UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 03-20884

____________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

FRANK LAFAYETTE BIRD, JR,

Defendant-Appellee.

Appeal from the United States District Court

For the Southern District of Texas

Before GARZA, DeMOSS and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

In United States v. Bird (“ Bird I ”) this Court he ld t hat the Freedom of Access to Clinic

Entrances Act (FACE) is a valid exercise of Congress’s authority under the Commerce Clause. 124

F.3d 667, 678 (5th Cir. 1997). Notwithstanding that holding, the district court in the present case

held that under United States v. Morrison

, 529 U.S. 598 (2000) “passage o f [the FACE Act] was

beyond Congress’ Commerce Clause authority.” U nited States v. Bird , 279 F. Supp. 2d 827, 838

(S.D. Tex. 2003). United States Court of Appeals

Fifth Circuit 

## F I L E D

February 28, 2005

Charles R. Fulbruge III

Clerk1 We note that this conclusion accords with the post- M orrison decisions of our sister circuits.

See United States v. Gregg

, 226 F.3d 253 (3d Cir. 2000), cert. denied 523 U.S. 971 (2001); Norton

v. Ashcroft , 298 F.3d 547 (6th Cir. 2002), cert. denied , 537 U.S. 1172 (2003).

2 This Court’s decision in B ird I involved an applicatio n of 18 U.S.C. § 248(a)(1), the

subsection of FACE addressing acts of violen ce and intimidation. The present appeal involves an

application of 18 U.S.C. § 248(a)(3), the subsection of FACE addressing destruction of and damage

to property. Neither the parties nor the district court, however, suggest any variance in Commerce

Clause analysis between these two subsections.

-2- We do not find that the Supreme Court’s decision in Morrison materially affects our holding

in Bird I

. 1 Our decision in that case is therefore binding. 2 Cf. United States v. Pettigrew

, 77 F.3d

1500, 1511 n.1 (5th Cir. 1996) (“While.

. .one panel of this Court is generally powerless to overrule

the previous decision of another panel . . . , an exception to this rule arises when there has been an

int ervening decision by the United States Supreme Court overriding the earlier decision.”).

Accordingly, we VACATE the district court’s order and REMAND for further proceedings

not inconsistent with this opinion.3 While the Government may be correct in its argument that each circuit court to have

addressed this issue has upheld FACE as a constitutional exercise of Congress’s powers under the

Commerce Clause, it is critical to point out that only two circuits have engaged in such an analysis

post- Morrison

. See Norton v. Ashcroft

, 298 F.3d 547, 556 (6th Cir. 2002); United States v. Gregg

, 226 F.3d 253, 261-67 (3d Cir. 2000)

.

-3- DeMOSS, Circuit Judge, dissenting:

In March 2003, Bird drove a van throu gh the front door of a

Planned Parenthood facility in H ouston, Texas. A federal grand

jury indicted Bird on one count of violating 18 U.S.C. § 248(a) and

(b)(2). Bird filed a pretrial motion to dismiss the indictment,

contending that Congress impermissibly exceeded its power under the

Commerce Clause when it enacted FACE and citing the Supreme Court’s

decision in United States v. Morrison

, 529 U.S. 598 (2000), as

effecting a change in the Commerce Clause analysis that now renders

moot our previous decision in United States v. Bird , 124 F.3d 667

(5th Cir. 1997) (“ Bird I ”). The district court agreed and granted

Bird’s motion to dismiss the indictment, concluding that its ruling

was in line with the Supreme Court’s decisions in both United

States v. Lopez , 514 U.S. 549 (1995), and Morrison

.

On appeal, the Government argues the district court

incorrectly concluded that the Supreme Court’s decision in Morrison

preempted this Court’s previous decision in B ird I

. 3 Meanwhile,

Bird maintains that Mo rrison clearly rejected the “national

commercial market” theory o f aggregation espoused in B ird I and

argued here by the Government. The majority has concluded that

Morrison does not “materially affect[]” our decision in Bird I

.-4-

As a preliminary matter, I incorporate by reference here the

discussion and reasons I offered in my dissent in Bird I

. 124 F.3d

at 685-92. Because I believe the holding in M orrison dictates even

more clearly that Congress exceeded its Commerce Clause authority

when it enacted FACE, I again respectfully dissent.

