Section 1863.

however, excluded from the definition of "federal public servant," as is the District of Columbia from the special territorial jurisdiction.42 Thus, disobedience of orders of District of Columbia police officers is not generally covered by this section. Such disobedience could, however, constitute an offense under this section if it obstructed, or would have obstructed, a Federal government function under the final jurisdictional branch herein.

The term "government function" is not defined in the Code.43 It is, however, intended to be broadly construed and could reach the activities of State or local officials when exercising Federal responsibilities. This jurisdictional base permits the punishing of conduct such as the failure to obey an order to depart from a Federal government building or agency in the course of a political demonstration, when the Occupancy prevents or would prevent the normal functions of the agency from being carried out.

4. Grading

An offense under this section is an infraction carrying a maximum prison term of five days. This is deemed to be a sufficient deterrent to and penalty for the disobedience of an order to move, disperse, or refrain from specified activity.

SECTION 1863. VIOLATING STATE OR LOCAL LAW IN AN ENCLAVE

1. In General

The problem of the application of penal laws in Federal enclaves that exist within the territorial limits of a larger governmental entity such as a State, territory, district, or possession, having its own code of criminal laws, has long been a vexing feature of our system of government. In part the magnitude of the problem is illuminated by the facts that the United States possesses concurrent or exclusive jurisdiction over some thirty million acres of land and owns more than one-fifth of all lands in the continental United States. But these statistics, while impressive, do not begin to portray the true complexity of the issue. Far from being uniform in nature, Federal enclaves exist in widely diverse forms, ranging from parkways, housing projects, post offices, and national parks to cemeteries, military installations, and Indian reservations. Moreover the degree of Federal jurisdiction over these areas varies across a spectrum of at least three relevant categories: (1) lands where there is exclusive Federal legislative jurisdiction; (2) lands where there is concurrent legislative jurisdiction with the State or other entity in which the enclave is located; and (3) lands where there is partial Federal legislative jurisdiction as to particular subjects.44

Ideally, a legislator might wish to weigh all these factors, as well as others (e.g., the content of the surrounding State or local law), in deciding what penal laws should apply within a particular Federal enclave. The consequence of such an enclave by enclave legislative assessment, however, would be, that Congress would need to create a

42 See Johnson v. United States, supra note 37. See also discussion infra of section 203 (b) in connection with section 1863 (Violating State or Local Law in an Enclave). 43 The term "government" is. however, defined in section 111.

44 See Working Papers, pp. 80-83. A fourth category exists as to certain lands where the United States has no legislative jurisdiction. but only a proprietary interest. As to this category, of course, there is no dilemma of choosing the law to be applied.

42-525-75-18

multiplicity of differing criminal codes of local application—a task of forbidding scope.

Given this state of affairs, the Committee considered four principal legislative alternatives: (1) no Federal criminal laws applicable in enclaves, (2) a congressionally fashioned comprehensive criminal code for all enclaves, (3) no congressionally defined enclave crimes but instead adopting as Federal law the entire criminal code of the State or other entity in which an enclave is located, and (4) a combination of (2) and (3) in which most crimes applicable in enclaves are congressionally defined, but State or local law is assimilated to eliminate gaps in coverage.45

As has been pointed out, Federal enclaves embrace a large portion of the lands within the United States in which many millions of persons live, work, and travel. The Federal Government, therefore, has a clear responsibility to make all necessary and proper laws in such places, particularly in the field of defining criminal conduct. The possibilities represented by options (1) and (3), i.e., either making no Federal criminal law applicable in enclaves (which would mean no criminal laws at all in enclaves over which the Federal government has exclusive jurisdiction), or of adopting entirely the often ill-suited criminal codes of the State or locality where an enclave is located, would constitute an unacceptable abdication of this responsibility. In the opinion of the Committee, there is a sufficiently strong Federal interest in the administration of enclaves to make it incumbent on Congress to proscribe penally certain conduct therein and to draft the overwhelming majority of the basic laws defining such conduct. In view of the perceived extent of the Federal government's interest in regulating criminal conduct in enclaves, the Committee carefully considered option (2), i.e., a comprehensive Federal code written by the Congress. Also considered was a variation of that approach, discussed by the consultant to the National Commission, of delegating to the agency responsible for administering an enclave the authority to promulgate regulations defining the penal conduct and the sanctions to be applied therein. Although a comprehensive approach would have certain advantages, such as enabling the Federal Government to tailor offenses to the needs of enclaves rather than rely in part on State or local laws to fill any gaps in Federal legislation, as a practical matter the burden on Congress would be prohibitive. Even if the effort took the slightly less onerous form of a delegation to the responsible agency, Congress would still have to undertake the task of establishing clear guidelines for the exercise of agency discretion both as to the creation of types of offenses and the imposition of penal sanctions in order to make the delegation conform to constitutional standards. Moreover the Committee did not favor the prospect of a substantial increase in the proportion of Federal criminal law found in regulations rather than legislation."

