1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0437P (6th C ir.) File Name: 03a04 37p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA , Plaintiff- Appellant

,

v.

J OHN L ATON , Defendant-Appellee. X

- - - -
> , - - N No. 02-5185

Appeal from the United States District Court for the We stern Dis trict of T ennesse e at Memphis. No. 01-20235—Robert H. Cleland, District Judge.

Argued: August 1, 2003
Decided and Filed: December 10, 2003

Befor e: DAUGHTREY , MOORE , and SUTTON , Circuit

Judges.

_________________ COUNSEL

ARGUED: Jennifer L. Webber, ASSI STANT UNITED STATES ATTORNEY , Memphis, Tenness ee, for Appellan t. Lesl ie I. Ballin, BALL

IN, BALLI

N & FI SHMAN, Me

mphis, Tennessee, for Appellee. ON BRI EF: Jennifer L. Webber, ASSISTANT UNITED STATES ATTO R NEY, Memp

his, 2 United States v. Laton No. 02-5185

Tennessee, for Appellant. Leslie I . Ballin, BALLI N, BALL IN & FI SHMAN, 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 MOOR E, Circuit Judge. Local and stategovernm ent institutions provide a wide variety of services ranging from transportation to eco nomi c development, which can produce ripples in the broader str eam of interstate commerce to vary ing degrees . The general ques tion presented by

the relatively bizarre factual background

of this case is whether or not a core function of
mun icipal gover

nment — the

provision

of firef ighti n g services — impacts

inte rstate commerce such that an individu a l can be in

dicted un der a fe deral a

nti-arson statute for destroying

a fire station. The more precise question, upon whichwe dwell , is whethe r the Hen

ning, Te nnesse e Fi re Station was used

inanactivity affe cting interstate commerce suchthat the p erson charged with settin

g it abl aze can be indicted under 18 U.S.C. § 844 (i). We ho ld that this particular fire stat ion w as used in an activity a ffecting intersta te commerc e a nd ac co rd in gl y REVERSE the judgment of the district

cour t dismissing the indictment and REMAND for fur

ther pro ceeding s consiste nt with this opinion.

I. BACKGROUND FACTS AND PROCEDURE

Prometheus may have

thought twice before handing down the gift of fire to hu

mans h adhe imagined that those whom the mere mortals chose to stewar d the pre cious fla

me would use it to de cimate

the very mec

hanisms employed to controlNo. 02-5185 United States v. Laton 3

its power. We are faced with prec isely such an odd eve nt

. OnMarch 3, 2000, the He nning Fire Station (“HFS”) was destroyed by fire. He

nning is a rural town in the western Tenness e e coun ty o f La

uderdal e. I

t lies between Memphis and Dyersburg

on U.S. Route 51 and is approximately twenty miles from the Mississippi River. On September 18, 2001, a federalgrand jury

indicted John Laton

(“Laton”), the c

hief of the Henning Fire Department (“HFD”), on one count of arson inviolation o f 18 U.S.C. § 844(i), the fede ral anti- a rson statute.

Laton subseque

ntly moved to di smiss th e indictmen t in October 2001, conte ndin g that the district court lacked subject matter jurisdiction over

the prosecut ion because t he HFS was notused in an activity af fecting inters tate c ommerce . Both parties agree d upon and su bmitted to the court a set of stipul ations, which e stablished the relevant facts rega rding the HFS and the HFD. First, the HFS housed firefig hting equipmen t, including

fire tru cks, nozzle s, unifor

ms, hoses, and other eq uipment. Additionall

y, t he HFS c o ntained an office, a kitchen, and meeting spa ces for members of the HFD. Second, the HFD purchased most of its firefig hting equipment

from out-of-state vendors, and the HFD in the past relied uponout-of-state vendors for repairsto this equ ipment. Third, the HFD is responsible for respondi ng to f ire emergencies in Henning, which, like any other town, contains residen ces, churches, public buildings, and businesses. In the past, the HFD has res ponde d to v ariou s emer ge nc y c alls involving several businesses in Henning, including a market and a laundry f

ac il ity, the Henning

Police Department, and vehicles in distres s on U.S. Rou te 51 and at the U.S. Route 51 rest area. Fourth, when the HFD responds to fire calls outside of the Henningci ty l imits, the H FD char ges out- of-state insurance companies $500. Fifth, the v olu nteer firefighters who compose t

he HFD a re paid wages by the City

of Henning based uponthe amount

of time that they spend at a fire scene. The tot al wages paid to the firefig hters generally

does not exceed $1,000 per yea

r. Sixth, the firefighting presence of the HFS and the HFD impacts insurance rates in Hen n ing. 4 United States v. Laton No. 02-5185

Virtually all Ameri can insur

ance companies u se the Publ ic ProtectionClassification (“PPC”) to calculate fire-insurance premiumsin a particu lar area . The PPC is partially based uponthe equipment , staffin g, trai ning, a nd geog raphic distribution of local fire departments. Fire insurance premiumsin a community with a “g ood” PPC are consider ably lower tha

n in a comm

unity with a “ba

d” PPC, and insureds in an area

that lacks fire ser

vices al togethe r will have the “worst” PPC and the h

ighest premiums.

The district court

granted La

ton’s motion to dismiss on the ground that the H FS was not used in interstate commerce. United States v. Laton , 180 F. Supp. 2d 948 (W.D. Tenn. 2002)

. It focused its analysis on “w hether the [HFS] was used in the activ ities of t he [HFD ], and whether those activities substantially affec t interstate commerce.” Id. at 952. The court thus bifurcated the purposes of the HFS and the HFD, re asoning

that it wa s “not sig

nifican t that the [H

FS] hou ses the trucks that dr ive to site s” of fir

es involvin g businessor other instrumentalities of inters ta te commerce because “[t]his is too attenuated a series of connec ti ons to constitute a building

that is used ‘in any

activity ’” that affects intersta te commerce. Id. The di stri ct jud ge then ruled that the purchas e of supplies from out of state, the pay me nt of some wages to the fir

efight ers, the fees bill ed for ou

t-of-ci ty fires, and the impact up on insura

nce rat es did “not indicate any

sort
o f active e mploy ment, but is

again e vidence of, at t he ver y least, a passive connection.” Id. at 953. Accordingly , the court dismissed t

he indict ment, bec ause it

ruled tha t it lacked subject matter jurisdiction over the case. Id.

The government timely

appealed the districtcourt ’s rul ing. We have jurisdiction to hear suc h an appe al pursua

nt to 18 U.S.C. § 3731. See id. (“ In a c riminal case an appeal by the United States shall lie to a c our t of appe als from a decision, judgment, or order of a district court dismissing an indictment. . . .”). On review, we reject the reasoning of the districtcourt, reverse its judgment dismissing

the indic tment,No. 02-5185 United States v. Laton 5

and rem an d for fur

ther pro ceeding s consiste nt with this opinion.

II. ANALY SIS

A. Err oneous Dismissal for Lack of Subject Matte r Jurisdiction

As a preliminary ma

tter, we hold tha t 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), wh ich we decided after the district court’s decision in this case, we held that the interstat e-commerce requirement “is simply one of the essential elements of § 844(i),” even though it is freq

uently d enoted a “‘jurisdictional element.’” Id. at 23 1. We explained that “[i]t is not j urisdict ional in the sense tha

t it affec ts a court’s subject matter jurisdiction, i.e

. , a co urt’s constitutional or stat utory power to a djudicate a case.” Id

. The district c ourt her

e, just like the district court in Rayborn
, did have subject matter jurisdiction over the indictment under 18 U.S.C. § 3231.

This doesnot end the

appe al. We

noted in Rayborn that “this court typically

va cates a dismissa

l order w

hen it determines that a district

court ha s erred

in dismissin

g a ca se for lack of subject

matte r 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 produce d by

the gov ernment

(or in this case stipulated to by both part ies) is suf ficient t o permit a rational jury to find tha

t a partic ular buil d ing was

used in an

activity that affected interstate commerce suc h 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 evidenc e is w hether after viewing the evid ence in the light most favorable to the 6 United States v. Laton No. 02-5185

1 “Intersta te commerce” is defin ed as “commerce bet ween any pla ce in a State and any place outs ide of that St ate.” 18 U.S.C. § 841(b).

2 Affect is “[t]o ac t upo n; influenc e; chan ge; en large o r abrid ge; . . . to act, or produce an effect or result upo n; to imp ress or influence . . . .” B LACK ’ S L AW D I CTI ONARY 57 (6th ed. 1991). prosecution, any rational trier of fact could have found the essential elemen ts of the crime bey ond a reasonable doubt.” (internal quotations omitted)).

We follow Rayborn ’s lead a nd revie w t he merits of the districtcourt’s determination that the HFS was not used in an activity that af fec ted interstate commerce. Beca use the inquiry into whether the HFS aff ects inte rstate c ommerce

is
a mixed question of fact and law, we review the di stri ct court’s determination de novo. United Sta tes v. Salvo , 133 F.3d 943, 948 ( 6th

Cir.), cert. denied
, 523 U.S. 1122 (1998).

B. Section 844(i) and Its Applicab ility to Governm ent Buildings and Property

We start with the plain language of the statute. Section 844(i) provides : “Whoeve r malicio usly damages or

destroy s, or attempts to damage or destroy , by meanso f fire or an explosive, any

building , vehicle , or other real o rpersonal propert y used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned

for not less than 5 yea

rs and not more t

han 20 years . . . .” 18 U.S.C. § 844(i) (e mphasis a dded). 1 The statute thus covers the arson of any building that is either

used inintersta te commer

ce or tha t is used in a

ny a ctivity affecting interstate commerce. 2

Crime s of arson have traditionally been viewed a s “parad igmatic common-law state crime[s],” but i n 1982 Congre ss chose to f

ederal ize certa

i n arson crimes as an exercise of its Commerce C lause power. Jones v. UnitedNo. 02-5185 United States v. Laton 7

3 Cong ress origina lly pass ed § 844(i ) as part of t he Or gan ize d Cri me Contr ol Act o f 197 0 to c ontro l the use a nd p osses sion o f explo sives. See Ru ssell v. Unite d States , 471 U.S. 858, 860 n.5 (198 5). In 198 2, Con gress amended the statute to in clude th e words “f ire or” before t

he words “a n explosi ve.” Jones v. United States , 529 U.S. 848 , 853 n.4 (2000 ).