Just as Lopez

, the then most recent Supreme Court exegesis on

the bounds of C ongress’s Commerce Clause authority, guided this

court in Bird I , so too Morrison charts our course here.

I. The regulated activity is intrastate and noncommercial

.

The Su preme Court’s decision in L opez set forth three broad

categories under which Congress could regulate intrastate

activities through its Commerce Clause powers. 514 U.S. at 558.

The third category, and the one at issue here, provides that

Congres s can regulate certain intrastate activities that have a

substantial effect on interstate commerce. I d. at 558-59. In

Lopez , the statute made the subject of the Court’s review was the

Gun-Free School Zones Act of 1990 (“GSA”), a criminal statute that

made it a federal offense to knowingly possess a firearm in a

school zone. See 18 U.S.C. § 922(q)(1)(A) (1994). The Court

determined that the GSA was “a criminal statute that by its terms

has nothing to do with ‘commerce’ or any sort of economic

enterprise, however broadly one might define those terms.” I d. at

561. Accordingly, the L opez Court concluded that the GSA was

unconstitutional in part because it regulated an activity that was

noneconomic and therefore could not be justified unde r the third-5-

prong of Congress’s Commerce Clause authority. I d. at 551, 560-61,

(noting that “[e]ven Wickard [v. Filburn

, 317 U.S. 1 11 (1942)],

which is perhaps the most far reaching example of Commerce Clause

authority over intrastate activity, involved economic activity in

a way that the possession of a gun in a school zone does not”),

566.

Then, in Morrison

, the Supreme Court again was faced with a

federal statute, the Violence Against Women Act (“VAWA”), 42 U.S.C.

§ 13981, that sought to regulate criminal activity, this time in

the form of gender-motivated violence. The Court first observed

that “a fair reading of Lopez shows that the noneconomic

, criminal

nature of the conduct at issue was central to our decision in that

case.” 529 U.S. at 610 (emphasis added). T he Morrison Court

further explicated that requiring the regulation to be of an

economic activity is essential to the limitations set forth in the

Commerce Clause, noting that “ L opez ’s review of Commerce Clause

case law demonstrates that in those cases where we have sustained

federal regulation of intrastate activity based upon the activity's

substantia l effects on interstate commerce, t he activity in

question has been some sort of economic endeavor .” Id. at 611

(emphasis added) (citing Lopez

, 514 U.S. at 559-60)). Using the

lack of an economic element in the activity being regulated as

partial justification, the Court subsequently struck down VAWA as

an impermissible exercise of Congress’s Commerce Clause. Morrison

,

529 U.S. at 617-18.4 In sustaining the statute’s constitutionality, however, the court reasoned that Lopez could

not be read as requiring that the regulated activity be, at a minimum, commercial. 124 F.3d at 675.

The Bird I majority also observed that Congress could have ensured that FACE reached only those

activities which substantially affect interstate commerce either by including a jurisdictional element

or through its own legislative findings. 124 F.3d at 675. It was conceded that FACE did not contain

a jurisdictional element; thus, the Bird I majority premise d its conclusion that FACE was

constitutional based on the congressional findings that abortion-related services were part of a

“national commercial market.” Id. at 678-82.

-6- As in Lopez and Morrison

, the criminal activity at issue here,

the intentional damaging and destroying of a facility that provides

reproductive health services, is neithe r an economic nor a

commercial activity. To so conclude is not a novel interpretation

of the statute or the underlying conduct, as the question of how to

define the activity proscribed by FACE was previously answered by

this court in Bird I

. This court expressly stated that FACE is “a

federal criminal statute regulating intrastate, noncommercial

conduct.” 4 124 F.3d at 675. Therefore, the analysis here embraces

the binding determination that the regulated conduct in this case

is noncommercial in nature.

The Court in Morrison further sugge sted that Congress could

not, in the absence of a regulated activity which is ec onomic or

commercial, simply exercise a general police power, stating:

The regulation and punishment of intrastate violence that

is n ot directed at the instrumentalities, channels, or

goods involved in interstate commerce has always been the

province of the States. Indeed, we can think of no

b etter example of the police power, which the Founders

denied the National Government and reposed in the States,

than the suppression of violent crime and vindication of

its victims.

