“Joker” Case In Chicago Shows New Expansive Claim Of Federal Jurisdiction


29190052-8385647-image-a-64_1591218701772In Chicago, a man wearing a Joker mask set fire to a police SUV in broad daylight. The problem is that Timothy O’Donnell has a prominent tattoo on his neck reading “Pretty.” That was one of the ways that police were able to identity him for arrest.  The case however highlights the expansive claim of federal jurisdiction being used by the Justice Department.

I wrote earlier about the identity of those who are fostering the rioting and arson. Not Russians but homegrown anarchists, Antifa members, and opportunists.

O’Donnell is shown opening the gas cap on the police vehicle and later sitting on the street watching the vehicle burn.


29190050-8385647-image-a-66_1591218785206The police found the mask in his apartment and he reportedly waived his Miranda rights and confessed to the crime.

So why is this a federal crime? The reason appears to be that the police car belongs to the city government, which buys vehicles in interstate commerce. That is a pretty breathtaking construction that makes the ruling in Wickard v. Filburn (1942) looks modest in comparison.  In that case, Roscoe Filburn was growing wheat to feed his chickens, but the Supreme Court still defined the activity as interstate commerce because his crops reduced the amount of wheat on the open (and national) market.

So this guy burned a car within the state. He lives within the state. His victim is within the state. But it is still claimed as a federal interstate crime.  For those who still value federalism, the broad interpretation would effectively gut state police powers.

O’Donnell has been charged with a federal count of arson. That is by definition a crime that is overwhelmingly treated as a state offense. He could now face five and twenty years in prison if convicted.

The U.S. Attorney announced that anyone involved in destructive behavior – such as setting fire to a police car – should know that federal law enforcement will use all tools available to us to hold them accountable.”  The question is whether this jurisdictional claim is appropriately part of that tool box.  It should bring a challenge from the defense in my view, though courts have allowed for expansive interpretations.  The case could also be reframing as domestic terrorism later by the prosecutor to fit the President’s call for harsh charges and sentences. That would combine an expansive federal jurisdictional claim with an equally expansive interpretation of terrorism law.

That is no joke if you value state authority over police powers.

45 thoughts on ““Joker” Case In Chicago Shows New Expansive Claim Of Federal Jurisdiction”

    The racist arrest is totally unfair in the way it was handled and in the proposed punishment !

  2. Antifa has taken over the _________ movement that is cultural appropriation.

  3. https://youtu.be/VLR76_e_koE?t=2 Let’s not keep perpetuating the myth that ANTIFA is such a high-toned spiritual movement that it leaves no terrestrial evidence and that the ‘movement’ is transmitted one enlightened mind to another. The pallets of bricks just appear like manna from heaven or bits of meat delivered by ravens to Elijah. Piffle..

  4. yes, giving rise to very respectable Libertarian argument that we should let the moral persuasion as reflected in our marketplace ethics, settle these disputes. Any parent knows that in the end, moral persuasion is the only ethic that sticks.

  5. Jonathan: I agree that Timothy “Joker” O’Donnell should not be charged with a federal crime. It is a stretch to find his crime other than a state offense. But William Barr, Trump’s enforcer-in-chief, thinks a federal charge against the “Joker” will burnish his boss’s claim that he is the “law and order” president. But what caught my eye was your statement: “I wrote earlier about the identity of those who are fostering the rioting and arson. Not Russians, but homegrown anarchists, Antifa members, and opportunists”.

    First, there are no Antifa “members”. Antifa is not an “organization” in the traditional sense. It has no identified leaders, no organizational structure and no headquarters .It is an amorphous grouping of like minded people fighting right-wing fascist ideologies. Second, at this point we don’t know anything about Timothy O’Donnell. He may be an anarchist or follower of Antifa but he could also be a right-wing provocateur intent on provoking violence that could be blamed on the largely peaceful protesters. I say this because in Las Vegas this week federal prosecutors arrested three men, with military backgrounds, who are being charged with conspiracy, terrorism and explosive possession charges–manufacturing Molotov cocktails- just like the “Joker”. Apparently, the three were intent on taking advantage of the local demonstrations over the police killing of George Floyd to cause mayhem. According to an informant the three men’s “idea behind the explosion was to hopefully create civil unrest and rioting throughout Las Vegas”.

    So before you jump on Trump’s bandwagon of blaming all the violence over George Floyd’s killing on “anarchists” and Antifa get the facts first about the firebombing of the police vehicle in Chicago!

    1. Gabriel Nadales told host Laura Ingraham that he was in Antifa around 2011, and recalled it as the most violent group he had ever been part of. He said that Antifa is buildings networks of groups on campuses where college administrators allow them to work right under their noses. Nadales said we don’t allow ISIS to recruit on college campuses and we should not allow Antifa.

