There is an interesting controversy brewing on Capitol Hill where Missouri Rep. Lacy Clay, D-Mo., wants California Rep. Duncan Hunter (R-Ca) criminally charged after Hunter took down a painting by one of Clay’s constituents that contains insulting images of police as pigs and other animals. The question is what the crime might be in such a circumstance since the painting was not damaged. It is analogous to the recent controversy at the University of Pennsylvania where students pulled down a portrait of William Shakespeare and replaced it with a portrait of a black feminist author. The painting (as in this case) was brought undamaged to the office. Of course, this is the removal of art from a Capitol building.

Clay and members of the Black Caucus are calling for criminal charged after Hunter took it upon himself to remove the painting that was part of an art display in the Cannon Tunnel running between the Capitol buildings. The painting was done by high school student David Pulphus and won Clay’s annual Congressional Art competition.

The depiction of the officers as pigs and other animals is obviously insulting to many and disrespectful to police officers who routinely put themselves in harm’s way for the public, including officers who sought to stop the looting and burning in places like Ferguson, Missouri. That however does not give license to a member to remove art from the Capitol. The members of the Black Caucus noted that they have equal objections to other art, including permanent art. Clay noted the statues of Confederate leaders such as Jefferson Davis and Robert E. Lee in the Capitol: “Two traitors who cost America 600,000 lives,” he said. “They’re treasonous; they should be out of here.” It is an interesting point. If Clay removed Lee’s statue, would it be a protected act by a member?

Citizens would likely be charged if they removed art from the walls of the Capitol. However, Hunter reportedly did not keep the art and rather left it with Clay’s office.  Nevertheless, Clay has mentioned “theft” charges as appropriate in the circumstance.

The theft provision of federal property is 18 U.S.C. § 641:

 

The act could be viewed as a defacing or damaging government property. That might fall under 18 U.S. Code § 1361:

Whoever willfully injures or commits any depredation against any property of the United States, or of any department or agency thereof, or any property which has been or is being manufactured or constructed for the United States, or any department or agency thereof, or attempts to commit any of the foregoing offenses, shall be punished as follows:

If the damage or attempted damage to such property exceeds the sum of $1,000, by a fine under this title or imprisonment for not more than ten years, or both; if the damage or attempted damage to such property does not exceed the sum of $1,000, by a fine under this title or by imprisonment for not more than one year, or both.

Recently, two men were charged with defacing both the new Trump hotel and the FBI building.

However, the painting itself does not appear to be government property and it is not clear if the wall was damaged in the removal. The painting itself was not kept by the member and thus not a case of theft or conversion.

The U.S. Attorney’s Manual expressly rules out “adverse possession” as part of this crime:

Section 1361 protects “any property” of the United States or an agency or department thereof, or any property being manufactured or constructed for the United States or an agency or department thereof, from willful depredation or attempted depredation. “Depredation” has been characterized as the act of plundering, robbing, pillaging or laying waste. United States v. Jenkins, 554 F.2d 783, 786 (6th Cir. 1977); cf. Deal v. United States, 274 U.S. 277, 283 (1927) (“depredation” defined in context of postal statute). This section prohibits actual physical damage or destruction of both real and personal property, but mere adverse possession of that property without physical harm is insufficient to violate the law. United States v. Jenkins, supra, 554 F.2d at 785. Section 1361 is a specific intent crime, see United States v. Jones, 607 F.2d 269, 273-74 (9th Cir. 1979), cert. denied, 444 U.S. 1085 (1980), and the government must prove that the defendant acted willfully; that is intentionally, with knowledge that he/she is violating a law. United States v. Simpson, 460 F.2d 515, 518 (9th Cir. 1972); United States v. Moylan, 417 F.2d 1002, 1004 (4th Cir. 1969), cert. denied, 397 U.S. 910 (1970). The government is not required to prove that defendant knew the property belonged to the government, because government ownership is “merely a ‘jurisdictional fact’.” United States v. LaPorta, 46 F.3d 152, 158 (2d Cir. 1994), quoting United States v. Feola, 420 U.S. 671 (1975). In fact, title or possession by the United States is not a necessary element of this offense, if the property in question was being made for the United States. The government must present evidence establishing value of damage. United States v. Seaman, 18 F.3d 649, 651 (9th Cir. 1994). The penalties for violations of this section are tied to the extent of the property damage. As amended on September 13, 1994, if the damage exceeds $100, the defendant is subject to a fine of up to $250,000, ten years imprisonment, or both. See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, § 330016, 108 Stat. 1796, 2146-47 (1994). When property damage does not exceed $100, the offense is a misdemeanor punishable by a fine of up to $100,000, one year imprisonment, or both. See 18 U.S.C. §§ 3559(a), 3571.

That would make this a rather interesting but unlikely case. Nevertheless, members are not afforded the authority to unilaterally strip art from the walls of Congress. That could be a matter for internal deliberations before there are retaliatory acts by other members in a tit-for-tat demonstration.  There may also be a countervailing move by members to seek enforce a rule prohibiting insulting and demeaning images to be placed on walls in the  Capitol.  Many would find this art to be deeply disrespectful and disturbing.  Given the fact that all citizens come to the Capitol to meet with members, Clay’s selection could be viewed as itself a violation of rules of decorum and conduct for members.

What do you think?