I will likely be quoting this motion liberally in the future. Below is the section on the KKK Act. bbm
b. 18 U.S.C. § 241 (The federal criminal civil rights conspiracy statute)
Section 241 prohibits conspiracies to injure, oppress, threaten, or intimidate any person in the free exercise of a right secured by the Constitution or laws of the United States. 18 U.S.C. § 241. Section 241 does not expressly identify the federal rights encompassed by the statute, but rather incorporates rights defined elsewhere. United States v. Lanier, 520 U.S. 259, 265 (1997) (“in lieu of describing the specific conduct it forbids … [the] … statute's general terms incorporate constitutional law by reference.”). This unusual cross-reference to a vast body of law exponentially increases the need for correct legal instruction, since the grand jury cannot simply read the words of the statute and thereby understand the law sufficiently to determine probable cause (as it can do in evaluating certain other statutes in the federal code).
The elements of a § 241 offense are (1) that an agreement (a meeting of the minds) existed; (2) that the purpose of the agreement was to injure, oppress, threaten, or intimidate another person in the exercise of a federally protected right; and (3) that each defendant willingly joined the conspiracy, intending its purpose. 18 U.S.C. § 241. See also Eighth Circuit Pattern Criminal Jury Instruction, § 6.18.241 Conspiracy to Deprive a Person of Civil Rights (setting forth elements). The terms “injure, oppress, threaten, and intimidate” require more than conduct that is interruptive or unpleasant. United States v. Magleby, 420 F.3d 1136, 1143 (10th Cir. 2005) (holding that § 241 instructions to petit jury were flawed because the jury was allowed to consider the ordinary meaning of “oppress, threaten, and intimidate” rather than using a definition focused on true threats, and noting that “[m]any acts short of unlawful violence may constitute oppression or intimidation in the everyday sense of these words” ) (relying on United States v. Lee, 935 F.2d 952, 960 (8th Cir. 1991) (R. Arnold, J., dissenting), rev'd en banc, 6 F.3d 1297 (8th Cir.1993)).
In this case, the superseding indictment describes the right at issue as “the First Amendment right of religious freedom at a place of religious worship, as secured by Title 18, United States Code, Section 248(c).” The First Amendment itself cannot serve as the source of the right in this civil rights conspiracy, as the defendants are not state actors; as Justice Scalia explained, for a right to serve as the basis for a civil rights conspiracy where the defendants are not government actors, that right must be one “guaranteed against private impairment.” Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 274 (1993) (evaluating civil analogue of criminal conspiracy statute). Because the First Amendment proscribes only governmental interference with the practice of religion, see U.S. Constitution, Amdt. 1 (“Congress shall make no law ... prohibiting the free exercise” of religion), the “First Amendment right of religious freedom” cannot be violated by a private individual. United Bd. of Carpenters & Joiners of Am., Loc. 610, AFL-CIO v. Scott, 463 U.S. 825, 832 (1983).
Of course, under the plain language of § 241, a right may be conferred by federal statute as well as by the Constitution. 18 U.S.C. § 241. The superseding indictment cites to a federal statute, § 248(c), as the alleged source of the right; however, any right conferred by § 248(c) is far narrower than the broad right, asserted in the superseding indictment, to practice religion in a place of worship. If § 248(c) creates a right at all, it is by allowing a person aggrieved by the conduct prohibited in § 248(a) (the provision charged in Count Two) to pursue civil damages. See § 248(c)(1)(A) (“Any person aggrieved by reason of the conduct prohibited by subsection (a) may commence a civil action…”). See, generally, Health & Hosp. Corp. of Marion Cnty. v. Talevski, 599 U.S. 166 (2023) (explaining how to analyze whether civil laws create rights).
But the conduct prohibited by § 248(a)(2) is not mere interference with “the right of religious freedom at a place of religious worship,” but rather interference with the right of religious freedom at a place of religious worship through force, threat of force, or physical obstruction intended to injure, oppress or intimidate another person.
Accordingly, if § 248(c) secures a right that can form the basis of a § 241 charge, it cannot be the right cited in this superseding indictment. A proper indictment on a § 241 charge based on a right “secured by § 248” would require a finding of probable cause to believe that each defendant entered an agreement to injure, oppress, threaten, and intimidate another person in that person’s right to worship free of force, threats, or physical obstruction intended to injure, oppress, or intimidate them. Moreover, unless the grand jury were provided a definition of “injure, oppress, threaten, or intimidate,” it would almost certainly apply common-usage definitions of these terms—which the Tenth Circuit has expressly warned is error. Magleby, 420 F.3d at 1143.
Other basic legal principles relating to conspiracy are also important in evaluating whether the grand jury was properly instructed on this count.
As in any conspiracy, a § 241 agreement to violate civil rights requires proof of a meeting of the minds among all conspirators. United States v. Rolon-Ramos, 502 F.3d 750, 754 (8th Cir. 2007) (“For a conspiracy against rights, the Government must prove ‘an actual agreement between two or more persons to accomplish a prohibited object.’”); see also Tinsley v. United States, 43 F.2d 890, 892 (8th Cir. 1930) (“In a conspiracy there must be some unity of purpose, some common design and understanding, some meeting of the minds in an unlawful arrangement. . . A person does not become a part of a conspiracy by knowledge that another is about to commit a crime, or necessarily by an acquiescence in the crime.”). In the case of § 241, that meeting of the minds must specifically be to injure, oppress, threaten, or intimidate another person. United States v. Mackey, 143 F.4th 129, 140 (2d Cir. 2025) (Section 241 case holding that “the government must prove the defendant’s knowing agreement as to the conspiracy’s unlawful purpose. Here, that meant proving that [the defendant] knowingly agreed . . . to injure others in the free exercise or enjoyment of the right to vote.”) (internal quotation and citation omitted).
Therefore, people who agree to take an action together (such as to engage in a protest) but who do not share the prohibited intent (an intent to injure, oppress, threaten or intimidate another person in their exercise of a federally protected right) do not violate § 241. See Eighth Circuit Pattern Criminal Jury Instruction, 6.18.241 Conspiracy to Deprive a Person of Civil Rights (explaining the second element to be that “at the time the defendant joined in the agreement or understanding, [he][she]
intended to [interfere with][hinder][prevent] (name of person)’s free exercise or enjoyment [of a right].) (emphasis added).
Absent such agreement, there is no crime, even if a joint action has the effect of interfering with a federally protected right. And, of course, it is axiomatic in any conspiracy that mere presence at a scene, even with knowledge of a crime being committed there, does not establish membership in a conspiracy. See, e.g., United States v. Shavers, 955 F.3d 685, 691 (8th Cir. 2020).
Thus, it is clear, as a legal matter, that § 241 does not criminalize an agreement to gather together for a protest—even if those entering the agreement are aware that the protest may disrupt a prayer service in a church, and even if they know that congregants will find their actions deeply offensive. Rather, the statute outlaws only that subset of agreements that are specifically aimed at injuring, oppressing, threatening, or intimidating another person in the exercise of a federally protected right – in this case, the right to exercise religion in a place of worship free from force, threats, or obstruction intended to injure, intimidate, or interfere with the right. Any suggestion to the grand jury that a person violates § 241 simply by agreeing with others to engage in conduct that has the effect of disrupting a lawful prayer service would be so fundamentally inaccurate as to substantially affect the defendants’ rights.
www.law.cornell.edu
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www.revisor.mn.gov
Clearly, we disagree on this case. That's okay.