1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0437P (6th Cir.)

File Name: 03a0437p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

JOHN LATON,

Defendant-Appellee.

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No. 02-5185

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 01-20235—Robert H. Cleland, District Judge.

Argued: August 1, 2003

Decided and Filed: December 10, 2003 

Before: DAUGHTREY, MOORE, and SUTTON, Circuit

Judges.

_________________

COUNSEL

ARGUED: Jennifer L. Webber, ASSISTANT UNITED

STATES ATTORNEY, Memphis, Tennessee, for Appellant.

Leslie I. Ballin, BALLIN, BALLIN & FISHMAN, Memphis,

Tennessee, for Appellee. ON BRIEF: Jennifer L. Webber,

ASSISTANT UNITED STATES ATTORNEY, Memphis,

2 United States v. Laton No. 02-5185

Tennessee, for Appellant. Leslie I. Ballin, BALLIN,

BALLIN & FISHMAN, Memphis, Tennessee, for Appellee.

MOORE, J., delivered the opinion of the court, in which

DAUGHTREY, J., joined. SUTTON, J. (pp. 27-48),

delivered a separate dissenting opinion.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. Local and

state government institutions provide a wide variety of

services ranging from transportation to economic

development, which can produce ripples in the broaderstream

of interstate commerce to varying degrees. The general

question presented by the relatively bizarre factual

background of this case is whether or not a core function of

municipal government — the provision of firefighting

services — impacts interstate commerce such that an

individual can be indicted under a federal anti-arson statute

for destroying a fire station. The more precise question, upon

which we dwell, is whether the Henning, Tennessee Fire

Station was used in an activity affecting interstate commerce

such that the person charged with setting it ablaze can be

indicted under 18 U.S.C. § 844(i). We hold that this

particular fire station was used in an activity affecting

interstate commerce and accordingly REVERSE the

judgment of the district court dismissing the indictment and

REMAND for further proceedings consistent with this

opinion.

I. BACKGROUND FACTS AND PROCEDURE

Prometheus may have thought twice before handing down

the gift of fire to humans had he imagined that those whom

the mere mortals chose to steward the precious flame would

use it to decimate the very mechanisms employed to control
No. 02-5185 United States v. Laton 3

its power. We are faced with precisely such an odd event.

On March 3, 2000, the Henning Fire Station (“HFS”) was

destroyed by fire. Henning is a rural town in the western

Tennessee county of Lauderdale. It lies between Memphis

and Dyersburg on U.S. Route 51 and is approximately twenty

miles from the Mississippi River. On September 18, 2001, a

federal grand jury indicted John Laton (“Laton”), the chief of

the Henning Fire Department (“HFD”), on one count of arson

in violation of 18 U.S.C. § 844(i), the federal anti-arson

statute.

Laton subsequently moved to dismiss the indictment in

October 2001, contending that the district court lacked subject

matter jurisdiction over the prosecution because the HFS was

not used in an activity affecting interstate commerce. Both

parties agreed upon and submitted to the court a set of

stipulations,which established the relevant facts regarding the

HFS and the HFD. First, the HFS housed firefighting

equipment, including fire trucks, nozzles, uniforms, hoses,

and other equipment. Additionally, the HFS contained an

office, a kitchen, and meeting spaces for members of the

HFD. Second, the HFD purchased most of its firefighting

equipment from out-of-state vendors, and the HFD in the past

relied upon out-of-state vendors for repairs to this equipment.

Third, the HFD is responsible for responding to fire

emergencies in Henning, which, like any other town, contains

residences, churches, public buildings, and businesses. In the

past, the HFD has responded to various emergency calls

involving several businesses in Henning, including a market

and a laundry facility, the Henning Police Department, and

vehicles in distress on U.S. Route 51 and at the U.S. Route 51

rest area. Fourth, when the HFD responds to fire calls outside

of the Henning city limits, the HFD charges out-of-state

insurance companies $500. Fifth, the volunteer firefighters

who compose the HFD are paid wages by the City of Henning

based upon the amount of time that they spend at a fire scene.

The total wages paid to the firefighters generally does not

exceed $1,000 per year. Sixth, the firefighting presence of the

HFS and the HFD impacts insurance rates in Henning.

4 United States v. Laton No. 02-5185

Virtually all American insurance companies use the Public

Protection Classification (“PPC”) to calculate fire-insurance

premiums in a particular area. The PPC is partially based

upon the equipment, staffing, training, and geographic

distribution of local fire departments. Fire insurance

premiums in a community with a “good” PPC are

considerably lower than in a community with a “bad” PPC,

and insureds in an area that lacks fire services altogether will

have the “worst” PPC and the highest premiums.

The district court granted Laton’s motion to dismiss on the

ground that the HFS was not used in interstate commerce.

United States v. Laton, 180 F. Supp. 2d 948 (W.D. Tenn.

2002). It focused its analysis on “whether the [HFS] was

used in the activities of the [HFD], and whether those

activities substantially affect interstate commerce.” Id. at

952. The court thus bifurcated the purposes of the HFS and

the HFD, reasoning that it was “not significant that the [HFS]

houses the trucks that drive to sites” of fires involving

business or other instrumentalities of interstate commerce

because “[t]his is too attenuated a series of connections to

constitute a building that is used ‘in any activity’” that affects

interstate commerce. Id. The district judge then ruled that the

purchase of supplies from out of state, the payment of some

wages to the firefighters, the fees billed for out-of-city fires,

and the impact upon insurance rates did “not indicate any sort

of active employment, but is again evidence of, at the very

least, a passive connection.” Id. at 953. Accordingly, the

court dismissed the indictment, because it ruled that it lacked

subject matter jurisdiction over the case. Id.

The government timely appealed the district court’s ruling.

We have jurisdiction to hear such an appeal pursuant to

18 U.S.C. § 3731. See id. (“In a criminal case an appeal by

the United States shall lie to a court of appeals from a

decision, judgment, or order of a district court dismissing an

indictment . . . .”). On review, we reject the reasoning of the

district court, reverse its judgment dismissing the indictment,
No. 02-5185 United States v. Laton 5

and remand for further proceedings consistent with this

opinion.

II. ANALYSIS

A. Erroneous Dismissal for Lack of Subject Matter

Jurisdiction

As a preliminary matter, we hold that the district court

erred in dismissing the indictment based on the conclusion

that it lacked subject matter jurisdiction. In United States v.

Rayborn, 312 F.3d 229 (6th Cir. 2002), which we decided

after the district court’s decision in this case, we held that the

interstate-commerce requirement “is simply one of the

essential elements of § 844(i),” even though it is frequently

denoted a “‘jurisdictional element.’” Id. at 231. We

explained that “[i]t is not jurisdictional in the sense that it

affects a court’s subject matter jurisdiction, i.e., a court’s

constitutional or statutory power to adjudicate a case.” Id.

The district court here, just like the district court in Rayborn,

did have subject matter jurisdiction over the indictment under

18 U.S.C. § 3231.

This does not end the appeal. We noted in Rayborn that

“this court typically vacates a dismissal order when it

determines that a district court has erred in dismissing a case

for lack of subject matter jurisdiction . . . .” Rayborn, 312

F.3d at 232. Yet, Rayborn also instructs that when the district

court “undertook an evaluation of the merits of the interstate

commerce question under the guise of subject matter

jurisdiction,” id., we are permitted to determine whether the

evidence produced by the government (or in this case

stipulated to by both parties) is sufficient to permit a rational

jury to find that a particular building was used in an activity

that affected interstate commerce such that the indictment can

still stand. Id. at 235-36; see also United States v. Latouf, 132

F.3d 320, 325-26 (6th Cir. 1997) (“The relevant inquiry when

reviewing claims of insufficient evidence is whether after

viewing the evidence in the light most favorable to the

6 United States v. Laton No. 02-5185

1

“Interstate commerce” is defined as “commerce between any place

in a State and any place outside of that State.” 18 U.S.C. § 841(b).

2

Affect is “[t]o act upon; influence; change; enlarge or abridge; . . .

to act, or produce an effect or result upon; to impress or influence . . . .”

BLACK’S LAW DICTIONARY 57 (6th ed. 1991).

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”

(internal quotations omitted)).

We follow Rayborn’s lead and review the merits of the

district court’s determination that the HFS was not used in an

activity that affected interstate commerce. Because the

inquiry into whether the HFS affects interstate commerce is

a mixed question of fact and law, we review the district

court’s determination de novo. United States v. Salvo, 133

F.3d 943, 948 (6th Cir.), cert. denied, 523 U.S. 1122 (1998).

B. Section 844(i) and Its Applicability to Government

Buildings and Property

We start with the plain language of the statute. Section

844(i) provides: “Whoever maliciously damages or destroys,

or attempts to damage or destroy, by means of fire or an

explosive, any building, vehicle, or other real or personal

property used in interstate or foreign commerce or in any

activity affecting interstate or foreign commerce shall be

imprisoned for not less than 5 years and not more than 20

years . . . .” 18 U.S.C. § 844(i) (emphasis added).1 The

statute thus covers the arson of any building that is either used

in interstate commerce or that is used in any activity affecting

interstate commerce.2

Crimes of arson have traditionally been viewed as

“paradigmatic common-law state crime[s],” but in 1982

Congress chose to federalize certain arson crimes as an

exercise of its Commerce Clause power. Jones v. United
No. 02-5185 United States v. Laton 7

3

Congress originally passed § 844(i) as part of the Organized Crime

Control Act of 1970 to control the use and possession of explosives. See

Russell v. United States, 471 U.S. 858, 860 n.5 (1985). In 1982, Congress

amended the statute to include the words “fire or” before the words “an

explosive.” Jones v. United States, 529 U.S. 848, 853 n.4 (2000).

4We note that the federal prosecution of Laton does not preclude the

state from also prosecuting him if it so desires. See Heath v. Alabama,

474 U.S. 82, 89-90 (1985) (“‘[A]n act denounced as a crime by both

national and state sovereignties is an offense against the peace and dignity

of both and may be punished by each.’” (quoting United States v. Lanza,

260 U.S. 377, 382 (1922)). Under the federal arson statute, Laton faces

a sentence of five to twenty years, assuming that no persons were injured

by the fire. 18 U.S.C. § 844(i). If any persons were injured, Laton faces

a sentence of seven to forty years, and if any persons were killed by the

fire, Laton is subject to any term of imprisonment, including life

imprisonment. Id. Under the Tennessee arson statute, the destruction of

a building by fire is a Class C felony, which is punishable by a term of

imprisonment of three to fifteen years. See Tenn. Code Ann. §§ 39-14-

301, 40-35-111(b)(3). If any persons were injured in the fire, the arson

of the HFS would constitute a Class A felony, which is punishable by a

term of imprisonment of fifteen to sixty years. See Tenn. Code Ann.

§§ 39-14-302, 40-35-111(b)(1). Any supposed friction, as the dissent

labels it, between the policy choices of the United States Congress and the

Tennessee Legislature regarding the severity of the criminal sanction is

a necessary by-product of a federalist republic; a disparity between state

and federal sentences, which in this instance is de minimis, occurs quite

often in areas of concurrent jurisdiction, such as prosecution for drugrelated offenses.

