United States v. PhommaUnited States v. Phomma
Case Information
*1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION ) UNITED STATES OF AMERICA,
) No. 3 :20-cr-00465-JO Plaintiff, ) ) )
V.
) OPINION AND ORDER ) KEVIN PHOMMA, )
)
Defendant. )
Dеfendant Kevin Phonnna is charged with committing civil disorder in violation of
BACKGROUND The indictment charges Defendant with violating§ 23 l(a)(3), which is paii of the Civil Obedience Act of 1968. The indictment alleges:
On or about August 26, 2020, in the District of Oregon, during a civil disorder, defendant KEVIN PHOMMA, lmowingly committed a violent act for the intended purpose of obstructing, impeding and interfering with law enforcement officers who were lawfully engaged in the lawful performance of their official duties incident to and during the commission of a civil disorder, and that such civil disorder in any way or degree obstructed, delayed and adversely affected commerce and the movement of any a1ticle or commodity in commerce ....
Indictment, ECF No. 9. The affidavit supporting the criminal complaint against Defendant contains detailed allegations about Defendant's conduct and the circumstances of his arrest. ECF Nos. 1 (Complaint) and 2 (suppmting affidavit).
The parties have submitted additional background information about the charge against Defendant. Defendant states in his Motion to Dismiss that on August 26, 2020, he "was involved in the protest against racial injustice at the Immigration and Customs Enforcement (ICE) building located at 4310 S.W. Macadam Avenue, Pmiland." ECF No. 18, at 18. Defendant states that Portland Police officers arrested him at the protest "and charged him with misdemeanor offenses alleging Interfering with a Peace Officer, Disorderly Conduct, Harassment, and Use of Pepper Spray." Id. Defendant also states that an indictment against him in Multnomah County Circuit Court alleges "Assaulting a Public Safety Officer, Unlawful Use of Deleterious Agent in the First Degree (three counts), Riot, Interfering with a Peace, Parole or Probation Officer, and Disorderly Conduct in the Second Degree." Id. The state charges against Defendant, which are based on "the same conduct as alleged in the federal indictment," are pending. Def.'s Unopposed Mot. Continue Trial 1, ECF No. 35.
According to the government, on the night of August 26, Defendant "sprayed several Potiland Police Officers with bear spray. The officers were wearing gas masks, but one officer noted that his neck and arms 'started to burn.' When he and the others *3 removed their gas masks, their faces felt the same burning sensation." Gov't Resp. 5, ECF No. 24. The government states that "protesters filled the street, making passage by cars or delivety vehicles impossible." Gov't Resp. 5-6.
LEGAL STANDARD This court is "bound by the four corners of the indictment" when "ruling on a pre-trial motion to dismiss an indictment for failure to state an offense." United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002). The court "must accept the truth of the allegations in the indictment in analyzing whether a cognizable offense has been charged." Id. A motion to dismiss the indictment is not "a device for a summary trial of the evidence." Id. The court may resolve a motion to dismiss an indictment before trial "ifit involves questions oflaw rather than fact." United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir. 1986).
DISCUSSION I. Defendant's Constitutional Challenges to the Civil Disorder Statute
Section 23 l(a)(3) provides, Whoever commits or attempts to commit any act to obstruct, impede, or interferе with any fireman or law enforcement officer lawfully engaged in the lawful performance of his official duties incident to and during the commission of a civil disorder which in any way or degree obstructs, delays, or adversely affects commerce or the movement of any article or commodity in commerce or performance of any federally protected function--
Shall be fined under this title or imprisoned not more than five years, or both.
The statute definеs "civil disorder" as "any public disturbance involving acts of violence by
assemblages of three or more persons, which causes an immediate danger of or results in damage
or injury to the property or person of any other individual."
The parties have not cited, and I have not found, a Ninth Circuit decision construing §
23l(a)(3).
Cf Nat'l Mobilization Comm. to End the War in Viet Nam v. Foran,
41 IF.2d 934,
*4
937 (7th Cir. 1969);
United States v. Casper,
541 F.2d 1275, 1276 (8th Cir. 1976);
United States
v. Mechanic,
A. Commerce Clause
The Commerce Clause provides that "Congress shall have Power ... [t]o regulate
Commerce ... among the several States."