4 We note t

hat t he federa l prosecu tion of Laton does not preclude the state from a lso pr osec uting him if it so desire s. See He ath v . A labam a , 474 U.S. 82, 89-90 ( 1985 ) (“‘[A]n act de noun ced as a crim e by b oth nati onal and sta te sove reignties is an off ense agai nst t

he peace and d ignity of both and m ay be p unishe d by e ach.’” (quoting United States v. Lanza , 260 U.S. 377, 382 (1922)). Under the federalarson st atut e, Lat on faces

a sentenc e of five to twent y year s, as suming t

hat no persons we re inj ured by the f ire. 18 U.S.C. § 844(i) . If any pers ons were i njured, Laton f aces
a sentenc e of sev en to fo rty year s, and if any persons were kill ed by the fir e, Laton i s subjec t t o a ny term of imp risonm ent, includ ing life impr isonm ent. Id. Under the Tennes see a rson stat ute, the dest

ruct ion of

a building by f

ire is a Class C felony, which is pu nis hable by a t erm of imprisonment of three to fifteen ye ars. See Tenn. Code Ann. §§ 39-14- 301, 40-3 5-1 11(b)(3 ). If any pe rsons were inj ured i n th e fi re, the ars on of the HFS would c onst it ute a Clas s A f

elony , whi ch i s puni shabl e by a t erm of imp risonm ent of fifteen to sixty year s. See Tenn. Cod e Ann. §§ 39-14- 302, 40- 35 -111(b )(1). Any supposed fricti on, as the diss ent labels it, between t

he policy choices of th e United St ates Congress and the Tennessee Legisla ture reg ardin g the sev erity of the c rimina l s a nction is

a necess ary by- product of a federal ist

republi c; a dispari ty bet ween state and federalsente nce s, which in this instanc e is de m inimis, oc curs q uite oftenin are as of concu rren t juris diction, such as prosecution for drugrelated offenses. States , 529 U.S . 848, 858 (2000). 3 In se eking to avoid “rende r[in g] traditionally local criminal conduct a matter for federalenforc ement,”

Congre ss “will

not be dee

med to have signific antl y

cha nged th e feder

al-state balance ” unless i

t clearly c onveys its purpose. United Sta tes v. Bas s , 404 U.S. 336, 349-50 (1971 ) (quot ed in Jones , 529 U.S. at 858). 4 Addition a ll y, when Congress fails to speak in clear and definite languag e , “ambiguity c oncerning the ambit of criminal statutes should be re sol ved in favor of lenity .” Jo nes , 5 29 U.S . at 85 8 (quo ting Rewis v. United States , 401 U.S. 808, 812 (1971)). Had Congress been ambiguo us in its formulationof § 84 4(i), the ru le of l enity mi gh t appl y, but 8 United States v. Laton No. 02-5185

counter to the disse

nt’s belie f that § 84 4(i) suffers from a lack of clarity , Congre ss made transparent its objective in passing § 844 (i) . It fashioned a

st at ut e t ha t c ov er ed th e a rs on of “a ny” building and included a jurisdictional el ement limiting it s reach to buildings that are used in inter s tate commerce or in any activity affecting inte

rstate c ommerce , such tha t § 844(i)
was “intended to pr otectall business property, as well as
some additional property that mig ht notfi t that description, butperhaps not every

private home.” Russell v. United States , 471 U.S. 858, 862 (1985).

We are mindful of our duty to c onstrue a s tatute so a s to eschew con stitutional questions, and the straightforward applicationof the jur

isdictiona l element here ai ds us in avoiding any such enta

nglements. The prominent issue raised by this appe al is not constitutional in scope, rather it is an exercise in statutory

interpretation. In United States v. Lopez
, 514 U.S . 549 (1 995), the Supreme Court remarked that the Gun-Free School Z on es Act of 1990 (for

merly 18 U.S.C. § 922(q)) “contain[ed] no jurisdictional element whichwould ensure, through case-by -case inquiry , that the fir earm possession in question affects interstate commerce.” Id. at 56 2 (emphasis added). It distinguished § 922( q) from the form er 18 U.S.C. § 1202(a), a statute examined in Uni te d States v. Bass , 404 U.S. 336 (1 971), “w hich made

it a crime for a felon to ‘receive, posses[s], or transport in commerce or affecting commerce . . . any fire arm,’” Lopez , 514 U.S at 561- 62 ( empha sis ad ded) (q uoti ng Bass , 404 U.S. at 337) . Th e Courtwrote that “[u]nlike the statute in Bass , § 922(q) has no express jurisdictional element which might limit its re ach to
a discrete set of

firear m possessions that ad

ditionally have an explicit connection with or effect on interstate commerc e.” I d. 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 interp ret ing t he words of similarly phrase d jurisdictional elements. See Rayborn
, 312 F. 3d at 2 32-33 (appl ying Jones ’s two-part test to determine that the j u risdictional element in § 844(i) was satisfied and the prosecution

could pro ceed); United States v.No. 02-5185 United States v. Laton 9

5 We use “l ocal” t o encompas s all poli ti cal enti ti es wi thi n but not including a state, suc h as m unicip ali ties, cou nties, and spec ial districts (water, school, economic develop ment, 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)(firea

rms provis ion gove

rning those un der domestic-violence court orders, 18 U.S .C. § 922(g)(8)); United States v. Smith , 1 82 F. 3d 452, 456 (6th Cir. 1999) (Hobbs Act, 18 U. S.C. § 1951) ; United States v. A bles , 167 F.3d 1021, 1030

(6th Ci r. 1 999) (money launde ring provision, 18 U.S.C. § 195 6); United States v. Chesney
, 86 F.3d 564, 56 8-70 (6th Cir. 1996) (firearms provision governin g convicted felons, 1 8 U.S.C. § 922(g)(1)). Our resp onsibility is to decide whether the government can demonstrate that the HFS was used in commerce or in an activi ty a ffecting
commerce such that any ra tional jur or cou ld find that the jurisdictional element

of the crime defined in the statute has been sat isfied be yon d a reas onable do

ubt.

Onits face, § 844(i) does not distinguish between the arson of trad itio nal for-

profit bu siness pr

operty, nonprof

it organ izations’ s tructures and equipment, or state and local government

building s and supp lies, 5 because the statut

e simply governs “any

building, vehicl e, or o ther real or personal property.”

18 U.S.C. § 84 4(i). The re can b e little doubtthat virtual ly a ll edific es and pe rsonal pr operty employed by

for-pr ofit busine sses are

both used i

n intersta te
commerce and used in ac tivities tha

t affect intersta

te commerce, as they primarily house and make possible the operation of businesses that

buy, sell, manufacture, ship, and finance goods a

nd servic es. Nonpr

ofit institu

tions can also impact intersta te comm e rce. Th e mere f act that a nonprofi t organization

differs from its f or-prof it cousins in

its treatment of net ear nings do es not pre

vent its buil dings or property f rom being used in int

erstate commerc e or in

an activity

affecting intersta te commerce. As the Supreme Court has ex plained
, “[n]othing intrinsic to the nature of nonprofit entities prevent s 10 United States v. Laton No. 02-5185

6 The Court al so reject ed “as unsound in principle and unwo rkab le in practi ce, a ru le of s tat e i mm uni ty fr om federal regulat ion that t urns on a judici al appr ais al of w het her a par ti cul ar g over

nme ntal fu nction is ‘integral’ or ‘t

radit ional. ’” Garcia v . San Ant onio Metro. Tr ansit Auth.
, 469 U.S. 528, 546-47 ( 1985). The Court hig hli ght ed “t

he el usi venes s of objective criteria for ‘fundamental’ eleme nts of st at e sov ereign ty,” labeling such obliquenes s as “a problem we h ave wit nessed i n the s earch for ‘ tradi tional

government al f

uncti ons.’ ” Id. at 548. themfrom eng aging

in interst

ate comme

rce,” p articula

rly because “they purc

hase goo ds andservices in competitive markets, offer their facilities to a va r iety of patrons, and derive revenues from a variety of sources, some of which are local and some out of Stat e .” Camps Newfound/Owatonna, Inc. v. Town of Harrison , 520 U.S. 564, 585-86 (1997). Thus, as the Court stated, “[f]or purposes of C omme rce Clauseanalysis, any

categorical distinction between the activities of profit-making enterprises and not -for -profit entities is . . . wholly illusory .” Id. at 586.

S im il ar ly, government institutions not only can af fect intersta te commerce but also can b e direc t partici pants in intersta te commerce. The Supreme Court has not e d on
sev eral o ccasions the impact that certain federal, state , and local gover

nment insti

tutions ca

n have on

intersta te
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 gover

nme nt does not contravene the Commerce Clausebecause labor conditions of those employ

ees aff ect inter statecommerce). 6 Governments in general, and individual governme nt institutions i n part icular, can serve in both a sovereign/reg ulatory capa

c it y and a marke t capac ity, and their

acti ons as either can affect intersta te commerce. See Lehm an v. City o f Shaker H

eights
, 4 18 U.S. 298, 303 (1974) (holding that a municipal trans i t vehicle is not a public forum for

First Amendment purposes because “the city is eng aged in c omme rce” and the advertisingspace in ques tio n “although incidental to theNo. 02-5185 United States v. Laton 11

provision of public transportation, i s part of a commercial venture”); United States v. Kokinda
, 49 7 U.S. 720, 725 (1990) (co ncludi ng that federal government acts a s proprietor, and notas r e gulator, for First Amendme nt purpose s when it ope rates the Unite d States Pos t Office ); Int’l Soc’y fo r Krishna Consciousness, Inc. v. Lee , 505 U.S. 672, 678 (1992) (ruling that local govern ment acts as a

proprietor when

it owns and operates an airport).

Intheir operations as a sovereign or as a regulator, gover nments may eng age in intersta te commer

ce or in activities that affe ct interstate commerce, even though the impetus fo r their

actions is

noncomme

rcial be cause it

is motivated by public service

. See Garcia , 469 U.S. at 539 (“The constituti ona l distinction between licensing drivers and regulating

traffic . . . or between operating a highway authority and operating a mental health fac ility, i s elusive at best.”); United Sta tes v. Ter ry , 257 F.3d 3 66, 369 (4th Cir. 2001) (“We cannot close our ey es to the commercial nature of
anactivity

so lely because non-comm ercia l conside rations a lso underlie it.”). In their function a s market p articipa nts, gover nments inherently influenc e interstate commerce. See White v. Mass. Council of Constr. Employers, Inc ., 460 U.S. 2 04, 20 7, 214 (1983) (ruling that when a city government expends its own fun

ds for co nstruction of public

project s, it
can promote the emp loymen t of its own

citizens, b ecause

it acts as “a mark

et partic ipant”

and “there is no indication of a constitutional planto limit the ability of the States themselves to operate freely

in t he free market” (quotation omitted)); Four T’s, Inc. v. Little Rock

Mun. Airport Comm’n , 108 F.3d 909, 912 (8 th Ci r. 199 7) (def inin g a local airport commission, whichoperated

the airport and charged conc ession 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 bey ond dispu te that state lotteries affect interstate commerce .”) (quoti ng The Lottery

Case , 188 U.S. 321, 354 (190 3 ) (“[L]ottery

tickets . . . are subjects of commerce.”))

. 12 United States v. Laton No. 02-5185

7 Counter to the d issent’s asse rtion, the fact that city -fun ded firef igh ting constitut es an unbargained-for public ser vice is not r elevant to the ana ly sis . That indi vidu al c it izen s do not expl ici tl y cont

ract for fi ref igh ti ng su

pport doe s not

mean that fi re stati ons and fire dep artme nts fail to impact i nters tate commerce. Individuals do not bargain wi th nonpro fit organizations i n order to receive charity or othe r for ms of

ass ist ance, yet the Supreme Court has made clear that any rigi d cate gori zati on of non-profits as ent ities i ncap able o f affecting inte rstate
commerce is void. Ca mp s New foun d/O wat onna, Inc . v. Town of Harri son , 520 U.S. 564 , 586 (1997 ). The reality

th a t the core functions of government are not exclusive of interstate co mme rce does not only hold true when a government

operates a commercial enterprise, suc h as a post office, lottery, or

liquor store. Government institutions also can affect interstate commerce when they prov ide core public services, such as police protec tion and emergency service s. 7 See Pric

kett v. D eKalb Count

y , 92 F. S upp. 2 d 1357, 1362-63 (N.D. Ga. 2000) (determining that labor practices of county fire d epartme nt impact i

nterstat e commerce suc h t hat th e FLS A applies to its employees); Persons v. City

of Gresham , 704 F. Supp. 191, 193 (D. Ore. 1988) (applying

FLSA to municipal firefig hters because the fire depa rtment responded to emergencies that involved ins trumentalities of interstate commerce and protecte d businesses engag ed in inte rstate c ommerce ); Conw a y 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 c o mmerce, including but not limite d to airports
, seaport s, conve ntion cen ters, pol ice depa

rtments auctioning off seized and forfeited property, health care center s, and

departments of prope

rty manage ment, ec onomic development, and wa ste collection. Accordingly , Section § 844(i) ha s been invoked in the past to prosecute the arson of public building s; for examp le, the Te nth Circuit affirmed the convictionunder § 8 44(i) of th e arson ist of a City

Hall. United Sta tes v. W

oodward , No. 93-3 123, 1 993 WL

498178 (1 0th Cir. Dec. 2, 1993) (unpublished). The policeNo. 02-5185 United States v. Laton 13

department

is not used in an activity affe cting interstat e commerce simply

because it sells “I Support My

Local Police Department” stickers , but t o believe that such fundraising sales ar e t he on ly w a y that a polic e building can be u sed in activities affecting interstate commerce naively ig

nore s a police department’s ro le as re claimer of stolen

propert y moving betwee

n states, auctione er of se iz ed g oods, and perpetuator

of th e s af et y ne ce ss ar y to e ncourage interst ate business growth.