States, 529 U.S. 848, 858 (2000).3 In seeking to avoid

“render[ing] traditionally local criminal conduct a matter for

federal enforcement,” Congress “will not be deemed to have

significantly changed the federal-state balance” unless it

clearly conveys its purpose. United States v. Bass, 404 U.S.

336, 349-50 (1971) (quoted in Jones, 529 U.S. at 858).4

Additionally, when Congress fails to speak in clear and

definite language, “ambiguity concerning the ambit of

criminal statutes should be resolved in favor of lenity.”

Jones, 529 U.S. at 858 (quoting Rewis v. United States, 401

U.S. 808, 812 (1971)). Had Congress been ambiguous in its

formulation of § 844(i), the rule of lenity might apply, but

8 United States v. Laton No. 02-5185

counter to the dissent’s belief that § 844(i) suffers from a lack

of clarity, Congress made transparent its objective in passing

§ 844(i). It fashioned a statute that covered the arson of “any”

building and included a jurisdictional element limiting its

reach to buildings that are used in interstate commerce or in

any activity affecting interstate commerce, such that § 844(i)

was “intended to protect all business property, as well as

some additional property that might not fit that description,

but perhaps not every private home.” Russell v. United

States, 471 U.S. 858, 862 (1985).

We are mindful of our duty to construe a statute so as to

eschew constitutional questions, and the straightforward

application of the jurisdictional element here aids us in

avoiding any such entanglements. The prominent issue raised

by this appeal is not constitutional in scope, rather it is an

exercise in statutory interpretation. In United States v. Lopez,

514 U.S. 549 (1995), the Supreme Court remarked that the

Gun-Free School Zones Act of 1990 (formerly 18 U.S.C.

§ 922(q)) “contain[ed] no jurisdictional element which would

ensure, through case-by-case inquiry, that the firearm

possession in question affects interstate commerce.” Id. at

562 (emphasis added). It distinguished § 922(q) from the

former 18 U.S.C. § 1202(a), a statute examined in United

States v. Bass, 404 U.S. 336 (1971), “which made it a crime

for a felon to ‘receive, posses[s], or transport in commerce or

affecting commerce . . . any firearm,’” Lopez, 514 U.S at 561-

62 (emphasis added) (quoting Bass, 404 U.S. at 337). The

Court wrote that “[u]nlike the statute in Bass, § 922(q) has no

express jurisdictional element which might limit its reach to

a discrete set of firearm possessions that additionally have an

explicit connection with or effect on interstate commerce.”

Id. at 562. Unlike § 922(q), § 844(i) does contain a

jurisdictional element, and we accordingly follow the lead of

previous post-Lopez decisions, which focus on interpreting

the words of similarly phrased jurisdictional elements. See

Rayborn, 312 F.3d at 232-33 (applying Jones’s two-part test

to determine that the jurisdictional element in § 844(i) was

satisfied and the prosecution could proceed); United States v.
No. 02-5185 United States v. Laton 9

5We use “local” to encompass all political entities within but not

including a state, such as municipalities, counties, and special districts

(water, school, economic development, etc.).

Riddle, 249 F.3d 529, 536 (6th Cir. 2001) (RICO provision,18

U.S.C. § 1962(c); United States v. Napier, 233 F.3d 394, 400

(6th Cir. 2000) (firearms provision governing those under

domestic-violence court orders, 18 U.S.C. § 922(g)(8));

United States v. Smith, 182 F.3d 452, 456 (6th Cir. 1999)

(Hobbs Act, 18 U.S.C. § 1951); United States v. Ables, 167

F.3d 1021, 1030 (6th Cir. 1999) (money laundering provision,

18 U.S.C. § 1956); United States v. Chesney, 86 F.3d 564,

568-70 (6th Cir. 1996) (firearms provision governing

convicted felons, 18 U.S.C. § 922(g)(1)). Our responsibility

is to decide whether the government can demonstrate that the

HFS was used in commerce or in an activity affecting

commerce such that any rational juror could find that the

jurisdictional element of the crime defined in the statute has

been satisfied beyond a reasonable doubt.

On its face, § 844(i) does not distinguish between the arson

of traditional for-profit business property, nonprofit

organizations’ structures and equipment, or state and local

government buildings and supplies,5 because the statute

simply governs “any building, vehicle, or other real or

personal property.” 18 U.S.C. § 844(i). There can be little

doubt that virtually all edifices and personal property

employed by for-profit businesses are both used in interstate

commerce and used in activities that affect interstate

commerce, as they primarily house and make possible the

operation of businesses that buy, sell, manufacture, ship, and

finance goods and services. Nonprofit institutions can also

impact interstate commerce. The mere fact that a nonprofit

organization differs from its for-profit cousins in its treatment

of net earnings does not prevent its buildings or property from

being used in interstate commerce or in an activity affecting

interstate commerce. As the Supreme Court has explained,

“[n]othing intrinsic to the nature of nonprofit entities prevents

10 United States v. Laton No. 02-5185

6

The Court also rejected “as unsound in principle and unworkable in

practice, a rule of state immunity from federal regulation that turns on a

judicial appraisal of whether a particular governmental function is

‘integral’ or ‘traditional.’” Garcia v. San Antonio Metro. Transit Auth.,

469 U.S. 528, 546-47 (1985). The Court highlighted “the elusiveness of

objective criteria for ‘fundamental’ elements of state sovereignty,”

labeling such obliqueness as “a problem we have witnessed in the search

for ‘traditional governmental functions.’” Id. at 548.

them from engaging in interstate commerce,” particularly

because “they purchase goods and services in competitive

markets, offer their facilities to a variety of patrons, and

derive revenues from a variety of sources, some of which are

local and some out of State.” Camps Newfound/Owatonna,

Inc. v. Town of Harrison, 520 U.S. 564, 585-86 (1997).

Thus, as the Court stated, “[f]or purposes of Commerce

Clause analysis, any categorical distinction between the

activities of profit-making enterprises and not-for-profit

entities is . . . wholly illusory.” Id. at 586.

Similarly, government institutions not only can affect

interstate commerce but also can be direct participants in

interstate commerce. The Supreme Court has noted on

several occasions the impact that certain federal, state, and

local government institutions can have on interstate

commerce. See Garcia v. San Antonio Metro. Transit Auth.,

469 U.S. 528, 537, 547-48 (1985) (holding that application of

Fair Labor Standards Act (“FLSA”) to transportation

employees employed by local government does not

contravene the Commerce Clause because labor conditions of

those employees affect interstate commerce).6 Governments

in general, and individual government institutions in

particular, can serve in both a sovereign/regulatory capacity

and a market capacity, and their actions as either can affect

interstate commerce. See Lehman v. City of Shaker Heights,

418 U.S. 298, 303 (1974) (holding that a municipal transit

vehicle is not a public forum for First Amendment purposes

because “the city is engaged in commerce” and the

advertising space in question “although incidental to the
No. 02-5185 United States v. Laton 11

provision of public transportation, is part of a commercial

venture”);United States v. Kokinda, 497 U.S. 720, 725 (1990)

(concluding that federal government acts as proprietor, and

not as regulator, for First Amendment purposes when it

operates the United States Post Office); Int’l Soc’y for

Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992)

(ruling that local government acts as a proprietor when it

owns and operates an airport).

In their operations as a sovereign or as a regulator,

governments may engage in interstate commerce or in

activities that affect interstate commerce, even though the

impetus for their actions is noncommercial because it is

motivated by public service. See Garcia, 469 U.S. at 539

(“The constitutional distinction between licensing drivers and

regulating traffic . . . or between operating a highway

authority and operating a mental health facility, is elusive at

best.”); United States v. Terry, 257 F.3d 366, 369 (4th Cir.

2001) (“We cannot close our eyes to the commercial nature of

an activity solelybecausenon-commercial considerations also

underlie it.”). In their function as market participants,

governments inherently influence interstate commerce. See

White v. Mass. Council of Constr. Employers, Inc., 460 U.S.

204, 207, 214 (1983) (ruling that when a city government

expends its own funds for construction of public projects, it

can promote the employment of its own citizens, because it

acts as “a market participant” and “there is no indication of a

constitutional plan to limit the ability of the States themselves

to operate freely in the free market” (quotation omitted));

Four T’s, Inc. v. Little Rock Mun. Airport Comm’n, 108 F.3d

909, 912 (8th Cir. 1997) (defining a local airport commission,

which operated the airport and charged concession fees from

various vendors, as a market participant); Pic-A-State Pa.,

Inc. v. Reno, 76 F.3d 1294, 1301 (3d Cir. 1996) (“It is beyond

dispute that state lotteries affect interstate commerce.”)

(quoting The Lottery Case, 188 U.S. 321, 354 (1903)

(“[L]ottery tickets . . . are subjects of commerce.”)).

12 United States v. Laton No. 02-5185

7

Counter to the dissent’s assertion, the fact that city-funded

firefighting constitutes an unbargained-for public service is not relevant

to the analysis. That individual citizens do not explicitly contract for

firefighting support does not mean that fire stations and fire departments

fail to impact interstate commerce. Individuals do not bargain with nonprofit organizations in order to receive charity or other forms of

assistance, yet the Supreme Court has made clear that any rigid

categorization of non-profits as entities incapable of affecting interstate

commerce is void. Camps Newfound/Owatonna, Inc. v. Town of

Harrison, 520 U.S. 564, 586 (1997).

The reality that the core functions of government are not

exclusive of interstate commerce does not only hold true

when a government operates a commercial enterprise, such as

a post office, lottery, or liquor store. Government institutions

also can affect interstate commerce when they provide core

public services, such as police protection and emergency

services.

7

 See Prickett v. DeKalb County, 92 F. Supp. 2d

1357, 1362-63 (N.D. Ga. 2000) (determining that labor

practices of county fire department impact interstate

commerce such that the FLSA applies to its employees);

Persons v. City of Gresham, 704 F. Supp. 191, 193 (D. Ore.

1988) (applying FLSA to municipal firefighters because the

fire department responded to emergencies that involved

instrumentalities of interstate commerce and protected

businesses engaged in interstate commerce); Conway v.

Takoma Park Volunteer Fire Dep’t, 666 F. Supp. 786, 791

(D. Md. 1987) (same). One can imagine dozens of state and

local government institutions that could be used in activities

affecting interstate commerce, including but not limited to

airports, seaports, convention centers, police departments

auctioning off seized and forfeited property, health care

centers, and departments of property management, economic

development, and waste collection. Accordingly, Section

§ 844(i) has been invoked in the past to prosecute the arson of

public buildings; for example, the Tenth Circuit affirmed the

conviction under § 844(i) of the arsonist of a City Hall.

