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A person with "FBI" on the back of her shirt holds a clipboard while surveying damage after a firebombing of a building with blown out windows
A member of the FBI’s Evidence Response Team surveys damage at the Dar Al-Farooq Islamic Center in Bloomington after the Aug. 5, 2017, firebombing. (File photo: Kevin Featherly)

8th Circuit: Mosque bomber’s federal conviction valid

An Illinois white supremacist has lost her appeal following her conviction for bombing a Minnesota mosque in 2017. The 8th U.S. Circuit Court of Appeals, in a ruling filed May 10, has decided that the bomber, who traveled from central Illinois to Minnesota for the purpose of terrorizing the local Muslim community, did not prove that the statute she was convicted under was facially invalid.

Emily — formerly known as Michael — Hari and two associates, Joe Morris and Michael McWhorter, were members of a white supremacist paramilitary organization called the “White Rabbits.” In August 2017, they decided to bring a 20-pound pipe bomb, two assault rifles, and a sledgehammer up to Bloomington’s Dar al-Farooq Islamic Center. After smashing the window of the Imam’s office, they threw diesel fuel, gasoline, and a pipe bomb. The bomb detonated and the building suffered fire and smoke damage. Although several men were at the mosque for early morning prayers, no one was injured in the bombing.

After fleeing the scene, Hari and her associates were captured by the FBI following a seven month investigation. Hari was convicted by a jury of five federal offenses for masterminding the attack, including violating 18 U.S.C. § 247. This statute restricts damaging religious property and obstructing people in the free exercise of their religious beliefs. Although Hari’s counsel asked for the minimum sentence — citing the influence of misinformation and conspiracies on the internet — Hari was ultimately sentenced to 636 months of imprisonment.

Before trial, Hari asserted that the U.S. statute was facially invalid as it exceeded the congressional authority conferred by the Commerce Clause. Famously, in United States v. Lopez (1995), the U.S. Supreme Court held that the government could not prohibit gun possession near schools based on the Commerce Clause, as it determined that gun possession is not an economic activity impacting interstate commerce.

Following Lopez, the government amended § 247 to add a jurisdictional element, “is in or affects interstate or foreign commerce.” Central to both parties’ cases was a dispute over the import of the jurisdictional element.

This is not the first case where an individual argued that § 247 was facially invalid. The 4th Circuit considered this issue in 2021 with Dylan Roof, who killed nine members of the Emanuel African Methodist Episcopal Church in South Carolina in 2015 in a hate crime. He was convicted under § 247 for religious obstruction. While Roof argued that the statute was facially invalid under the Commerce Clause, the 4th Circuit determined that it was facially valid after citing the statute’s amended language to include the jurisdictional element. Certiorari was denied by the U.S. Supreme Court in 2022.

The government urged the court to stand with the 4th, 10th, and 11th circuits on the Commerce Clause challenge to § 247. “Section 247 falls squarely within Congress’s Commerce Clause authority,” argued Brant Levine, appellate attorney at the Department of Justice’s Civil Rights Division, who represented the United States. “Section 247’s jurisdictional elements ensure that law can never exceed Congress’s Commerce Clause authority. That’s because the jurisdictional element requires the government to prove sufficient connection between interstate commerce and the offense in every single case.”

Shannon Elkins, assistant federal defender, represented Hari. “247 is a criminal statute by its terms that has nothing to do with commerce, nor any sort of economic enterprise,” Elkins stated. “247 activities are noneconomic activities and non-commercial in nature.”

The 8th Circuit did not mince words in rejecting Hari’s argument, calling it “apparent absurdity”  to claim that Congress lacked Commerce Clause authority to deem Hari’s actions a criminal offense. The court contended that, although economic activity is a paramount factor to Commerce Clause inquiries, the most important factor was the presence of a jurisdictional element.

“The conspirators traveled from Illinois to Indiana to purchase explosives, then drove on interstate highways to Minnesota for the purpose of bombing a prominent mosque,” the court affirmed. The court determined that the statute is a “legitimate exercise of Congress’s power to punish offenders who ‘rely on the channels and instrumentalities of commerce in committing criminal acts.’”

Not only did the court highlight the interstate element of the commission of the crime, but it pointed to the commercial aspect of places of worship and faith. “The international pursuit of religious freedom has economic roots,” the court wrote.

Hari will remain in a federal prison in Oklahoma to continue serving her sentence.

RELATED: Two men sentenced in Bloomington mosque bombing

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