46

For these reasons the Committee rejected the comprehensive Federal law alternative for enclaves and determined that the basic approach represented by option (4) should be followed. Under this approach a small part of the law of the State or locality in which an enclave is situated is "assimilated" as the Federal law applicable therein, when the conduct is not covered by or is consistent with a Federal sta

45 See id. at 99-102. 46 See id. at 101-103.

tute. This approach continues present law which has been in effect in this country since 1825.48 Both S. 1, as originally introduced in the 93d Congress, and S. 1400 adopted the same approach.

The Committee's approach is designed primarily to guard against Federal enclaves becoming havens for the violation of the criminal laws of the State or locality in which they are situated, thereby needlessly creating friction within our Federal system. Because proposed section 1863 by and large follows the contours of current law, it can best be understood on the basis of an issue-by-issue comparison with the present statute which it would replace, the so-called Assimilative Crimes Act, 18 U.S.C. 13.

2. What Local Law is Assimilated

A. Present Law, 18 U.S.C. 13

This section provides for assimilation of an offense when conduct "would be punishable if committed" within the State or locality where the enclave is situated "by the laws thereof in force at the time" of the conduct. The latter aspect of the statute, allowing incorporation of local laws created after its enactment, which was added by amendment in 1948, presents no problem of interpretation and was sustained against constitutional challenge in United States v. Sharpnack. The language, "would be punishable if committed", is, however, ambiguous and has given rise to arguably conflicting decisions regarding the issue of whether the assimilation includes judicial constructions of the local law, and other laws or policies that would affect the prosecution in the local jurisdiction.

In United States v. Press Publishing Co.,50 the Supreme Court held that a State policy against more than one prosecution for the initial publication and subsequent circulation of a libel under its criminal libel statute operated to bar a Federal prosecution under the Assimilative Crimes Act based solely on the circulation of the libel within an enclave, notwithstanding that no State prosecution of the defendant had yet occurred.

In Kay v. United States,51 the court held that in a Federal prosecution under section 13 for violation of a Virginia statute proscribing driving an automobile while under the influence of alcohol, other related sections of Virginia law providing for the taking a blood sample, the introduction of chemical analysis reports, and the creation of presumptions arising from a finding of certain alcoholic content were assimilated into Federal law along with the definition of the offense. And in United States v. Andem,52 the court held that a State rule of statutory construction was binding in construing an assimilated statute. Reaching the opposite result are cases such as United States v. Johnson, where the court rejected an argument that a State law precluding double punishment for conspiracy and a completed offense must be assimilated, and United States v. Andem, supra, where the court declined to hold the State statute of limitations applicable, ruling that the time within which prosecution may be brought is not an element of the offense. 54

47 The perplexing question of determining when a State or local law is not to be assimilated even though no equivalent Federal statute exists, is discussed infra, pp. 870-872. 48 See Working Papers, p. 86.

49 355 U.S. 286 (1958).

50 219 U.S. 1 (1911).

51 255 F. 2d 476 (4th Cir.), cert. denied, 358 U.S. 825 (1958).

52 158 F. 996 (D.N.J. 1908).

63 426 F. 2d 1112, 1116-1117 (7th Cir.), cert. denied, 400 U.S. 842 (1970).

Similarly, in Smayda v. United States,54 the court held that it was not bound under the Assimilative Crimes Act by a State court ruling that certain police conduct violated the Fourth Amendment. And in McCoy v. Pescor,55 the court held that the sufficiency of an indictment is to be tested under Federal, not State, law in a prosecution under 18 U.S.C. 13.

B. Section 1863, S. 1, as Reported

Subsection (a) (1) of proposed section 1863 provides for assimilation of a State or local offense when a person engages in conduct "that constitutes an offense under the law then in force in the state or locality." The reference to "law then in force" is intended to carry forward the 1948 amendment of 18 U.S.C. 13, pursuant to which modifications in State or local law occurring after enactment of the Federal statute are assimilated on a continuing basis. Assimilating State law as it develops, in addition to obviating the need for periodic reenactments by the Congress, permits persons within an enclave to benefit from a State's determination that a particular law is too harsh or has some other defect warranting correction.