United States v. Woodward, No. 93-3123, 1993 WL 498178

(10th Cir. Dec. 2, 1993) (unpublished). The police
No. 02-5185 United States v. Laton 13

department is not used in an activity affecting interstate

commerce simply because it sells “I Support My Local Police

Department” stickers, but to believe that such fundraising

sales are the only way that a police building can be used in

activities affecting interstate commerce naively ignores a

police department’s role as reclaimer of stolen property

moving between states, auctioneer of seized goods, and

perpetuator of the safety necessary to encourage interstate

business growth.

The link between government and commerce described

above merely establishes that state and local government

buildings and property are neither inherently disconnected

from nor innately intertwined with interstate commerce. Each

piece of real or personal property, taking into account its

function, must be assessed individually to determine the

extent to which it impacts interstate commerce. There can be

no uniform and inflexible rule that §844(i) covers either all or

none of the wide variety of municipal buildings that fill either

the largest urban metropolis or the smallest rural hamlet. This

perfectly conforms to Congress’s will as expressed in

§ 844(i); the insertion of a jurisdictional element mandates a

case-by-case, building-by-building inquiry into whether that

particular building is used in an activity that affects interstate

commerce, no matter whether it is owned and operated by a

supermarket, an advocacy group, or a local-government

police department.

C. The Supreme Court’s Analysis of 18 U.S.C. § 844(i)

The Supreme Court has had two opportunities to analyze 18

U.S.C. § 844(i) and to establish a mechanism by which courts

can assess whether real or personal property is used in

interstate commerce or in an activity that affects interstate

commerce. In Russell v. United States, 471 U.S. 858 (1985),

the Court considered whether the arson of a two-unit

apartment building that was used as a rental property fell

within the purview of 18 U.S.C. § 844(i). The Court held that

“the statute only applies to property that is ‘used’ in an

14 United States v. Laton No. 02-5185

8

Enacted as part of the “Explosive Control Act” provisions of the

Organized Crime Control Act of 1970, 84 Stat. 922, 952, the precursor to

§ 844(i) provided stiff penalties for “[w]hoever maliciously damages or

destroys, or attempts to damage or destroy, by means of an explosive, any

building, vehicle, or other real or personal property used for business

purposes by a person engaged in commerce or in any activity affecting

commerce . . . .” H.R. 16699, 91st Cong., 2d Sess. (1970) (emphasis

added). During a hearing on this provision, several representatives

expressed concern that the statute as worded would not cover the bombing

of police stations or churches and suggested leaving out the words “for

business purposes.” Russell, 471 U.S. at 860-61 nn.6-7. This phrase was

not included in the statute as enacted.

9

The dissent suggests that a glance at § 844(i)’s code-book neighbor,

18 U.S.C. § 844(f) definitively reveals that Congress did not intend for

§ 844(i) to reach all government buildings even though § 844(f) governs

only the destruction of federal, but not state or local, buildings. Section

844(f)(1) reads: “Whoever maliciously damages or destroys . . . by means

of fire . . . any building, vehicle, or other personal or real property in

whole or in part owned or possessed by, or leased to, the United States,

or any department or agency thereof, or any institution or organization

receiving Federal financial assistance, shall be imprisoned . . . .” This

provision criminalizes the arson of any federal building, such as the

former Murrah Federal Building in Oklahoma City, or any building

owned by an organization obtaining federal assistance, such as a

university research laboratory that receives a federal grant and then

markets its technology. The two statutes do not reference each other,

although they were passed at the same time in response to the spate of

‘activity’ that affects commerce” and reasoned that “[t]he

rental of real estate is unquestionably such an activity.” Id. at

862. In its analysis, the Court noted that the original version

of the bill proposing § 844(i) contained the words “for

business purposes,” but thatCongress removed such language

before enactment “after considering whether the bill as

originallyintroduced would cover bombings of police stations

or churches . . . .” Id. at 860; see also id. at 860-61 nn.5-9

(quoting the relevant legislative history).8 The Court read this

legislative history to suggest “that Congress at least intended

to protect all business property, as well as some additional

property that might not fit that description, but perhaps not

every private home.” Id. at 862.9 Because the apartments in
No. 02-5185 United States v. Laton 15

bombings in the late 1960s. See United States v. Eichman, 957 F.2d 45,

46 (2d Cir. 1992) (describing § 844(f)’s history). One cannot logically

conclude that the specific mention of federal government buildings in

§ 844(f) provides definitive evidence of Congress’s intention to draw

§ 844(i)’s boundaries just shy of reaching state or local government

buildings.

The provisions overlap in some respects, but they are not so

complimentary that the existence of one negates the purpose of the other.

For the arson of the university lab mentioned above, both § 844(i) and

§ 844(f) apply. However, the two statutes will not always be

interchangeable such that § 844(i) is surplusage. The arson of a building

owned by the federal government or an entity receiving federal assistance

that does not in any way affect interstate commerce cannot be prosecuted

under § 844(i), but can be under § 844(f). For example, if an individual

purchased a single-family residence under a federal program in which the

cost of the home was split between the buyer and a state-run housing

organization receiving federal funds such that the state government owned

part of the residence, the arson of that residence would be punishable

under § 844(f), but not § 844(i). Cf. United States v. Davis, 98 F.3d 141,

145 (4th Cir. 1996) (affirming prosecution under § 844(f) for the arson of

a single-family townhouse because a state housing authority that received

federal assistance heavily subsidized the rent of the tenant). Similarly, the

arson of a non-federal building, the owners or possessors of which do not

receive federal funds, cannot be prosecuted under § 844(f), but may be

under § 844(i) if the building was used in an activity affecting interstate

commerce. Thus, there are certain arsons that may be prosecuted under

§ 844(f), but not § 844(i), and others that may be prosecuted under

§ 844(i), but not § 844(f). Each section has a special function to serve.

the building were rented to tenants at the time of the fire, the

Court concluded that the property was “being used in an

activity affecting interstate commerce.” Id.; see also United

States v. Ryan, 9 F.3d 660, 667 (8th Cir. 1994) (ruling that a

closed fitness center affected interstate commerce because the

building was owned and leased by an individual from a

different state).

The question that Russell hinted at — whether or not

§ 844(i) reached the destruction of a private residence —

remained unresolved until 2000. In Jones v. United States,

529 U.S. 848 (2000), the Supreme Court ruled that “§ 844(i)

does not reach an owner-occupied residence that is not used

16 United States v. Laton No. 02-5185

10The Supreme Court has thus twice relied on this legislative history

in analyzing § 844(i). Even if this legislative history did not exist, it

would not alter our conclusion because it is the plain language of the

statute that directs us towards the inquiry of whether the fire station is

used in an activity that affects interstate commerce. However, we need

not ignore the history of § 844(i). We agree with the dissent that we are

not to “attach decisive significance to the unexplained disappearance of

one word from an unenacted bill because ‘mute intermediate legislative

maneuvers’ are not reliable indicators of congressional intent.” Mead

Corp. v. Tilley, 490 U.S. 714, 723 (1989) (emphasis added) (quoting

Trailmobile Co. v. Whirls, 331 U.S. 40, 61 (1947)). We also recognize

that “unenacted approvals, beliefs, and desires are not laws.” Puerto Rico

Dep’t of Consumer Affairs v. ISLA Petroleum Corp., 485 U.S. 495, 501

(1988). However, the disappearance of the words “for business purposes”

from the proposed, but unenacted, version of the original § 844(i) in 1970

was neither unexplained nor mute. Congress explained that it removed

the words to ensure that § 844(i) covered more than just traditional

business properties, although precisely how much more is the question we

address today. Furthermore, the belief or desire that § 844(i) cover “any”

type of building used in interstate commerce could not be described as

unenacted. In contrast to the words “for business purposes,” which were

not included in the final bill, § 844(i)’s coverage of “any building . . .

used . . . in any activity affecting interstate . . . commerce” (emphasis

added), reflects the desires of Congress to broaden the scope of the antiarson statute to encompass some public institutions, such as police

stations.

for any commercial purpose.” Id. at 852. Justice Ginsburg,

writing for a unanimous Court, again noted how Congress

removed the “for business purposes” language from the

proposed bill in order to indicate “that . . . the provision

should apply to the bombings of schools, police stations, and

places of worship.” Id. at 853 n.5 (citing Russell, 471 U.S. at

860-61).10 The Court emphasized the “qualifying words

‘used in,’” which mandates “‘that the damaged or destroyed

property must itself have been used in commerce or in an

activity affecting commerce.’” Jones, 529 U.S. at 854

(emphasis added) (quoting United States v. Mennuti, 639 F.2d

107, 110 (2d Cir. 1981)). It then outlined a two-part inquiry

for assessing the applicability of § 844(i), which entailed an

analysis of “‘the function of the building itself, and then a

determination of whether that function affects interstate
No. 02-5185 United States v. Laton 17

commerce.’” Jones, 529 U.S. at 854-55 (quoting United

States v. Ryan, 9 F.3d 660, 675 (8th Cir. 1993) (Arnold, C.J.,

concurring in part and dissenting in part)). In exploring

whether § 844(i) covered the destruction of a private

residence, the court reasoned that for a building to be used in

an activity affecting interstate commerce requires “active

employment for commercial purposes, and not merely a

passive, passing, or past connection to commerce.” Jones,

529 U.S. at 855. The Court ultimately ruled that a private

residence does not fit within § 844(i) where its only

relationship to interstate commerce is the receipt of natural

gas, a mortgage, or an insurance policy because such a limited

nexus did not constitute “active employment.” To hold

otherwise would mean that “hardly a building in the land

would fall outside the federal statute’s domain” because

“[p]ractically every building . . . is constructed with supplies

that have moved in interstate commerce, served by utilities

that have an interstate connection, financed or insured by

enterprises that do business across state lines, or bears some

other trace of interstate commerce.” Id. at 857.

This two-part inquiry must be conducted in every federal

arson case to determine whether the jurisdictional element of

§ 844(i) has been met. This case-by-case analysis is

mandated by Congress’s inclusion of a jurisdictional element,

which, as mentioned previously, distinguishes § 844(i) from

the Gun-Free School Zones Act of 1990 that the Supreme

Court struck down in Lopez. See Lopez, 514 U.S. at 562

(“[Section] 922(q) has no express jurisdictional element

which might limit its reach to a discrete set of firearm

possessions that . . . have an explicit connection with or effect

on interstate commerce.”). The evidence of Congress’s

intention to permit federal prosecution of arson of police

stations strongly implies that arson of fire stations is also

covered, because police stations and fire stations provide

similar public safety services. Naturally, Congress’s

envisioning of § 844(i) prosecutions for the arson of schools,

police stations, and churches does not mean that the arson of

all such institutions is covered by the statute, but rather only

18 United States v. Laton No. 02-5185

11The complicity of the Henning Fire Chief in the arson of the HFS

does not factor into the analysis. The application of § 844(i) does not turn

on the identity of the arsonist. It is a bitterly ironic twist that an official

employed by the local government, in fact the official in charge of fire

safety, destroyed the firehouse, but it is not legally pertinent.

those that are used in an activity that affects interstate

commerce.