Defendant cites two Supreme Comt decisions that struck down federal statutes for regulating non-economic activity uncоnnected to interstate commerce: United States v. Morrison, 529 U.S. 598 (2000), which struck down portions of the Violence Against Women Act; and United States v. Lopez, 514 U.S. 549 (1995), which struck down the Gun-Free School Zones Act prohibiting firearm possession in school zones. Lopez outlined three categories of activity that Congress may regulate under the Commerce Clause: (1) channels of interstate 4 - Opinion and Order
commerce; (2) instrumentalities of interstate commerce, or persons or things in interstate commerce; and (3) activities thаt substantially affect interstate commerce. Lopez, 514 U.S. at 558-59. Here, I focus on the third category, activities that substantially affect interstate commerce. The Court in Morrison identified four factors to consider when determining whether a regulated activity substantially affects interstate commerce: (1) whether Congress made findings regarding the regulated activity's impact on interstate commerce; (2) whether the statute contains an "express jurisdictional element" that limits its reach; (3) whethеr the regulated activity is commercial or economic in nature; and ( 4) whether the link between the prohibited activity and the effect on interstate commerce is attenuated. Morrison, 529 U.S. at 610-12.
I conclude that
Here, Defendant has not cited any decision that struck down a statute on Commerce
Clause grounds when the statute contained an express jurisdictional element linking the
prohibited conduct to interstate commerce.
See Wood,
2021 WL 3048448, at *6 (the defendant
"failed to cite any case in which a statute with an explicit jurisdictional hook was invalidated
based on the Commerce Clause, nor has this Court found one in its own independent research");
Pugh,
at *9 ("courts have held that despite
Lopez
and
Morrison,
the Government need only show
a minimal effect on interstate commerce when the statute contains an explicit jurisdictional
element"). Turning specifically to
Defendant argues that
Defendant argues that
A defendant may be convicted of violating the statute only if the civil disorder during which the law enforcement officers are lawfully perfonning their lawful duties obstructs, delays or affects interstate commerce. [ As the magistrate judge] implied, this means that the officers are, among other things, attempting to quell an interference with interstate commerce. When a person deliberately сommits some act to obstruct, impede or interfere with those officers, that person is impacting interstate commerce. That person is trying to prevent, or is preventing, the officer from performing duties which include the protection of interstate commerce. The person may not !mow that that is what he is doing, any more than a defendant who commits a Hobbs Act robbe1y knows that he is interfering with interstate commerce, or a felon who possesses a gun that previously has traveled in interstate commerce !mows that he is committing a federal offense. But the person's act of attempting to obstruct or obstructing the law enforcement officer does impact interstate commerce, by preventing the officer from protecting interstate commerce.
2021 WL 3856290, at* 10. As the government argues, "an individual can be charged under Section 213(a)(3) only ifhe or she impedes or attempts to impede police or firefightеrs--the ve1y public safety professionals charged with containing, mitigating, and ultimately ending the public disturbance, and thereby restoring the channels and instrumentalities of interstate commerce." Gov't Resp. 10. I conclude that§ 23 l(a)(3) does not exceed Congress's power under the Commerce Clause because of the explicit jurisdictional link to civil disorders that affect interstate commerce.
Finally, even if this comt were to conclude that
B. First Amendment
Defendant contends that§ 23 l(a)(3) violates the First Amendment because it is overbroad, potentially criminalizing protected "expressive conduct and speech directed at officers during a demonstration: shouting harsh or derogatory words; failing to move out of the way; waving signs that block sight lines; picketing in front of law enforcement buildings; recording police conduct; advocating for the police to be de funded." Def.' s Brief in Resp. 7, ECF No. 34. Defendant also contends that§ 23 l(a)(3) violates the First Amendment because Congress enacted it for "the impermissible purpose of punishing and chilling viewpoints of the civil rights movement." Def.'s Reply 22, ECF No. 28.
1. Overbreadth
The First Amendment's "guarantees of free speech and free press" protect "advocacy of
the use of force or of law violation except where such advocacy is directed to inciting or
producing imminent lawless action and is likely to incite or produce such action."
Brandenburg
*9
v. Ohio,
In determining whether a statute is overbroad, the court first construes the provisions of the statute in question. Id. Section 23 l(a)(3) provides,
Whoever commits or attempts to commit any act to obstruct, impede, or interfere with any fireman or law enforcement officer lawfully engaged in the lawful performance of his official duties incident to and during the commission of a civil disorder which in any way or degree obstructs, delays, or adversely affects commerce or the movement of any article or commodity in commerce or performance of any federally protected function--
The statute applies to persons who commit or attempt to commit "any act to obstruct, impede, or interfere" with law enforcement or firefighters. The words "any act" imply that the statute is directed towards conduct rather than speech. As the corut in Howard explained,
The language of
Defendant has not cited any prosecutions under
applications of a statute is not sufficient to render it susceptible to an overbreadth challenge."
