Monuments and Memorials: Federal Criminal Law Protections

Monuments and Memorials: Federal Criminal Law Protections

July 8, 2020
Monuments and Memorials: Federal Criminal Law Protections
On June 26, 2020, President Trump issued an “Executive
Court has explained that Congress’s Property Clause
Order on Protecting American Monuments, Memorials, and
“power over the public land” is “without limitations.”
Statues and Combating Recent Criminal Violence” (June 26
United States v. San Francisco, 310 U.S. 16, 29 (1940).
Order). Among other things, the June 26 Order directed the
U.S. Department of Justice (DOJ) to prioritize prosecutions
When Congress creates federal criminal law by exercising
under existing federal statutes protecting monuments,
one or more of its constitutional powers, those laws are
memorials, and statues. On July 3, 2020, President Trump
generally enforced by the DOJ, which can prosecute
issued an “Executive Order on Building and Rebuilding
violations of those laws in court, consistent with due
Monuments to American Heroes” (July 3 Order). The July
process and other rights of the accused. The DOJ does not
3 Order decried vandalizing or destroying national
need specific authorization from the President or from any
monuments and created an Interagency Task Force for
other entity to prosecute violations of federal criminal law.
Building and Rebuilding Monuments to American Heroes
However, as the head of the Executive Branch, the
(Task Force). The July 3 Order also assigned the Task
President may set certain enforcement priorities and shape
Force to “establish a statuary park named the National
Departmental policy on the handling of such prosecutions.
Garden of American Heroes (National Garden).”
Veterans Memorials
This In Focus analyzes two federal criminal statutes that
In certain circumstances, the Veterans’ Memorial
may protect monuments and memorials from removal or
Preservation and Recognition Act (VMPRA) criminalizes
intentional damage, potentially including future monuments
the willful injury or destruction (or attempted willful injury
in the National Garden.
or destruction) of “any structure, plaque, statue, or other
monument on public property commemorating the service
Congressional Power to Enact Federal Criminal
of any person or persons in the armed forces of the United
Laws
States.” 18 U.S.C. § 1369(a). A person convicted of
Criminal law enforcement is an area where “States
violating this provision may be imprisoned up to 10 years,
historically have been sovereign.” United States v. Lopez,
making the crime a felony. However, the applicability of
514 U.S. 549, 564 (1995). When Congress wishes to
this statute is limited in several important respects, as
criminalize individual conduct, it may do so only as an
discussed below.
exercise of its constitutionally granted authority. Although
Congress’s legislative powers are broad, they are not
Limited Jurisdictional Circumstances. Section 1369(b)
unlimited. Courts have declined to uphold federal criminal
expressly limits the above-described crime’s applicability to
statutes that do not require a sufficient jurisdictional
two circumstances. First, § 1369(b)(1) covers instances
nexus—that is, an element of the offense bringing it within
when the offense involved interstate or foreign commerce
the scope of Congress’s constitutional powers. Id.
or the mail. Specifically, the statute applies when the person
committing the offense does so by (a) traveling, or causing
The U.S. Constitution grants Congress several different
someone else to travel, in interstate or foreign commerce;
powers that it may use to enact legislation. For example,
(b) using an “instrumentality” of interstate or foreign
Article I, Section 8 of the Constitution expressly authorizes
commerce, such as a car or truck; or (c) using the mail.
Congress to legislate regarding counterfeiting, piracy,
Both (a) and (b) tie the conduct to Congress’s Commerce
crimes on the high seas, offenses against the law of nations,
Clause power; (c) falls within Congress’s Postal Power.
and treason. The Commerce Clause is another significant
Second, § 1369(b)(2) makes the statute applicable when the
source of legislative authority that undergirds many federal
monument in question “is located on property owned by, or
criminal statutes. Under its Commerce Clause powers,
under the jurisdiction of, the Federal Government.” This
Congress may regulate three categories of activity: (1) “use
invokes Congress’s power under the Property Clause.
of the channels of interstate commerce,” such as highways;
(2) “instrumentalities,” such as vehicles used to carry out
These circumstances are elements of the overall offense and
commerce, “or persons or things in interstate commerce”;
must be proven in court. If a person willfully injures or
and (3) activities that “substantially affect” interstate
destroys a monument commemorating service in the United
commerce, at least in the aggregate. See Lopez, 514 U.S. at
States Armed Forces, but (a) does so without traveling in or
558–59. Congress also has authority under the Postal Power
utilizing any instrumentality of interstate commerce and
(Article I, Section 8, Clause 7) to regulate the use of the
without using the mail, and (b) the monument is not located
postal system. Additionally, Article IV, Section 3, Clause
on federal property, that person would not have violated the
2—the Property Clause—gives Congress the power to
VMPRA.
“make all needful Rules and Regulations respecting . . .
Property belonging to the United States.” The Supreme
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Monuments and Memorials: Federal Criminal Law Protections
Willfulness. The use of the word “willful” indicates that the
Federally Owned Property
injury or destruction must be intentional. This would
Section 1361 of the U.S. Code, Title 18, provides criminal
generally exclude accidental or negligent actions. For
