutory name, that is juxtaposed with a provision that does mention neighbors to § 844(i) specifically criminalizes arson of certain public buildings by name, and that requires the public governmental buildings—all buildings occupied by the property to be actively used for commercial purposes does not Federal Government or those occupied by entities receiving unambiguously cover the burning of a local fire station by the federal assistance, which will frequently be local local fire chief. No. 02-5185 United States v. Laton 41 42 United States v. Laton No. 02-5185

V. does not ‘sell’ video poker licenses in the ordinary commercial sense.”). That is especially true when the In the face of these considerations, the United States revenue arrives, as here, after the fact. See id. at 22 (“The counters that at least some activities that take place at the State receives the lion’s share of its expected revenue . . . only Henning Fire Station are commercial in nature and that these after [the licenses] have been issued to licensees.”). No one activities suffice to legitimate this prosecution. The Federal suggests that the Fire Department would decline to extinguish Government cites three activities in particular: (1) that the a fire until and unless the fee was paid. Firefighters do not Fire Department sometimes purchases equipment from, or has haggle over fees. In this instance, in fact, they are not even equipment repaired by, out-of-state vendors; (2) that the Fire the ones who charge the fee; it is billed by City Hall. Department charges a $300 fee (billed through City Hall) on the few occasions each year when it responds to a call outside At all events, this argument proves too much. Were the city limits; and (3) that the City of Henning pays wages to the collection of revenue sufficient to trigger § 844(i), then “volunteer” fire fighters based on the amount of time they presumably tax collection would suffice as well, leaving no spend at a fire scene. public property untouched. And the separate provision covering buildings occupied by entities “receiving Federal The Fire Department’s purchases and repairs do not assistance,” 18 U.S.C. § 844(f), “would have no office,” advance the United States’ position. A fire station is no more Jones, 529 U.S. at 857, because receiving a federal grant is an “used” in the “activity” of purchasing interstate fire economic transaction. “‘Judges should hesitate . . . to treat equipment than a residence is used in the activity of statutory terms in any setting as [surplusage],’” Jones purchasing interstate natural gas, mortgages, or instructs, “‘and resistance should be heightened when the insurance—all activities that the Court rejected as words describe the element of a criminal offense.’” Id. at 857 jurisdictional hooks in Jones. See 529 U.S. at 856. (quoting Ratzlaf v. United States, 510 U.S. 135, 140–41 (1994)). Neither does the fee occasionally charged by the Fire Department support this prosecution. The size of the fee The Federal Government’s reliance on the fact that the ($300) and the infrequency with which it is charged (one to Henning Fire Department occasionally “pays wages” to its three times per year, when the Department responds to fires “volunteer” firefighters fails for much the same reason. outside town limits) hardly suggest active employment for Congress, to be sure, may as a matter of power regulate the commercial purposes—which is what Jones requires. If de wages paid to firefighters, which is itself an economic minimis activity of this sort transformed every governmental transaction. See Garcia v. San Antonio Metro. Transit Auth., building into one used for commercial purposes, then all 469 U.S. 528, 555–56 (1985). But that does not mean public property in this country would be one bake sale away Congress sought in this instance to regulate criminal conduct from federal jurisdiction. No fair reading of the statute with respect to the buildings that house firefighters or sought suggests that this is what Congress meant to do. to do so on this basis. Teachers also receive wages, but that does not necessarily permit Congress to make possessing a More importantly, a State does not engage in traditional gun in a school zone a federal crime. See Lopez, 514 U.S. at commercial activities every time it receives a sum of money 567. Indeed, if federal wage-and-hour laws have any in exchange for something or for that matter any time it relevance in this context, it is to show that Congress views imposes a tax. See Cleveland, 531 U.S. at 23 (“Louisiana . . . firefighting and the nominal wages paid by the government to No. 02-5185 United States v. Laton 43 44 United States v. Laton No. 02-5185

these volunteers differently from ordinary commerce. See “active[ly] employ[ed]” in commerce, id. at 855—cannot be Fair Labor Standards Act, 29 U.S.C. §§ 203(e)(4)(A) squared with the United States’ reliance on the economic (exempting individuals who volunteer to serve a public impact of destroying the building or on the non-commercial agency even when paid “nominal” wages), 207(k) (exempting activity (fighting fires) performed by the occupants of the firefighters from the Act’s overtime provisions). building. Nor, for similar reasons, does it make any difference that But, perhaps most critically, this argument has no logical fire stations house fire trucks, which (like police cars) may be stopping point. All governmental services affect commerce used in interstate commerce and indeed are instrumentalities at some level, whether