The link between

gov ernment and commerce described above merely esta

blishes that state and local government buil dings and property

are neither inherently

disconnected fromno r i nn at el y inte rtwined with interstate commerce. Each piece of real or persona l prope rty , taking into acc ount its function, must be assessed indivi dually to determine the extent to whichit impacts interstate commerce. There can be
no uniform and

inflexible

rule that §844(i) covers either all or
none of the wid

e variety of municipal buildings that fill either the large st urban metropolis or the smallest r

ural ham let. This perfectly conforms to Congress’s will as expre ssed i n § 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 anactivity that aff ects inte rstate commerce, no matter whether it is owned and op er at ed by a superma rket, an advoc ac y group, or a local-gover nment police de partmen t. C. The Supre me Cour

t’s Analys is of 18 U.S.C . § 844(i)

The Supreme

Court has had two opportunities to analyze 18 U.S.C. § 844(i) a

nd to esta blish a mec

hanism by

which co urts
can assess whethe r rea l or pers onal prop erty is used in inte rstate commerc e or in an activity that aff ects inte rstate
commerce. In Russell

v. United States , 471 U.S. 858 (1985), the Court considered whether the arson o f a t wo-unit apartme nt buil ding tha

t was used

as a ren tal prope rty fell within the purviewof 18 U.S.C. § 844(i). The Court held that “the statute only applies to proper ty t hat 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 Contr ol Act of 1970, 84 St at. 922, 952 , the pre curso r to § 844 (i) provided stiff penalties for “[w]hoe ver maliciousl y da ma ges or destroys, or att empts to dama ge or de str oy, by mean s of an explosive, any building, vehic le , or other real or per sonalpropert y us ed for busine ss purp oses by a person engaged in commerce o r in any act ivity affecti ng
commerce

. . . . ” H.R. 16699, 91s t Cong. , 2d Sess . (1970) (emp hasis added). Dur ing a he aring o n this pro vision, se veral re prese nta ti ves expresse d conc ern tha t the statute a s word ed w ould not cover the bombing of police st atio ns or

chur ches and su gges ted l eavi ng out the words “f

or business purposes. ” Ru ssell , 471 U.S . at 860 -61 n n.6-7

. This phras e was not i nclu ded in the st atut e as e nact ed.

9 The disse nt su ggest s that a glanc e at § 844(i)’s code-book neighbor, 18 U.S. C. § 844(f

) def ini ti vely reve als tha t Congr ess did not int end f or § 844 (i) to reach al l govern ment buil dings ev en though § 844(f) governs

on ly t he des tru cti on of f ederal , but

not s tat e or l ocal, buil ding s. Sect ion 844(f) (1) reads : “ Whoever mal ici ousl y damag es or dest roys

. . . bymeans of fir e . . . any bu ilding, ve hicle, o r other perso nal or r eal pr ope rty i n who le or in part own ed or p ossessed b y, or leased to, the U nited States,

or any de partm ent or a genc y thereo f, or any ins ti tu ti on or or gani zati on receiving Fed eral finan cial assistan ce, sha ll be imp risone d . . . .” T his provi sion

crimi nali zes the arson of any federal bui lding, such as the former Murra h Fed era l Bui ldi ng i n Okl ahoma City, or any building

o wned by an organ izat ion obtai ning f ederal as sis tance, such as a unive rsity resear ch laborat ory th at rece ives a federalgrant

and then mark ets its technology. The two st atut es do not reference each other, although the y wer e pass ed atthe same time i n res ponse t o the spat e of ‘a ct iv it y’ that affects commerce” and re asoned that “[t]he rental of real estate is unquestionably such a n activity.” Id. at 862. In its analysis, the Court noted that the original version of the bill proposing § 844(i) cont aine d the words “for businesspurposes ,” but that Con gress r emove d such langua ge before enactment “after considering whether the bill as origina lly introduced would cover bombings of police station s or churches . . . .” Id. at 860; see also id. at 860-61 n n .5-9 (quoting the relevant legislativehistory). 8 The Court rea d this legislative history

to sugge st

“that Congress at least intended to protect all business property , as well as some additional propert y that mi g ht not fit that description, but perhaps not every private home.” Id. at 862. 9 Because theapartme nts inNo. 02-5185 United States v. Laton 15

bom bings in the late 196 0s. See United States v. Ei chman , 957 F. 2d 45, 46 (2d Cir . 199 2) (d escrib ing § 8 44( f)’s history). O ne ca nnot lo gically

co nclu de that the sp ecific m ention of fede ral gov ernm ent bu ildings in § 844(f ) prov ide s defini tiv e evidence of Congress ’s i ntent ion to dr aw § 844 (i) ’s b oundaries just shy of reaching st ate or local government buildings. The p rovi sion s overlap in som e respects, but they are no t so complimentary that t

he existence of one negates the purpose of the other. For the arson of the uni versity lab mentione d abov e, both § 844(i) and § 844(f) apply . Howe ver, the two s tat utes wil l not

always be interch ange able such tha t § 84 4(i) is surplus age. The arson of a building owned by the federal government or an enti ty receivi ng federalassi stance that does not i n any way

aff ect int erst ate commerce cannot be prosecu ted under § 844(i ), but ca n be unde r § 84 4(f). Fo r exam ple, if an indi vidual purchased a sing le-f

amily resi dence under a f

ederal progr am in whi ch the cost of the home was split between the buyer and a state- run housing organ ization receiving federal funds s uch that the stat e government owned part of t he re side nce, the ars on of th at resid ence would be p unisha ble under § 84 4(f), bu t not § 844 (i). Cf. U nited State s v. Da vis , 98 F. 3d 141, 145 (4th Cir. 1996) (a ff

irmi ng pros ecut ion u nder § 844( f) for the arson of

a single- family t ownhouse because a state housing autho rity that receiv ed federalassist ance heavily subsi dized the rent of t he tenant). Similarl y, the

arson of a n on-f

ederal buil ding , the owne rs or posse ssor s of

whi ch do not receive fede ral fun ds, cannot be pros ecut ed under

§ 844 (f) , but

may be under § 84 4(i) if the b uil ding was used in an ac tivity affecting inte rstate

commerce. Th us, t here are c ertai n arsons that may be prosecut ed under § 844(f), but not

§ 844(i), and others that may be prosecut ed under § 844(i), but

not § 844(f) . Each sec tion h as a speci al f uncti on to ser

ve. the building were re

nted to te nants at the time of the fire, the C ourt concluded that the property was “being used in a n activity affe cting interstate commerce.” Id .; see also United States v. Ryan , 9 F.3d 660, 667 (8th Cir. 1994) (r uling tha t a closed fi tn ess center affected interstate c ommerce because the building was owned and lea sed by a n individua

l from a different state).

The question t

hat 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 “§ 84 4(i) does not reach an owner-occupied r esidence that is not used 16 United States v. Laton No. 02-5185

10 The Supreme Co urt has thus twi ce rel ied on this l egislat ive hist ory i n analyz ing § 8 44( i). Eve n if this legislative history d id no t exist, it

wou ld no t al ter

our con clus ion be caus e it is the plai n la nguag e of th e statute t ha t directs u s towa rds the inquiry o f whethe r the fire statio n is

us ed in an acti vity tha t af fect s int erst ate commerce. However, we nee d not ignore the histor y of § 8 44( i). W e agree with the dissent t hat we are not to “att ach decis ive si gnif icance t o the unexplained dis appeara nce of

one word from a n unen acted bill bec ause ‘m ute interm ediate legislativ e
maneuv ers’ ar e not re liabl e indi cators of congres sional int ent. ” Mead Corp. v. Til

ley , 490 U.S. 714 , 723 (1989 ) (emphasis added) ( quo ti ng Trailm obile Co . v. Wh irls , 331 U.S. 40, 61 (194 7)). We also re cognize that “unenacted appro vals, beliefs, and desir es are not laws. ” Puerto Rico Dep’t of Consumer Af

fai rs v . ISL

A Petrol eum Corp. , 485 U.S. 495, 501 (1988). How ever, the disapp earance o f the words “for bu siness purpo ses” from the propose d, but

unena cted, vers ion of the o riginal § 844 (i) in 1970

was neither un e xplain ed nor mute. Congress e xplain ed that it removed the words to en sure t hat § 844(i) covered more th an just tradi tional business properties, alt

hough preci sel y how much more is the ques tion we addre ss toda y. Furthe rmo re, the b elief or d esire tha t § 84 4(i) co ver “an y” type of build ing used in intersta te c ommerce could not be described as

unena cted. In con trast to the words “for b usiness purposes,” which were not incl uded in t

he fi nal bi ll, § 844(i)’ s coverag e of “ any b uilding . . . used

. . . in any activity affec ting intersta te . . . com merc e” (em pha sis add ed), re flects the d esires o f Con gress to bro ade n the sco pe o f the antiarson statute to e nco mpa ss som e pub lic institutions, s uch as poli ce stations. for any commerc ia l p urpose.” Id. at 852 . Jus tice G insb urg, writing for a una

nimous Cour

t, agai n noted how Congr

ess removed the “for business purposes” languag e from the proposed bill in ord er to ind icate “that . . . the provision should apply to the

bombings of schools, police stations, and places of worship.” Id. at 853 n.5 (c itin g Russell , 471 U.S. at 860-61). 10 The Court

emphasize d the “qua

lify in g words ‘used in,’” which mandates “‘that the damage d or destroyed prope rty mus t itself have been used in commerce or in an activity affecting commerc e.’” J ones , 529 U.S. at 854 (emphas is added ) (quo ting United Sta tes v. Me nnuti , 639 F.2d 107, 110 (2d Cir. 1981)). It then outlined a two-part inquiry for assessing the applica

bili ty of § 844(i), which e ntailed an analy sis of “‘the function of the b uil ding itself, and then a det erm ination of wheth er that f unction a

ffects i nterstat eNo. 02-5185 United States v. Laton 17

commerce.’” Jones , 529 U.S. at 854-5 5 (quo ting United States v. Ryan , 9 F.3d 660, 675 (8th Cir. 1993) (Arnold, C.J., concurring

in part a

nd diss ent ing in part)). In e xploring whether § 844(i) covered the destruc tion of a priv ate residence, the cour

t reasoned that f

or a build ing to be used in
anactivity affe cting interstate commerc e requires “active emp loy ment fo r c om me rc ia l p ur po se s, an d n ot me re ly a passive, p assin g, or past connection to commerce.” Jones , 529 U.S. at 855 . The Cour t ultimatel

y r uled that a privat e reside nce does not f

it within § 8 44(i) whe re its only relation ship to interst

ate comme rce is the receipt of natural gas, a mortgage, or an insuranc e policy bec ause such a limited
nexus did not con stitute “a ctive emp loy

ment.” To

hold otherwis e would mean that “hardly a building in the land

w ould fall outside the federal statute’s domain” becaus e “[p]racti cally

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 a cross sta te lines, or bears some other trace of interstate commerce .” Id. at 857.