penalties against anyone who “willfully injures or commits
example, if a person lost control of a car due to slippery
any depredation against any property of the United States”
road conditions and hit a covered monument, they likely
or its agencies, or who “attempts to commit” such an
could not be prosecuted under the VMPRA, even if they
offense. The statute also covers property being produced for
caused significant damage.
the United States. If the offender causes damage exceeding
$1,000, the crime is a felony punishable by fines and up to
Injury or Destruction. At least one court has suggested that
10 years in prison. If not, it is a misdemeanor punishable by
mere removal and relocation would not constitute “injury or
fines and up to a year in prison.
destruction” within the meaning of the statute. See
Monumental Task Comm., Inc. v. Foxx (MTC), 259 F.
This straightforward exercise of Congress’s Property Power
Supp. 3d 494, 504 (E.D. La. 2017) (considering private
is not as limited as the VMPRA. As an example, an attack
challenges to local government’s planned removal of
on a federally owned monument that causes no damage is
Confederate-era public monuments). Thus, if a monument
unlikely to be a violation of the VMPRA, but could still
is removed from its site of public display but remains fully
constitute a “depredation” against federal property and
intact, the removal may not violate the VMPRA. Similarly,
result in misdemeanor charges. This statute is also broadly
covering a statue with fabric or projecting lights onto its
applicable to buildings and other types of federal property,
surface may not be considered “injury or destruction” if no
not just monuments. It could also apply to Confederate
damage results. However, a monument arguably suffers
monuments, so long as they are federal property. However,
injury when its intended context or message is changed,
as with the VMPRA, this statute is enforceable only by the
especially if that change is unauthorized.
DOJ, and not by private parties.
On Public Property. This clause forecloses the applicability
To the extent that the National Garden is established on
of the VMPRA to monuments located on private property.
federally owned property, and the statuary therein belongs
to the federal government, this statute would appear to
Commemorating Service in the U.S. Armed Forces. This
provide criminal penalties for any attempted damage to any
statutory language excludes monuments that do not honor
of the statues, regardless of which person or persons they
the subject’s service in the U.S. Armed Forces. The
depict or in what context.
decisive factor is not whether the subject ever served in the
U.S. Armed Forces, but whether the monument specifically
Options for Congress
is memorializing that service. Thus, a statue honoring a
Congress may pass additional measures to protect
person solely for contributions in another field—such as
monuments, or it could further restrict the measures already
science or diplomacy—is not a covered monument even if
in place. Congress could expand the applicability of the
that person also served in the U.S. military.
VMPRA (or enact separate legislation) to cover a broader
set of monuments—for instance, all monuments honoring
This clause of the VMPRA would seemingly exclude
American citizens, or all statues in the National Garden.
statues and memorials honoring Confederate soldiers, even
if the subjects also served in the U.S. Armed Forces prior to
In the opposite vein, Congress could add language to the
the Civil War. Likewise, the VMPRA would not cover
VMPRA to expressly exempt injury or destruction carried
some of the proposed figures in the National Garden who
out with the permission of the owner or relevant authority.
did not serve in the military, such as Dolley Madison and
This would avoid the possibility of the VMPRA being used
Antonin Scalia. Some figures who served in the military,
to prosecute agents of state or local entities that choose to
such as Ronald Reagan or Jackie Robinson, would be
remove or destroy monuments within their control.
covered only to the extent the statues memorialize their
Congress could also clarify whether or not it intends
service, rather than solely honoring nonmilitary
removal of monuments to constitute injury or destruction
accomplishments. Some indications that a memorial
under the VMPRA, even if the monuments are not
commemorates a subject’s military service may include the
physically harmed.
display of military uniforms or insignia or inclusion of
military titles and accomplishments in an inscription.
Similarly, Congress may strengthen or weaken the federally
owned property statute’s applicability or penalties. Outside
Criminal Penalties Enforceable Only by the Federal
the criminal law context, Congress could also examine the
Government. As noted above, the DOJ is responsible for
Task Force’s proposed funding sources for the National
enforcing federal criminal laws. Private citizens cannot use
Garden, and legislate to support or stymie such funding.
the VMPRA to challenge or prevent destruction of
Regardless of Congress’s policy choices, any legislation
monuments (i.e., the VMPRA contains no private right of
may only prohibit activities within the realm of Congress’s
action). As one court explained when denying civil
constitutional authority.
discovery on a VMPRA claim, “[d]ecisions whether to
prosecute or file criminal charges are generally within the
Mainon A. Schwartz, Legislative Attorney
prosecutor’s decision. Private citizens have no standing to
institute a federal criminal prosecution and no power to
IF11596
enforce a criminal statute.” MTC, 259 F. Supp. 3d at 504
(internal quotation marks omitted; alteration in original).
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Monuments and Memorials: Federal Criminal Law Protections

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