D. The Application of Jones to Laton’s Indictment

We now turn to the application of Jones’s two-part analysis

to the destruction of the HFS.11 The first step is to identify

the function of the HFS and the equipment that the building

housed. A building and the personal property within that

building can have multiple functions. See Jones, 529 U.S. at

856 (distinguishing the private home at issue from a residence

that was also used as a home office or for a commercial

enterprise). Accordingly, a “building’s function is not limited

to its primary use.” Rayborn, 312 F.3d at 233. Churches, for

example, primarily serve a religious function, but churches

can also have secondary and important economic purposes.

Terry, 257 F.3d at 369 (holding that a church “can have both

a religious aspect and an economic one” when the church

operated a daycare center); United States v. Grassie, 237 F.3d

1199, 1209-10 (10th Cir. 2001) (acknowledging that a

church’s activities can be both religious and commercial);

United States v. Odom, 252 F.3d 1289, 1294 (11th Cir. 2001)

(“Churches are not commonly considered a business

enterprise; nonetheless, churches can and do engage in

commerce.”).

Similarly, the HFS performed one ancillary function and

one main function. It fulfilled an ancillary function of

assuring the homeowners and businesses of Henning that their

property was safe. The HFS was a municipally owned

building that stood alongside the police department and the

city hall as a public institution and a visible public safety

shield for the citizens of Henning. More significantly, the
No. 02-5185 United States v. Laton 19

HFS made the HFD possible; fire departments cannot exist

without fire stations. The HFS facilitated the provision of fire

protection services necessary for the economic development

and prosperity of Henning because the station and the

equipment in the building provided the HFD with the

implements necessary to combat fires. The function of the

building and the trucks, hoses, boots, hats, and

communication devices was to permit the HFD to battle ably

any conflagration within the jurisdiction of the HFD, whether

it be a small brush fire or a major truck or automobile

accident on U.S. Route 51.

We reject the district court’s conclusion that the functions

of the HFS can be separated from the functions of the HFD,

such that the HFD’s firefighting efforts affected interstate

commerce, but the HFS, an edifice containing firefighting

equipment, did not. The district court wrote that “most of the

facts to which the parties stipulate involve the purposes of the

Henning Fire Department, not the Henning Fire Station” and

ruled that “[i]t is not significant that the Henning Fire Station

houses the trucks that drive to the sites that require service,

even though those sites are sometimes businesses that are

involved in activities that themselves affect interstate

commerce.” Laton, 180 F. Supp. 2d at 951-52. This analysis

too finely atomizes the roles of the HFS and the HFD and

ignores the inseparability of their functions. Neither the HFD

nor any other fire department in the country can operate

without trucks, hoses, axes, flashlights, fire-retardant

uniforms, meeting spaces, and communication systems. To

hold that the HFD could affect interstate commerce by putting

out fires at businesses in Henning or along U.S. Route 51, but

that the HFS could not because it only houses the trucks that

combat those fires, is no less erroneous than the conclusion

that a garage housing a towing service does not affect

interstate commerce because the tow trucks perform their

commercial function on the road or the conclusion that a radio

studio does not affect interstate commerce because the

intangible radio waves emanated from the studio are diffusely

captured by listeners. One could fracture nearly any

20 United States v. Laton No. 02-5185

traditional for-profit business, particularly in the service

sector, into a building that does not in itself affect interstate

commerce and a service performed elsewhere that most

certainly does affect interstate commerce, but such division

only obfuscates the true impact of the business as a whole.

The second step of the Jones analysis involves determining

whether the function of the HFS affects interstate commerce.

We must analyze whether the HFS, in its role as a municipal

building that enables firefighting, is “used” in an activity that

affects interstate commerce: does it enjoy “active

employment for commercial purposes” rather than “a passive,

passing, or past connection to commerce”? Jones, 529 U.S.

at 855. A single relationship to interstate commerce or the

conjunction of several different ties to interstate commercial

activity can support a finding that a building was actively

employed in commerce. For example, in Rayborn we

affirmed a conviction under § 844(i) for the arson of a church.

Rayborn, 312 F.3d at 234. The church broadcasted radio

messages by renting out time from various stations in order to

increase the attendance and contributions of out-of-state

parishioners, it drew members from three states, it paid

salaries, it hosted gospel concerts featuring out-of-state talent

for which it requested donations, and it owned several

vehicles. Id. at 234-35. On this basis, we concluded that

“[t]he church’s interstate connections were direct, regular, and

substantial.” Id. at 234. Other courts have similarly found

churches to affect interstate commerce where the church has

some active commercial connection. See United States v.

Terry, 257 F.3d 366, 369-70 (4th Cir. 2001) (finding that a

church daycare center “was actively engaged in commercial

activity” because it provided childcare services for payment);

United States v. Grassie, 237 F.3d 1199, 1209 n.7 (10th Cir.

2001) (holding that a Mormon church in rural New Mexico

affected interstate commerce because the revenues of the

church and the tithed incomes, goods, and services of church
No. 02-5185 United States v. Laton 21

12Several courts have ruled that § 844(i) does not cover churches

where the connection to interstate commerce is limited to purchasing

supplies, sending dues and contributions across state lines, acquiring

insurance, or providing services and religious education. See United

States v. Lamont, 330 F.3d 1249, 1256-57 (9th Cir. 2003) (rejecting

government’s contention that § 844(i) applied where church purchased

gas, insurance, and supplies from out of state and several church attendees

came from out of state); United States v. Rea, 300 F.3d 952, 962 (8th Cir.

2002) (concluding that § 844(i) did not cover a church annex that only

housed Sunday school classes and after-school tutoring because the

purchase of supplies for the annex by itself had only “fleeting effects on

interstate commerce”); United States v. Odom, 252 F.3d 1289, 1296-97

(11th Cir. 2001) (dismissing church’s receipt of donations from out-ofstate donors, utilization of Bibles purchased from out-of-state vendors,

and contributions to various out-of-state nonprofit organizations as “too

passive, too minimal and too indirect” to affect interstate commerce);

United States v. Johnson, 246 F.3d 749, 752 (5th Cir. 2001) (holding that

earlier decision, United States v. Johnson, 194 F.3d 657, 662 (5th Cir.

1999), which was vacated and remanded by the Supreme Court, 530 U.S.

1201 (2000), correctly concluded that contribution of funds by church

members to a national organization and payment of an insurance claim by

an out-of-state insurer did not suffice to show that the jurisdictional

element of § 844(i) had been met).

members flowed across state lines for distribution by the

church’s headquarters in Salt Lake City).12

Churches are not the only buildings that we and other

courts have found to be used in an activity affecting interstate

commerce. In United States v. Sherlin, 67 F.3d 1208, 1213

(6th Cir. 1995), we held that the arson of a dormitory at a

private college was punishable under § 844(i). The college

was a nonprofit institution, but its dormitory was used in an

activity that affected interstate commerce because the college

received payments from students in return for educational

services, it advertised out of state, and almost all of the

students living in the destroyed dorm hailed from other states.

Id. In Bellflower v. United States, 129 F.3d 1459, 1462 (11th

Cir. 1997), the Eleventh Circuit held that § 844(i) covered the

bombing of a police vehicle, which a local sheriff’s deputy

used in his law enforcement responsibilities. That court held

22 United States v. Laton No. 02-5185

that the destruction of the police car had “a significant impact

on interstate commerce” because the deputy patrolled traffic

and made arrests on an interstate highway, issued citations to

out-of-state drivers, participated in interstate narcotic

investigations, assisted out-of-state authorities in

apprehending suspects, recovered stolen property from other

states, and attended lawenforcement training sessions in other

states. Id.

The Supreme Court’s decision in Jones made clear that the

mere receipt of inputs or services from an out-of-state vendor

is not a sufficient connection to interstate commerce to

support an indictment under § 844(i). Jones, 529 U.S. at 856.

Accordingly, a purely private residence, which is only

connected to interstate commerce through the material used

to construct it, the supplies used to heat it, or the monetary

instrument used to finance its purchase, is not used in an

activity affecting interstate commerce. However, when the

government relies on other connections to interstate

commerce to establish the jurisdictional element of § 844(i),

the purchase of supplies from out of state can offer additional

support for the conclusion that a building or property is used

in an activity affecting interstate commerce. See Rayborn,

312 F.3d at 234-35 (mentioning, in addition to other factors,

that a church affected interstate commerce because it

purchased local goods, such as groceries and flowers);

Sherlin, 67 F.3d at 1214 (noting that a college dorm affected

interstate commerce partially because it purchased “numerous

supplies” from out of state, including food services).

When it crafted § 844(i) to encompass the arson of police

stations,Congress recognized that the provision of emergency

services by municipalities can affect interstate commerce in

the active sense of the phrase. See Jones, 529 U.S. at 853 n.5;

Russell, 471 U.S. at 860-61. Fire stations provide similar

emergency services and undoubtedly can affect interstate

commerce. See Benson v. Universal Ambulance Serv., 675

F.2d 783, 786 (6th Cir. 1982) (affirming lower court’s

determination that the FLSA applies to private ambulance
No. 02-5185 United States v. Laton 23

employees because responding to emergencies on streets and

highways affects interstate commerce given that it removes

obstructions to the free flow of interstate commerce);

Bellflower, 129 F.3d at 1462 (upholding conviction under

§ 844(i) for the arson of a police vehicle because the officer’s

responses to emergencies affected interstate commerce). The

issue, though, is not whether all fire stations and fire

departments affect interstate commerce; the jurisdictional

element of § 844(i) requires us to focus our attention only on

whether the HFS is used in an activity affecting interstate

commerce.

We conclude that a rational juror could find beyond a

reasonable doubt that the HFS was used in an activity that

affected interstate commerce because its role in fighting fires

constituted an active, rather than a passive, employment in

interstate commerce. See Latouf, 132 F.3d at 325. Six

aspects of the HFS demonstrate this connection. First, the

HFS housed firefighting equipment, including trucks, hoses,

nozzles, and uniforms, which the HFD purchased from out of

state, which the HFD sent for repairs out of state, and which

perished in the fire. The precise dollar amount of this

equipment is not known, but given that the equipment

destroyed included at least one fire vehicle, it was not trivial.

Second, the HFD charged $500 to out-of-state insurance

companies for fighting fires outside of the Henning city

limits, although it only did so a few times annually. Third,

the HFD paid its volunteers wages based on the amount of

time spent on a fire scene, although these wages generally

have not exceeded $1000 annually.

On their own, these first three factors may not form an

adequate nexus to interstate commerce under Jones. If the

purchase of equipment from out-of-state were the only link

between the HFS and interstate commerce, the dissent might

be right that this case is easier than, or at least as easy as,

Jones given that the acquisition of a mortgage, natural gas,

and insurance from out-of-state providers was the extent of

the interstate commerce connection in Jones. The dissent’s

24 United States v. Laton No. 02-5185

13The town of Henning is the site of the Alex Haley Museum, several

antique shops, a restaurant, two beauty salons, two grocery stores, a bank

branch, an auto parts store, twenty churches, 161 renter-occupied housing

units, and a clothing manufacturer that employed seventy-five people in

2002.

belief that this is an easier case than Jones sidesteps

fundamental differences between Jones and this case, for

much more than the mere purchase of supplies from out of

state ties the HFS into the web of interstate commerce. As

demonstrated below by the final three links to interstate

commerce, we find it persuasively clear that the HFS was

used in an activity affecting interstate commerce.