This tw o- pa rt in qu ir y m ust b e conducted in every federal
arson case to determine whether the jurisdictional element of § 844(i) has been met. This ca s e-by -case a naly sis is mandated by Congre ss’s inclusion of a jurisdic tional ele ment, which, as me nt io ne d p re vi ou sl y, distinguishes § 844(i) from the Gu n-Free School Zones Act of 1990 that the Supre m e Courtstruck down in Lopez. See Lopez , 514 U.S. at 562 (“[Section] 922(q) has no express jurisdictional element whichmight limit

its reac h to a discrete set o f fi rearm possessions that

. . . have an explicit connection with or effect
oninterstate commerce.”). The evidenc e of Congress’s intention to permit federal pr o secution of arson of police stations strongly impliesth at arson of fire stations is a

lso
c overed, because police stations and fire stations provide similar pu bl ic sa fe ty s er vi ce s. Na tu ra ll y, Cong ress’s envisioning of § 844(i) prosecutions for the arson of schools, police stations, and churches does not mean that the arson of all suchinstitutions is covered by t he statute , but rather only 18 United States v. Laton No. 02-5185

11 The compli cit

y of the Hennin g Fir e Chie f i n th e ars on of t he HFS does not facto r into the analysis. The application of § 844(i) does not turn

on the ide ntity of the ar sonist. It is a b itterly ironic tw ist that an off icia l employed by the loc al gov ernm ent, in fact the offici al in charge of f ire safety, de stroyed the fireho use, bu t it is not legally p ertinen t. th ose that are used in an activity that affects int erstat e commerce.
D. The Applic ation

of Jones to Laton’ s Indictm ent

We now turn to the application of Jones ’s two-pa rt analy sis to the des truction o f the HF S. 11 The firs t step is to i dentif y the functio n 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 residenc e tha twas also used as a home office or for a commerc ia l 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 secon d ary

and impor

tant economic pur

poses. Terry , 257 F.3d a

t 369 (hold

ing that a church “can have

both
a religious aspect and an economic one” when the chur c h operated a day care c enter) ; United States v. Grassie , 237 F.3d 1199, 1209-10 ( 10th

Cir . 2001) (a

cknowle dging

that a church’s activitie s ca n be both religious and commercial); United States v. Odom , 252 F.3d 1289, 1294 (11th Cir. 2001) (“Chur ches are not c ommonly consider

ed a business enterprise; non et heless, c hurches can and do enga

ge in commerce.”).

Si mi la rl y, the H FS p erformed one ancillary function and
one main function. I

t fulfill edan ancillary

function of
assu ring the homeowners and businesses of Henning tha t thei r propert y was safe. The H FS was a municipally owne d building that stood al ongsi de the police department and the
c ity hall as a public institution and a visible publ ic safety shield for the citizens of Henning. M ore significantly , theNo. 02-5185 United States v. Laton 19

HFS made the HFD possible; fire departmen ts cannot exist withoutfire stations. The HFS facilitated the provision of fire protection services necessary for the econ omic development and prosper ity o f Hennin

g beca use th e station and the equipment

in the building provided the H FD wi th the implement s necessary

to combat fires. T he function of the building andthe trucks, hoses, boots, hats, an d communicationdevices was to pe rmit the HF D to battle ab ly any conflagration within the jurisdiction of the HFD, whether it be a small brush fire or a major tru ck or aut omobile accident on U.S. Route 51. We reject the district court’s conclusion that the functions of the HFS can be separat e d from the functions of the HFD, suchthat the H

FD’s fir efight ing eff orts a ffecte d intersta

te commerce, but the HFS, an edifice containi ng f irefighting equipmen t, did not. The district court wrote that “most of the facts to whichthe parties stipulate involve the purposes of the HenningFire Department, not the Henning F ire Station” and ruled that “[i]t isnot 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 activ ities that

themselve s affect intersta te commerce.” Laton , 180 F. Supp. 2d at 951-52. This analy sis t oo finely atomizes the roles of the HF S and t he HFD an d ignores the insep arabilit

y of their fun ctions. Neither the H FD
nor any other f

ire depar tment in the cou

ntry can ope rate withouttruck s, h oses, axes, flashlights, fire-retardant
un ifo rms, meeting spaces, and communication sy stems. To hold that the H FD could affect intersta

te commerce by

putting outfires at busine sses in

Henning or along U.S. Route 51, but that the HFS c ould

not beca use it only houses the trucks that
com bat those fir es, is no le ss erroneous than the conc lusi o n tha t a garage housing

a towing service does not affect intersta te commerce because the tow trucks per fo rm t heir commercial function

on the roa

d or the c onclusion

that a ra dio studio does not affect interstate co m merce because the intangi ble radio waves emanated from the studio are diffuse ly captured by l is teners. One could fracture nea rly any 20 United States v. Laton No. 02-5185

traditional for-p rof

it business, particularly in the servic e sec tor, int o a buildin

g that do es not in

itself affect intersta

te
commerce and a ser

vice per formed e lsewher

e that most certain ly does affec t interstate commerce, but such division only obfuscates the tr

ue impact of the business as a whole.

The second step of the Jones analysis involvesdetermining whether the functio n of the HFS affects interstate commerce. We must analy ze whethe r the HF S, in its role as a municipal building that e nable s fire fighti ng, is “used” inan activity that affects inter state commerce: does it enjoy “active employment

for commercialpurposes ” rather than “a passive, passing, or past connection to c ommerce ”? Jones , 529 U.S. at 855 . A singl e relati onship to in terstate commerc e or th e conjunctionof sever

al diffe rent ties to interstate commercial act ivity can supp ort a find

ing that a building

was acti vely
e mployed in commerce. For example, in Rayborn w e affirmed a conviction

under § 844(i) for the arson of a church. Rayb orn , 312 F.3d at 234. The church broadcasted r adi o messages by renting

out time fromvarious stations in order to increa se the attendance and contr ibutions of out-of- state parishioners, it dr ew mem bers fr om three states, it

paid salarie s, it hosted gospel concerts featuring out-of -state talent for which it requested donations, and it owned several vehicle s. Id. at 234-35. On this basis, we concluded that “[t]he church’ s interstate connections were direct, reg ular, an d substantial.” Id. at 23 4. Ot he r c ou rt s h av e s im il ar ly fou nd churches to affect interstate commerce wher e the church has
so me active commercial connection. See Unite d States v

. T err y , 257 F.3d 3 66, 369-7 0 (4th Cir. 2001) (f inding that a church dayca re center “was actively

engaged in commercia

l
ac ti vi ty” because it provided childcare services for pay

ment); United States v. Grassie , 237 F.3d 1199, 1209 n.7 (10th Cir. 2001) (holding that a Mormon ch urch in rural New Mexico affected interstate commerce because the re v en ues of the church and the ti thed incomes, goods, and services of churchNo. 02-5185 United States v. Laton 21

12 Several court s hav e rul ed th at § 8 44(i ) does not c over church es where the conne ction to int erst ate commer ce is l imited to purchasing supplies, sendi ng dues and con tr ibutions across s tate li nes, acquiring insur ance, or providing servi ces and r eligious educ ation. See United States v . L amo nt , 330 F.3d 12 49, 1256 -57 (9th Cir. 2003) (rejecting gove rnme nt’s contention that § 844(i) a p plied whe re church purchased gas, insurance, and suppli es fr om out of st ate and s everal church att endees

came from out of stat e); United Stat es v. Rea , 300 F.3d 95 2, 962 (8th Cir. 2002) (concluding that § 844(i) did not cover a church an nex tha t only housed Sund ay scho ol c lasses and aft er-school tut oring because the purchase of suppl ies f

or the annex by i tsel f had onl y “f leet ing ef

fect s on in ter state commerce”); Unite d States v. Odom , 252 F. 3d 1289, 1296- 97 (11 th Cir. 20 01) (dism issing chu rch’s rec eipt of d ona tions fro m ou t-ofsta te donors, utili zation of Bibles purchased from out-of- state vendors
, and cont ribu ti ons t o vari ous out -of -st ate nonprof

it organ izations as “ too passiv e, too m inimal and too indirect ” to affect interst ate commerce); United States v. Johnson , 246 F.3d 749, 752 (5th Ci r. 2001) (hol ding t hat earli er decisio n, United Stat es v. Johnson

, 194 F. 3d 657 , 662 (5th Cir. 1999), which was vacat ed and remanded by the Supr eme Court , 530 U.S. 1201 (2000), corre ctly concluded t

hat cont ribut ion of f

unds by church members to a national organi zation and paym ent of an insuran ce cla im by

an out-of-s tate ins urer d id not suf fice to show t

hat t he juri sdict ional element of § 844(i) had been met). members flowed acros s s tate lines for distribution by the church’s headquarters in Salt L ake City). 12

Churches are not t

he only bui ldings that we and other courts have fou

nd to be use d in an activity affecting inte

rstate
commerce. In United Sta tes v. She rlin , 67 F.3d 1208, 1213 (6th Cir. 1995), we held that the arson of a d ormitory

at a private colleg e was pun

is hable un der § 8 44(i) . The co llege

w as a no nprofit institution, but its dormitory was used in an activity that affected interstate commerce be cause the colle ge received payments from students in return f or educ ati onal service s, it adv ert ised out of state, and almost all of the studentsliving in

the destr oye d dorm hai led from other stat es. 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 po lice veh icle, whi ch a loca

l sheriff ’s deputy used in his law e

nforce ment resp onsibilitie s. That co urt held 22 United States v. Laton No. 02-5185

that the destruction of the police car had “a significant impact
oninterstate commerce”because the deput y patrolle d traffi c and made arrests on

an intersta te highway , issued c itations to out-of- state drivers, participat edin interst ate nar cotic investig ations, assisted o ut- of-s tate auth orities i n apprehending

suspects, recovered stolen property fr

om other states, and attended law enforc eme nt 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 -statevendor is not a suff

icie n t connection to inte rstate c ommerce

to support an indictment

under § 844(i). Jones , 529 U.S. at 856. Ac co rd in gl y, a purely

private residence, whic

h is only
conn ected to interstate commerce through the material use d to cons truct it , the supplies used to heat it, or the monetary instrumentused to fi

nance it s p urch ase, is not used in an activity affectin g inte rstate commerce. However, whe n the government

relies on other conne ct ions to inte rstate
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 aff

ecting interstate commerce. See Ray born
, 312 F.3d at 234-35 (mentioning, in addition to other fa

ctors, that a church affected interstate c ommer c e becau se it purchased

l ocal g oods, such as groceries and flower s); Sherlin
, 67 F.3d

at 121 4 (not ing th at a col lege dorm affected intersta te commerce partially

bec ause it purchas e d “numerous supplies” from out of state, including food services).

Wh en i t crafted § 844(i) to encompass the arson of police st ations, Con gress recognized that the provision of emer gency services by m

unicipal ities can

affect intersta

te co mmerce i

n 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 undou btedly can aff ect inter state
commerce. See Benson v. Universal Ambulance Serv. , 67 5 F.2d 783, 786 (6th Cir. 1 982 ) (affirming lower court’s determination

that the F LSA a

pplies to private

a mbulanceNo. 02-5185 United States v. Laton 23

employees

because responding

to emerg encies on streets and hi gh wa ys affects interstate commerce given that it removes obstructions to the free flow of interstate commerce ); Bellflow er , 129 F.3d at 1462 (upholding conviction under § 844(i) for the arson

of a police vehicle because the office r’s responses to emergencies affec ted interstate commerce). The issue, though, is not whether all fire stations and fire department s affect interstate commerce; the jurisdictional element of § 844(i) requires us to focus our attention only on wh eth er the HFS is

used in an

activity affecting inte

rstate
commerce.
We conclude that a rational juror cou ld find beyond a
reasona ble doubt that the HFS was used in an activity tha t affected intersta te commer

ce beca use its role in fighting fires constit uteda n active , rather

than a pa ssive, em

ploy ment in intersta te commer ce. Se e Latouf , 132 F.3d

at 325. Six aspects of the HFS demonstrate t h is connection. First, the HFS housed fi

refig hting eq uipment, including

trucks, hoses, nozzles, and uniforms, whichthe HFD purchased from out of state, whi ch the HFD sent for repairs out of state, and which perished in the fire. T he prec ise dollar amount of

this equipment

is not know

n, but given that th e equip men t destroyed included at least one fire vehicle, it was not trivial. Second, the HFD charged $500 to out-of-state insurance companies for fig

hting fi res outsid

e of the Henn

ing city limits, although it only did so a fe w times annual ly. Th ird, the HFD paid its vo lunteers wages based on the amount of time spent on a

fire sce ne, alth ough the se wag es generally ha ve no t e xc ee de d $ 10 00 an nu al ly.

