I LOVE LOVE this motion because it gives great background on the laws charged. Below is the section on the Face Act. It says things that have been pointed out here already but in much better detail. The information about the term "threat" is very helpful. bbm
a. 18 U.S.C. § 248(a)(2), the FACE Act
The applicable section of § 248 makes it a crime to use force, threat of force, or physical obstruction to intentionally injure, intimidate, or interfere with “any person lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship.” See 18 U.S.C. § 248(a)(2). The elements of the charged violation of § 248(a)(2) are (1) that the defendant used force, the threat of force, or physical obstruction (as that term is narrowly defined in the statute), (2) that the defendant acted with intent to injure, intimidate, or interfere with another person; (3) that the other person was lawfully exercising religious freedom at a place of worship; and (4) that the offense resulted in bodily injury to another person.5 18 U.S.C. § 248(a)(2); see also United States v. Dinwiddie, 76 F.3d 913, 917 (8th Cir. 1996) (generally discussing statutory language of § 248(a)(1)); United States v. Harlow, No. CR 22- 096-4 (CKK), 2023 WL 7880183, at *5 (D.D.C. Nov. 16, 2023)(unpublished) (reciting elements of § 248(a)) and citing (Terry v. Reno, 101 F.3d 1412, 1414 (D.C. Cir. 1996)).
Subsection (e) of § 248 specifically defines “intimidate” (“to place a person in reasonable apprehension of bodily harm to him”), “interfere with” (“to restrict a person’s freedom of movement”), and “physical obstruction” (“rendering impassable ingress to or egress from … a place of religious worship, or rendering passage to or from such … place of religious worship unreasonably difficult or hazardous”).
Although the term “threat” is not defined in the statute, the Supreme Court has recognized that to form the basis of a criminal charge, a threat must be a “true threat,” that is, a statement “where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Virginia v. Black, 538 U.S. 343, 359 (2003) (emphasis added). Moreover, the Eighth Circuit, upholding the constitutionality of a parallel provision of the FACE Act, held that the threats outlawed by the statute were those threats that met the statutory definition of “intimidation,” meaning that they must place a person “in reasonable apprehension of bodily harm.” Dinwiddie, 76 F.3d at 922.
Offensive statements are not threats, and the fact that a purported victim subjectively finds a statement threatening is not, by itself, enough to render it so, particularly in light of § 248’s requirement that the government prove that a defendant made the threat to “intentionally” intimidate a person engaging in free exercise of religion.
Thus, § 248 requires that a defendant both (1) engage in one of three prohibited actions (the use of physical force, issuance of a threat intended to put someone in fear of bodily harm, or physical obstruction that renders impassable ingress to or egress from a building), and (2) act with an intent to injure, or place in apprehension of bodily harm, a person who is lawfully exercising their religious freedom.
Patently, § 248 does not outlaw mere interference with, or disruption of, a prayer service—even if the disruption is rude, unseemly, and offensive. The FACE Act does not prohibit conduct that interrupts, bothers, disrupts, offends, or even frightens, unless that conduct also involves force, threat, or (total or near-total) obstruction carried out with intent to injure, intimidate and interfere with another person.
Another basic legal principle that is important in evaluating whether the grand jury was properly instructed on this count: in any multi-defendant case,
Due Process demands that culpability be determined on an individualized, defendant-by-defendant and charge-by-charge basis. See United States v. Whitfield, 140 F.4th 978, 986 (8th Cir. 2025) (citing with approval instruction to petit juror that each count must be considered separately); United States v. Benedict, 855 F.3d 880, 885 (8th Cir. 2017) (citing with approval limiting instructions given during trial that each defendant “is entitled to have his case decided solely on the evidence which applies to him”).
Accordingly, a properly instructed grand jury would need to be familiar with the elements and limitations of § 248, and particularly with the definitions of “intimidate,” “threat,” and “physical obstruction,” and also be aware of the principle of individualized determination. In the absence of accurate legal guidance, grand jurors would almost certainly interpret this legally complicated statute based on the common usage of terms that are defined far more narrowly in the statute. The risk of a grand jury applying incorrect standards—and therefore the need for accurate legal guidance—is particularly critical here, where the statute uses terms with special legal meaning; the conduct involves core First Amendment expression; the evidence is extraordinarily thin; and the subject matter (disruption of worship) is one about which passions run high.