Fourth, the HFD is charged with responding to fire

emergencies within the Henning city limits. In the past, the

HFD has responded to emergency calls from several

businesses in Henning, including a market and a laundry

facility. In the future, it is certain that the HFD will be called

upon to fight fires at other businesses in Henning.

13

Preventing the destruction of commercial establishments

strikingly affects interstate commerce by preserving entities

directly engaged in interstate commerce.

Fifth, the HFD serves to protect both the channels of

commerce and the instrumentalities of commerce because it

is the primary emergency services provider for the stretch of

U.S. Route 51 going through Henning. The HFD has

responded (and will respond in the future) to incidents and

accidents both on U.S. Route 51 and at the U.S. Route 51 rest

area. The HFD’s role in extinguishing fires, saving lives, and

keeping U.S. Route 51 clear impacts interstate commerce.

The HFD protects passenger vehicles carrying tourists and

travelers voyaging through western Tennessee, it safeguards

the interstate shipments of goods, and it permits the freeflow
No. 02-5185 United States v. Laton 25

14Not only commercial shipping and passenger vehicles pass through

Henning, but also passenger buses operated by Greyhound, Inc., shuttle

between Memphis and Dyersburg (and to points further south and north).

Additionally, active railroad tracks owned by the Illinois Central Railroad

run parallel to U.S. Route 51 through Henning. Freight trains frequent

these tracks and AMTRAK runs passenger service along this route,

connecting Chicago to New Orleans, with stops in Dyersburg to the north

and Memphis to the south. Any fire emergency in Henning involving a

bus or a train would require the assistance of the HFD.

15We do not conclude in this opinion that because every

community’s PPC depends on the training and geographic distribution of

fire companies, all fire stations are automatically used in an activity

affecting interstate commerce. Given Congress’s explicit instruction that

the application of § 844(i) depends on the specific circumstances of a

particular fire station, we limit our analysis to the fire station in Henning.

of trucks and buses through the area.14 The HFD’s

firefighting capabilities in this regard affect interstate

commerce, because insuring that the channels of commerce

are kept open and the instrumentalities of commerce are

protected is not a passive or passing connection to interstate

commerce.

Sixth, and finally, the presence of the HFS and the HFD

impacts insurance rates in Henning. The absence of the HFS,

and the impact on the HFD’s competency that is wrought by

the loss of the HFS, directly alters the PPC, which helps

insurance companies calculate fire insurance premiums. As

a result of the fire, Henning will have a worse PPC, and

insurance premiums will rise. The presence of an active fire

department in Henning thus significantly impacts the

insurance rates of all the businesses (and homes) in Henning,

which in turn influences the commercial transactions of those

businesses, both in the sense of their relationships to their

insurers and their profit margins.

15

Any of these last three factors by itself demonstrates

sufficiently that the HFS was used in an activity that affected

interstate commerce, because its connection to commerce was

26 United States v. Laton No. 02-5185

more than passive or passing. Taken together, along with the

first three factors, they show that the connection of the HFS

to interstate commerce resembles the links between interstate

commerce and the church in Rayborn, the dormitory in

Sherlin, and the police car in Bellflower. The HFS and the

HFD have a definite impact upon the economy of Henning

that is no less significant than a church purchasing radio time

or a nonprofit college attracting students from other states.

The HFS permits local businesses to operate, enables the free

flow of goods and passengers through the state of Tennessee,

lowers the costs of doing business by decreasing fire

insurance premiums, and directly engages in commercial

transactions, in a more minor way, through the purchase of

supplies and the billing of insurance companies.

Accordingly, any rational juror could conclude beyond a

reasonable doubt that the jurisdictional element was met here

because the HFS is actively used in an activity that affects

interstate commerce.

III. CONCLUSION

Because we conclude that both parts of the Jones test have

been satisfied, we hold that there is sufficient evidence to

support the indictment as the HFS was used in an activity

affecting interstate commerce. We thus REVERSE the

judgment of the district court and REMAND for further

proceedings under § 844(i) consistent with this opinion.
No. 02-5185 United States v. Laton 27

_______________

DISSENT

_______________

SUTTON, Circuit Judge, dissenting.

“Some say the world will end in fire, Some say in ice.”

Robert Frost, Fire and Ice, in The Poetry of Robert Frost 220

(Edward Connery Lathem ed., 2002). From what the 970

residents of Henning, Tennessee have seen of John Laton,

their fire chief, one could certainly understand why they

would “hold with those who favor fire.” Id.

Yet the incompatibility of this crime with this alleged

criminal merely serves as a prelude to other oddities of this

case. Consider what happened after the fire chief set fire to

the Henning Fire Station. While arson is a state-law felony in

Tennessee, as in all States, neither the local prosecutors nor

the Attorney General of Tennessee indicted this defendant.

While the federal crime of arson applies just to property “used

in” interstate commerce, 18 U.S.C. § 844(i), the National

Government indicted this defendant for destroying a building

that has a uniquely public, non-commercial and sovereign

purpose. And while the United States acknowledged at oral

argument that it was not aware of a single other prosecution

under § 844(i) for the arson of a local public building, the

United States Attorney for the Western District of Tennessee

invoked this statute in response to the destruction of a rural

fire department by a local fire chief.

This case, however, is not just unusual as a matter of fact,

law, or history; it is also unusual as a matter of precedent.

Three Terms ago, in a 9-0 decision, the United States

Supreme Court held that § 844(i) does not apply to the

burning of residential homes. Jones v. United States, 529

U.S. 848 (2000). In doing so, the Court made clear that the

provision applies only to the destruction of buildings with an

“active employment for commercial purposes, and not merely

28 United States v. Laton No. 02-5185

a passive, passing, or past connection to commerce.” Id. at

855. Fire stations are no more “active[ly]” used for

“commercial purposes” than residential homes are. In point

of fact, this would seem to be the easier case—as firefighting

represents the epitome of an unbargaining public service and

the arsonist in this instance represents the epitome of a local

public official. To conclude otherwise is to embrace the view

that even the most attenuated connections to commerce will

suffice in prosecuting individuals under this statute, a

perspective that by my reading of Jones is no longer an option

for the lower courts. For these reasons and those elaborated

below, I would affirm the judgment of the district court

dismissing this case.

I.

On March 3, 2000, John Laton allegedly set fire to the

Henning, Tennessee Fire Station. At the time, Laton served

as the Chief of the Henning Volunteer Fire Department, a city

government position. Henning, Tenn. Mun. Code §§ 7-301,

7-305. Under Tennessee law and the Henning Municipal

Code, Laton’s job qualified him as a state officer, specifically

an assistant to the state fire marshal, subject to all of the

duties and obligations imposed on state officers under

Tennessee’s fire-prevention laws. Tenn. Code Ann. § 68-

102-108; Henning, Tenn. Mun. Code § 7-308. 

Henning is a small rural town located in western Tennessee.

It has a population of 970 and sits in Lauderdale County

(population 27,101). U.S. Census Bureau, Census 2000,

Table DP-1. Henning lies about fifty miles north of Memphis

and can be found at the crossroads of State Routes 87 and

209. (The author Alex Haley grew up in Henning.) 

On September 18, 2001, a federal grand jury indicted Laton

for arson in violation of 18 U.S.C. § 844(i). Laton moved to

dismiss the indictment, arguing that § 844(i) did not

encompass this incident because the Henning Fire Station was

not “used in” interstate commerce or a commerce-affecting
No. 02-5185 United States v. Laton 29

activity. Before ruling on Laton’s motion, the district court

received a stipulation from the parties agreeing on several

pertinent facts.

The stipulation contains few surprises. The parties agree,

for example, that the function of the Fire Station building is

to “house[] the fire fighting equipment including trucks, as

well as the office, kitchen and meeting spaces for the Henning

Volunteer Fire Department.” The Henning Municipal Code

adds that “[a]ll [such] apparatus, equipment, and supplies”

must be “purchased by or through the town” and “remain the

property of the town.” Henning, Tenn. Mun. Code § 7-301.

The parties agree that the Fire Department responds to

firefighting calls in a rural area of Tennessee that includes

numerous residences, churches, public buildings, several

businesses and one U.S. highway. In some instances, the Fire

Department has provided emergency services to vehicles on

fire and/or involved in accidents on the highway.

The parties agree that the Fire Department has occasional

connections to three types of economic transactions. First,

the Department has purchased equipment from, and had

equipment repaired by, out-of-state vendors. Second, the

Department charges a fee when it responds to calls outside the

city limits, which it does on average no more than three times

a year. According to the Henning Municipal Code, the Fire

Department responds to such calls only when a fire outside

the city limits threatens property within the city limits or

when the mayor and aldermen grant the Fire Department

permission to respond to the call. Henning, Tenn. Mun. Code

§ 7-307. City employees working at City Hall bill these fees,

which amounted to $300 per call in March 2000, and have on

occasion billed these fees directly to out-of-state insurance

companies. The total amount billed in a year, the parties

agree, does not exceed $1,000. Third, the City of Henning

pays wages to the “volunteer” fire fighters based on the

amount of time they spend at the scene of a fire. Total wages

paid by the City in a typical year do not exceed $1,000.

30 United States v. Laton No. 02-5185

According to the Municipal Code, the mayor and aldermen

determine the compensation for Fire Department personnel.

Henning, Tenn. Mun. Code § 7-305.

The parties lastly agree about the general economic impact

of the loss of a fire station. In calculating property-insurance

premiums, virtually all insurers of homes and businesses use

a designation made by the Insurance Services Office called

the Public Protection Classification (PPC). A community’s

PPC depends on the ability of fire departments to respond to

calls. Property owners in areas with no fire service receive

the highest PPC, and they accordingly pay substantially

higher premiums than those paid by similarly-situated

property owners who live in areas with a lower PPC.

The district court granted Laton’s motion to dismiss the

indictment. In doing so, the court concluded that the Henning

Fire Station is not “used in” interstate commerce or in “an

activity affecting interstate commerce,” but is used for the

non-commercial purpose of housing the City’s Fire

Department. To the extent that the activities of the Fire

Department have any effects on commerce—through

responding to fires, purchasing fire equipment, paying wages,

receiving fees or affecting insurance rates—the district court

added that they are merely “incidental” and “passive, at best.”

That attenuated connection to interstate commerce, the court

concluded, did not suffice to bring this arson within the

compass of § 844(i) or of the Supreme Court’s recent

interpretation of the provision in Jones v. United States, 529

U.S. 848 (2000).

II.

The text of the statute does not provide a natural home for

this prosecution. Section 844(i) provides in pertinent part:

“Whoever maliciously damages or destroys, or attempts to

damage or destroy, by means of fire or an explosive, any

building, vehicle, or other real or personal property used in

interstate commerce or foreign commerce or in any activity
No. 02-5185 United States v. Laton 31

affecting interstate or foreign commerce shall be imprisoned

. . . .” 18 U.S.C. § 844(i).