Ontheir own , these f

irst thre e factors ma y not form an adequa te nexus to interstate commerce under Jones . If the purch a se of equipment from out-of-state were the only link between the HFS and interstate commerce, thedissent might be right that thi s case is

easier than, or a

t least as easy as, Jones given that the acquisition of a mortg age, natural g as, and insurance from out-of-state prov iders was the extent of the interstate commerce connection in Jones . The dissent’s 24 United States v. Laton No. 02-5185

13 The town of

Henni ng i s the s it e of

th e Al ex Hal ey Mus eum, several antique shop s, a restau rant, two beau ty salons, t wo grocery stores, a bank branch, an auto parts store, twenty churches, 161 renter-occupied housing units, and a clothing manu facture r that em ploye d sev enty-fi v e peo ple in 2002. belief that this is an easier case than Jones sidesteps fundamental differences be tween Jones and this case, for muchmore than the mere purchase of supplies from out of stateties the HFS into the web of inters tate comm e rce. As demonstrated

below by

the fina l three li nks to inte

rstate commerce, we find it persuasively clea r th at the HFS was used in an activity af

fecting 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 laundr y fa ci li ty. In the future, it is certain that the HFD will be called uponto fight

fires at other bus inesses in

Henni ng. 13 Preventingthe destr

uction of comme rcia l establishments striking ly affects interstate commerce by preserving entities directly engaged in interstate commerce. Fifth, th e HFD serves to protect both the channels of
commerce and the in strumenta lit i es of com

merce b ecause

it is the primary e

mergency services provider for

the stretch of U. S. Rou te 51 going through Henning . The HFD has

r esponded

(and will respond i

n the futu re) to inc id ents an d accide nts 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 keepingU.S. Route 51 clear impacts interstate commerce. The HFD pro tects pa ssenge r vehicl es carr

yin g touris ts an d travele rs voy aging through western Tenness ee, it

safeguards the intersta

te shipmen

ts of goo ds, and it per

mits the freeflowNo. 02-5185 United States v. Laton 25

14 Not only commercial shippi ng and passe nger vehicles pass t hrough Henning, but als o pass enge r buse s ope rated by G reyho und, In c., shuttle between Mem phis and Dyersburg (and to points furt her south and north). Ad ditiona lly, acti ve rai lroad tracks owned by the Ill inois Central Railr oad

r un para ll el to U.S. Route 51 through Henning. Freight t rains fr equent these tracks and AMT RAK runs passenger servi ce along t his r oute, connecting Chicago to New Orleans, with stop s in Dye rsbur g to the no rth and Me mphis to the so uth. Any fire emergency i n Henning involving a bus or a t

ra in wou ld re qui re th e a ss is ta nc e of th e HF D.

15 We do not conclude in this opinion t hat because every

com munity’s PPC depends on the training and geogr aphic dis tri buti on of fire c ompanies, all f

ire stat ions are automatically used in an acti vi t y affecti ng interstate commerce . Giv en Congr ess’ s expl ici t i nst ruct ion that the appli cati on of § 844( i) de pen ds on the spe cific circu mstan ces o f a parti cular

fire station, w e limit our analysi s to the f ire stat ion in Henning. of trucks and bus es th rough the area. 14 The HFD’s firefighting

capabilities in this regard a ffec t intersta te commerce, because i nsu ring that the channels of commerce
are kept open

and the in strumenta

li t ies of commerce are protect ed is not a pass ive or pa ssing connection to intersta

te
commerce. Sixth, and finally, the pres ence of the HFS a nd the HFD impactsinsuranc e rates

in Hennin

g. The a bsence o f the HF S, and the impact on the HFD’s competency that is wrought by the loss of the HFS, directly a lters the PPC, which helps insurance companies calculate fire insurance pr emiums. As
a result o f the fire, Henning will have a worse PPC, and insurance premiums w

ill rise. The presence of an active fire department

in Hennin

g thus significantly impacts the insurance rates of

all the businesses (and

homes ) in He nnin g, whichin turn influences the commercial transactions of those bu sinesses
, both in the sense of their relationships to thei r insurer s and thei

r profit margins

. 15
Any of these last three factor s by itself demonstrates sufficie ntly that the HFS was used in an

activity that affe cted inter statecommerce, because its connection to commerc e wa s 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 connectio n of the HFS to intersta te commerc e resem

bles the li nks betwe en inter state
commerce and the church in Rayborn
, the dormitory in Sherlin
, and the police c ar in Bellflower . The HFS and the HF D have a definite impact upon the economy of Henning that is no lesssignificant than a church purchasing radio time
or a nonpro fit colle ge attr

acting students f

rom other states. The HFS perm

its local businesses to operate, enables the free flow of good s and p assen gers th rough the state of Tennessee, lowers the cost s of do ing business by dec reasing fire insurance pr emi ums, and directly engages in commercial transactions, in a more

minor way

, throug h th e pur chase of sup plies and the bi lli ng of insurance companies

. Ac co rd in gl y, any rational juror could conclude beyond a
reasona ble doubt that the jurisdictional element was met here because the H FS is active ly u sed in an a ctivity that aff ects interstate commerce.

III. CONCL USION

Becau se we conc lude that both part s of the Jones test have b een satisfied, we hold that there is sufficient evidence t o support the indictment as the HFS wa s use d in an activity affecting interstate commerce. We thus REVERSE the judgment of the dis trict cou rt and REMAND for further proceedings under § 844(i) consistent with this opinion.No. 02-5185 United States v. Laton 27

_______________ DISSENT

_______________ SUTTO N, Ci rcuit Judge , dis senti ng.
“Some say the world will end in fire , Some say in ice.” Robert Frost, Fire

and Ice
, in The Poe try of Robe rt Frost 220 ( Edward Connery Lathem ed., 20 02). Fr

om what th e 97 0 residen ts of Henning, Tennessee have seen of John Laton, their fire ch ief, one could ce

rtainly unders tand why they would “hold with those who favor fire.” Id.

Yet th e i nc om pa ti bi li ty o f this crime with this alleged criminal merely

serves a s a prelu

de to othe r oddities of this
case. Consider w

hat h appene d after

the fire chief se t fire to the Henning Fire Station. While arson is a state-law felony in Tennessee, as in all States, neither the loc al prosecutors nor the Attorney

Genera l of Tenne ssee indi cte d th is defen dant. While the fede

ral crime of arson applies just to property “used in” interstate c ommerce, 18 U.S.C. § 844(i), the National Government

indicted this defendant for destroy ing a building that has a u niqu ely publi c, non -comm ercial and so vereign purpose. And

while the United States acknowledged at oral
arg ument that it was not aware of a single other prose cution under § 844(i) for the arson of a local public building, the United States Attorney for the

Western District of Tennessee i nvoked this statute in response to the destruction of a rura l fire department by

a local fire chief. This case, however, is not just unusual as a matter

of fact
, law, or history; it is al so unusual as a matte r of pre cedent. Three Terms a

go, 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 doin g so, the Court made clear that the provision applies only to the destruction of bui ldings withan “active employment

for comme

rcial pu rposes, and not me

rely 28 United States v. Laton No. 02-5185

a passive, passin g, or pas t connection to commerce.”Id. at 855. F ire sta

tions are no more “active[ly ]” used for “commercial purposes” than residentialhom es a re. Inpoint of fact, this would seem to be the easier case—as f irefighting repres ents 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 vie w that even the

most atten

uated connection s to commer ce will suffi ce 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 reasonsand those elaborated below, I would affirm the judg ment of the district court dismissing this case.

I.

OnMarch 3 , 2000 , John Laton allegedly set fire to the Henni ng, Tennessee Fire Station. At the time, Laton served
as the Chief of the HenningVoluntee r Fire D epartme

nt, a city government

position. Henning, Tenn. Mun. Code §§ 7-301, 7-305. Under Tennessee law and the Henning Munici pa l Code, Laton’s job qualified him as a state officer, specific ally
anassis tant to th e state fire marshal, subject to all of the duties and obligations imposed on state officers under Tennessee’s fire-prevention laws . Ten n. Code Ann. § 68- 102-108; Henning, Tenn. Mun. Code § 7-308. Henningis a small rural town located in western Tennessee. It has a pop

ulation of

970 and si

ts in Lau derdale

County (population27,1 01). U.S. Census Bureau, Census 2000, TableDP-1. Henning lies about fifty miles nort

h of Memph

is and can be f ound at the

crossro ads of State Routes 87 and 209. (The author Alex Haley grew up in Henning.)

OnSeptember 18, 2001, a federal gra nd jury indicted Laton for arson in violation of 18 U.S. C. § 844(i). Laton moved to di s miss the indictment, arguing that § 844(i) did not encompa ss this incide

nt becau se the He

nning F ire Sta

tion was not“used in” interstate commerce or a commer ce- affe ctingNo. 02-5185 United States v. Laton 29

ac ti vi ty. Before ruling on L aton’s mot i on, the district court received a stipulat

i on from the parties agreeing on several pertine nt facts.

The stipulation c on tains few surprises. The parties agre e, for example, that the function of the Fire Station bui lding is to “hou se[] the fire fighting equipment including trucks, a s wellas the office, kitchen and meeting spacesfor the Henning Volunteer Fire Department.” The

HenningMunicipal Code adds that “[a]ll [such] apparatus, equipment, and sup plies” must be “purchased by

or through the town” and “remain the property of the

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

The parties a

gree t hat th e F ire Depa

rtment re sponds to firefighting

calls in a rural area of Tennesse e th at includes
numerous residences, ch urc hes, public buildings, several businesses and one U.S. highway . In some instances, the Fire Department

has provided emergency

services to vehicles on fi re an d/ or in vo lv ed in ac ci de nt s o n t he hi gh wa y.
The parties a

gr ee that the Fire Department has occ asional
connec t ions to three

typ es of ec onomic tra

nsaction s. First, the Department has pu

rchase d equ ipment from, and had equipment

repaired by , out-of-s t ate vendors. Second, the Department

charg es a fee

when it re sponds tocalls outside the city limits, whic

h it does on average no more

than three times
a ye ar. Acc ording t

o the Hen ning Mun icip a l Code, the Fire Department

responds to suc h calls only when a fir e outside the city limits thre atens pr

operty within the

city li m its or when the mayor and a

ldermen grant

t he Fire Department permission to respon

d to the ca ll. Henning, Tenn. Mun. Code § 7-307. City employ

ees working

at City Hall bill these fee s, whichamounted

to $300 pe

r call in March 2000, and have on
occa sion billed these fees directly to out-of-state insurance companie s. The total amount billed i n a year, the parties agree, does not exceed

$1,000. Third, the City of Henning pa ys wa ges to the “volunteer” fire fig hters based on the amount of time they spend at the sc ene of a fire. Total wage s paid by the City

in a typical y

ear do n ot exceed $1,000. 30 United States v. Laton No. 02-5185

Accordi ng t o the Municipal Code, the mayor a nd aldermen d et ermine the compe

nsation f or Fire Department pers onnel. Henning, Tenn. Mun. Code § 7-305.

