PerspectiveThe Monsey Attack: What’s the Basis for the Federal Charges against Grafton Thomas?

Published 2 January 2020

Grafton Thomas is accused of committing the horrific, anti-Semitic attacks in Monsey, New York last Saturday.  Marty Lederman writes that “One might have expected (I did) that the United States would have charged Thomas with violations of the Matthew Shepard Hate Crimes Prevention Act, 18 U.S.C. 249(a),” but that for some reason, “the government has instead elected to charge Thomas pursuant to a different criminal statute, 18 U.S.C. 247(a)(2).” “It’s… likely the government will be able to satisfy the commerce element of Section 247(a)(2),” he writes,” “but it would’ve been much easier for the government to satisfy the different commerce element prescribed by Section 249(a)(2).”

Grafton Thomas is accused of committing the horrific, anti-Semitic attacks in Monsey, New York last Saturday.  Marty Lederman writes in Just Security that the State of New York presumably could have brought charges against him (for example, attempted murder).  On Monday, however, the federal government filed a criminal Complaint against him instead.

Lederman writes:

One might have expected (I did) that the United States would have charged Thomas with violations of the Matthew Shepard Hate Crimes Prevention Act, 18 U.S.C. 249(a), given that Thomas allegedly used a dangerous weapon (a machete) to cause bodily injury to several persons because they were Jewish.

For some reason, however, the government has instead elected to charge Thomas pursuant to a different criminal statute, 18 U.S.C. 247(a)(2), which makes it unlawful to “intentionally obstruct[], by force or threat of force, … any person in the enjoyment of that person’s free exercise of religious beliefs” where “the offense is in or affects interstate or foreign commerce.”

Unless there’s something unusual about the case that’s not immediately apparent, the government’s decision to use Section 247 but not Section 249 will probably make successful prosecution more difficult, for several reasons.

Lederman offers a detailed explanation of the statutes, concluding:

It’s… likely the government will be able to satisfy the commerce element of Section 247(a)(2)–but it would’ve been much easier for the government to satisfy the different commerce element prescribed by Section 249(a)(2).  Moreover, the prosecution might have difficulty showing that Thomas intentionally tried to obstruct his victims’ religious exercise–a showing it would not have had to make if it had brought charges under Section 249(a) instead of under Section 247(a).