529 U.S. at 618 (internal citation omitted). Moreover, as the5 While the Fourteenth Amendment prohibits states from denying individuals constitutional

rights, such protecti on does not extend to acts of private parties or entities. C ivil Rights Cases

, 109

U.S. 3, 20-26 (1883).

-7- Court in Lopez noted: “Under our federa l system, the ‘States

possess primary authority for defining and enforcing the criminal

law.’” 514 U.S. at 561 n.3 (internal quotation marks and citations

omitted). Congress itself has noted that state statutes, including

criminal trespass, criminal contempt, disorderly conduct, resisting

arrest, and unlawful assembly are more than adequate to address the

activities sought to be regulated by FACE. S ee 

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306, at 22 (1993), reprinted in 1994 U.S.C.C.A.N. 699, 717.

Because Congress does not have a general police power, it

surely cannot have the authority to define as criminal conduct

under federal law private acts that are intended to interfere with

another person’s exercise of some constitutional righ t, whether

that right is to be free from gender-based violence as in VAWA or

to choose to access reproductive health services, such as abortion,

as in FACE. 5 Purely criminal activities that are not premised in

economic or commercial contexts are s ubject to an entirely

different scheme of congressional regulations, none of which is

justifiable under the Commerce Clause.

II. Morrison expressly precludes the aggregation of

noncommercial, criminal activity.

Having concluded that the criminal, intrastate activity

proscribed by FACE is neither commercial nor economic in nature,-8-

this analysis focuses on how the Suprem e Court’s decision in

Morrison expressly rejects the contention that such activity can be

aggregated in order to create a substantial effect on interstate

commerce.

Morrison refutes the concept of an aggregate effect on a

national market when the conduct pr oscribed is violent criminal

conduct. 529 U.S. at 615-19. As a preliminary matter, the

C ommerce Clause may not reach noneconomic activity that only

affects commerce through a “but-for” causal chain. I d. at 613.

The Morrison Court explained:

The reasoning that petiti oners advance seeks to follow

the but-for causal chain from the initial occurrence of

violent crime (the suppression of which has always been

the prime object of the States' police power) to every

attenuated effect upon interstate commerce. If accepted,

petitioners’ reasoning would allow Congress to regulate

any crime as long as the nationwide, aggregated impact of

that crime has substantial effects on employment,

production, transit, or consumption. Indeed, if Congress

may regulate gender-motivated violence, it would be able

to regulate murder or any other type of violence since

gender-motivated violence, as a subset of all v iolent

c rime, is certain to have lesser economic impacts than

the larger class of which it is a part.

Id. at 615.

While Bird I concluded that Wickard , reaffirmed by L opez

,

permits the aggregation of intrastate, noncommercial activity, the

Supreme Court’s more recent decision in Morrison expressly

forecloses any such aggregation. Specifically, the Supreme Court

announced: “We a ccordingly reject the argument that Congress may

regulate noneconomic, violent criminal conduct based solely on that-9-

conduct’s aggregate effect on interstate commerce. The Constitution

requires a distinction between what is truly national and what is

truly local.” Id. at 617-18 (citing Lopez

, 514 U.S. at 568). This

holding in M orrison clearly undermines the reasoning employed by

Bird I

, in which this court determined that under Wickard ’s

aggregation theory, “there can be no question that Congress is able

to regulate noncommercial, intrastate activity that substantially

affects interstate commerce.” 124 F.3d at 676. It follows,

therefore, that Morrison ’s limitation of the aggregation principle

,

necessarily compels a finding that Congress exceeded its Commerce

Clause authority when it enacted FA CE, thus eliminating B ird I ’s

precedential value as it relates to this concept.

CONCLUSION

In sum, FACE, as interpreted now in light of Morrison

,

represents another effort by Congress to dismantle the federalist

foundation upon which this country was designed to function. The

regulation of purely intrastate, noneconomic, noncommercial

criminal activity that is not essential to a broader regulatory

scheme surely cannot be within Congress’s purview. To uphold the

constitutionality of this statute in the face of the teachings

provided by Lopez and Morrison not only ignores the precedents

established by both of these decisions, but also essentially grants

to Congress the unfettered authority to govern in areas the Framers

contemplated would be regulated only by the states. Because I

believe the Constitution and the Supreme Court disallow the result-10-

reached by the majority’s holding, I respectfully dissent.