The parties lastly agr

ee about the general

economic impact of the loss of a fire station. In calculating pr operty-insura

nce premiums, virtually all insurers of homes and

businesse s use a designation made by

the Insurance Ser

vices Office calle d the Public Protection Classification (PPC ). A community’s PPC depends on the ability of fire de partmen ts to respon

d to calls. Property

owners in

areas with no fire service receive the hig hest PPC, and the y a ccordin gly pay substantia

lly higher premiums t

han those

paid by

similarly

-si t uated propert y ow ners who live in ar eas with a lower PPC.

The district c ourt grante d Laton’s motion to dismiss the indictmen t. Indoing so, the court concluded that theHenning Fire Station is no t “used in” interstate commerce or in “an activity affec ting interstate commerce,” but is used for the non-commercial purpose o f housing the City ’s Fir e Department. To the extent t hat the activities of the Fire Department

have an y effects o n comm erce—t hrough respondingto fires, purchasing fire eq uipment, pay

ing wag es, receiving fees or affecting

insurance rates—the district court added that they are mer ely “incidental” and “passive, at best.” That attenua ted conne ction to interstate commerce, the court
conc luded, did not suffice to bring this arson within th e com pass of § 844(i ) or of th e Supreme Court’s r

ecen t interpretation

of the pr ovision in Jones v. United States , 529 U.S. 848 (2000).

II.

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

tion. Sect

ion 844(i)

provid es i n pertine

nt part: “W ho ever

malicious ly d

amage s or destr

oys , or atte

mpts to damage or destr

oy, by means of f

ire or a n explo si ve, any buil ding, vehicle, or other real or persona l proper ty u sed in intersta te commerce orforeig

n commer

ce or in a ny a ctivityNo. 02-5185 United States v. Laton 31

affecting interstate or foreign commerce shall be imprisoned . . . .” 18 U.S.C. § 844(i).

B y i ts terms, § 844(i) combines a broad grant of statutory authority (to federalize the arson of “any ” proper t y) 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 aff

ecting interstate or foreign c ommerce”)

. Congre ss defin es “in terst ate or f oreign commerce” for thes e purposes to mean “commerc e betwee n any place in a State andan y place outside of that State, or . . . between pl ace s within the same State but through any place outside of that State.” 18 U.S.C. § 841(b).

As commonl y und erstood, these words do not cover the
arson of a rural fi re station by

a local fire chief. Fire stations
are not natur

ally refer red to as propert y us ed in in

te rstate
c ommer ce or in commerce-affecting activity. By

everyda y standards of lang

uage, common se

nse and tr

adit io n, local gover nments build fire stations to putoutfires an d save liv es, activities that serve distinct ly in trastate public-s afety objectiv es, not int

erstate commerc ial ends.

III.

Precedent reinf o rces this conclusion. Three y ears ago, Jones v. United States , 529 U.S

. 848 (2000), construed the
same statute and determined that it doe s not apply

to a typical private residence. Id. at 850–51.

The Court initially explained that Congress did not “invoke its fu ll au th or it y u nd er the Commerce Clause” in enacting § 844(i). Id. at

854. While

Congress might have “‘define[d] the crime . . . as the [destruction] of a buil ding wh ose da mage or destruction might af

fec t interstate commerce,’” it instead required “‘that the damag ed or destroy ed prope rty

. . . itself have been used in commerce or in an activity aff ec ting commerce.’” Id. at 854 (quot ing Uni ted State s v. Menn uti , 639 F.2d 107, 110 (2d Cir. 1981) (Friendly , J.)). 32 United States v. Laton No. 02-5185

Indete rmi ning whether an alleged a rson fits within the terms of the statute, Jones in st ructs lower courts to ask (and
an swer) two questi ons. First, a cour t must dete

rmine “‘ th e functionof the building itself.’” Id. at 854 (quoti ng United States v. Ryan , 9 F.3d

660, 675 (8th Cir. 1993) (Arnold, C.J., concurring

in part a nd di ssenting in part)). Second, a court must “‘dete rmin[e] whe

ther tha t function affects inte rstate commerce,’” id. , mindful that this re quires “ active employment

for commercial

purposes , a nd no t m er el y a passive, passing, or past connection to commerce,” id. at 855 (emphasis added).

The bu rning of the Henning Fire Station does not satisfy theserequirements. Viewed from any angle, the Fire Station served sovereign rather than commer cia l 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 F ire Department), to perform a uniquely municipal function (fire fight ing). Local gover nments simply do not “sell” fire services “in the or

dinary comm ercial sense.” Cleveland v. United States , 531 U.S . 12, 23–24 (2000) (a State “does not ‘sell’ video pok

er licen ses in

the ordinary c ommercial sense” and a State’ s interest in them “s urely implic ates t

he Government’s role as sovereign, n ot as property holde r”). They instead provide an eminently useful, sove reign 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 “i t is difficult to conceive of a service
as sociated

more clo sely

with the st

ate than the provi si on o f fire protection services,” and hold ing that a Mary

land volunt eer fire department that was formed as a non-pr ofi t corporation

is a state actor

for § 1983 purposes); Tenn. Code Ann. § 29-20-102(3)(A) (for purposes of governmental im muni ty, the term “governmental entity ” includes “municip alit[ ies]”

and “nonprofit volunteer fire depa rtme nt[s ] recei ving funds app

ropriate d by

. . . a munic ipality

”); cf. United States v. Monholland , 607 F.2d 1311, 1316

(10th Cir. 1979) (rejec ting t he argu men t t ha t a pi ck up tr uc k u se d b y aNo. 02-5185 United States v. Laton 33

statecourt judge to drive back and forth from court was used ina co mme rce-affecting a ctivity just because state c ourt proceedings may

have some effect on commerce)

. That the F ire St ation served sovereign rather tha n commercial objectiv es should be dispositive here. For

while § 844(i) do es not ne cessar ily r equire t he prope rty at issue to be used for an interstate purpose, it does require the prope rty to be used for a commerc ial purpose. Only buildings, Jones instructs
, “active [ly] e

mploy [ed] for commercia l p u rposes,” 529 U.S. at 855, “affect[] interstate or foreign commerc e” within the meaning of § 844(i). Buildings offe red for rent and those from

w hich go ods and se

rvices a re sold f all within § 844(i)’s compass because they serve commercialpurposes , 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 Sta tes v. Ray

born
, 312 F.3d 229, 234 (6th

Cir. 2002) (c

hurch bu ilding us ed to rec ord radi o messages to be broad cast out of state on commercial radio); United Sta tes v. She

rlin , 67 F.3d

1208, 1213 (6th

Cir. 1995) (private college dormitory

); United Sta tes v. Ter

ry , 257 F.3d 366, 369–70 (4 thCir. 2001) (church building with day care 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 “u se d

. . . in ordinary re ligious acti vities” is not cover

ed); United St ates v . Rea , 300 F.3d 952, 962 (8th Cir. 2002) (church
annex with de minimis commercial functions is notcovered). Inmarked contrast to the a ctiviti es at issue in every one of these ca ses, governmental buildings in genera l 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.

Oth er interpre

tiv e guidelines, each of which Jones endorsed inconstruing § 844(i), point to the same co ncl usi on. In determining whether a feder al criminal statute applies to the
arson of a local public building by a local p ublic off

icial, Jones reminds us that we do so i n the shadow of several constitutional consider

ations. F irst of al l, “where a statute is suscepti ble of two constructions, by one of whichgrave and do ubt ful constitutional questions arise and by the other of whichsuch que stions are

avoided, [a court’ s] duty

is to adopt the latter.” Jones, 529 U.S. a t 857 (quot

a tio n omitted). See also United Sta tes v. Bas s , 404 U. S. 336, 349 (1971) (applying this principle, as in J

ones , to a setting where one constructionof a stat

ute would “de fine as a

federa l crime conduct readi ly de nou nce d as cri mi nal by th e St ate s”) . 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 thelegisla tion [was] aimed at activity in which neither the a ctors nor their conduct has a commer

cial cha racter .” 529 U.S . at 858 (c ita ti on and quotation omitted). See United States v. Lopez , 514 U.S. 549, 567 (1995) (holding that the G un-Free School Zone Act exceeds Congress’s authority to regulate commerce).

Jones likewise teaches that federal courts should not
cas ually read a s tatute in a

way that alte rs the fe deral- st at e balance. When the National Legislature wishes to regulate an
area traditionally

regula ted exclus ively

by t he States , it must “co nvey [] its purpose clearly .” Jones , 529 U.S. at 858 (citationand quotationomitted)

. In Jones , a unanimous Court held tha t Con gress had not cle arly convey ed a desi re to criminali ze the arson of a private dwelling. Id. Not long after Jones , Cleveland v. United S tat es , 531 U.S. 12 (2000), reached a similar conclusion in construing the mail-fraud statute. There, the Court ( again u nanimousl

y)decline d to “approve a sweep ing expan sion of fe deral cr iminalNo. 02-5185 United States v. Laton 35

jurisdiction in the absence of a clear statemen t by Congre ss” and refused to exten d the stat ute to cover “a wide range of conduct traditionally reg

ulated by state and loc al authorities.” Id. at 24. See id. at 27 (“Absent clear s tatement

by C ongre ss, we will not read the mail fraud statute to place under federa l superintendence a

vast array

of conduct traditionally police d by the States.”). See also G

regory v . Ashcroft
, 501 U.S. 452, 467 (1991) (“We wi ll not rea d the ADE

A to cove

r state j udges unless Con

gress made it cle ar that ju dges ar e included .”).

Jones finally

explains tha

t th ese rules have special applicationin the con

te x t of criminal statutes. “[W]hen choice has to be made between two readings of what conduct Congr ess has made a crime,” courts should not “choose t h e harsher alterna tive . . . [un

less] Cong

ress [has] s

poken in langua ge that is clear and definite,” and, accor dingly, any “ambig uity . . . should

be resol ved in favor of lenity.” Jones , 529 U.S. at 858 ; see Cleveland , 531 U .S. at 26 (“ [W]e decline to at tribute to [the mail-fraud statute] a purpose s o encompassingwhere Congress has not made such a design clear.”); id. at

25 (“[T]o the extent that

the word ‘proper ty’ is ambiguous . . . , we have instructed that ‘a mbiguity concerning theambit of criminal statutes should be resolved infavor of lenity.’ ”) (quoting Rew is 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 prisonun le ss th e l aw ma ke r h as cl ea rl y said they should.’”) (quoti ng H. Friendly, Mr. Justice Frankfurter and the Reading of Statutes
, in Benchma rks 196, 209 (1967)).

Theseprinciple s assu

redly apply

here. “[A]rson,” Jones reminds us, “is a p aradig

matic common-law state crime.” 529 U.S. at 858. It is a felony in all States, and that has been true since colonial

day s. See John Panneton, Federali zing Fires : The Evolving

Federal R esponse

To Arson Related Crimes , 23 Am. Crim. L. Rev. 151, 151 (1985). See gen erally Arthur F. Curtis, A Treatise on the Law of Arson (19 36). And the FederalGovernment’s role in this area historically ha s be en 36 United States v. Laton No. 02-5185

a limited one. Not until 1982 di d Congre ss enact the first fede ral 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 awkwar d exercis e of federa l power, but a

nea rly unprec edented one. At oral argume nt, counsel for the Federal Go v ernment could not id entify a single other federal prosec ution for ars on of a governmental b uilding u nder this provision . The majority cites a s ingl e unpublished decision, United States v. Wood ward
, No. 93-31 23, 1993 WL 498178 (1 0th

Cir. Dec. 2, 1993), decided

before Jones , to counter

this admission. But Wood ward
, which concerned an arson arising froma botched
ro bb er y, does not addres s a ny of the issu es raise d here or

in Jones

. Even the most charitable reading of Wood ward, at any rate, sugge sts that it is a solitary and unexpla

ined exce ption to the traditional rule that t he Federal Government does not constru e § 844(i) as applying to the arson of government buil dings and as displacing the criminal-law choices of local governments in this area.