By its terms, § 844(i) combines a broad grant of statutory

authority (to federalize the arson of “any” property) with a

broad limitation on that language (to do so only with respect

to property “used [1] in interstate or foreign commerce or [2]

in an activity affecting interstate or foreign commerce”).

Congress defines “interstate or foreign commerce” for these

purposes to mean “commerce between any place in a State

and any place outside of that State, or . . . between places

within the same State but through any place outside of that

State.” 18 U.S.C. § 841(b). 

As commonly understood, these words do not cover the

arson of a rural fire station by a local fire chief. Fire stations

are not naturally referred to as property used in interstate

commerce or in commerce-affecting activity. By everyday

standards of language, common sense and tradition, local

governments build fire stations to put out fires and save lives,

activities that serve distinctly intrastate public-safety

objectives, not interstate commercial ends.

III.

Precedent reinforces this conclusion. Three years ago,

Jones v. United States, 529 U.S. 848 (2000), construed the

same statute and determined that it does not apply to a typical

private residence. Id. at 850–51.

The Court initially explained that Congress did not “invoke

its full authority under the Commerce Clause” in enacting

§ 844(i). Id. at 854. While Congress might have “‘define[d]

the crime . . . as the [destruction] of a building whose damage

or destruction might affect interstate commerce,’” it instead

required “‘that the damaged or destroyed property . . . itself

have been used in commerce or in an activity affecting

commerce.’” Id. at 854 (quoting United States v. Mennuti,

639 F.2d 107, 110 (2d Cir. 1981) (Friendly, J.)).

32 United States v. Laton No. 02-5185

In determining whether an alleged arson fits within the

terms of the statute, Jones instructs lower courts to ask (and

answer) two questions. First, a court must determine “‘the

function of the building itself.’” Id. at 854 (quoting United

States v. Ryan, 9 F.3d 660, 675 (8th Cir. 1993) (Arnold, C.J.,

concurring in part and dissenting in part)). Second, a court

must “‘determin[e] whether that function affects interstate

commerce,’” id., mindful that this requires “active

employment for commercial purposes, and not merely a

passive, passing, or past connection to commerce,” id. at 855

(emphasis added).

The burning of the Henning Fire Station does not satisfy

these requirements. Viewed from any angle, the Fire Station

served sovereign rather than commercial ends. The Fire

Station constitutes municipal real property (a building and

land), used to store municipal personal property (firefighting

equipment), deployed by a municipal entity (the Fire

Department), to perform a uniquely municipal function

(firefighting). Local governments simply do not “sell” fire

services “in the ordinary commercial sense.” Cleveland v.

United States, 531 U.S. 12, 23–24 (2000) (a State “does not

‘sell’ video poker licenses in the ordinary commercial sense”

and a State’s interest in them “surely implicates the

Government’s role as sovereign, not as property holder”).

They instead provide an eminently useful, sovereign and

necessary public service. Id.; see also Goldstein v. Chestnut

Ridge Volunteer Fire Co., 218 F.3d 337, 344, 348 (4th Cir.

2000) (stating that “it is difficult to conceive of a service

associated more closely with the state than the provision of

fire protection services,” and holding that a Maryland

volunteer fire department that was formed as a non-profit

corporation is a state actor for § 1983 purposes); Tenn. Code

Ann. § 29-20-102(3)(A) (for purposes of governmental

immunity, the term “governmental entity” includes

“municipalit[ies]” and “nonprofit volunteer fire department[s]

receiving funds appropriated by . . . a municipality”); cf.

United States v. Monholland, 607 F.2d 1311, 1316 (10th Cir.

1979) (rejecting the argument that a pickup truck used by a
No. 02-5185 United States v. Laton 33

state court judge to drive back and forth from court was used

in a commerce-affecting activity just because state court

proceedings may have some effect on commerce).

That the Fire Station served sovereign rather than

commercial objectives should be dispositive here. For while

§ 844(i) does not necessarily require the property at issue to

be used for an interstate purpose, it does require the property

to be used for a commercial purpose. Only buildings, Jones

instructs, “active[ly] employ[ed] for commercial purposes,”

529 U.S. at 855, “affect[] interstate or foreign commerce”

within the meaning of § 844(i). Buildings offered for rent and

those from which goods and services are sold fall within

§ 844(i)’s compass because they serve commercial purposes,

whether or not the commercial enterprises that use them have

a profit motive. Russell v. United States, 471 U.S. 858, 862

(1985) (rental property); United States v. Rayborn, 312 F.3d

229, 234 (6th Cir. 2002) (church building used to record radio

messages to be broadcast out of state on commercial radio);

United States v. Sherlin, 67 F.3d 1208, 1213 (6th Cir. 1995)

(private college dormitory); United States v. Terry, 257 F.3d

366, 369–70 (4th Cir. 2001) (church building with daycare

center); cf. Camps Newfound/Owatanna, Inc. v. Town of

Harrison, 520 U.S. 564, 584 (1997) (holding that the dormant

Commerce Clause applies to the not-for-profit sector of the

economy). But see United States v. Lamont, 330 F.3d 1249,

1259 (9th Cir. 2003) (Reinhardt, J.) (church building “used

. . . in ordinary religious activities” is not covered); United

States v. Rea, 300 F.3d 952, 962 (8th Cir. 2002) (church

annex with de minimis commercial functions is not covered).

In marked contrast to the activities at issue in every one of

these cases, governmental buildings in general and local fire

stations in particular are not “active[ly] employ[ed] for

commercial purposes.” Jones, 529 U.S. at 855.

34 United States v. Laton No. 02-5185

IV.

A.

Otherinterpretive guidelines, each of which Jones endorsed

in construing § 844(i), point to the same conclusion. In

determining whether a federal criminal statute applies to the

arson of a local public building by a local public official,

Jones reminds us that we do so in the shadow of several

constitutional considerations. First of all, “where a statute is

susceptible of two constructions, by one of which grave and

doubtful constitutional questions arise and by the other of

which such questions are avoided, [a court’s] duty is to adopt

the latter.” Jones, 529 U.S. at 857 (quotation omitted). See

also United States v. Bass, 404 U.S. 336, 349 (1971)

(applying this principle, as in Jones, to a setting where one

construction of a statute would “define as a federal crime

conduct readily denounced as criminal by the States”). In

applying this constitutional-avoidance principle to the arson

of a private residence, Jones emphasized “that the area was

one of traditional state concern and that the legislation [was]

aimed at activity in which neither the actors nor their conduct

has a commercial character.” 529 U.S. at 858 (citation and

quotation omitted). See United States v. Lopez, 514 U.S. 549,

567 (1995) (holding that the Gun-Free School Zone Act

exceeds Congress’s authority to regulate commerce).

Jones likewise teaches that federal courts should not

casually read a statute in a way that alters the federal-state

balance. When the National Legislature wishes to regulate an

area traditionally regulated exclusively by the States, it must

“convey[] its purpose clearly.” Jones, 529 U.S. at 858

(citation and quotation omitted). In Jones, a unanimous Court

held that Congress had not clearly conveyed a desire to

criminalize the arson of a private dwelling. Id. Not long after

Jones, Cleveland v. United States, 531 U.S. 12 (2000),

reached a similar conclusion in construing the mail-fraud

statute. There, the Court (again unanimously) declined to

“approve a sweeping expansion of federal criminal
No. 02-5185 United States v. Laton 35

jurisdiction in the absence of a clear statement by Congress”

and refused to extend the statute to cover “a wide range of

conduct traditionally regulated by state and local authorities.”

Id. at 24. See id. at 27 (“Absent clear statement by Congress,

we will not read the mail fraud statute to place under federal

superintendence a vast array of conduct traditionally policed

by the States.”). See also Gregory v. Ashcroft, 501 U.S. 452,

467 (1991) (“We will not read the ADEA to cover state

judges unless Congress made it clear that judges are

included.”). 

Jones finally explains that these rules have special

application in the context of criminal statutes. “[W]hen

choice has to be made between two readings of what conduct

Congress has made a crime,” courts should not “choose the

harsher alternative . . . [unless] Congress [has] spoken in

language that is clear and definite,” and, accordingly, any

“ambiguity . . . should be resolved in favor of lenity.” Jones,

529 U.S. at 858; see Cleveland, 531 U.S. at 26 (“[W]e decline

to attribute to [the mail-fraud statute] a purpose so

encompassing where Congress has not made such a design

clear.”); id. at 25 (“[T]o the extent that the word ‘property’ is

ambiguous . . . , we have instructed that ‘ambiguity

concerning the ambit of criminal statutes should be resolved

in favor of lenity.’”) (quoting Rewis v. United States, 401

U.S. 808, 812 (1971)); Bass, 404 U.S. at 348 (“This policy

embodies ‘the instinctive distastes against men languishing in

prison unless the lawmaker has clearly said they should.’”)

(quoting H. Friendly, Mr. Justice Frankfurter and the

Reading of Statutes, in Benchmarks 196, 209 (1967)).

These principles assuredly apply here. “[A]rson,” Jones

reminds us, “is a paradigmatic common-law state crime.” 529

U.S. at 858. It is a felony in all States, and that has been true

since colonial days. See John Panneton, Federalizing Fires:

The Evolving Federal Response To Arson Related Crimes, 23

Am. Crim. L. Rev. 151, 151 (1985). See generally Arthur F.

Curtis, A Treatise on the Law of Arson (1936). And the

Federal Government’s role in this area historically has been

36 United States v. Laton No. 02-5185

a limited one. Not until 1982 did Congress enact the first

federal law prohibiting the arson of a “building” “by fire.”

See Jones, 59 U.S. at 852–53 & n.4.

Indeed, this case appears to be not just an awkward exercise

of federal power, but a nearly unprecedented one. At oral

argument, counsel for the Federal Government could not

identify a single other federal prosecution for arson of a

governmental building under this provision. The majority

cites a single unpublished decision, United States v.

Woodward, No. 93-3123, 1993 WL 498178 (10th Cir. Dec. 2,

1993), decided before Jones, to counter this admission. But

Woodward, which concerned an arson arising from a botched

robbery, does not address any of the issues raised here or in

Jones. Even the most charitable reading of Woodward, at any

rate, suggests that it is a solitary and unexplained exception to

the traditional rule that the Federal Government does not

construe § 844(i) as applying to the arson of government

buildings and as displacing the criminal-law choices of local

governments in this area.

In contrast to the minimal federal interests in this case, the

state interests would seem to be at their apex. Surely the

commission of “a paradigmatic common-law” crime (Jones,

529 U.S. at 858) by a Henning official involving Henning

property is a matter traditionally taken up, if not in Henning,

at least in Nashville. Tennessee imposes criminal sanctions

on state fire officials (such as the Chief) who fail in their

official duties. Tenn. Code Ann. § 68-102-139. And

Tennessee, of course, makes arson a felony. Id. § 39-14-301.