those services are legislative, of interstate commerce. See Belflower v. United States, 129 executive or judicial. Asked at oral argument to identify a F.3d 1459, 1462 (11th Cir. 1997) (concluding that § 844(i) single governmental building beyond the reach of § 844(i) covered the bombing of a police car). See also Lopez, 514 under the Government’s theory, counsel for the United States U.S. at 558 (“Congress is empowered to regulate and protect could not name one. Whether the state building at issue the instrumentalities of interstate commerce, or persons or houses the Department of Commerce or the Ministry of things in interstate commerce, even though the threat may Uneconomic Affairs, it would seem, makes no difference. come only from intrastate activites.”); United States v. Either way, what goes on there first and foremost is a public McHenry, 97 F.3d 125, 126 (6th Cir. 1996) (“[C]ars are and sovereign service, which in the main will rarely (if ever) themselves instrumentalities of commerce.”) (quotation be deemed “actively” “commercial” in any traditional sense omitted). The same of course could have been said in Jones: of the terms—even if all such activities eventually affect It is the rare private residence that does not house a car. commerce in one way or another. It is precisely the role of the clear-statement rules identified above, and applied Also unavailing is the United States’ reliance on the faithfully in Jones, to prevent federal courts from extending economic impact of a fire station’s destruction—specifically, the reach of federal criminal statutes on the basis of the kinds the lower PPC ratings, the higher insurance costs, or the of attenuated connections to interstate commerce that the inability to extinguish fires affecting local businesses or Federal Government has raised here. If the majority is right (occasionally) burning cars on the highways. Accepting this that a state liquor store, a state building housing a lottery position would rewrite the statute to say something that it commission or a post office building (though a federal does not. As Jones indicates, Congress did not “define the building) amounts to a building with an “active[] . . . crime . . . as the [destruction] of a building whose damage or commercial purpose,” that is only because the statute destruction might affect interstate commerce,” but instead unambiguously covers these properties, not because it required “that the damaged or destroyed property . . . itself unambiguously covers an eminently non-commercial fire have been used in commerce or in an activity affecting station. At any rate, in view of Jones and Cleveland, 531 commerce.” 529 U.S. at 854 (citation and quotation omitted); U.S. at 23–24 (a State “does not ‘sell’ video poker licenses in cf. Lopez, 514 U.S. at 564 (rejecting a “costs of crime” the ordinary commercial sense” because the activity rationale for connecting federal legislation banning guns near “implicates the Government’s role as sovereign”), it seems schools to interstate commerce). Two of Jones’ overriding doubtful that the statute unambiguously covers even these lessons—that § 844(i) does not reach the full extent of buildings. Congress’s Commerce Clause powers, 529 U.S. at 854, and that the statute applies only when the building itself is No. 02-5185 United States v. Laton 45 46 United States v. Laton No. 02-5185

Neither may one overcome these objections by suggesting “[l]egislative history generally will be irrelevant.”) (emphasis that, in the world of case-by-case determinations, the outcome added); Gregory, 501 U.S. at 470 (equating the clear- here will be a ticket good for one train and one train only. statement rule applied in the sovereign immunity context with Until now, there have been no other trains in the station, so it the clear-statement rule applied in the context of Commerce is not clear what the concession concedes. More to the point, Clause legislation that would alter the federal-state balance); it still remains to be seen what government buildings see also Cleveland, 531 U.S. at 24, 27 (requiring a “clear analytically would not be covered by this type of analysis—as statement” to extend “federal criminal jurisdiction” to an area the United States seems to recognize. “traditionally policed by the States”). One last point deserves mention. The United States also Second, the use of legislative history to broaden the reach seeks refuge in the legislative history, relying on an unenacted of a law seems particularly inappropriate in a setting like this forerunner to § 844(i), which applied to the destruction of one—where we have not just the risk of the alteration of the property used “for business purposes,” and on the statements federal-state balance and the imperative to avoid of some legislators that § 844(i) as enacted would cover constitutional questions but the imposition of a criminal “police stations.” Congress eventually omitted the words “for sanction. It stretches the necessary legal fiction that every business purposes,” and while doing so several House person knows the law, see McBoyle v. United States, 283 U.S. members individually explained that the language was 25, 27 (1931), to the breaking point when the unenacted eliminated because some members were afraid that the statute views of a handful of legislators (here, for example, a few would not reach “police stations.” See Explosives Control: floor statements suggesting that the law covers police Hearings Before Subcomm. No. 5 of the House Comm. on stations) become