Incontras t to the mini

mal fede ral inter ests in this case, the stateinterest s would se em to be a t their ap ex. Su

r ely the commission of “a pa

radigmatic common-la

w” crime ( Jones , 529 U.S. at 858) by a He nning of fici al involving Henning propert y is a matter

traditionally

taken up, i f not i n Henn ing, at least in N ashville. Tenness ee impose s cri minal sanctions
onstate fir

e offic ials ( suc h as the Ch ief) who fail in the ir official duties. Tenn. Code Ann. § 68-102-1 39 . And Tennessee, of course, makes arson a felony. Id. § 39-14-301. That there is friction

b etween the policy

choices of the National Legisla

tu re and the Tennessee L egislature over the appropr iate criminal sanction for

this felony only

underscores the sensitivity of the issueand the inter-branch tension raised by the Unite d States’ position. Compare 18 U.S.C. § 8 44(i) (providing for a

five-ye ar minimum sentence and twenty-y ear maximum sentence under these circumstances)
, with Tenn. Code Ann. §§ 39-14-301(b)(1), 40-35-111(b)(3) (pr oviding for a shorter three-y

ear minimum sentenc e and fifteen-y earNo. 02-5185 United States v. Laton 37

maximum sentence under these circumstance s)

. See Jones , 529 U.S. at 859

–60 (St evens, J., concurring, joined by Thomas, J.) (such a disparity “illustrates how a criminal law like this may effec

tively displace a policy

choice made by

the State” and, for

this reas on, cour

ts “should interpre t narrow ly federalcriminal laws that overlap with state authority unless congressionalintention t o ass ert its jurisdiction is plain”). The Federal Government’s policy choice to authorize a 5–20 year se nt en ce fo r t hi s c ri me ef fe ct iv el y di splaces the State’s policy choice to authorize a 3–15 year sentenc e for the

same crime, and that

is true whether

the State opts not to prosecut

e Laton inthe futur

e or exer cises its d iscretion to prosecu

te him under state law as well (and potentially create an 8–35 y

ear sentence). S

ee Heath v. Alabama , 474 U.S. 82, 93 (1985) (holding that a dou

ble jeopardy violation does not result from prosec utions by d

iffere nt sovere igns ar

ising fr om the same act).

The Federal Government’s own prior guidance in this area to Un it ed St at es At to rn eys sh ow s r es pe ct fo r m an y o f th ese co n cerns. The Department of Justice recognizes that Congre ss intended “Restraint in [the] Exercise of Federal Jurisdiction ” und er this statute. 9 United Sta tes Attorn eys’ Manual § 63. 902 (Mar. 2001). When Congress enacted the federalexplosives statute in 1 970, andamended it to cover
arson by fi re in 1982, it made clear that “[n]o provision of [the statut e] 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 De

partmen t “interprets [ thi s provision] as a statement of congressional intent that the Federa l government

— abs ent a specific

Federal i

nterest— will not become involved in bombingmatters that can be a dequate ly investigated

and pro secute d by local authorities.” 9 United States Attorneys’ Manual § 63.902 (emphasis added).

Inview of this guidance, the Fed eral Government’s decisionto prosecute here is difficult to understand. No one 38 United States v. Laton No. 02-5185

has questione d the abil ity o f local prosecut ors to enforce state lawin this are a. No one

has quest

ioned Te nnessee ’s abilit y adequa tely to investigate and

prosecute a local arsonist at the statelevel, if for some reason it cannot be done at the local level. See Tenn. C ode Ann. § 8-7- 106(b )(4) (p ermit ting a distric t attorney to “spe cially appoint” the state a ttorney general “to conduct specific criminal proceedings”) ; Tenn. Cons t

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

if the district attorney fa ils to prosecute)

. And, consistent with the United States Attorneys’ Manual , no one has identified a “specific Federa l interest” i n this case, ju st exceedin gly local one s.
B.

Becau se the National Government seeks to a

pply § 844(i) to a traditional state-law crime in a setting where no apparent federalinter es t exists, Jones requires the Government to show that the provision unambiguously extendsto th is ars on. It has not done so.

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

a building

“used in i

nte rstate commerce” or commerce-affecting

activity . 18 U.S.C. § 844(i). St ill less does s uch an arson concern a building with an “ act iv e employment

for commercial purposes.” Jones , 529 U.S. at 855. But even if one disagr ees with this analysis, the best that
can be said

in response is that the provision remains
am biguous about its extension to the arson of a fire s tation

. And that c onclusion requires the application of the Jones default prin c iples and the narrowing interpretation that they compel.

Second
, Co ngress

does not g eneral ly r

egulat e gove rnmenta l entities in such an opaque manner. I nstead 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 happ en not to be , Congre ss gener ally regulates its sovereign sisters with much g r eaterNo. 02-5185 United States v. Laton 39

specificity—either

by reg ulating them by na

m e or by referring directly to entitie s that rec eiv e fe deral f unds. Several other sta

tutes (too many , in fact, to list) de

monstrate that when C ongres s wis hes to regulat e sove reign activities or pr op er ty, it

tends to say so far mor

e explicitly. See , e.g. , Fair Labor Standar

ds Act, 29 U.S.C. §§ 203(d) (“‘Employe r’ .

. . includes a public agency .”), 203(r)(2) (“For purpose s of [defining ‘enterprise’], the activities performed by any person or persons . . . in connection with the a ctivities o f a public agency shall be d

eemed to be activ it ies per formed for a businesspurpose.”), 203(e)(2) (“I n the case of an individual employed by a public agency, such term [‘employee’ ] means

. . . any individual employ ed by a State, political subdivision of a State, or an interstate governmental agency . .

. . ”), 216(b) (providing for enforcement against “any employ er (including a public agency )” ); Ag e Discri

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

. . . a State

or politic al subdivi sion of a St ate.”) ; Fam ily and Medical Lea

ve Act, 2 9 U.S.C. §§ 2611(4)(A) (“‘[E]mployer ’

. . . include s a

ny public ag ency .”); 2611 (4)(B) (“For [t hese purp oses ], a public a

gency shall be c onsidere d to be a person engaged in commerce or in an indus try or activity aff

ecting commerce.”). Against this legislative backdrop, Congress’s decisionnot to mention governmental pro p erty more specific ally

in § 844(i)

at a minimu

m esta blishe s ambigu

ity about the scope of the pr ovisio n. See generally Cleveland
, 531 U.S. at 23– 25 (con cluding that the mail-fraud statute, whichcovers “property

” obtained by “ fraudulent pretenses,” 18 U.S.C. § 1341, does no t a pp ly to a State’s sales of video poker licenses because, among other reasons, the meaning of “property ” is “ambiguous” in this setting).

Third
, § 8 44 it self confirms tha t Congre ss knew how to distingu ish between eminently

sovereign activities and runof-the-mine commercial activities. One of the s tatu tory neigh b ors to § 844(i)

specific ally

criminal izes arson

of cert ain govern ment al buildings—all buildings occupied by the FederalGover

nmen t or those occupied by entities receiving federalassistance, which will frequently be loca l 40 United States v. Laton No. 02-5185

governmen

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

m aliciousl

y damages or destroy

s . . . by means of fire

or a n explosive, any

buildin g . . . owned or possessed by . . . the United S tates, or any de

partment or agency

thereof, or any institution or orga

nizatio n re ceiving Federal financ ial assistance, shall be im

prisoned .”). I f it is true

that a sta tute is “known by the company

it keeps,” Gustafson v

. Allo yd Co. , 513 U.S. 561, 57 5 (19 95), then § 844(f) illustrates that Congre ss knew how to criminalize the destruct ion of all
manner of public buildings when it wished to do so and sugge sts that § 844( i) was de signed to reach commercial rather than governmental bui ldings. Nor, in view of the United St ates ’ 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 independ

ent offic e. We ge

nerally construe statutes t

o avoid such re dundanc y, not acce ntuate 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 pr

ivate home implica

tes these three ex pect ations of clarity (c onstitutional avoidance, alteration of the federal-state balance, and the r ule of lenity),
as Jones holds, the

n assure dly

the to r ching 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 fac tors as well—pro

perty uniquely amenabl e to local regulation (a city buil ding) and an a

ctor (the fire ch ief) uniq uely at the beck and callof the local citizenry. Jones , in short, was the ha rder
case. And if Jones applied each of these a m biguity default principle s, then I wou ld do so as well. In this instance, the applicationof those

principles all points in one direction: A federalarson statute that does not mention public buildings by name, that is juxtaposed with a pr ovis ion that does mention p ublic buildings by name, a nd that requires the p ubli c propert y to be actively used f

or commercial purposes does not unambig uously cover the burning

of a local fire station by

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

V.

Int he face of these considerations, the United States counters that at le ast some a ctivities that t ake p lace at the HenningFire Station

are commercial in nature and that these activities suffice to legitimate this prosecution. The Federal Government

cit es three activities in particular: (1) that the Fire Departmen

t sometimes purchases equipment from, or ha s equipment

repair ed by , out-of- state ve

ndors; (2) that

the Fire Department

charges a $300 fee (billed through City Hall) on the few occasions each y

ear when it responds to a call outside city limits; and (3) that the City of Henning pa ys wag es to the “volunteer” fire fighters based on the a mount of time they spend at a fire scene.

The Fire De par tment’s purchases and repairs do not advance the United States’ position. A fire station is no more “used” in the “activity” of pur chasing interstate f

ir e e quipmentthan a re sidence is used in the activi ty o f purchasing interstate natural gas, mortgag es, o r ins u rance—

all activities that the Court rejected as jurisdict ional hooks in

Jones. See 529 U.S. at 856.

Neither do es 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 yea

r, when the Depa

rt ment responds to fires outside town limits)

hardly sugge st acti ve empl

oyment for commercial purposes

—which is w

hat Jon es requires. If de minimis activity of this sort transformed

every governmental building into o n e used for commer cial pur poses, the

n all public property in this country would be one bake sale away fromfede ra l jurisdiction. No fa ir read ing of the statute suggests that this is what Congress meant to do.

More i m portantly, a State does not engage in traditional commercial activities every time it receives a sumof money inexchang e for something or for tha t 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 i s espec ially true when the
revenue arrives, as here, after the fact. See id. at 22 (“The State receiv es the lion ’s share of its expec

ted reve nue . . . on ly after [the licenses] have been issued to licensees.”). No one sugge sts that the Fire Department would decline to extinguish
a fire until and unless the fee was pai d. F irefighters do not hagg le over fees. In this instance , in fact, they a re not e ven the ones w

ho charge the fe e; it is bille d by City Hall.

At all events, this argument proves too much. Were the collectionof revenue sufficient to trigg er § 844 (i), t hen presuma bly tax collection would suffice as well, leavi ng no public property untouche d. And the separ ate p rovision covering buildings occupied by

entities “receiving Federa l assistance,” 18 U.S.C. § 844( f), “would have no office,” Jones , 529 U.S. at 857, because receiving a feder al gra nt is an economic transaction. “‘Judges should hesitate . . . to treat statutory terms in any setting a s [surplusage],’” Jone s instructs
, “‘and resistance should be hei ghtene d when the words describe the element of a criminal offense.’” Id. at 857 (quoting Ratzlaf v. United St ates , 510 U.S. 135, 140–41 (1994)).

