RE federal jurisdiction over violent crimes - #DylannRoof's federal and state murder trials; Part I

Recently, I described in this blog a standoff between South Carolina State prosecutors and federal prosecutors as to the timing of trials of criminal defendant Dylann Roof, a white man who stands accused of the shooting deaths of 9 people and of attempting to kill three other people in an African-American church in June of 2015.

I mentioned in that blog that I question validity of federal jurisdiction over violent crimes committed on state property and committed without any connection with interstate commerce.

To verify why exactly federal jurisdiction was invoked in #DylannRoof's case, I obtained his indictment from Pacer.gov and reviewed it.

Dylann Roof was indicted on July 22, 2015 on 33 counts under various federal statutes.

Here is the table of counts, statutes, and grounds to invoke federal jurisdiction in Dylann Roof's case.

Victims	Counts	Statutes	Basis of federal jurisdiction as stated in the indictment
Victims who were killed	1 to 9 13 to 21 25 to 33	18 U.S.C. 249 (a)(1) 18 U.S.C. 247(a)(2), (d)(1) 18 U.S.C. 924(c )(1)(A); 18 U.S.C. 924(c )(1)(C); 18 U.S.C. 924 (j)(1)	Murder: caused bodily injury to the victim because of the victim’s actual and perceived race and color, resulted in death of the victim Obstruction of exercise of religion resulting in death, the crime “was in and affected interstate commerce” Murder as defined in 18 U.S.C. 1111, killing each victim with a firearm with malice aforethought
Victims who survived	10 to 12 22 to 24	18 U.S.C. 249 (a)(1) 18 U.S.C. 247(a)(2), (d)(1), (d)(3)	Attempt to kill:  attempted to cause bodily injury to the victim because of the victim’s actual and perceived race and color Attempt to kill the victim, involved the use of a dangerous weapon and were in and affected interstate commerce

So, for each victim who was killed, Dylann Roof was charged with 3 counts of the federal indictment, under the following statutes:

1. 18 U.S.C. 249 (a)(1)
2. 18 U.S.C. 247(a)(2), (d)(1)
3. 18 U.S.C. 924(c )(1)(A);
4. 18 U.S.C. 924(c )(1)(C);
5. 18 U.S.C. 924 (j)(1), charging:

•  Hate Crime Murder;
• Murder to obstruct free exercise of religion and affecting interstate commerce;
• Murder as defined in 18 U.S.C. 1111, with malice aforethought and using a firearm

For each surviving victim Dylann Roof was charged with 2 counts of the indictment:

1. 18 U.S.C. 249 (a)(1)
2.  18 U.S.C. 247(a)(2), (d)(1), (d)(3) charging

• attempt to kill based on race or color;
• attempt to kill involving a dangerous weapon and affecting interstate commerce

 No motions to dismiss were filed yet by the defendant, even though there may be glaring jurisdictional defects in the case.  It appears that it is the strategy of the defendant to keep the case in federal court, hoping for a more lenient outcome, despite jurisdictional defects.

What I mean by jurisdictional defects is that federal courts are courts of limited jurisdiction, and federal courts' jurisdiction is invoked only under two circumstances:

1) diversity,  28 U.S.C. 1332 (not applicable in criminal cases) and
2) federal question, 28 U.S.C. 1331:  

"The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."

Moreover, the federal statute under which the "federal question" jurisdiction is invoked, must be constitutional, which means, it should be enacted within the powers of the U.S. Congress.

There is a 1995 criminal U.S. Supreme Court case so far where a criminal conviction based on federal statutes were vacated by the U.S. Supreme Court because the U.S. Congress had no authority to enact at least some portions of those statues.

That case is U.S. v Lopez and it has similarities with U.S. v Roof.

Here is the entire text of the case and citation, U.S. v. Lopez, 514 U.S. 549 (1995).

Alfonso Lopez was charged for violation of the "Gun-Free School Zones Act of 1990", 18 U.S.C. 922(q).

The U.S. Supreme Court ruled that the U.S. Congress had no authority to enact the Gun-Free School Zones Act of 1990, as regulation of schools has nothing to do with regulation of interstate commerce, the legal basis for Congressional authority to enact that statute.

The U.S. Supreme Court held in U.S. v Lopez:

"Held: The Act exceeds Congress' Commerce Clause authority.

First, although this Court has upheld a wide variety of congressional Acts regulating intrastate economic activity that substantially affected interstate commerce, the possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have such a substantial effect on interstate commerce. 

Section 922(q) is a criminal statute that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly those terms are defined.

Nor is it an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.

It cannot, therefore, be sustained under the Court's cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which, viewed in the aggregate, substantially affects interstate commerce.

Second, § 922(q) contains no jurisdictional element that would ensure, through case-by-case inquiry, that the firearms possession in question has the requisite nexus with interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce.

To uphold the Government's contention that § 922(q) is justified because firearms possession in a local school zone does indeed substantially affect interstate commerce would require this Court to pile inference upon inference in a manner that would bid fair to
authority to a general police power of the sort held only by the States. "
In view of the U.S. Supreme Court decision in U.S. v Lopez and in view of the standoff between the state and federal prosecution in U.S. v Roof, where the State Prosecutor from the State of South Carolina asserts that the federal prosecution impedes the speedy state prosecution and hurts the victims of Dylann Roof's crimes, let's see if federal statutes under which Dylann Roof was indicted were based on proper congressional authority, and if federal prosecution of Dylann Roof, interfering with the state prosecution, is even legitimate.

I will post review of statutes which formed the basis of the federal indictment against Dylann Roof in a separate blog or blogs.

Stay tuned.