That there is friction between the policy choices of the

National Legislature and the Tennessee Legislature over the

appropriate criminal sanction for this felony only underscores

the sensitivity of the issue and the inter-branch tension raised

by the United States’ position. Compare 18 U.S.C. § 844(i)

(providing for a five-year minimum sentence and twenty-year

maximum sentence under these circumstances), with Tenn.

Code Ann. §§ 39-14-301(b)(1), 40-35-111(b)(3) (providing

for a shorter three-year minimum sentence and fifteen-year
No. 02-5185 United States v. Laton 37

maximum sentence under these circumstances). See Jones,

529 U.S. at 859–60 (Stevens, J., concurring, joined by

Thomas, J.) (such a disparity “illustrates how a criminal law

like this may effectively displace a policy choice made by the

State” and, for this reason, courts “should interpret narrowly

federal criminal laws that overlap with state authority unless

congressional intention to assert its jurisdiction is plain”).

The Federal Government’s policy choice to authorize a 5–20

year sentence for this crime effectively displaces the State’s

policy choice to authorize a 3–15 year sentence for the same

crime, and that is true whether the State opts not to prosecute

Laton in the future or exercises its discretion to prosecute him

under state law as well (and potentially create an 8–35 year

sentence). See Heath v. Alabama, 474 U.S. 82, 93 (1985)

(holding that a double jeopardy violation does not result from

prosecutions by different sovereigns arising from the same

act). 

The Federal Government’s own prior guidance in this area

to United States Attorneys shows respect for many of these

concerns. The Department of Justice recognizes that

Congress intended “Restraint in [the] Exercise of Federal

Jurisdiction” under this statute. 9 United States Attorneys’

Manual § 63.902 (Mar. 2001). When Congress enacted the

federal explosives statute in 1970, and amended it to cover

arson by fire in 1982, it made clear that “[n]o provision of

[the statute] shall be construed as indicating an intent on the

part of Congress to occupy the field in which such provision

operates to the exclusion of the law of any State on the same

subject matter.” 18 U.S.C. § 848. The Criminal Division of

the Justice Department “interprets [this provision] as a

statement of congressional intent that the Federal

government—absent a specific Federal interest—will not

become involved in bombing matters that can be adequately

investigated and prosecuted by local authorities.” 9 United

States Attorneys’ Manual § 63.902 (emphasis added).

In view of this guidance, the Federal Government’s

decision to prosecute here is difficult to understand. No one

38 United States v. Laton No. 02-5185

has questioned the ability of local prosecutors to enforce state

law in this area. No one has questioned Tennessee’s ability

adequately to investigate and prosecute a local arsonist at the

state level, if for some reason it cannot be done at the local

level. See Tenn. Code Ann. § 8-7-106(b)(4) (permitting a

district attorney to “specially appoint” the state attorney

general “to conduct specific criminal proceedings”); Tenn.

Const. art. VI, § 5 (permitting a court to appoint a special

prosecutor if the district attorney fails to prosecute). And,

consistent with the United States Attorneys’ Manual, no one

has identified a “specific Federal interest” in this case, just

exceedingly local ones.

B.

Because the National Government seeks to apply § 844(i)

to a traditional state-law crime in a setting where no apparent

federal interest exists, Jones requires the Government to show

that the provision unambiguously extends to this arson. It has

not done so.

First, the arson of a local fire station does not naturally—or

plainly—cover a building “used in interstate commerce” or

commerce-affecting activity. 18 U.S.C. § 844(i). Still less

does such an arson concern a building with an “active

employment for commercial purposes.” Jones, 529 U.S. at

855. But even if one disagrees with this analysis, the best that

can be said in response is that the provision remains

ambiguous about its extension to the arson of a fire station.

And that conclusion requires the application of the Jones

default principles and the narrowing interpretation that they

compel.

Second,Congress does not generally regulate governmental

entities in such an opaque manner. Instead of casting a wide

net of regulation, indirectly picking up local governmental

activities that happen to be involved in interstate commerce

while leaving out those that happen not to be, Congress

generally regulates its sovereign sisters with much greater
No. 02-5185 United States v. Laton 39

specificity—either by regulating them by name or by

referring directly to entities that receive federal funds.

Several other statutes (too many, in fact, to list) demonstrate

that when Congress wishes to regulate sovereign activities or

property, it tends to say so far more explicitly. See, e.g., Fair

Labor Standards Act, 29 U.S.C. §§ 203(d) (“‘Employer’ . . .

includes a public agency.”), 203(r)(2) (“For purposes of

[defining ‘enterprise’], the activities performed by any person

or persons . . . in connection with the activities of a public

agency shall be deemed to be activities performed for a

business purpose.”), 203(e)(2) (“In the case of an individual

employed by a public agency, such term [‘employee’] means

. . . any individual employed by a State, political subdivision

of a State, or an interstate governmental agency . . . .”),

216(b) (providing for enforcement against “any employer

(including a public agency)”); Age Discrimination in

Employment Act, 29 U.S.C. § 630(b) (“‘[E]mployer’ means

. . . a State or political subdivision of a State.”); Family and

Medical Leave Act, 29 U.S.C. §§ 2611(4)(A) (“‘[E]mployer’

. . . includes any public agency.”); 2611(4)(B) (“For [these

purposes], a public agency shall be considered to be a person

engaged in commerce or in an industry or activity affecting

commerce.”). Against this legislative backdrop, Congress’s

decision not to mention governmental property more

specifically in § 844(i) at a minimum establishes ambiguity

about the scope of the provision. See generally Cleveland,

531 U.S. at 23–25 (concluding that the mail-fraud statute,

which covers “property” obtained by “fraudulent pretenses,”

18 U.S.C. § 1341, does not apply to a State’s sales of video

poker licenses because, among other reasons, the meaning of

“property” is “ambiguous” in this setting). 

Third, § 844 itself confirms that Congress knew how to

distinguish between eminently sovereign activities and runof-the-mine commercial activities. One of the statutory

neighbors to § 844(i) specifically criminalizes arson of certain

governmental buildings—all buildings occupied by the

Federal Government or those occupied by entities receiving

federal assistance, which will frequently be local

40 United States v. Laton No. 02-5185

governments. See 18 U.S.C. § 844(f)(1) (“Whoever

maliciously damages or destroys . . . by means of fire or an

explosive, any building . . . owned or possessed by . . . the

United States, or any department or agency thereof, or any

institution or organization receiving Federal financial

assistance, shall be imprisoned.”). If it is true that a statute is

“known by the company it keeps,” Gustafson v. Alloyd Co.,

513 U.S. 561, 575 (1995), then § 844(f) illustrates that

Congress knew how to criminalize the destruction of all

manner of public buildings when it wished to do so and

suggests that § 844(i) was designed to reach commercial

rather than governmental buildings. Nor, in view of the

United States’ sweeping construction of § 844(i), which

would cover all governmental buildings, does the prohibition

of burning federal governmental buildings in § 844(f)(1) have

any independent office. We generally construe statutes to

avoid such redundancy, not accentuate it. See, e.g., Jones,

529 U.S. at 857; Kungys v. United States, 485 U.S. 759, 778

(1988).

All of this goes to prove one point. If it is true that federal

regulation of the arson of a private home implicates these

three expectations of clarity (constitutional avoidance,

alteration of the federal-state balance, and the rule of lenity),

as Jones holds, then assuredly the torching of the local fire

station does so as well. For here we have not just a matter of

traditional local concern (arson), but two other factors as

well—property uniquely amenable to local regulation (a city

building) and an actor (the fire chief) uniquely at the beck and

call of the local citizenry. Jones, in short, was the harder

case. And if Jones applied each of these ambiguity default

principles, then I would do so as well. In this instance, the

application of those principles all points in one direction: A

federal arson statute that does not mention public buildings by

name, that is juxtaposed with a provision that does mention

public buildings by name, and that requires the public

property to be actively used for commercial purposes does not

unambiguously cover the burning of a local fire station by the

local fire chief.
No. 02-5185 United States v. Laton 41

V.

In the face of these considerations, the United States

counters that at least some activities that take place at the

Henning Fire Station are commercial in nature and that these

activities suffice to legitimate this prosecution. The Federal

Government cites three activities in particular: (1) that the

FireDepartment sometimes purchases equipment from, or has

equipment repaired by, out-of-state vendors; (2) that the Fire

Department charges a $300 fee (billed through City Hall) on

the few occasions each year when it responds to a call outside

city limits; and (3) that the City of Henning pays wages to the

“volunteer” fire fighters based on the amount of time they

spend at a fire scene.

The Fire Department’s purchases and repairs do not

advance the United States’ position. A fire station is no more

“used” in the “activity” of purchasing interstate fire

equipment than a residence is used in the activity of

purchasing interstate natural gas, mortgages, or

insurance—all activities that the Court rejected as

jurisdictional hooks in Jones. See 529 U.S. at 856.

Neither does the fee occasionally charged by the Fire

Department support this prosecution. The size of the fee

($300) and the infrequency with which it is charged (one to

three times per year, when the Department responds to fires

outside town limits) hardly suggest active employment for

commercial purposes—which is what Jones requires. If de

minimis activity of this sort transformed every governmental

building into one used for commercial purposes, then all

public property in this country would be one bake sale away

from federal jurisdiction. No fair reading of the statute

suggests that this is what Congress meant to do.

More importantly, a State does not engage in traditional

commercial activities every time it receives a sum of money

in exchange for something or for that matter any time it

imposes a tax. See Cleveland, 531 U.S. at 23 (“Louisiana . . .

42 United States v. Laton No. 02-5185

does not ‘sell’ video poker licenses in the ordinary

commercial sense.”). That is especially true when the

revenue arrives, as here, after the fact. See id. at 22 (“The

State receives the lion’s share of its expected revenue . . . only

after [the licenses] have been issued to licensees.”). No one

suggests that the Fire Department would decline to extinguish

a fire until and unless the fee was paid. Firefighters do not

haggle over fees. In this instance, in fact, they are not even

the ones who charge the fee; it is billed by City Hall.

At all events, this argument proves too much. Were the

collection of revenue sufficient to trigger § 844(i), then

presumably tax collection would suffice as well, leaving no

public property untouched. And the separate provision

covering buildings occupied by entities “receiving Federal

assistance,” 18 U.S.C. § 844(f), “would have no office,”

Jones, 529 U.S. at 857, because receiving a federal grant is an

economic transaction. “‘Judges should hesitate . . . to treat

statutory terms in any setting as [surplusage],’” Jones

instructs, “‘and resistance should be heightened when the

words describe the element of a criminal offense.’” Id. at 857

(quoting Ratzlaf v. United States, 510 U.S. 135, 140–41

(1994)). 

The Federal Government’s reliance on the fact that the

Henning Fire Department occasionally “pays wages” to its

“volunteer” firefighters fails for much the same reason.

