According to The Oregonian the federal government is using a rarely enforced civil disorder statute to prosecute at least two protesters in Portland (“Feds start leveling rare civil disorder charges against demonstrators for alleged violence at Portland protests,” Sept. 3, 2020). The article notes the law is also being applied in other cities in the United States, and that the law was adopted in 1968 during a period of “civil rights turmoil.” On September 3 two more people were charged under the civil disorder statute: Pointing lasers at officers during Portland protests now leads to federal civil disorder felony allegations, The Oregonian (Sept. 4, 2020).
The law in question is 18 U.S. Code § 231. Civil disorders. Generally the states have broad power to enact criminal statutes, while the federal government is limited to enforcing criminal laws on federal land or property, that involve actions crossing state lines, or in areas explicitly allowed by the U.S. Constitution. So how does the federal government get the ability to enact a broad civil disorder statute?
The answer, is found in a part of the statute itself; subsection (a)(3) reads:
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 the conduct or performance of any federally protected function (18 U.S.C. § 231(a)(3), emphasis added).
This language is meant to draw on the Commerce Clause, that section of the Constitution that gives Congress the power “[t]o regulate commerce […] among the several states” (Article 1, section 8).
The article from The Oregonian notes that the civil disorder statute has been rarely used, and looks to a 1972 case for guidance: United States v. Mechanic, 454 F2d 849. A quick check on how many cases cite that case, using Lexis, shows only 32 – the most recent in 2015. Slightly more cases have cited the statute itself, 162 – 7 of which were from 2019 or 2020. But in the realm of federal law these are relatively small numbers – the most influential statutes or cases can be cited thousands of times.
Critically, the article in The Oregonian notes that U.S. v. Mechanic did not address the question of whether the conduct in that case was sufficiently connected to interstate commerce to apply to the Commerce Clause because in that case the law was applied to a “federally protected function,” namely protecting Army R.O.T.C facilities. It’s possible that whether there is a sufficient connection to interstate commerce is a question the appellate courts, or Supreme Court, will grapple with as these new cases proceed.