Members a/City Council of L.A. v. Taxpayers/or Vincent,
466 U.S. 789,800 (1984). Here,
Defendant has failed to make the required showing to strike down
2. Content-Based
Defendant contends that§ 23 l(a)(3) should be subject to strict scrutiny because Congress
enacted the statute with the intent to suppress the viewpoints of civil rights leaders. Defendant
has submitted legislative histmy that includes senators' statements castigating African-American
civil rights leaders by name, including Martin Luther King, Jr., Stokely Carmichael, and H. Rap
Brown. However, I find that the statute itself is content-neutral on its face. Over thе past fifty
years, the statute has been applied to civil disorders across the political spectrum, including the
recent riots on January 6, 2021 in Washington, D.C.
See, e.g., United States v. Sabol,
F.
Supp. 3d _ , 2021 WL 1405945 (D. D.C. April 14, 2021);
United States v. Fairlamb,
No. l:21-
cr-120-RCL, 2021 WL 1614821 (D. D.C. April 26, 2021). Whatever the original intentions of
the legislators who passed§ 23 l(a)(3) in 1968, the statute on its face does not regulate speech
based on content. The Supreme Court recently stated, "This Court has explained many times
over many years that, when the meaning of the statute's terms is plain, our job is at an еnd. The
people are entitled to rely on the law as written, without fearing that courts might disregard its
plain terms based on some extratextual consideration."
Bostock v. Clayton Cnty.,
_U.S._,
140 S. Ct. 1731, 1749 (2020). As the court in
Howard
pointed out, "a legislative restriction
imposed by
legislators
with pmiicular viewpoints or intentions is not constitutionally infirm
unless the language of that legislative restriction discriminates against
those who are subject
to
*12
the statute based on their particular viewpoint.
A statute that is content-neutral on its face, such as the statute at issue herе, may still be
subject to strict scrutiny if "the government has adopted a regulation of speech because of
disagreement with the message it conveys. The government's purpose is the controlling
consideration."
Ward v. Rock Against Racism,
491 U.S. 781, 791 (1989). Here, Defendant has
not shown that
I conclude that legislativе history is not relevant here, and that
C. Fifth Amendment Due Process
Defendant asserts that§ 23l(a)(3) is unconstitutionally vague in violation of the Due
Process Clause of the Fifth Amendment. "No one may be required at peril of life, liberty or
property to speculate as to the meaning of penal statutes."
Lanzetta v. New Jersey,
306 U.S. 451,
453 (1939). The court must consider "whether a statute is vague as applied to the particular facts
at issue, for '[a] plaintiff who engages in some conduct that is clearly proscribed cannot
complain of the vagueness of the law as applied to the conduct of others."'
Holder v.
Humanitarian Law Project,
561 U.S. 1, 18-19 (2010) (quoting
Hoffman Estates
v.
F/ipside,
Hoffman Estates, Inc.,
Here, Defendant allegedly attempted to spray police officers with bear spray while the officers were attempting to disperse protesters. This alleged conduct would fit within the type of conduct prohibited by§ 23l(a)(3). The statute sufficiently gives this defendant notice of the conduct it рrohibits.
II. Sufficiency of the Indictment
The indictment alleges: On or about August 26, 2020, in the District of Oregon, during a civil disorder, defendant KEVIN PHOMMA, knowingly committed a violent act for the intended purpose of obstructing, impeding and interfering with law enforcement officers who were lawfully engaged in the lawful performance of their official duties incident to and during the commission of a civil disorder, and that such civil disorder in any way or degree obstructed, delayed and adversely affected commerce and the movement of any atiicle or commodity in commerce .... Defendant contends that the indictment should be dismissed because it does not provide adequate notice and does not assure that the grand jmy made the required determinations. The government responds that the criminal complaint, ECF No. 1, describes Defendant's alleged conduct at around 11 p.m. on August 26, 2020, near the ICE facility on Macadam, and that police rep01is and surveillance video provided during discovery "clarify [Defendant's] role in deploying bear spray against the officers during the civil disorder that night." Gov't Resp. 27.
"In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the
nature and cause of the accusation .... "
I conclude that the indictment here is sufficient. Although the indictment does not allege the specific facts of Defendant's conduct, it does track the wording of the statute. Defendant cites a Ninth Circuit decision dismissing an indictment as insufficient, but the indictment there completely failed to allege the mental state required for the offense. United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999) (indictment failed to allege the requisite mental state of "knowingly or willingly," instead alleging only that the defendant "unlawfully" affected commerce by the "wrongful use of force"). Here, the indictment does allege the elements of a civil disorder violation.
CONCLUSION
Defendant's Motion to Dismiss, ECF No. 18, is DENIED.
IT IS SO ORDERED. . ,t,,
Dated the ~ of September, 2021.
Senior United States District Judge