Why COVID-19 Spitters Shouldn’t Be Prosecuted as Federal Terrorists

We’re in the middle of a crisis. People are on edge. Resources are limited. But through all of this, our first responders continue to do their jobs, day in and day out.

If someone attacks them, or spits on them, or threatens to harm them, they must be held accountable. Few, if any, would dispute that. We certainly don’t.

But, as we have previously written, law enforcement officers and prosecutors must resist the urge to charge most of these individuals federally, especially under federal anti-terrorism statutes. Those statutes were never intended to deal with most of the situations currently being encountered by law enforcement, and state laws are better suited to handle them.

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Since we last wrote on the subject, at
least one Florida man has been charged under those federal anti-terrorism statutes after spitting
on local police officers while telling them he was infected with the
coronavirus. Thankfully, he wasn’t.

Nevertheless, federal prosecutors in
Tampa, Florida,  charged him with a biological-weapons hoax under 18 USC § 1038 (a)(1). As charged, the offense carries a maximum of five years in
federal prison.

Again, we’re not here to defend this individual’s
despicable actions, or to play the role of his defense attorneys.

We’re here to highlight the problem
with using anti-terrorism statutes to deal with this sort of conduct. In short,
using these statutes to go after lone coughers is an unnecessary and unwise
expansion of federal law enforcement power.

The anti-terrorism statute used there
makes it a crime to intentionally convey false information that would cause
someone to reasonably believe that activity prohibited by other anti-terrorism
statutes has occurred or will occur.

What are those other federal anti-terrorism
statutes that officers would have needed to reasonably believe were being
violated? In the Florida man’s case, federal prosecutors identified two.

The first
outlaws possessing a “biological agent” for use as a weapon.  The definition of biological agent is so
broad that the coronavirus arguably meets it. But it’s far from a perfect fit.

The second
outlaws the use of “weapons of mass destruction” that would affect interstate
or foreign commerce.

Do federal prosecutors really want us
to believe that spittle qualifies as a weapon of mass destruction?

True, as defined later in the statute, a weapon of mass destruction can be “any weapon that is designed or intended to cause death or serious bodily injury through the release, dissemination, or impact of toxic or poisonous chemicals, or their precursors,” or “any weapon involving a biological agent, toxin, or vector … .” But again, this is far from a perfect fit.

More importantly, where’s the
connection to interstate or foreign commerce? This spitter didn’t attack
someone delivering mail or packages. He didn’t attack a business person going
about his or her day. He didn’t attack someone out shopping.

No, he attacked local law enforcement
officers while they were responding to a local domestic-violence call. Again, it’s shameful
conduct all around, but the connection to interstate commerce, or any effect on
it, is attenuated at best.

You might counter that this spitter is a
really bad guy and deserves whatever the government can throw at him, even if
the charges are a stretch.

That argument isn’t a good one,
however, because larger balance-of-power issues are at stake.

The federal government is a government
of limited and enumerated powers. In order for Congress to validly pass laws, there has to
be some constitutional authority for its actions. Typically, Congress roots its
authority in the Commerce Clause, as it did here.

Courts have said the Commerce Clause
gives Congress a lot of authority, but it has limits. And in prosecuting someone under federal law, requiring
prosecutors to show a connection to interstate commerce, if that’s the source
of Congress’ authority, isn’t just a mere formality.

It stops the federal government from
wielding power the Constitution denies it.

To be clear, historical precedent also
supports states taking the lead on this issue. States long have had experience
prosecuting those who threaten to, or actually do, infect others with an
infectious disease. For example, states have taken the lead on prosecuting those who intentionally expose others to HIV.

Where federal authorities have
prosecuted HIV-related attacks, such as when HIV-positive federal inmates have
bitten federal corrections officers, federal prosecutors didn’t charge these
individuals as terrorists, even though their conduct was arguably more culpable
since they were, in fact, HIV-positive.

Instead, they charged these individuals
under federal assault statutes and sought appropriate sentencing enhancements
based on their conduct.

To be clear, we’re no lovers of crime,
and those who commit them must be held accountable by the proper authorities
using the proper means. Extending federal power, albeit for the noble goal of
holding those who hurt our law enforcement officers accountable, is misguided.

Federal power that is able to reach
anyone’s conduct, however attenuated to federal interests, would be unlimited.

Do any of us really want that? Our
Founding Fathers certainly did not.

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