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August 27, 2014

Based on Burrage, split Sixth Circuit panel reverses federal hate crime convictions for Amish beard-cutters

Regular readers may recall lots of coverage early last year concerning the unusual federal hate crime prosecution and sentencing of a group of Amish who assaulted others in their community in the midst of a religious dispute.  The convictions were appealed to the Sixth Circuit, and a panel this morning reversed the convictions based on the intervening Supreme Court decision in the Burrage mandatory sentencing case.  Here is how the majority opinion, per Judge Sutton, in US v. Miller et al., Nos. 13-3177 et al. (Aug. 27, 2014) (available here), gets started:

A string of assaults in several Amish communities in Ohio gave rise to this prosecution under Section 2 of The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009.  The assaults were not everyday occurrences, whether one looks at the setting (several normally peaceful Amish communities), the method of attack (cutting the hair and shaving the beards of the victims), the mode of transportation to them (hired drivers), the relationship between the assailants and their victims (two of them involved children attacking their parents), or the alleged motive (religious-based hatred between members of the same faith).  A jury found that four of the five attacks amounted to hate crimes under the Act and convicted sixteen members of the Bergholz Amish community for their roles in them.

At stake in this appeal is whether their hate-crime convictions may stand.  No one questions that the assaults occurred, and only a few defendants question their participation in them.  The central issue at trial was whether the defendants committed the assaults “because of” the religion of the victims. 18 U.S.C. § 249(a)(2)(A).  In instructing the jury on this point, the district court rejected the defendants’ proposed instruction (that the faith of the victims must be a “but for” cause of the assaults) and adopted the government’s proposed instruction (that the faith of the victims must be a “significant factor” in motivating the assaults).  Regrettably for all concerned, a case decided after this trial confirms that the court should have given a but-for instruction on causation in the context of this criminal trial.  Burrage v. United States, 134 S. Ct. 881, 887–89 (2014).  Because this error was not harmless, and indeed went to the central factual debate at trial, we must reverse these convictions.

Here is how the dissent, per Judge Sargus sitting by designation, gets started:

This is the first appellate case involving a religious hate crime under the Hate Crimes Prevention Act of 2009, 18 U.S.C. § 249.  While I respect the majority’s efforts to construe a deceivingly simple, but actually complex, statute, I dissent.  In my view, the majority has adopted an unduly restrictive interpretation of the statute.

Since this case was tried, the Supreme Court decided the case of Burrage v. United States, 134 S. Ct. 881 (2014).  The majority correctly holds that the “because of” phrase used in § 249(a), similar to “results from,” requires proof that one act would not have happened “but for” the other.  I disagree, however, with the majority’s conclusion that the trial court’s causation-instruction error was not harmless.  This disagreement stems not from a dispute over the standards governing a harmless error analysis, but rather is from a disagreement over statutory construction.

Related prior posts:

August 27, 2014 at 12:04 PM | Permalink


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My quick skim of the opinion: So the disagreement is between whether the animus is the sole reason for the attack as opposed to one of many reasons. That latter interpretation seems pretty broad just as the statute seems pretty broad. Too bad SCOTUS denied cert in Hatch - that would have been some interesting reading.

Posted by: Steve Erickson | Aug 27, 2014 12:39:37 PM

Oh GAWD. The dissent buys into the Ginsburg's solipsism in Burrage. What a load of hoooey. The difference between a multi-factor "but for" causation and a contributing factor analysis is nil. They are describing distinctions without any pragmatic difference.

Posted by: Daniel | Aug 27, 2014 1:49:08 PM

It's so difficult not to cynical about the genesis of this case being a federal prosecution. Probably millions spent and dozens of children's lives disrupted for the exercise of authority.

Posted by: beth | Aug 27, 2014 8:06:47 PM



Posted by: Marty Lederman | Aug 28, 2014 8:48:36 AM

Thanks for the link Marty....it's always worth reading your insights even when I disagree, as here. I'll just point out one flaw I perceive in your argument--namely, that there is a congruence between civil and criminal law on this issue. So your kosher example misses the mark. Ginsburg would not apply a rule of lenity to a civil rights case that she would apply to a criminal case. Now whether this should matter conceptually is an interesting question. But it seems to me that your article fails to explain why the distinction between a civil case and a criminal case does not satisfy your objections to the result here.

Posted by: Daniel | Aug 28, 2014 12:45:31 PM

I am of the view that a significant motivating factor necessarily is a but for cause. In which case the error was harmless.

Posted by: Jeremy | Aug 28, 2014 10:10:58 PM

But what is the difference between a "significant" and a "contributing" factor? I mean all nine justices rejected a contributing factor test in criminal cases in Burrage and that remains the law. It seems to me that people like Marty and Jermery really just want to re-argue Burrage, which again, was a 9-0 case. I don't see how one gets around the fact that "but for" causation means the *only* cause and that anything else must be a contributing cause, significant or no.

Posted by: Daniel | Aug 29, 2014 2:31:28 AM

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