Late yesterday, federal prosecutors filed a 49-count superseding indictment against Jared Loughner. The new indictment was filed under a theory that hasn't been tried that often, if at all, at the federal level. Apparently federal prosecutors are taking the line that Gabby Giffords' meet-and-greet at a Tucson Safeway took place on federal property.
The additional charges were made under a provision in federal civil rights law that is usually applied to hate crimes but can be extended to crimes against any person "participating in or enjoying any benefit, service, privilege, program, facility or activity provided or administered by the United States." In this case, that would be Giffords's "Congress on Your Corner" meet-and-greet with her Tucson constituents.
The federal law forbids anyone from injuring, intimidating or interfering with any such person, or attempting to do so.
Using this theory, prosecutors charged Loughner with an additional 46 counts of murder and attempted murder. He's now charged with killing six people and injuring 13 others. I don't know what to make of it. On one hand, one can argue that federal prosecutors want to send a message that violence at congressional gatherings won't be tolerated. On the other hand, it could easily come off as federal overreach into something that belongs in state court.
Federal prosecutors took the line that Loughner's actions amounted to a violation of the attendees' civil rights.
U.S Attorney Dennis K. Burke told reporters in Phoenix that he wants to seek justice for all the victims and make no distinction between those who were federal employees and those who were merely attending the congresswoman's event.
"These victims were exercising one of the most precious and fundamental rights of American citizens: the right to meet freely, openly and peaceably with their member of Congress," Burke said. "It is a civil right. And their safety in participating in this federal activity is protected by federal law."
However, some legal experts think this might go too far.
Stephen Saltzburg, a law professor at George Washington University, called the legal strategy excessive.
"They clearly have the congresswoman, her staff and a federal judge covered by federal law, and for everyone else they could prosecute him in state court," said Saltzburg, a former deputy assistant attorney general in the criminal division of the Justice Department. "You don't need to stretch it and try to argue that everyone was in a federally protected area. That is a really sweeping view of the federal law."
Aitan Goelman, the prosecutor of the Oklahoma City bombing case, seems to agree, saying that they only prosecuted Tim McVeigh and Terry Nichols for the deaths of eight federal agents, not the other 160 people in the building.
I have to admit, I'm a bit conflicted. Clearly, Burke wants to send the message that the government will stand up for the rights of people who want to meet with their lawmakers peacefully. But will this open doors that shouldn't be opened? I'm not sure what to make of it.