Harmeet Dillon and other Administration officials are making noise about prosecuting protesters and journalist Don Lemon for interrupting a Minneapolis church service to protest the pastor (who works for or with ICE). Dillon and others mentioned prosecuting under the Ku Klux Klan Act. That prompted snarky online comments about prosecuting a Black man under a law with that name and whether Dillon and others believe Congress enacted the law to help the Klan rather than to stop it.
So what are they talking about?
The intent seems to be to prosecute under § 241. That prohibits conspiracies to “injure, oppress, threaten, or intimidate any person in any State,. . . in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.” Section 241 does not require state action (unlike § 242). It does require specific intent to injure or threaten in the free exercise of rights or privileges (meaning an incidental infringement does not satisfy the statute). And it does require that the right or privilege be one protected against private infringement.
As to the second requirement, freedom of religion is not constitutionally protected against private enforcement. I thus expect DOJ to use the FACE Act, which prohibits private interference with religious freedom at places of religious worship, to provide the right or privilege in which the victims were injured or intimidated. I think DOJ still has a problem with specific intent–the people went into the church to protest and speak out about the pastor, not to interfere with religious worship. While seemingly nit-picky, it matters under specific intent statutes (hence the reason § 241 and § 242 fail to hold law enforcement to account for misconduct).
In any event, none of this has anything to do with the Ku Klux Klan Act. Congress enacted that law in 1871 and it primarily establishes civil remedies (§ 1983 and § 1985(3)). Congress enacted § 241 in the Civil Rights Act of 1866 and then reenacted it in the Civil Rights Act of 1870.1 Perhaps these hacks meant they would use Reconstruction Era laws, highlighting the pedigree of these provisions and to emphasize that they are fighting for civil rights (of a certain kind for certain people). And I guess one could say Congress enacted the 1870 Act out of concern for the Klan’s growing influence (which prompted the 1871 Act one year later). But they are not, in fact, prosecuting under the KKK Act. One would hope the head of the Civil Rights Division would know better.
Moreover, I am not sure why DOJ would want or need to rely on § 241, since FACE imposes criminal penalties for violations. Why use an old vehicle to enforce a new statute when the new statute includes a vehicle? The maximum penalties for § 241 (10 years imprisonment) are greater than those for FACE (one year for first offense). But since the Guidelines determine sentences rather than statutory maximums, that should not make a difference.
- Congress enacted the 1866 Act under § 2 of the 13th Amendment, framing it as targeting a badge or incident of slavery. When concerns arose for the validity of the 1866 Act, Congress enacted the 14th Amendment, then renacted the key provisions of the 1866 Act under § 5. Congress subsequently upheld these provisions under both constitutional powers. ↩︎