The Federal Government’s reliance on the fact that the HenningFire De

partment occasionally

“pays wage s” to its “volunteer” firefighters fails for much the same r eason. Congre ss, to be sure, may as a ma tter of power regulate the wages pai d to firef

ighter s, 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 Congre ss sought in

this instance

to regulate criminal conduct with respect to the build

ings tha t housefirefighters or sought to do so on th

is basis. Teache

rs also re ceive w ages, but that does no t ne cessar ily permi t Con gress t o make poss essin g a gun in a school zone a federal crime. See Lopez , 514 U.S. at 567. Indeed, if fede

ral wage-and-hour law s have any relevance in this context, it is to show that Congress views firefighting

and the nominal wa

ges pa id by the gov ernment

toNo. 02-5185 United States v. Laton 43

thesevoluntee

rs dif fe rently from ordina

ry commerc e. See Fair Labor Standards Act, 29 U.S.C. §§ 203( e) (4)(A) (exempting indi vidua ls who volu nteer to serve a public agency even whe n paid “nominal” wa

ges)
, 2 07(k) (exempting firefighters from the Act’s over time provisions).
Nor, for simil ar

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, 1 462 (11t h Cir. 1997 ) (conc luding that § 844(i ) covered the bombing of a police car). See also Lopez , 51 4 U.S. at 558 (“ Congre ss is empowe red to regulate and protect the instrumen

talities o f interst

ate comme

rce, o r persons or thin gs in interst

ate comme

rce, even thoug

h the thre at m a y come only

from intr

astate a ctivites. ”); United States v. McHenr y , 97 F. 3d 125, 126 (6th Cir. 1996) (“[C]ars are themsel ve s instrumentalities of commerce.”) (quotation omitted). The same

of cours e could ha

ve been said in Jones : It is the rare private r

esidence that does not house a car.

Also unavailing is the United S tates’ reliance on the economic impact of

a fire st at io n’ s d es tr uc ti on —s pe ci fi ca ll y, the lower PPC ratings, the higher insuranc e costs, or the inability to extingui sh fires affecting local businesses or (o cc as io na ll y) burning cars on t he high way s. Accept

ing this position would re

write the statute to

say some thing th at it does not. As Jones indicates , Co ngress did not “define the crime. . . as the [destruction] of a building whose damage or destruc ti onmight affect interstate commerce,” but instead required “that th e dam aged or destroye d proper ty . . . itself have be en 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 ” rationa le for connecting federa

l legislation banning guns near schoolsto interstate commerce). T wo of Jones ’ overriding lessons—that§ 844(i) d oes not re ach the f

ull e xt ent of Congress’s Commerce Clause powers, 529 U.S. a t 854, and that the statute a

ppl ies only

when the

building itself is 44 United States v. Laton No. 02-5185

“a ct iv e[ ly] employ[ ed]”

incommerce, id. at 855—cannot be squared with the U

nited St a tes’ rel iance on the econ omic impact of des troying the b uilding or on the non-commercial activity (fight ing fir es) per formed by the o ccupants of the buil ding.
But, per haps most critically, this argume nt has no logical stopping point. All gover nmental se

rvices a ffect c om merce at some level, whether

those services are legislative, executive or ju d ic ia l. As ke d a t o ra l a rg um en t t o i de nt if y a single governmental building bey ond the reac h of

§ 844(i) under the Government’s theory , counsel for the United States could n ot 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, w

hat goes on

there first and

foremos t is a public and sovereign service, which in the main wil l rarely (if ever) be deemed “active l y”

“commer

cial” in a ny t raditiona l sense of the terms—even if all such activities eventually affect
comme rc e in one way or a nother. It is precisely

the role of the clear-statement rules identified above, and applied faithful ly 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 th at the FederalGovernment has r aised he re. I f the majority

is right that a state li quor sto re, a state building housing a lottery
comm iss ion or a post office building (though a fe deral buil ding) amounts to

a building with an “active[] . . . commercial purpose,” that is only because the statut

e unambig uously c ove rs these

propert ies, not be cause it unambiguou sly covers an eminently non-commercial fire station. At any rate , in view of Jones a nd Cleveland, 531 U.S. at 23–24 ( a State “ does not ‘ sell’ vide o poker li censes i n the ordinary c ommercial sense” becau se t he activity “implicates the Gove

rnment’s role as s overeig

n”), it seems doub tfu l that the st

atute una mbiguous ly c overs ev en these building s.No. 02-5185 United States v. Laton 45

Neither may one over

come these objections by

suggesting that, in the wor l d of case -by-case d etermina tions, the outcome here will be a ticket good for one train an d o ne tr ai n o nl y. Untilnow, there have be en no othe r trains i nthe station, so it is not clear what

the concess ion conce des. More to the poin

t, it still remains to be see n whatgovern ment b uild ings analy tically would not

be covered by

this type of analy

sis—as the United States seems to recognize.

One last point d

eserve s mention. The Unite d Stat es also seeks refuge in the legislative history , relying on an unenacted forerunner

to § 844 (i), which applied to the destruction of propert y used “for business purposes,” and on the statemen ts of som e legislators that § 844(i) as enacted would cove r “police stations.”

Congre ss eventua

lly omitted the words “for businesspurposes ,” an d while do ing so se veral Ho use members indivi d ually explained that the lang uage was eliminated

because some membe

rs were afraid that the st atute would not reach

“ police stations.” See Exp losives Co ntrol: Hearin gs Before Subcomm. No. 5 of the House Comm. on Judiciar yon 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 Unit ed States infers f rom this unenacted

legislation and from these statements by individual representat ives t hat Congress intended § 844(i) to cover the arson of city building s.
This argument fails for three reasons

. First , when cl arity in the text of a law is required
, legislative history by definition cannot supply it. See Unite

d States v. Nordic

Village , 503 U.S. 30 , 37 (1992) (“[L]egislative history has no bearing on the ambi g uity point [because] . . . the ‘unequivocal expression’ of eli minat ion o f [th e Unit ed St ates’ ] sov ereign immunity that we in sist upon is a

n expressi on in

statutory text.”); Dellmuthv. Muth , 491 U.S. 223 , 2 30 (1989) (“[E]vidence of cong

ressiona l intent mus t be both unequivocal an d textual ” to provi de the cl arity necessa ry to abrog ate a S ta te ’s El ev en th Am en dm en t i mm un it y; 46 United States v. Laton No. 02-5185

“[l]egislative history ge

nerally will be

irrelevant.”) (emphas is added); Gregory , 501 U.S. at 470 (equating the clearstatement rule app lied in the

soverei gn immuni

ty context with the clea r-state ment rule applied i nthe context of Commerce Clauselegislation that would alter the federal-state balance);

see also Cleveland , 531 U.S. at 24 , 27 (requiring a “clear statemen t” to extend “federal criminal jurisdiction” to an area “traditionally policed by

the States”).

Second, the use o f legis lative his tory to broaden the reach of a law see ms particu

larly inappropriate in

a setting like this one—where we have not just the risk of the alteration

of the federa l-state balance and the impe rative to a void const it utional questions but the imposition of a criminal sanction. It stretches the nece ssary leg al 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, f or example, a few floor state ments suggesting that the law cover s police stations)become the basis for putting someone behind bar s. Becau se “the rule of lenity ensur es that criminal statutes w

ill provide fair wa

rni ng concerning conduct r endered illegal,” Liparotav. U

nited States , 471 U.S. 419, 427 (1985), and because no one ca

n plausi bly conclude that a committee report or the floor

statements of selected legislators provides suchwarning, t he use of such mate

rial see ms utterly i ncompati ble with the purposes of the rule or the ci vilize d interest s it protects. In at lea st one opinion, the Supr eme Courthas said that very thing : “Even were the statutory langua ge regarding the scope of a court’s authority

to or der restitution ambi gu ou s, lo ng st an di ng pr in ci pl es of le ni ty, whichdemand r

esolution of ambig uities in criminal statutes infavor of the defendant, Simpson v. United States
, 435 U.S. 6, 14–15 (19 78) (app lyin

g rule o f lenity

to federa l statute that
wo ul d enhance penalty

), preclude our resolution of the ambigui ty against petitioner on t he b asis of general declarations of

poli cy in the statute and leg islative history.” Hughey v. United States , 495 U.S. 4 11, 42 2 (1990). While dicta in other cases may

suggest a different appr oach, seeNo. 02-5185 United States v. Laton 47

Moskal v. U

nited States , 498 U.S. 103, 108 (1990), I am
aware of no decision

from our Court or from the United States Sup rem e Court that broadens the rea ch of a c riminal sta

tute
onthe basis

of legislative history

and that does so in spite of theseobjections. The on ly Ju stices of the Supreme Court who have squarely

add ressed the issue (to my know ledge) have firmly c oncluded that “it is not c onsistent w

iththe rule of lenity to construe a textually ambiguous penal sta

tute againsta criminal defendant on the basis of legislative history.” United Sta tes v . R .L.C. , 503 U.S. 291, 307 (1992) (Scalia, J. concurring in part and conc urring in the judg

ment, joined by Kennedy

, J., and Thomas, J.).

Third
, the infere

nce the F ederal

Government seeks to draw fromthe unenacted version of § 844(i) not only comes from
aninappropriate source bu t al so rests on a discredited premise. The Sup reme Court has frequently r ejected argume nts b asedon unenacted legislation, noting the diff iculty of deter mining whether a

prior bill

prompte d objections because it went too far or not far enoug h. See Mead Corp. v. Tilley
, 490 U.S. 714, 723 (1989) (“We do not attach decisive signific ance tothe unexplained disappearance of one word from an un enacte d bill bec ause ‘mu te i nterme diatelegislative maneuvers’ are not re liable indicators of congressional intent.”) (quoting Trailmobile Co. v. W hirls
, 331 U .S. 40, 61 (1947) ); Puerto Rico Dep’t of Consumer Affairsv. IS

LA Pet roleum Corp. , 485 U.S. 495, 501 (1988) (“[U]nenacted

approva ls, beliefs, and desires are not laws.”). See also United States v. Granderson , 511 U.S. 39, 69 (1994) (K en ne dy, J., concurring) ( “ This admonition takes on p artic ular importance when the Court construes criminal laws.”).

Al l of th is pe rh ap s e xp la in s w hy Jones mentions t he ver y same legislative history

that the United States cites here, see Jones , 52 9 U .S . a t 8 53 n. 5, th en pr oc ee ds no t o nl y t o ignore the al le ge d i nf

er en ce s c re at ed by t hi s h is to ry b ut also pro ceed s to contradict them. Thus, while Congress omitted langua ge proposed in an

earlier draft of the bill (“ for business 48 United States v. Laton No. 02-5185

purposes,” Hearings at 30) ost ensibly sugge sting that no b us iness purpose is needed, Jones adopts an “active . . . commercial purp ose[]”

test for ascertaining whether § 844(i) applies, 529 U.S. a

t 855. And s ome of th e same legislators who sug gested

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 buil ding, ve hi cl e o r a ny real pro perty . . . not just businesses”); id. at

300–01 (Rep. Wylie) (sugg esting that the bill should cover

priv ate dwellings and other property not used for business); id. at 304–05 (Rep. Cramer) (“a person has a right to safety

and sec ur it y o f his home and to the security of his pro

perty ”). But Jones of cours e specif ically holds that § 844(i) d

oes not cover priv ate res idences

. Becau se in the end the unbargained-for ser vice of fighting fires is the antithesis of

an activity e

ngag ed in for an “active

. . . commercial purpose[]” and because Jones has charted a
course that in my view controls us here , I would affi rm t he districtcourt’s judgment. That be ing a minority view, I respectfully

dissent.