The phrase "conduct . . . that constitutes an offense" in subsection (a) (1), as opposed to the comparable language in 18 U.S.C. 13 "[conduct] which... would be punishable," is intended to provide a clearer standard for the determination of whether a particular substantive provision, judicial construction, or policy affecting prosecution under a local law is to be assimilated under this secton. Under the language utilized in subsection (a) (1), the touchstone of assimilability is whether the local law, judicial construction, or policy is related to the definition of the offense.56 Thus, generally speaking, local defenses (whether affirmative or otherwise) such as duress or mistake should be assimilated, while bars to prosecution, unrelated to conduct, such as a statute of limitations, should not.57 The Committee approves the decisions in the Andem, McCoy, and Smauda cases, dissused above, as consistent with this standard. The rationale in United States v. Press Publishing Co., supra, however, is not intended to be carried forward with the enactment of this section, as the State policy against double prosecution involved in that case was wholly unrelated to the definition of the offense. 58

A further purpose of the phrase "conduct . . . that constitutes an offense" is to permit incorporation of a common law crime under State or local law.59

3. Scope of Territorial Jurisdiction

A. Present Law 18 U.S.C. 13

The Assimilative Crimes Act is by its terms applicable to conduct. "within or upon" any of the places now existing or hereafter reserved or acquired as provided in section 7 of title 18, if the conduct would be punishable within the State, Territory, Possession, or District in which such place is located. Section 7 defines the special maritime and territorial jurisdiction of the United States in five subsections.

54 Supra note 52.

55 145 F. 2d 260, 262 (8th Cir. 1944), cert. denied, 324 U.S. 868 (1945).

56 See Kay v. United States, supra note 51, at 478-480.

57 See Working Papers, pp. 96-99.

58 The result in that case could be reached if, by recourse to the pattern of federal legislation it could he shown that Congress did not intend penal sanctions to extend to the circulation of a libel. See infra, pp. 870-871.

59 See Working Papers, pp. 94-99.

Subsections (1), (4), and (5) all relate to locations which are outside the boundaries of a State, Territory, District, or Possession, and thus are not places to which the Assimilative Crimes Act can apply.60 Subsections (2) and (3), therefore, define the areas "within or upon" which the Assimilative Crimes Act will apply:

(2) Any vessel, registered, licensed, or enrolled under the laws of the United States and being on a voyage upon the waters of any of the Great Lakes, or any of the waters connecting them, or upon the Saint Lawrence River where the same constitutes the International Boundary Line.

(3) Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building.

With respect to subsection (2), one commentator has questioned whether the Assimilative Crimes Act was meant to extend to the vessels and waters described there, arguing that the Act's "use of the word 'places' seems more appropriate in connection with land ownership" than with application to waters.61 The question seems largely of theoretical interest, since subsection 7(2) has not been a prolific source for the prosecution of Assimilative Crimes Act offenses. In apparently the only reported case in which the issue did arise, however, the court held that the Assimilative Crimes Act was applicable to conduct on a vessel in voyage on State waters of Lake Michigan.

62

Subsection 7(3) of title 18 sets forth the basic coverage of the Assimilative Crimes Act. The subsection has been held to apply, inter alia, to public lands, the Indian country, territories and possessions, military reservations and forts, locks and dams, post offices, national parks, and housing projects and airports.63 The subsection has been held inapplicable, however, to the District of Columbia on the ground that the phrase "lands reserved or acquired for the use of the United States" connotes "proprietary and not a governmental sense." * B. Section 1863, S. 1, as Reported

Although worded somewhat differently, section 1863 is designed to mirror quite closely the extent of territorial coverage of existing law. The section is by its terms applicable to conduct "in a place within the special territorial jurisdiction of the United States described in paragraphs 203 (a)(1), (a)(2), or (a)(3)" which provide as follows: 65

(1) any real property that is reserved or acquired for the use of the United States and that is under the exclusive or concurrent 60 Subsection (1) refers to the high seas or any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any State, and to certain vessels when on a voyage in such waters. Subsection (4) refers to islands, rocks, or keys containing deposits of guano which the President may consider as appertaining to the United States: offenses on such islands (which are outside the jurisdiction of any State) are presently punished as if committed on the high seas on board a United States vessel, see 48 U.S.C. 1417; Jones v. United States, 137 U.S. 202 (1890). Subsection (5) refers to certain aircraft while in flight over the seas and waters described in sub.section (1).

1 See Note, The Federal Assimilative Crimes Act, 70 Harv. L. Rev. 685, 687 (1957). 62 United States v. Gill, 204 F.2d 740 (7th Cir.), cert. denied. 346 U.S. 825 (1953). See generally the Federal Assimilative Crimes Act, supra note 61, at 686, and cases cited therein.

Johnson v. United States, supra note 37. at 415.

A fourth subsection not here applicable, refers to certain islands, rocks, or keys containing deposits of guano and is identical to 18 U.S.C. 7(4). See supra note 60.