Congress, to be sure, may as a matter of power regulate the

wages paid to firefighters, which is itself an economic

transaction. See Garcia v. San Antonio Metro. Transit Auth.,

469 U.S. 528, 555–56 (1985). But that does not mean

Congress sought in this instance to regulate criminal conduct

with respect to the buildings that house firefighters or sought

to do so on this basis. Teachers also receive wages, but that

does not necessarily permit Congress to make possessing a

gun in a school zone a federal crime. See Lopez, 514 U.S. at

567. Indeed, if federal wage-and-hour laws have any

relevance in this context, it is to show that Congress views

firefighting and the nominal wages paid by the government to
No. 02-5185 United States v. Laton 43

these volunteers differently from ordinary commerce. See

Fair Labor Standards Act, 29 U.S.C. §§ 203(e)(4)(A)

(exempting individuals who volunteer to serve a public

agency even when paid “nominal” wages), 207(k) (exempting

firefighters from the Act’s overtime provisions).

Nor, for similar reasons, does it make any difference that

fire stations house fire trucks, which (like police cars) may be

used in interstate commerce and indeed are instrumentalities

of interstate commerce. See Belflower v. United States, 129

F.3d 1459, 1462 (11th Cir. 1997) (concluding that § 844(i)

covered the bombing of a police car). See also Lopez, 514

U.S. at 558 (“Congress is empowered to regulate and protect

the instrumentalities of interstate commerce, or persons or

things in interstate commerce, even though the threat may

come only from intrastate activites.”); United States v.

McHenry, 97 F.3d 125, 126 (6th Cir. 1996) (“[C]ars are

themselves instrumentalities of commerce.”) (quotation

omitted). The same of course could have been said in Jones:

It is the rare private residence that does not house a car. 

Also unavailing is the United States’ reliance on the

economic impact of a fire station’s destruction—specifically,

the lower PPC ratings, the higher insurance costs, or the

inability to extinguish fires affecting local businesses or

(occasionally) burning cars on the highways. Accepting this

position would rewrite the statute to say something that it

does not. As Jones indicates, Congress did not “define the

crime . . . as the [destruction] of a building whose damage or

destruction might affect interstate commerce,” but instead

required “that the damaged or destroyed property . . . itself

have been used in commerce or in an activity affecting

commerce.” 529 U.S. at 854 (citation and quotation omitted);

cf. Lopez, 514 U.S. at 564 (rejecting a “costs of crime”

rationale for connecting federal legislation banning guns near

schools to interstate commerce). Two of Jones’ overriding

lessons—that § 844(i) does not reach the full extent of

Congress’s Commerce Clause powers, 529 U.S. at 854, and

that the statute applies only when the building itself is

44 United States v. Laton No. 02-5185

“active[ly] employ[ed]” in commerce, id. at 855—cannot be

squared with the United States’ reliance on the economic

impact of destroying the building or on the non-commercial

activity (fighting fires) performed by the occupants of the

building.

But, perhaps most critically, this argument has no logical

stopping point. All governmental services affect commerce

at some level, whether those services are legislative,

executive or judicial. Asked at oral argument to identify a

single governmental building beyond the reach of § 844(i)

under the Government’s theory, counsel for the United States

could not name one. Whether the state building at issue

houses the Department of Commerce or the Ministry of

Uneconomic Affairs, it would seem, makes no difference.

Either way, what goes on there first and foremost is a public

and sovereign service, which in the main will rarely (if ever)

be deemed “actively” “commercial” in any traditional sense

of the terms—even if all such activities eventually affect

commerce in one way or another. It is precisely the role of

the clear-statement rules identified above, and applied

faithfully in Jones, to prevent federal courts from extending

the reach of federal criminal statutes on the basis of the kinds

of attenuated connections to interstate commerce that the

Federal Government has raised here. If the majority is right

that a state liquor store, a state building housing a lottery

commission or a post office building (though a federal

building) amounts to a building with an “active[] . . .

commercial purpose,” that is only because the statute

unambiguously covers these properties, not because it

unambiguously covers an eminently non-commercial fire

station. At any rate, in view of Jones and Cleveland, 531

U.S. at 23–24 (a State “does not ‘sell’ video poker licenses in

the ordinary commercial sense” because the activity

“implicates the Government’s role as sovereign”), it seems

doubtful that the statute unambiguously covers even these

buildings.
No. 02-5185 United States v. Laton 45

Neither may one overcome these objections by suggesting

that, in the world of case-by-case determinations, the outcome

here will be a ticket good for one train and one train only.

Until now, there have been no other trains in the station, so it

is not clear what the concession concedes. More to the point,

it still remains to be seen what government buildings

analytically would not be covered by this type of analysis—as

the United States seems to recognize.

One last point deserves mention. The United States also

seeks refuge in the legislative history, relying on an unenacted

forerunner to § 844(i), which applied to the destruction of

property used “for business purposes,” and on the statements

of some legislators that § 844(i) as enacted would cover

“police stations.” Congress eventually omitted the words “for

business purposes,” and while doing so several House

members individually explained that the language was

eliminated because some members were afraid that the statute

would not reach “police stations.” See Explosives Control:

Hearings Before Subcomm. No. 5 of the House Comm. on

Judiciary on H.R. 17154, H.R. 16699, H.R. 18573 and

Related Proposals, 91st Cong. 33 (1970) (“Hearings”) (Rep.

McCulloch); id. at 56 (Rep. Rodino); id. at 73 (Rep. Polk); id.

at 79 (Rep. Smith). The United States infers from this

unenacted legislation and from these statements by individual

representatives that Congress intended § 844(i) to cover the

arson of city buildings.

This argument fails for three reasons. First, when clarity in

the text of a law is required, legislative history by definition

cannot supply it. See United States v. Nordic Village, 503

U.S. 30, 37 (1992) (“[L]egislative history has no bearing on

the ambiguity point [because] . . . the ‘unequivocal

expression’ of elimination of [the United States’] sovereign

immunity that we insist upon is an expression in statutory

text.”); Dellmuth v. Muth, 491 U.S. 223, 230 (1989)

(“[E]vidence of congressional intent must be both

unequivocal and textual” to provide the clarity necessary to

abrogate a State’s Eleventh Amendment immunity;

46 United States v. Laton No. 02-5185

“[l]egislative history generally will be irrelevant.”) (emphasis

added); Gregory, 501 U.S. at 470 (equating the clearstatement rule applied in the sovereign immunity context with

the clear-statement rule applied in the context of Commerce

Clause legislation that would alter the federal-state balance);

see also Cleveland, 531 U.S. at 24, 27 (requiring a “clear

statement” to extend “federal criminal jurisdiction” to an area

“traditionally policed by the States”).

Second, the use of legislative history to broaden the reach

of a law seems particularly inappropriate in a setting like this

one—where we have not just the risk of the alteration of the

federal-state balance and the imperative to avoid

constitutional questions but the imposition of a criminal

sanction. It stretches the necessary legal fiction that every

person knows the law,see McBoyle v. United States, 283 U.S.

25, 27 (1931), to the breaking point when the unenacted

views of a handful of legislators (here, for example, a few

floor statements suggesting that the law covers police

stations) become the basis for putting someone behind bars.

Because “the rule of lenity ensures that criminal statutes will

provide fair warning concerning conduct rendered illegal,”

Liparota v. United States, 471 U.S. 419, 427 (1985), and

because no one can plausibly conclude that a committee

report or the floor statements of selected legislators provides

such warning, the use of such material seems utterly

incompatible with the purposes of the rule or the civilized

interests it protects. In at least one opinion, the Supreme

Court has said that very thing: “Even were the statutory

language regarding the scope of a court’s authority to order

restitution ambiguous, longstanding principles of lenity,

which demand resolution of ambiguities in criminal statutes

in favor of the defendant, Simpson v. United States, 435 U.S.

6, 14–15 (1978) (applying rule of lenity to federal statute that

would enhance penalty), preclude our resolution of the

ambiguity against petitioner on the basis of general

declarations of policy in the statute and legislative history.”

Hughey v. United States, 495 U.S. 411, 422 (1990). While

dicta in other cases may suggest a different approach, see
No. 02-5185 United States v. Laton 47

Moskal v. United States, 498 U.S. 103, 108 (1990), I am

aware of no decision from our Court or from the United States

Supreme Court that broadens the reach of a criminal statute

on the basis of legislative history and that does so in spite of

these objections. The only Justices of the Supreme Court

who have squarely addressed the issue (to my knowledge)

have firmly concluded that “it is not consistent with the rule

of lenity to construe a textually ambiguous penal statute

against a criminal defendant on the basis of legislative

history.” United States v. R.L.C., 503 U.S. 291, 307 (1992)

(Scalia, J. concurring in part and concurring in the judgment,

joined by Kennedy, J., and Thomas, J.). 

Third, the inference the Federal Government seeks to draw

from the unenacted version of § 844(i) not only comes from

an inappropriate source but also rests on a discredited

premise. The Supreme Court has frequently rejected

arguments based on unenacted legislation, noting the

difficulty of determining whether a prior bill prompted

objections because it went too far or not far enough. See

Mead Corp. v. Tilley, 490 U.S. 714, 723 (1989) (“We do not

attach decisive significance to the unexplained disappearance

of one word from an unenacted bill because ‘mute

intermediate legislative maneuvers’ are not reliable indicators

of congressional intent.”) (quoting Trailmobile Co. v. Whirls,

331 U.S. 40, 61 (1947)); Puerto Rico Dep’t of Consumer

Affairs v. ISLA Petroleum Corp., 485 U.S. 495, 501 (1988)

(“[U]nenacted approvals, beliefs, and desires are not laws.”).

See also United States v. Granderson, 511 U.S. 39, 69 (1994)

(Kennedy, J., concurring) (“This admonition takes on

particular importance when the Court construes criminal

laws.”).

All of this perhaps explains why Jones mentions the very

same legislative history that the United States cites here, see

Jones, 529 U.S. at 853 n.5, then proceeds not only to ignore

the alleged inferences created by this history but also

proceeds to contradict them. Thus, while Congress omitted

language proposed in an earlier draft of the bill (“for business

48 United States v. Laton No. 02-5185

purposes,” Hearings at 30) ostensibly suggesting that no

business purpose is needed, Jones adopts an “active . . .

commercial purpose[]” test for ascertaining whether § 844(i)

applies, 529 U.S. at 855. And some of the same legislators

who suggested that § 844(i) would cover the arson of a

“police station” also suggested that it would cover the arson

of a “private home.” Hearings at 56 (Rep. Rodino). See also

id. at 289 (Rep. Goldwater) (“this bill should include any

building, vehicle or any real property . . . not just

businesses”); id. at 300–01 (Rep. Wylie) (suggesting that the

bill should cover private dwellings and other property not

used for business); id. at 304–05 (Rep. Cramer) (“a person

has a right to safety and security of his home and to the

security of his property”). But Jones of course specifically

holds that § 844(i) does not cover private residences.

Because in the end the unbargained-for service of fighting

fires is the antithesis of an activity engaged in for an “active

. . . commercial purpose[]” and because Jones has charted a

course that in my view controls us here, I would affirm the

district court’s judgment. That being a minority view, I

respectfully dissent.