      Nadales called Antifa’s misleading moniker a way to hide its true identity as a vessel for far-left political activism. Antifa pretends to be about fighting fascism, but then they define fascism as basically anything that does not conform with their radical leftist agenda. He believes parents would be shocked if they knew how many of their youth are being pulled into this group. Campus Reform did a report of the recruiting going on at University of Florida. https://www.campusreform.org/?ID=13767

    2. Absolutely. This is Turley’s rhetorical game of stacking the deck while leaving right wing Boogaloos or supremicist’s entirely off his arrayed list. Legal 3 card monty it seems.

      1. boobaloo boys are just psychopaths. they are even a shade nuttier than the antifa is my impression.

        there is nothing right-0wing about them, total freaks. racial thinking is beyond them. t he are merely a different stripe of anarchist. feel free to lock them up with ANTIFA and actually that is a good idea

        i have used the expression boogaloo a few times, before i saw that there was a nutty subculture of them on the internet that is about like the socalled “incel” freakazoids. now they’ve ruined this amusing expression for me.

        their hallmarks are, wearing hawaiian shirts, rhapsodizing over snorting coke, talking big on the internet about making illegal weapons and explosives, and killing LEO. in reality they are insane misfits. these are not right wingers or even racists they are just totally unhinged nutjobs. i know the type, they are a pestilence that has been around the gun culture since ever they were invented.

        anyhow to the point of the article.

        lighting a gas tank on fire is creating an incediary device.

        any incendiary ir destructive device (very much including what the army calls IEDs) with a charge of more than 1/4 ounce of explosive or accelerant can also be charged as a DD destructive device 1-10 years under the NFA. simple and been done a thousand times in federal court. slam dunk. this is a no brainer

    3. “First, there are no Antifa “members”. Antifa is not an “organization” in the traditional sense. It has no identified leaders, no organizational structure and no headquarters .It is an amorphous grouping of like minded people fighting right-wing fascist ideologies.” Perpetuating a myth that Antifa can’t be stopped..it’s carried by self-righteous pixie dust, one mind to another, leaving no earthly trail. https://youtu.be/VLR76_e_koE?t=2

      1. It seems that people on this blog don’t like the idea of anti-fascist people. That idea would not go far by the men and women of WW2.

  6. Shoplifting should also be a federal crime if the item stolen was trucked in using our interstate highway system. If it was imported from another country, the person should be extradited. And if unable to prove citizenship the person should be placed in GITMO.

    1. And there you have it– Everything becomes a federal crime if we allow it.

      1. Even *not* buying medical insurance, no?

        (I’m not painting you as being on one side or the other of that issue, but rather, am using your point as a jumping off point for my own)

      2. Everything becomes a federal crime? Well, do the states have the cajones to prosecute other liberals? No. If we find out the Joker is an illegal alien, he’ll get off with a week in holding cell and be given free college tuition. I’m all for state’s rights, but some of these states need to step up and enforce their own laws…and they’re not doing that.

        1. I assume that would be the DOJ’s side of it, that they wouldn’t do it if the States would take their oath seriously.

  7. It’s been 20+ years since I took constitutional law, but it seems like this case would be pretty close to U.S. v Lopez.

  8. I have to agree. As much as I want this lunatic in prison or shot dead in the street, I do not want the federal government involved. This is a local issue. If the local politicians won’t deal with the problem then get new politicians. And if you won’t vote the radicals out, you will have to learn to live with the joker.

    1. There is that, too. The only long term solution is let these folks lie in the beds they made.

  9. Just admit that we must overturn WvF and be done with it.
    Otherwise – yes this is stupid and unconstitutional – like WvF and the bazillions of fderal regulations that would be unconstitutional without it.

  10. I fully agree this is massive federal overreach.

    But I completely disagree with your Wickard V. Wilburn claim.

    You cited both fact patterns – what is the difference.
    Filburns grain NEVER entered interstate commerce.
    SCOTUS’s idiotic claim is that Filburn Might have altered interstate commerce because any other grain he might have bought might have come from interstate commerce.

    This has ALWAYS been a ludicrously stupid and bad decision. It has ALWAYS given the federal government an infinite window intoactivities that are entirely inside of a state based on the remote possibility that the might effect interstate commerce.
    By that argument EVERYTHING effects interstate commerce.

    In fact this case – as bad as it is, is LESS troublesome that WvF.
    It is near certain the Police car actually crossed state lines at somepoint.
    It is near certain the gasoline did.

    Filburns grain did not. EVER.