the basis for putting someone behind bars. Judiciary on H.R. 17154, H.R. 16699, H.R. 18573 and Because “the rule of lenity ensures that criminal statutes will Related Proposals, 91st Cong. 33 (1970) (“Hearings”) (Rep. provide fair warning concerning conduct rendered illegal,” McCulloch); id. at 56 (Rep. Rodino); id. at 73 (Rep. Polk); id. Liparota v. United States, 471 U.S. 419, 427 (1985), and at 79 (Rep. Smith). The United States infers from this because no one can plausibly conclude that a committee unenacted legislation and from these statements by individual report or the floor statements of selected legislators provides representatives that Congress intended § 844(i) to cover the such warning, the use of such material seems utterly arson of city buildings. incompatible with the purposes of the rule or the civilized interests it protects. In at least one opinion, the Supreme This argument fails for three reasons. First, when clarity in Court has said that very thing: “Even were the statutory the text of a law is required, legislative history by definition language regarding the scope of a court’s authority to order cannot supply it. See United States v. Nordic Village, 503 restitution ambiguous, longstanding principles of lenity, U.S. 30, 37 (1992) (“[L]egislative history has no bearing on which demand resolution of ambiguities in criminal statutes the ambiguity point [because] . . . the ‘unequivocal in favor of the defendant, Simpson v. United States, 435 U.S. expression’ of elimination of [the United States’] sovereign 6, 14–15 (1978) (applying rule of lenity to federal statute that immunity that we insist upon is an expression in statutory would enhance penalty), preclude our resolution of the text.”); Dellmuth v. Muth, 491 U.S. 223, 230 (1989) ambiguity against petitioner on the basis of general (“[E]vidence of congressional intent must be both declarations of policy in the statute and legislative history.” unequivocal and textual” to provide the clarity necessary to Hughey v. United States, 495 U.S. 411, 422 (1990). While abrogate a State’s Eleventh Amendment immunity; dicta in other cases may suggest a different approach, see No. 02-5185 United States v. Laton 47 48 United States v. Laton No. 02-5185

Moskal v. United States, 498 U.S. 103, 108 (1990), I am purposes,” Hearings at 30) ostensibly suggesting that no aware of no decision from our Court or from the United States business purpose is needed, Jones adopts an “active . . . Supreme Court that broadens the reach of a criminal statute commercial purpose[]” test for ascertaining whether § 844(i) on the basis of legislative history and that does so in spite of applies, 529 U.S. at 855. And some of the same legislators these objections. The only Justices of the Supreme Court who suggested that § 844(i) would cover the arson of a who have squarely addressed the issue (to my knowledge) “police station” also suggested that it would cover the arson have firmly concluded that “it is not consistent with the rule of a “private home.” Hearings at 56 (Rep. Rodino). See also of lenity to construe a textually ambiguous penal statute id. at 289 (Rep. Goldwater) (“this bill should include any against a criminal defendant on the basis of legislative building, vehicle or any real property . . . not just history.” United States v. R.L.C., 503 U.S. 291, 307 (1992) businesses”); id. at 300–01 (Rep. Wylie) (suggesting that the (Scalia, J. concurring in part and concurring in the judgment, bill should cover private dwellings and other property not joined by Kennedy, J., and Thomas, J.). used for business); id. at 304–05 (Rep. Cramer) (“a person has a right to safety and security of his home and to the Third, the inference the Federal Government seeks to draw security of his property”). But Jones of course specifically from the unenacted version of § 844(i) not only comes from holds that § 844(i) does not cover private residences. an inappropriate source but also rests on a discredited premise. The Supreme Court has frequently rejected Because in the end the unbargained-for service of fighting arguments based on unenacted legislation, noting the fires is the antithesis of an activity engaged in for an “active difficulty of determining whether a prior bill prompted . . . commercial purpose[]” and because Jones has charted a objections because it went too far or not far enough. See course that in my view controls us here, I would affirm the Mead Corp. v. Tilley, 490 U.S. 714, 723 (1989) (“We do not district court’s judgment. That being a minority view, I attach decisive significance to the unexplained disappearance respectfully dissent. of one word from an unenacted bill because ‘mute intermediate legislative maneuvers’ are not reliable indicators of congressional intent.”) (quoting Trailmobile Co. v. Whirls, 331 U.S. 40, 61 (1947)); Puerto Rico Dep’t of Consumer Affairs v. ISLA Petroleum Corp., 485 U.S. 495, 501 (1988) (“[U]nenacted approvals, beliefs, and desires are not laws.”). See also United States v. Granderson, 511 U.S. 39, 69 (1994) (Kennedy, J., concurring) (“This admonition takes on particular importance when the Court construes criminal laws.”). All of this perhaps explains why Jones mentions the very same legislative history that the United States cites here, see Jones, 529 U.S. at 853 n.5, then proceeds not only to ignore the alleged inferences created by this history but also proceeds to contradict them. Thus, while Congress omitted language proposed in an earlier draft of the bill (“for business