    Bad decisions have bad consequences. WvF is one of the stupidest SCOTUS decisions ever and almost the entire federal regulatory state rests on it.

    1. “It is near certain the Police car actually crossed state lines at somepoint.” The vehicle is a Police Interceptor Explorer. Made right there in Chicago, most likely doesn’t know what a state line looks like, let alone crossed it.

      1. Assuming you are correct – I have not heard of a car made in chicago.
        Are you saying none of the parts come from out of state ? Out of the country ?
        The steel, the rubber, the copper ? All from illinois ?

        Regardless, I do not think this is a federal crime.
        But not because this is catagorically different from WvF,
        but because it is exactly the same and WvF was decided wrongly.

    2. Wickard v Fillburn was a bad case.

      but if this is charged under the NFA as an illegal incendiary device then all of this hairsplitting is circumvented.

      All IEDs including cars with burning gas tanks are easily charged as DD under the NFA

      who cares about massive over reach now anyhow, this is libertarian pretzel logic. they very well might get their wish of limited government if the USA collapses into anarchy because of this horrible ongoing spate of insurrection. and trust me most liberterians are not anywhere near ready where that will go.

      shooting arsonists on sight is a lawful exercise of lethal force under the Illinois Compiled Statues. Arson is a forcible felony. The police could have shot him on sight. The only reason not to is simply to hold him for interrogation and see if he has any confederates. Of course then you have to give him a trial.

      “7-1. Use of force in defense of person. … However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.

      720 ILCS 5/7-1(a) – Illinois General Assembly”

      1. The federal government has no police power
        Can you find an enumerated power in the constitution for the NFA ?

        To the extent that the FBI is constitutional it would only be to enforce constitutional federal laws. Without Wickard, the NFA is unconstitutional

        Illinois law is relevant to what Illinois can do – Illinois does have a general police power.

        No one is arguing that Arson is not a crime, just not a legitimate federal crime.

        1. John Say – yes, that part about keeping a Republican form of government.

          1. Actually cite the constitution. It is not difficult. It is organized into articles and sections.

            There is no “keeping a republican form of government” section. We are free to amend the constitution as we please. So there could never be an always and forever something must be this way.

            There remains no federal police power.

            Virtually all sweeping federal laws are implimented under the commerce clause using expansive claims of interstate commerce.

            This of course disregards that the express purpose of the commerce clause as identified by the authors was to preclude states from regulating interstate commerce.
            They expected that the federal government would not be si stupid as to do so and that the contracts clause would be a significant obstacle – which it was for 150 years, until FDR.

  11. He looks better with the mask on. Probably can pickup more girls that way.

  12. Oh. George Floyd had Covis 19.
    Holy Molley!
    The defense will day that he died of covis and didn’t choke.
    No joke.

  13. It’s difficult to take law debate seriously when the highest officers in our land were involved in a coup in which few (if any) will ever be punished. While I understand the convoluted and despicable nature of the shenanigans here, we seem to live in a lawless society now anyway.

  14. He should be charged with city be ordinance violation for “not putting a cap on it.”.

  15. States Rights! Tht is a two word scream yelled out by Klan members. States have “powers”. People have rights.
    This defendant had a clown on his head. Not a crown.
    The feds have “powers” to prosecute terrorists.

  16. But, but, but … I thought the Democrats wanted more federalism. Is Weisman the prosecutor for this?

  17. We are on the cusp of a dilema here. I am an ardent believer in state’s rights, but when the state’s actions, such as sanctuary cities policies, endanger the rest of the state because of porous state borders, then federal action is needed to protect the other states from the inappropriate actions of a singular state. Like second hand smoke, as long as the smoker (the state), does not affect any other state, what they do is their own problem. This is why I will not accept that we should pay for profligate states such as CA and NY by offering them bail outs of budget deficits of their own making. Let them contain that mess within their own borders.

    1. Agreed, it’s another situation where we have to watch to make sure the cure isn’t worse than the crime. But power once given is rarely given back, voluntarily. At the moment, we don’t even know if the Republic will survive long enough to have honest debate on the particulars.

  18. Like most people, the feds know Illinois is a corrupt Dim enclave where Joker Boy here would receive a citation for illegal leaf burning and be back on the streets to commit more mayhem by noon. So to protect the public they charge him appropriately under federal law. Interstate commerce jurisdiction has always been the rubric of the Left to get the feds to intervene where it wants. It’s largely responsible for the feds bullying private in-state businesses. Now it’s being used to protect those businesses from Antifa pigs like this clown. Turnabout seems fair play to me.

    1. “Turnabout seems fair play to me.”

      Yeau, it does seem like fair play to beat them with their own rods, but it is safer not to leave those rods lying around.

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